Filed 6/18/14 Mortazavi v. Super. Ct. CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



MAJID MORTAZAVI et al.,                                          D065213

         Petitioners,                                            (Super. Ct. No.
                                                                  37-2012-00090738 CU-OR-CTL)
         v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

         Respondent;


PARDEE HOMES,

         Real Party in Interest.



         Petition for writ of mandate from an order of the Superior Court of San Diego

County, Joel R. Wohlfeil, Judge. Petition denied.

         Worthington Law Offices and Brian Paul Worthington for Petitioner.

         Seltzer Caplan McMahon Vitek, Christine Marie LaPinta and Trevor B. Potter, for

Real Party in Interest.
       No appearance for Respondent.

                                             I.

                                    INTRODUCTION

       Petitioners Majid Mortazavi (Majid) and his wife, Soodabeh Mortazavi,

(collectively "the Mortazavis") purchased a parcel of real property (the Property) from

real party in interest, Pardee Homes (Pardee), in 2004. The Mortazavis sold the Property

to Glynis Sive in 2011. The following year, Sive filed a complaint against the

Mortazavis. In her complaint, Sive alleged that during the sale transaction, the

Mortazavis falsely represented that the Property did not encroach on any adjoining

properties. Sive's complaint contained six claims, including fraud, breach of contract,

negligent misrepresentation, and three rescission-based causes of action. The Mortazavis

cross-complained against Pardee for equitable indemnity and for declaratory relief and

tort of another, related to the equitable indemnity claim. The essence of the Mortazavis'

claims was that Pardee failed to properly "represent and mark the boundary of the

Property," and that the Mortazavis had "relied on the representations of [Pardee] which

led to [Sive] suffering the damages in the Complaint, if any."

       Pardee filed a motion for summary judgment. In its briefing, Pardee argued that in

order for one party to state a claim for equitable indemnity against another party, the two

parties must share a joint legal obligation to a third party. Pardee maintained that the

Mortazavis could not state an equitable indemnity claim against Pardee because Pardee

did not owe any duty to Sive. Pardee supported this contention by noting that it was

                                             2
undisputed that Pardee did not sell the Property to Sive nor did it make any

representations to her concerning the Property. After concluding that Pardee did not owe

Sive any duty with respect to the claims asserted by Sive against the Mortazavis in her

complaint, the trial court concluded that Pardee was entitled to judgment as a matter of

law on the Mortazavis' equitable indemnity claim and its related claims for declaratory

relief and tort of another. Accordingly, the trial court granted Pardee's motion for

summary judgment.

       In their writ petition,1 the Mortazavis contend that the trial court erred in granting

Pardee's motion for summary judgment. The Mortazavis contend that they and Pardee

are "potential joint tortfeasors" to Sive because it was "reasonably foreseeable" that the

Mortazavis would sell the Property at some point after purchasing it from Pardee. We

conclude that Pardee owed Sive no duty related to the claims that Sive asserts in her

complaint against the Mortazavis. We therefore conclude that the trial court properly

granted Pardee judgment as a matter of law on the Mortazavis' equitable indemnity claim

and their related claims for declaratory relief and tort of another. Accordingly, we deny

the petition.




1      Pardee also filed a cross-complaint against the Mortazavis and Sive, among others.
Because Pardee's complaint against the Mortazavis remained pending at the time the trial
court entered its order granting Pardee summary judgment on the Mortazavis' cross-
complaint, there was no final judgment as to Pardee from which the Mortazavis could
appeal.

                                              3
                                             II.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     The Mortazavis purchase the Property from Pardee

       The Mortazavis purchased the Property from Pardee in 2004. The Property was an

"unimproved lot" on which the Mortazavis intended to build a house.

