memorandum of points and authorities in support of demurrer to jonatha

Cal. Super. - 1st Dist.June 17, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 1 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW LEWIS BRISBOIS BISGAARD & SMITH LLP BRIAN SLOME, SB# 238134 E-Mail: Brian.Slome@lewisbrisbois.com 333 Bush Street, Suite 1100 San Francisco, California 94104-2872 Telephone: 415.362.2580 Facsimile: 415.434.0882 Attorneys for Defendants/Cross-Defendants, Richard Kaluza, Erin Thompson and Compass California II, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JAMESTOWN SA LLC; a California limited liability company, MADELEINE TODD, an individual, Plaintiffs, vs. JONATHAN DISHOTSKY; an individual, RICHARD KALUZA; an individual, ERIN THOMPSON, an individual, COMPASS CALIFORNIA II, INC.; a Delaware Corporation, and DOES 1-10; Defendants. Case No. CGC-20-586295 CROSS-DEFENDANTS RICHARD KALUZA, ERIN THOMPSON AND COMPASS CALIFORNIA II, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT Date: January 20, 2021 Time: 9:30 a.m. Dept.: 501 Judge: Charles F. Haines Action Filed: August 21, 2020 Trial Date: None Set JONATHAN DISHOTSKY, an individual, Cross-Complainant, vs. RICHARD KALUZA, an individual; ERIN THOMPSON, an individual; COMPASS CALIFORNIA II, Inc., a Delaware Corporation; and ROES 1-10, Cross-Defendants. Cross-Defendants, Richard Kaluza, Erin Thompson and Compass California II, Inc., hereby submit the following memorandum of points and authorities in support of their Demurrer to Cross- Complainant Jonathan Dishotsky’s Cross-Complaint. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 12/15/2020 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 2 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW I. INTRODUCTION Plaintiffs, Jamestown SA LLC and Madeline Todd, (“Ms. Todd”) sue Jonathan Dishotsky (“Mr. Dishotsky”), for defrauding her into overpaying for a home located at 1904 Baker Street, San Francisco (“The Home”). Ms. Todd alleges that Mr. Dishotsky misrepresented the home’s size and condition in his disclosure packet and marketing material. Ms. Todd seeks to rescind the transaction or to obtain money damages. Mr. Dishotsky sues Compass California II Inc., and its salespersons Rick Kaluza and Erin Thompson, (collectively, “Compass”), for indemnity. He argues that only Compass is responsible to Ms. Todd because Compass prepared the marketing material, on his behalf and which he signed. Mr. Dishotsky’s claim fails as a matter of law. Mr. Dishotsky’s residential listing agreement, (“RLA”), contains an express indemnity provision requiring him to defend and indemnify Compass for the claims Ms. Todd alleges in her complaint. The RLA obligates Mr. Dishotsky to: “indemnify, defend and hold Broker harmless from all claims, disputes, litigation, judgments and costs arising from any incorrect or incomplete information supplied by seller or from any material facts seller knows but fails to disclose including dangerous or hidden conditions on the Property.” (RLA, ¶ 7 D, emphasis added.) This express indemnity provision bars Mr. Dishotsky’s claims for equitable indemnity. (Herman Christensen & Sons, Inc. v. Paris Plastering Co. (1976) 61 Cal.App.3d 237, 245, [“Where . . . the parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity”].) As a result, Compass’s demurrer should be sustained without leave to amend. II. STATEMENT OF FACTS A. Dishotsky Hires Compass to be His Agent to Sell the Home Mr. Dishotsky signed the RLA in August 2018, authorizing Compass to be his agent for the purpose of listing and selling The Home. (1¶ 10; RLA attached as Exhibit 1 to the Request for 1 Citations to ¶ refer to Mr. Dishotsky’s Cross-Complaint. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 3 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW Judicial Notice (“RJN”).) The RLA provides Compass authority to act as Mr. Dishotsky’s real estate broker from August 17, 2108 through February 16, 2019. It authorized Compass to list the home for sale at Three Million Dollars and to provide on his behalf marketing material to potential buyers. (Ibid.) The RLA specifies the parties’ obligations to each other in paragraph 7 which provides: A. Broker agrees to exercise reasonable effort and due diligence to achieve the purposes of this Agreement. Unless Seller gives Broker written instructions to the contrary, Broker is authorized, but not required, to (i) order reports and disclosures including those specified in 7C as necessary, (ii) advertise and market the Property by any method and in any medium selected by Broker, including MLS and the Internet, and, to the extent permitted by these media, control the dissemination of the information submitted to any medium; and (iii) disclose to any real estate licensee making