Judge: Andrew E. Cooper, Case: 23CHCV03643, Date: 2024-07-19 Tentative Ruling

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Case Number: 23CHCV03643    Hearing Date: July 19, 2024    Dept: F51

DEMURRER

Demurrer filed: 4/2/24

MOVING PARTY: Cross-Defendant DoorDash, Inc. (“Cross-Defendant”)

RESPONDING PARTY: Defendant/Cross-Complainant Jorge Pantoja (“Cross-Complainant”)

NOTICE: OK 

RELIEF REQUESTED: Cross-Defendant demurs to Cross-Complainant’s entire cross-complaint.

TENTATIVE RULING: The demurrer is sustained with 30 days leave to amend.

BACKGROUND 

This is a premises liability action in which Plaintiff alleges that on 9/26/22, she was attacked and injured by Defendants’ two dogs while she and her brother were delivering food to Defendants’ residence located at 13886 Filmore St., Pacoima, California 91331. (Compl. ¶¶ 1, 9–14.) Plaintiff alleges that Cross-Complainant is the landlord of the subject property. (Id. at ¶ 5.)

On 11/29/23, Plaintiff filed her complaint, alleging against Defendants the following causes of action: (1) Negligence; (2) Premises Liability; (3) Strict Liability; and (4) Punitive Damages. On 3/1/24, Cross-Complainant filed his answer.

On 3/4/24, Cross-Complainant filed his cross-complaint, alleging the following causes of action: (1) Equitable Indemnity; (2) Equitable Apportionment; (3) Contribution; and (4) Declaratory Relief. On 4/2/24, Cross-Defendant filed the instant demurrer. On 4/24/24, Cross-Complainant served his opposition.[1] On 4/30/24, Cross-Defendant filed its reply.

ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Cross-Defendant¿demurs against Cross-Complainant’s entire cross-complaint, on the bases that Cross-Complainant fails¿to allege facts sufficient any of the causes of action contained therein.

A.    Meet-and-Confer

Cross-Defendant’s counsel declares that he met and conferred telephonically with Cross-Complainant’s counsel to discuss the issues raised in the instant demurrer, but the parties were unable to come to a resolution. (Decl. of Scot J. Rothmeyer, ¶ 2a.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Factual Sufficiency

Cross-Complainant alleges against Cross-Defendant the following causes of action: (1) Equitable Indemnity; (2) Equitable Apportionment; (3) Contribution; and (4) Declaratory Relief. “To state a claim for equitable indemnity, a defendant must allege the same harm for which he may be held liable is properly attributable—at least in part—to the cross-defendant.” (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445, fn.7.) A claim for contribution requires allegations of (1) “a money judgment,” (2) “rendered jointly against two or more defendants in a tort action,” (3) “in accordance with the principles of equity,” (4) “after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof,” (5) without intentional injury by the tortfeasor. (Code Civ. Proc. § 875, subds. (a)-(d).) “To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)

Here, Cross-Defendant argues that “neither Plaintiff’s original complaint nor Pantoja’s Cross-Complaint allege any conduct by DoorDash whatsoever.” (Dem. 4:12–13.) Specifically, Cross-Defendant argues that “the Cross-Complaint contains no substantive factual allegations regarding the underlying incident or the relationship of either Lopez or DoorDash to the incident, but instead incorporates by reference the allegations of the original Complaint. (Id. at 4:28–5:2, citing Cross-Compl. ¶ 8.)

Cross-Defendant maintains that the cross-complaint must fail because “Plaintiff Prieto has no claim for liability against DoorDash, and indeed is not seeking any recovery from DoorDash. (See Compl.) Further, DoorDash cannot be held liable to Plaintiff Prieto on any legal theory. It is not alleged that Prieto herself was operating as an independent contractor with DoorDash. Even if the Cross-Complaint were amended to allege that Prieto’s brother was operating as a contractor with DoorDash when she entered the Property, Prieto could still not assert a theory of liability against DoorDash as Prieto has no relationship with DoorDash, and her entering the Property was in no way connected with DoorDash.” (Dem. 7:5–11.)

Cross-Complainant argues in opposition that “a relationship such as employer/employee relationship did not need to exist between Plaintiff and Door Dash [sic] for Door Dash to be liable to Plaintiff for injuries that came about as a result of Door Dash’s negligence.” (Opp. 6:16–18.) Cross-Complainant also presents factual allegations extrinsic to his cross-complaint. (Id. at 7:1–15.) To this extent, the Court declines to consider these additional facts as they are not alleged in either Plaintiff’s complaint or Cross-Complainant’s cross-complaint. Upon further review of both the complaint and cross-complaint, the Court finds no factual allegations stated pertaining to Cross-Defendant’s alleged conduct. Furthermore, Plaintiff did not name Cross-Defendant as a defendant in this action. To the extent that Cross-Complainant purportedly discovered facts to support a claim for indemnity against Cross-Defendant, those facts are not alleged in his cross-complaint.

Cross-Complainant further argues that Cross-Defendant may be held vicariously liable under a theory of respondeat superior. (Id. at 7:16–24.) “The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) Here, the Court notes that Cross-Complainant raises this theory of liability without applying factual allegations, whether alleged in the pleadings or otherwise. However, as Cross-Defendant notes in reply, no employer/employee relationship between Cross-Defendant and any party is alleged here in either of the operative pleadings, nor any tort of any purported employee. “Without an underlying tortious act by an employee acting within the course and scope of employment, no respondeat superior liability may attach.” (Reply 3:25–27, citing Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 477.)

Based on the foregoing, the Court finds that Cross-Complainant has not alleged facts sufficient to constitute any causes of action against Cross-Defendant. Accordingly, the demurrer is sustained against the entire cross-complaint on this basis.

C.    Leave to Amend

The Court notes that Cross-Complainant specifically requests leave to amend in the event the Court sustain the instant demurrer, and that this is the first demurrer brought against Cross-Complainant’s cross-complaint. Therefore, under the Court’s liberal policy of granting leave to amend, Cross-Complainant is granted 30 days leave to amend the cross-complaint to cure the defects set forth above.

CONCLUSION 

The demurrer is sustained with 30 days leave to amend.