Judge: Anne Hwang, Case: 22STCV21891, Date: 2024-04-24 Tentative Ruling

Case Number: 22STCV21891    Hearing Date: April 24, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On July 7, 2022, Plaintiff Latita Swan Washington (“Plaintiff”) filed a complaint against Defendants Federal Express Corporation and Does 1 to 50 for negligence and premises liability. Plaintiff alleges that on July 11, 2020, she slipped and fell on premises owned by Federal Express Corporation (“FEC”). 

            On February 21, 2023, FEC filed an answer and a cross-complaint against Universal Protection Service, LP, Uniserve Facilities Services, and Roes 1 to 100 for breach of contract, equitable indemnity, contribution, apportionment of fault, and declaratory relief.

            Universal Protection Service, LP (“Universal”), now moves to strike FEC’s cross complaint in its entirely because FEC did not obtain leave of court before filing it. Universal also separately filed a demurrer to the cross-complaint. FEC opposes and Universal replies.

LEGAL STANDARD

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (Code Civ. Proc. §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (Code Civ. Proc. § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) 

The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (Code Civ. Proc. § 436.) 

MEET AND CONFER

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).)  

According to the Declaration of Tobias Mark Kane, it appears the parties have met and conferred prior to bringing this motion. (See Kane Decl. ¶ 10.)

ANALYSIS

A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint.¿ (Code Civ. Proc. §§ 412.20(a)(3), 428.50(a), 432.10.)¿ Any other cross-complaint may be filed at any time before the court has set a trial date.¿ (Code Civ. Proc. §428.50(b).)¿¿¿ 

¿ 

If a party fails to file a cross-complaint within the time limits described above, he or she must obtain leave of court to file the cross-complaint.¿ (Code Civ. Proc., § 428.50(c).)

Here, Plaintiff’s complaint was filed July 7, 2022, and did not name Universal as a defendant. According to the Court’s records, the Notice of Case Assignment was filed July 7, 2022, and scheduled trial in this case for January 4, 2024. FEC filed its cross-complaint against Universal on February 21, 2023.

Therefore, because Universal was not named in the original complaint, and the cross-complaint was filed after the trial date was set, FEC was required to obtain leave of court before filing. (Code Civ. Proc. § 428.50(c).) Here, there is no indication in the record, and FEC does not assert in opposition, that it obtained leave of court to file the subject cross-complaint.

Therefore, because the cross complaint was not filed in conformity with the Code of Civil Procedure, the motion to strike is granted.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Universal Protection Service, LP’s motion to strike with leave for FEC to file a noticed motion for leave to file a cross-complaint. Said motion must be served and filed within 30 days of this order.

Moving party shall provide notice of the Court’s order and file a proof of service of such.

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On July 7, 2022, Plaintiff Latita Swan Washington (“Plaintiff”) filed a complaint against Defendants Federal Express Corporation and Does 1 to 50 for negligence and premises liability. Plaintiff alleges that on July 11, 2020, she slipped and fell on premises owned by Federal Express Corporation (“FEC”). 

            On February 21, 2023, FEC filed an answer and a cross-complaint against Universal Protection Service, LP, Uniserve Facilities Services, and Roes 1 to 100 for breach of contract, equitable indemnity, contribution, apportionment of fault, and declaratory relief.

            Universal Protection Service, LP (“Universal”), now demurs to the cross complaint arguing it fails to state a claim and is uncertain. Universal also moves to strike the cross complaint. FEC opposes and Universal replies.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

            Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).  

MEET AND CONFER

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

According to the Declaration of Tobias Mark Kane, it appears the parties have met and conferred prior to bringing this demurrer. (See Kane Decl. ¶ 3.)

JUDICIAL NOTICE

The Court grants Universal’s request for judicial notice of exhibits A–F. (Evid. Code § 452(d).)

ANALYSIS

First Cause of Action - Breach of Contract

The elements of a cause of action for breach of contract are: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.”  (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391, internal quotations omitted.)  “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.”¿ (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993, citations omitted.)¿ Terms of an oral contract may be pleaded generally as to its effect because it is rarely possible to allege the exact words. (Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640; Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  In pleading the existence of a contractual relationship, “the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Code Civ. Proc., § 430.10, subd. (g).)”  (Otworth v. Southern Pac. Transportation (1985) 166 Cal.App.3d 452, 458-59.)   