an inquiry the receipt of any offers on the Property and the offering price of such offers. B. Seller agrees to consider offers presented by Broker, and to act in good faith to accomplish the sale of the Property by, among other things, making the Property available for showing at reasonable times and, subject to paragraph 3F, referring to Broker all inquiries of any party interested in the Property. Seller is responsible for determining at what price to list and sell the Property. C. Investigations and Reports: Seller agrees, within 5 (or ) Days of the beginning date of this Agreement, to pay for the following pre-sale reports: Structural Pest Control General Property Inspection Homeowners Association Documents D. Seller further agrees to indemnify, defend and hold Broker harmless from all claims, disputes, litigation, judgments attorney fees and costs arising from any incorrect or incomplete information supplied by Seller, or from any material facts that Seller knows but fails to disclose including dangerous or hidden conditions on the Property. (Emphasis added.) The RLA contains a seller’s advisory statement, which Mr. Dishotsky signed. (RJN, Exhibit 1.) The seller’s advisory explained to Mr. Dishotsky’s his obligation to affirmatively disclose to any potential buyer in writing all known facts that might affect the desirability of The Home. (See, ¶¶1- 2.) He was advised to consult with a real estate attorney in California of his choosing if he was unsure about the nature of his disclosure obligations. He was advised that “Broker cannot advise you on the legal sufficiency of any disclosures you make.” (Id. at ¶2 “A”) Mr. Dishotsky was 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 4 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW reminded: “You are advised that you, not the Broker, are responsible for the fees and costs if any, to comply with your duties to buyer of Your property.” Mr. Dishotsky also signed a disclosure of real estate agent relationships along with the RLA. (¶ 12 .) B. Mr. Dishotsky Sells The Home to Ms. Todd Ms. Todd made an offer to buy The Home on October 11, 2018. (First Amended Complaint (“FAC”), Exhibit “A”.) Mr. Dishotsky accepted the offer on October 12, 2018. (Ibid.) The Real Estate Purchase Agreement, (“RPA”), confirming the transaction, explained that Ms. Todd had or would review disclosures Mr. Dishotsky prepared. (FAC, Exhibit “A”, ¶ 48.) Ms. Dishotsky filled out and signed a Real Estate Transfer Disclosure Statement (“TDS”), on October 5, 2020. (FAC, Exhibit “E”) The TDS states in large, bold print: “THE FOLLOWING ARE REPRESENTATIONS MADE BY THE SELLER, NOT THE BROKER/AGENT(S), IF ANY.” (FAC, Exhibit “E”.) Through the disclosures, Mr. Dishotsky represented to Ms. Todd that: (1) The Home did not have any nonconforming or unwarranted or illegal units, additions or living spaces in the building. (FAC, Exhibit “E”, ¶ C 4) (2) The Home did not have any ongoing maintenance issues; (FAC, Exhibit “E”, ¶ C (5)); (3) The Home did not have any gutters or downspouts with leakage, (FAC, Exhibit “E” ¶ C (8)); (4) The Home was not subject to any seasonal leaks or water intrusion from the windows (FAC, Exhibit “E” ¶ C (9)). (FAC ¶ 43) Mr. Dishotsky made similar representations in a sellers’ questionnaire. (FAC Exhibit “F”). The questionnaire confirms that the representations contained therein belong solely to Mr. Dishotsky and are not attributable to Compass. Compass provided to Ms. Todd marketing material generated for Mr. Dishotsky as his agent. (FAC ¶ “C”). Mr. Dishotsky signed the marketing material, acknowledging having read and received the information as part of the disclosures to be provided to Ms. Todd. (Ibid.) Mr. Dishotsky also signed the multiple listing services report, prepared on his behalf by Compass. (RJN Exhibit 2.) He provided that document to Ms. Todd as well. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 5 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW C. Ms. Todd Claims That Mr. Dishotsky Provided Incorrect or Incomplete Information to Induce Her to Buy the Home Ms. Todd filed suit against Mr. Dishotsky and Compass on August 21, 2020. (¶ 7.) She filed the operative FAC on September 8, 2020. (¶ 8.) Her FAC alleges that Mr. Dishotsky gave incomplete and/or inaccurate information regarding The Home’s square footage and room count in the advertising, marketing, and disclosure documents. (FAC ¶ 9.) Mr. Dishotsky represented the Home had 1841 square feet of living space and 3 bedrooms. He was including in his square footage count areas that were not properly permitted. (FAC ¶ 26.) Ms. Todd claims The Home in fact had only 1356 square feet of living space and 1 bedroom. (¶ 10.) She claims Mr. Dishotsky committed fraud because, while he was representing