B.     The Mortazavis construct improvements on the Property

       In 2007, Majid hired a surveyor to determine the boundaries of the Property. The

surveyor was unable to locate any boundary markers for the rear of the Property, but

found monuments at the front of the Property located in the sidewalk. The subdivision

map for the development in which the Property is located (subdivision map) stated that

the front property line for the Property was offset seven feet from the monuments. The

surveyor relied on the monuments at the front of the Property and the offset as listed in

the subdivision map to mark the boundaries of the Property. The surveyor completed all

of his work prior to August 2008. The Mortazavis performed construction on the

Property according to the surveyor's markings.

C.     The certificate of correction

       Pardee recorded a "Certificate of Correction" to the subdivision map in November

2008. The correction stated that the distance of the offset from the monuments in the

sidewalk to the front property line of the Property was two feet rather than seven feet.




                                             4
D.     The Mortazavis sell the Property to Sive

       The Mortazavis sold the Property to Sive in 2011. Pardee was not a party to the

sale nor was it in any way involved in the sale.

E.     Sive files a complaint against the Mortazavis

       Sive filed a complaint against the Mortazavis in January 2012. Sive brought six

claims against the Mortazavis: rescission-fraud; rescission-negligent misrepresentation;

rescission-mistake; breach of contract; fraud; and negligent misrepresentation. All of

Sive's claims are premised on the Mortazavis' sale of the Property to Sive. Specifically,

as relevant to this writ petition, Sive's claims are based on the following factual

allegations:

          "In and around May 2011 and June 2011 during the course of
          [Sive's] purchase of the Property, the Mortazavis completed several
          written disclosure statements regarding the condition of the Property.
          Through these disclosures, the Mortazavis affirmatively represented
          the Property did not encroach onto any of the adjoining properties
          and that the Property, and its improvements, met all applicable
          zoning and setback requirements. The representations made by the
          Mortazavis were in fact false. The true facts were that the Property
          encroached onto an adjoining property by approximately eight feet
          by one hundred feet (8' by 100')."2




2     In her complaint, Sive also alleged that the Mortazavis falsely represented that the
Property abutted an "open space area in which future development would not occur."
The Mortazavis did not seek indemnity from Pardee for this alleged misrepresentation.
                                            5
F.     The Mortazavis file a cross-complaint against Pardee

       The Mortazavis filed a cross-complaint against Pardee that contained causes of

action styled as "implied indemnity," "declaratory relief," and "tort of another."

       In their implied indemnity cause of action, the Mortazavis alleged that Pardee was

"in some manner responsible for the allegations contained in [Sive's] complaint."

Specifically, the Mortazavis alleged:

          "[The Mortazavis] are informed and believe, and thereon allege, that
          at all times herein, Pardee had a duty to properly represent and mark
          the boundary of the Property but failed to do this. [The Mortazavis]
          relied on the representations of [Pardee] which led to [Sive]
          suffering the damages in the complaint, if any."

       The Mortazavis also alleged that they sought "indemnity against [Pardee] for all

amounts expended for investigation, attorney's fees, court costs, and other expenses in the

defense of [Sive's] claim."

       In their declaratory relief claim, the Mortazavis sought a declaration that they were

entitled to indemnification from Pardee.

       In their cause of action styled as "tort of another," the Mortazavis incorporated the

allegations of the remainder of their cross-complaint, including their equitable indemnity

cause of action, and further alleged:

          "As a proximate result of the wrongful conduct of [Pardee], [the
          Mortazavis] have been required to act in the protection of their
          interests by defending the above-entitled action against third
          persons, namely [Sive]. As such, [the Mortazavis] are entitled to
          recover compensation for the reasonably necessary loss of time,
          attorney's fees and other expenditures thereby suffered and incurred
          by [the Mortazavis] in the defense of such action."