Here, the Cross-Complaint alleges the following.

“Cross-Complainant entered into a contract with Cross-Defendant UNIVERSAL PROTECTION SERVICE, LP d/b/a ALLIED UNIVERSAL SECURITY SERVICES for said Cross-Defendant to provide security services at the premises that Plaintiff identifies in her Complaint.” (Cross-Complaint ¶ 15.) “Cross-Defendant UNIVERSAL PROTECTION SERVICE, LP d/b/a ALLIED UNIVERSAL SECURITY SERVICES was the employer of Plaintiff at all times relevant to the Complaint.” (Id. ¶ 16.) “Pursuant to the contract, Cross-Defendant UNIVERSAL PROTECTION SERVICE, LP d/b/a ALLIED UNIVERSAL SECURITY SERVICES was required to secure a release from Plaintiff which releases FedEx and its affiliates from any liability for injuries that occur at the facilities, including the premises that Plaintiff identifies in her Complaint, and acknowledge that any such injuries sustained by Plaintiff will be covered by said Cross Defendant’s workers compensation program, is solely responsible for all workers compensation or other contributions for its employees, and is required to indemnify, hold harmless, and defend Cross-Complainant against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by Cross-Complainant, arising out of or resulting from a third-party claim like Plaintiff’s.” (Id. ¶ 17.)

Here, the cross-complaint does not specify whether the contract was oral, written, or implied by conduct. There are no verbatim terms of the purported contract, or any attachment to the cross-complaint. The cross-complaint also does not sufficiently allege the purported breach. Therefore, the demurrer to the first cause of action is sustained.

Remaining Causes of Action

Universal argues the remaining causes of action are foreclosed by Labor Code section 3864: equitable indemnity, contribution, apportionment of fault, and declaratory relief.

Under Labor Code section 3864, “the employer of an employee who is injured as the result of the joint negligence of the employer and a third party is no longer required to indemnify the third party in the absence of an express indemnification agreement.” (E. B. Wills Co. v. Superior Court (1976) 56 Cal.App.3d 650, 654.)[1] “Thus, no cause of action may be maintained against the employer for implied or equitable indemnity or contribution, but only on the basis of an express indemnity agreement. Otherwise, the employer's limited liability under Workers' Compensation law would be largely illusory. (See Gonzales v. R.J. Novick Constr. Co. (1978) 20 Cal.3d 798, 807–808, 144 Cal.Rptr. 408, 575 P.2d 1190.)” (Ralph M. Parsons Co. v. Combustion Equipment Associates, Inc. (1985) 172 Cal.App.3d 211, 216, fn. 2.)

Here, FEC has failed to specify an express indemnity agreement between the parties. It also has alleged that Plaintiff was Universal’s employee during the events of the underlying complaint. Therefore, based on the authorities above, Labor Code section 3864 forecloses the cause of action for equitable indemnity and contribution. The apportionment of fault cause of action similarly seeks to hold Universal partially liable for Plaintiff’s damages, and therefore is similarly foreclosed.

Turning to the final cause of action for declaratory relief, Code of Civil Procedure section 1060 states in part the following:

“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.”

In short, there must be an actual controversy relating to the legal rights and duties of the respective parties. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.)

“In a declaratory relief action, the ultimate facts are those facts establishing the existence of an actual controversy.” (Id.) Also, “ ‘an actual, present controversy must be pleaded specifically’ and ‘the facts of the respective claims concerning the [underlying] subject must be given.’ [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.)

Here, the declaratory relief cause of action similarly fails to set forth an express indemnity agreement between the parties. Therefore, on the face of the pleading, Labor Code section 3864 forecloses liability against Universal.

FEC requests leave to amend its cross-complaint to address the deficiencies. Universal opposes, arguing FEC has failed to show it can amend the pleading. In light of the Court’s ruling regarding the motion to strike, FEC may file a motion for leave to file a cross-complaint within 30 days. The motion must attach a proposed cross-complaint, addressing the deficiencies described herein and address the propriety of granting leave.

CONCLUSION AND ORDER

Therefore, the Court SUSTAINS Universal Protection Service, LP’s demurrer to the cross complaint filed by Federal Express Corporation.

Moving party shall provide notice of the Court’s ruling and file a proof of service of such.