the home had 1841 square feet, he also represented that The Home did not have any “nonconforming” “unwarranted” or “illegal” units, additions or living spaces. (FAC, ¶ 12, Exhibit “E”, ¶ C(4).) Ms. Todd also alleges that Mr. Dishotsky misrepresented the condition of the property or failed to disclose myriad items affecting its desirability. (FAC, ¶ 13.) D. Mr. Dishotsky’s Cross-Complaint Mr. Dishotsky tendered his defense of the claims in the case to Compass on September 15, 2020. (¶ 14.) Compass denied Mr. Dishotsky’s tender and demanded instead that he provide it a defense and indemnity. (Ibid.) Thereafter, Mr. Dishotsky filed a cross-complaint for equitable indemnity, contribution, declaratory relief, and tort of another. He claims a right to indemnity because Compass helped advertise the property for him as his agent. His claim cannot survive, however, because he promised to defend and indemnify Compass from any claim arising from a representation made to Ms. Todd about the property. All of Ms. Todd’s claims in this case arise from representations made by Mr. Dishotsky about the property. III. LAW AND ARGUMENT A. The Court Considers The Ultimate Facts Pled In Ruling On A Demurrer A pleading that fails to state facts sufficient to constitute a cause of action is subject to demurrer. (Code Civ. Proc., § 430.10; See, Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1482-1483.) The court may sustain a demurrer without 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 6 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW leave to amend where the nature of the plaintiff’s claim is clear and under the applicable substantive law it is plain that there can be no liability. (Award Metals, Inc. v. Super. Ct. (1991) 228 Cal.App.3d 1128, 1132.) The court determines whether to sustain a demurrer by accepting as true every material fact properly pleaded without accepting contentions, deductions, or conclusions of fact or law. (C&H Foods Company v. Hartford Insurance Company (1984) 163 Cal.App.3d 1055, 1062.) A complaint’s allegations are irrelevant, however, where they contradict documents attached as exhibits. (Frantz v. Blackwell (1987) 189 Cal.App.3d. 91, 94.) “[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.” (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th. 1112, 1130.) A trial court properly takes judicial notice of documents referenced in a complaint in ruling on a demurrer. (See, e.g., Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752- 761 [taking judicial notice of contract referred to in complaint proper on demurrer]; Total Call Internat., Inc. v. Peerless Ins. Co. (2010) 181 Cal.App.4th 161, 166 [documents "incorporated into [a plaintiff's] complaint" are "properly rel[ied] on . . . in assessing whether [a plaintiff's] claims are legally tenable"]; Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 956, fn. 6 ["Align referred to the Settlement Agreement in its complaint herein. As such, it was an appropriate matter of which the court could take judicial notice."]; City of Port Hueneme v. Oxnard Harb. Dist. (2007) 146 Cal.App.4th 511, 514 ["We may also consider material documents referred to in the allegations of the complaint"].) Here, the FAC, Cross-complaint, and judicially notice documents evidence Mr. Dishotsky’s claims for equitable indemnity cannot survive demurrer. B. The RLA Bars Mr. Dishotsky’s Claims 1. The RLA covers any claims arising from inaccurate disclosures provided to Ms. Todd An indemnity agreement is “a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.” (Civ. Code § 2772.) Indemnity agreements are to be interpreted according to the language of the contract as well as the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 7 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW intention of the parties as indicated by the contract. (Myers Bldg. Indus., Ltd. v. Interface Tech., Inc. (1993) 13 Cal.App.4th 949, 968 (“Myers”); Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, 1024, [holding that, the full extent of the duty to indemnify is determined from the contract itself] (Zalkind).) Here, the RLA describes the obligations that Mr. Dishotsky and Compass owe one another. The RLA and the seller’s advisory, which were signed together, explain that it is Mr. Dishotsky who must bear the risk of ensuring that disclosures provided to any potential buyer are accurate and adequate. (See, RJN Exhibit 1, ¶ 7.) The RLA’s express indemnity provision confirms that Mr. Dishotsky will indemnify, defend and hold Compass harmless for any legally insufficient disclosure made to a prospective buyer. (Id. at ¶ 7D.) The disclosures at issue here include the marketing material, MLS report, seller’s questionnaire and TDS. (FAC, ¶¶ 8-9.) 