                                             6
G.     Pardee's motion for summary judgment

       Pardee filed a motion for summary judgment. In its motion, Pardee interpreted the

Mortazavis' "implied indemnity" cause of action as stating a claim for "implied

contractual indemnity." Pardee argued that it was entitled to summary judgment because

the undisputed evidence established that Pardee had not breached any agreement upon

which the Mortazavis could state a claim for implied contractual indemnity. In the

alternative, Pardee argued that to the extent the Mortazavis were attempting to assert a

claim for "pure equitable indemnity," such a claim "would also fail." In support of this

contention, Pardee argued, "Pardee cannot be liable for Mortazavi relying on Pardee

failing to perform its purported duty to mark the boundary." Pardee also argued that it

was entitled to judgment as a matter of law on the Mortazavis' claim for declaratory relief

because that claim was redundant of the indemnity cause of action. Finally, Pardee

contended that it was entitled to judgment as a matter of law on the Mortazavis' tort of

another claim because Sive's complaint was not based on Pardee's acts or representations.

       In their opposition, the Mortazavis clarified that their first cause of action was for

"equitable indemnity," not implied contractual indemnity.3 The Mortazavis further

contended that there was a triable issue of fact as to their equitable indemnity claim


3      The Mortazavis acknowledged that in their cross-complaint, they had styled their
indemnity claim as one for "implied indemnity," but contended that "that label is
irrelevant." The Mortazavis argued further that "[t]he facts alleged in the first cause of
action clearly state a claim for traditional equitable indemnity, as the contract [between
the Mortazavis and Pardee] is not referenced at all."
                                               7
because there was "evidence that Pardee was at fault for the encroachment that is the

subject of Sive's complaint." In support of this contention, the Mortazavis contended that

there was evidence that Pardee had failed to place any rear boundary markers on the

Property and had misidentified the length of an offset on the subdivision map related to

the location of the property line at the front of the Property, and that these errors on

Pardee's part had caused the surveyor that the Mortazavis hired to err in determining the

boundaries of the Mortazavis' property. With respect to their declaratory relief claim, the

Mortazavis argued that there was a triable issue of fact as to "whether Pardee must

indemnify the Mortazavis." Finally, the Mortazavis contended that Pardee was not

entitled to judgment as a matter of law on the Mortazavis' tort of another claim because

there was evidence that "Pardee was negligent regarding the setting of the rear boundary

monuments and regarding the offset from the front monuments."

       In its reply, Pardee argued that it was entitled to judgment as a matter of law on

the Mortazavis' equitable indemnity claim. Pardee argued that because it did not owe

Sive a duty with respect to Sive's claims, it was not a joint tortfeasor with the Mortazavis

and thus, the Mortazavis could not prevail on their equitable indemnity claim against

Pardee. Pardee also reiterated its arguments that the Mortazavis' declaratory relief claim

was redundant of its indemnity claim and that Pardee was entitled to judgment as a matter

of law on the Mortazavis' tort of another claim because Pardee's conduct had not given

rise to Sive's claims.



                                              8
H.     The trial court's order granting Pardee's motion for summary judgment

       The trial court concluded that Pardee was entitled to judgment as a matter of law

on all of the Mortazavis' claims and granted Pardee's motion for summary judgment.

I.     The Mortazavis' writ petition

       The Mortazavis filed a petition for writ of mandate. In their petition, the

Mortazavis contend that the trial court erred in granting Pardee's motion for summary

judgment. After Pardee filed an informal response, this court issued an order to show

cause and stayed all further proceedings in the trial court. Pardee then filed a return to

the petition, and the Mortazavis filed a reply.

                                             III.

                                       DISCUSSION

A.     Pardee is entitled to judgment as a matter of law on the Mortazavis' equitable
       indemnity claim

       The Mortazavis contend that the trial court erred in granting Pardee judgment as a

matter of law on their equitable indemnity claim.

       1.     Governing law

              a.     General principles of law governing summary judgment

       A moving party is entitled to summary judgment when the party establishes that it

is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd.

(c).) A defendant may make this showing by demonstrating that the plaintiff cannot

establish one or more elements of all of his causes of action, or that the defendant has a


                                              9
complete defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th

461, 466.)