2. Ms. Todd’s lawsuit arises from the accuracy of Mr. Dishotsky’s disclosures Mr. Dishotsky agreed to indemnify Compass from “all … litigation and attorney fees" arising out of the failure to disclose known material facts to Ms. Todd: Seller further agrees to indemnify, defend and hold Broker harmless from all claims, disputes, litigation, judgments attorney fees and costs arising from any incorrect or incomplete information supplied by Seller, or from any material facts that Seller knows but fails to disclose including dangerous or hidden conditions on the Property. (RLA ¶ 7 “D”) Ms. Todd’s claims all arise from her claim that material facts were not disclosed by Mr. Dishotsky, when he sold her The Home. (See, FAC.) All of the information she was provided regarding the Home came from Mr. Dishotsky, the seller. Mr. Dishotsky is responsible for even the marketing material Ms. Todd cites as inaccurate. Those materials were provided by Mr. Dishotsky to Ms. Todd, by Mr. Dishotsky’s agent working in the course and scope of his agency. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691.) It is as though Mr. Dishotsky himself provided that information to Ms. Todd. This fact is confirmed by Mr. Dishotsky signing the marketing material and MLS information, confirming that he read it, and by Mr. Dishotsky including that information within the disclosures he provided to Ms. Todd. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 8 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW Thus, like in Zalkind v. Caradyne, Inc. (2011) 194 Cal.App.4th 1010, 1025, the indemnity agreement between Mr. Dishotsky and the Compass is written broadly to include all of the claims arising from a failure to disclose material facts. 3. The RLA Bars Claims for Equitable Indemnity and Contribution Where the parties have entered into an indemnity agreement, “[t]he extent of the duty to indemnify is determined from the contract.” (Myers, supra, 13 Cal. App. 4th at 968 (citing Herman Christensen & Sons, Inc. v. Paris Plastering Co. (1976) 61 Cal.App.3d 237, 245.). In Maryland Cas. Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 864 the court held that “where parties have expressly contracted with respect to the duty to indemnify, the extent of that duty is generally determined from the contract and not by reliance on the independent doctrine of equitable indemnity.” (See also, Rossmoor Sanitation, Inc. v. Pylon Inc. (1975) 13 Cal.3d 622, 628.) As a result, “principles of equitable or comparative indemnity are inapplicable when parties have an express indemnity agreement.” (Regional Steel Corp. v. Superior Court (1994) 25 Cal.App. 4th at 526, 529.) The RLA contains an express indemnity provision, which covers any claim arising from inaccurate disclosures provided to Ms. Todd. It bars any claim for equitable indemnity. (Kaiser Engineers Inc v. Grinnell Fire Protection Systems Co. (1985) 173 Cal.App.3d 1050, 1054; Herman Christensen & Sons, Inc. v. Paris Plastering Co. (1976) 61 Cal.App.3d 237, 245, [“Where . . . the parties have expressly contracted with respect to the duty to indemnify, the extent of that duty must be determined from the contract and not by reliance on the independent doctrine of equitable indemnity”].) C. Mr. Dishotsky’s Tort of Another Cause of Action Fails as A Matter of Law 1. Tort of Another is Not a Standalone Cause of Action The tort of another doctrine is an element of tort damages and is not in and of itself a cause of action. (Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1059- 1060.) The doctrine is an established exception to the general rule in California that attorney fees are to be paid by the party who employs the attorney. (Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620-621.) It applies in cases in which the defendant has wrongfully 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 9 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW made it necessary for a plaintiff to sue a third person. The doctrine provides 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. [Citations.]” (Id. at p. 620.) The tort of another theory can be applied only in cases where litigation is the direct result of the defendant's conduct. If the litigation was made necessary by the conduct of multiple persons, the theory is not available. (Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 980.) Here, where Ms. Todd has made various claims against Mr. Dishotsky based on his own obligations of disclosure, it would be illogical to argue that it was Compass’s fault he is defending this claim. 