       In reviewing a trial court's ruling on a motion for summary judgment, the

reviewing court makes " 'an independent assessment of the correctness of the trial court's

ruling, applying the same legal standard as the trial court in determining whether there

are any genuine issues of material fact or whether the moving party is entitled to

judgment as a matter of law. [Citations.]' [Citation.]" (Trop v. Sony Pictures

Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)

                b.      Equitable indemnity

       In Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1208, this

court explained that the doctrine of equitable indemnity provides a manner by which joint

tortfeasors may apportion liability owed to a third party:

             " 'Where multiple tortfeasors are responsible for an indivisible injury
             suffered by the plaintiff, each tortfeasor is jointly and severally liable
             to the plaintiff for those damages and thus may be held individually
             liable to the injured plaintiff for the entirety of such damages.'
             [Citation.] Such liability is premised on the notion that ' "the
             'wronged party should not be deprived of his right to redress,' but
             that '[t]he wrongdoers should be left to work out between themselves
             any apportionment.]' " ' [Citation.]

             "Equitable indemnity is one manner by which joint tortfeasors may
             apportion such joint and several liability. 'The right to indemnity
             flows from payment of a joint legal obligation on another's behalf.
             [Citations.]' [Citation.]"

       In order to state a claim for equitable indemnity, the prospective indemnitor and

the prospective indemnitee must be jointly liable to the third party. (See, e.g, Prince v.

                                                10
Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1160 (Prince) ["traditional equitable

indemnity . . . is not available in the absence of a joint legal obligation to the injured

party"]; BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004)

119 Cal.App.4th 848, 852 ["Although the body of law defining and applying principles of

equitable indemnity has not fully gelled but is still evolving, one thing is clear: The

doctrine applies only among defendants who are jointly and severally liable to the

plaintiff."]; Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 573 ["neither

traditional equitable indemnity nor implied contractual indemnity is available 'in the

absence of a joint legal obligation to the injured party' [citation]"].) That is because, "A

derivative equitable indemnity action is based on an indemnitee's joint legal obligation

with an indemnitor to a third party, not the indemnitor's direct liability to the

indemnitee." (Greystone Homes, Inc. v. Midtec, Inc., supra, 168 Cal.App.4th at p. 1218,

italics added.) Therefore, "As against the indemnitee, the indemnitor may invoke any

substantive defense to liability that is available against the injured party." (Children's

Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787.)

       2.     Application

       In order for the Mortazavis to prevail on their equitable indemnity claim against

Pardee, the Mortazavis are required to establish that they and Pardee shared a joint legal

obligation to Sive.4 (See, e.g, Prince, supra, 45 Cal.4th at p. 1160.) In its order, the trial


4     In their memorandum in support of their writ petition, the Mortazavis
acknowledge that the doctrine of equitable indemnity permits "multiple tortfeasors" to
                                            11
court stated, "It is undisputed that [Pardee] does not owe a duty to plaintiff Sive, as there

is no relationship between these parties." We agree with the trial court that Pardee did

not owe Sive a duty related to any of the claims in Sive's complaint.5

       As noted above, in her complaint, Sive brought six claims against the Mortazavis

related to the Mortazavis' sale of the Property to Sive. It is undisputed that Pardee was

not in any way involved in the sale of the Property to Sive. Further, any alleged

negligent misrepresentations that Pardee made to the Mortazavis in connection with

Pardee's sale of the Property to the Mortazavis6 cannot serve as the basis of a claim by

Sive against Pardee, because there is no evidence that Pardee made any representations to

the Mortazavis for the benefit of Sive. (See, e.g., Bily v. Arthur Young & Co. (1992) 3



apportion "joint and several liability" owed to a third party plaintiff. In their reply, the
Mortazavis claim that the "Mortazavis and Pardee . . . are potential joint tortfeasors."

5       In its order granting summary judgment, the trial court also stated: "In order for
equitable indemnity to apply [Pardee] must owe a duty to either [Sive] or directly to [the
Mortazavis]." (Italics added.) The trial court was incorrect in stating that the Mortazavis
could state a claim for equitable indemnity against Pardee based on Pardee owing the
Mortazavis a duty. (See Greystone Homes, Inc. v. Midtec, Inc., supra, 168 Cal.App.4th
at p. 1218 [equitable indemnity is premised on indemnitor's duty to a third party rather
than indemnitor's liability to indemnitee].)

6       In addition to stating that Pardee did not owe a duty to Sive (a conclusion with
which we agree as stated in the text), the court also stated that Pardee "owed no duty" to
the Mortazavis. The bulk of the Mortazavis' briefing in this court focuses on the trial
court's conclusion that Pardee did not owe the Mortazavis a duty. We need not determine
whether Pardee owed the Martazavis a duty in order to conclude that the trial court
properly granted Pardee judgment as a matter of law on the Mortazavis' equitable
indemnity claim because Pardee owed Sive no duty. We note that the Mortazavis did not
bring a claim for negligence or breach of contract against Pardee.
                                               12
Cal.4th 370, 392 ["a supplier of information is liable for negligence to a third party only

if he or she intends to supply the information for the benefit of one or more third parties

in a specific transaction or type of transaction identified to the supplier"]; accord 5

Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 825 ["The class of persons

entitled to rely on the representations is restricted to those to whom or for whom the

misrepresentations were made"]; Rest.2d Torts § 552, com. h ["The rule stated in this

Section subjects the negligent supplier of misinformation to liability only to those persons

for whose benefit and guidance it is supplied"].)

       The Mortazavis argue that Pardee was "negligent" in failing to correctly identify

the offset in its subdivision map and in failing to set rear boundary markers on the

Property. However, the Mortazavis do not cite, and our own research has not uncovered,

any authority that would support the proposition that a third party purchaser may state a

claim in negligence against a subdivider based on inaccurate statements in a subdivision

map or improperly setting property boundary markers. Further, while the Mortazavis

argue that it was "reasonably foreseeable that the Mortazavis might sell the property, and

that the subsequent buyer would face liability for any encroachment that Pardee caused,"

this argument fails because "foreseeability is not a substitute for legal duty." (Coldwell

Banker Residential Brokerage Co., Inc. v. Superior Court (2004) 117 Cal.App.4th 158,

167.) Even assuming that Pardee could have reasonably foreseen that the Mortazavis

would, at some unspecified time in the future, sell the Property that they purchased from

Pardee to a third party purchaser, this fact would not establish a duty between Pardee and

                                              13
any potential third party purchasers. (See ibid. [real estate broker did not owe duty to

third party because "the mere existence of foreseeability of harm to persons other than

parties to the real estate transaction is, for public policy reasons, not sufficient to impose

liability on a supplier of information"]; accord 5 Witkin, supra, § 825 [liability for

negligent misrepresentation "does not extend to damages resulting from any reliance that

might have been foreseen, but only to damage from the particular action which the

defendant intended to induce, or something substantially similar"].)

       Accordingly, in light of the undisputed evidence establishing that Pardee did not

share any joint legal obligation with the Mortazavis vis-á-vis Sive, we conclude that

Pardee is entitled to judgment as a matter of law on the Mortazavis' equitable indemnity

claim against Pardee. (See, e.g, Prince, supra, 45 Cal.4th at p. 1160 ["traditional

equitable indemnity . . . is not available in the absence of a joint legal obligation to the

injured party"].)

B.     Pardee is entitled to judgment as a matter of law on the Mortazavis' claim for
       declaratory relief

       The Mortazavis contend that the trial court erred in granting judgment as a matter

of law for Pardee on the Mortazavis' declaratory relief cause of action because there is a

"triable issue of fact whether Pardee must indemnify the Mortazavis." In light of our

conclusion that Pardee is entitled to judgment as a matter of law on the Mortazavis'

equitable indemnity claim, we conclude that Pardee is entitled to judgment as a matter of

law on the Mortazavis' related declaratory relief cause of action.