2. Tort of Another Does Not Apply Where Multiple Defendants Are Sued In Gorman v. Tassajara Development Corp. (2009) 178 Cal. App. 4th 44, the court held that the tort of another doctrine does not apply where a plaintiff has been damaged by the joint negligence of multiple persons. “The rule of Prentice was not intended to apply to one of several joint tortfeasors in order to justify additional attorney fee damages. If that were the rule there is no reason why it could not be applied in every multiple tortfeasor case with the plaintiff simply choosing the one with the deepest pocket as the ‘Prentice target.' Such a result would be a total emasculation of Code of Civil Procedure section 1021 in tort cases.” (Ibid.) Here, Mr. Dishotsky claims equitable indemnity and contribution as the underlying torts for which he bring suit. The basis of those claims is the existence joint responsibility. As a result, the tort of another doctrine does not apply. D. Mr. Dishotsky Has Not Pled a Declaratory Relief Cause of Action A request for declaratory relief cannot create a cause of action that does not otherwise exist. (California Assn. Of Private Special Edu. Sch. V. Department of Education (2006) 141 Cal.App.4th 360, 377.) To properly state a claim for declaratory relief, the plaintiff must plead an actual ongoing controversy and the facts of the respective claims concerning the controversy must be given. (Id.) Such a cause of action cannot be based upon a defective claim. (Id. at p. 377.) Declaratory Relief cannot be used where another claim has ripened into a legal or equitable claim covering the same 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 10 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW subject matter. (California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.app.3d 1617, 1623.) The California Supreme Court has held that causes of action for declaratory relief are subject to strict pleading requirements to avoid illusory causes of action: “The requirement that plaintiffs seeking declaratory relief allege ‘the existence of an actual, present controversy’ [citation] would be illusory if a plaintiff could meet it simply by pointing to the very lawsuit in which he or she seeks that relief. Obviously, the requirement cannot be met in such a bootstrapping manner; ‘a request for declaratory relief will not create a cause of action that otherwise does not exist.’ [Citations.] Rather, ‘an actual, present controversy must be pleaded specifically’ and ‘the facts of the respective claims concerning the [underlying] subject must be given.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.) Here, Mr. Dishotsky does not have a claim for declaratory relief against Compass. All of the claims related to the parties’ indemnity obligations are settled through the express indemnity provision within the RLA. IV. CONCLUSION Compass requests the court sustain their demurrer without leave to amend for the reasons set forth herein. DATED: December 15, 2020 LEWIS BRISBOIS BISGAARD & SMITH LLP By: Brian Slome Attorneys for Defendants/Cross-Defendants, Richard Kaluza, Erin Thompson and Compass California II, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4816-1679-9955.1 11 Case No. CGC-20-586295 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT LEWIS BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW CALIFORNIA STATE COURT PROOF OF SERVICE Jamestown SA LLC, et al. v. Jonathan Dishotsky, et al. San Francisco County Superior Court, Case No. CGC-20-586295 STATE OF CALIFORNIA, COUNTY OF CONTRA COSTA At the time of service, I was over 18 years of age and not a party to this action. My business address is 333 Bush Street, Suite 1100, San Francisco, CA 94104-2872. On December 15, 2020, I served true copies of the following document(s): CROSS-DEFENDANTS RICHARD KALUZA, ERIN THOMPSON AND COMPASS CALIFORNIA II, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO JONATHAN DISHOTSKY’S CROSS-COMPLAINT I served the documents on the following persons at the following addresses (including fax numbers and e-mail addresses, if applicable): Attorneys for Plaintiffs, Jamestown LLC and Madeleine Todd Ron U. Lunski Lunski & Stimpert LLP 201 Spear Street, Suite 1100 San Francisco, California 94105 Tel.: (415) 426-3525 Fax: (415) 426-3424 Email: ron@lunskilaw.com Attorneys for Defendant/Cross-Complainant Jonathan Dishotsky J. Leah Castella Nicholas J. Muscolino Burke, Williams & Sorensen, LLP 1901 Harrison Street, Suite 900 Oakland, California 94612-3501 Tel.: (510) 273-8780 Fax: (510) 839-9104 Email: lcastella@bwslaw.com Email: nmuscolino@bwslaw.com The documents were served by the following means:  (BY ELECTRONIC TRANSMISSION ONLY) Only by e-mailing the document(s) to the persons at the e-mail address(es) listed above based on notice provided on March 16, 2020 that, during the Coronavirus (COVID-19) pandemic, this office will be working remotely, not able to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 15, 2020, at Pittsburg, California. Lucia Suazo