                                              14
C.     Pardee is entitled to judgment as a matter of law on the Mortazavis' cause of
       action for tort of another

       The Mortazavis claim that the trial court erred in granting Pardee judgment as a

matter of law on their cause of action for tort of another.

       1.      The doctrine of tort of another

       In Mega RV Corporation v. HWH Corporation (2014) 225 Cal.App.4th 1318,

1337-1338 (Mega RV Corporation), the Court of Appeal outlined the doctrine of tort of

another:

            "Ordinarily, pursuant to the American rule, a party must pay for its
            own attorney fees unless a contract or statute provides authority for
            recovery of attorney fees from a litigation opponent. The tort of
            another doctrine holds that '[a] person who through the tort of
            another has been required to act in the protection of his interests by
            bringing or defending an action against a third person is entitled to
            recover compensation for the reasonably necessary loss of time,
            attorney's fees, and other expenditures thereby suffered or incurred.'
            (Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d
            618, 620.) The tort of another doctrine is not really an exception to
            the American rule, but simply 'an application of the usual measure of
            tort damages.' [Citations.]"

       As suggested by the Mega RV Corporation court, the tort of another doctrine is

not a separate cause of action, but rather a theory of tort damages. (See Sooy v. Peter

(1990) 220 Cal.App.3d 1305, 1310 ["the third party tort 'exception' is in fact an element

of tort damages"].)

       2.      Factual and procedural background

       In its order granting summary judgment, the trial court ruled that Pardee was

entitled to judgment as a matter of law on the Mortazavis' tort of another claim because

                                             15
Pardee did not owe Sive a duty and was not "required to indemnify [the Mortazavis] for

any potential judgment or for defense costs."

       3.     Application

       In their briefing in this court, the Mortazavis argue, "As discussed above [in

connection with their equitable indemnity argument] there is evidence that Pardee was

negligent regarding the setting of the rear boundary monuments and regarding the offset

from the front monuments." We concluded in part III.A., ante, that the trial court

properly granted judgment as a matter of law for Pardee on the Mortazavis' equitable

indemnity claim. Thus, the Mortazavis were not entitled to recover any damages

pursuant to the doctrine of tort of another based on their equitable indemnity claim.

Accordingly, the trial court properly granted Pardee judgment as a matter of law on the

Mortazavis' cause of action styled as "tort of another."7




7       In its order, the trial court also stated that Pardee did not owe the Mortazavis a
duty and that "[i]n the absence of such a duty, no 'tort' could have been committed." We
need not determine whether the trial court was correct in this regard, because the only
basis on which the Mortazavis sought to recover on their claim for tort of another was
their equitable indemnity claim. As noted previously, the Mortazavis did not bring a
negligence claim against Pardee. (See fn. 6, ante.) Accordingly, we have no occasion to
consider whether the Mortazavis might have been able to collect such damages pursuant
to the tort of another doctrine premised on Pardee's alleged commission of a tort against
the Mortazavis. (See Sixta v. Ochsner (1960) 187 Cal.App.2d 485, 491 [cross-
complainant vendee could recover attorney fees incurred in defense of subsequent
purchaser's action due to cross-defendant vendor's negligent misrepresentation that
improvements were located on real property sold by vendor to vendee].) Further, we are
aware of no case law, and the Mortzazavis have cited none, holding that a party may
recover damages pursuant to the doctrine of tort of another in the absence of proof of an
underlying tort or an indemnity cause of action.
                                                 16
                                            IV.

                                        DISPOSITION

       The petition is denied. The stay issued on February 25, 2014 is vacated. Pardee is

entitled to costs in this proceeding.




                                                                             AARON, J.

WE CONCUR:



         O'ROURKE, Acting P. J.



                          IRION, J.




                                            17
