Judge Audra Mori, Case 20STCV43059 2022-10-10 Tentative Ruling

Plaintiff, Edward Mike Hernandez (“Plaintiff”) filed this action against defendants Dung Van Tran and Tymond Tran for damages arising from a motor vehicle accident. Plaintiff alleges Dung Van Tran negligently rear-ended Defendants’ vehicle into Plaintiff’s vehicle. Defendants Dung Van Tran and Tymond Tran (collectively, “Cross-Complainants”) have filed a cross-complaint against Uber Technologies, Inc. (“Uber") and Portier, LLC (collectively, “Cross-Defendants”) asserting claims for equitable indemnity, contribution and apportionment of fault, and declaratory relief. The cross-complaint alleges that Cross-Defendants contributed to and caused the happening of the accident.

Cross-Defendants now demur to the cross-complaint arguing that the three causes of action fail to state a claim against them as a matter of law. Cross-Complainants oppose, and Cross-Defendants filed a reply.

Cross-Defendants contend that the claims are not available because Cross-Defendants are immune from liability to Plaintiff, and Cross-Defendants cannot be liable to Cross-Complainants in the absence of a joint legal obligation to the injured party. Cross-Defendants assert that the subject incident occurred on December 7, 2019, which made the last day for Plaintiff to file a personal injury action against Cross-Defendants June 7, 2022, so Plaintiff is statutorily time-barred from holding Cross-Defendants liable. Further, Cross-Defendants argue that Plaintiff unequivocally testified that he was an independent contractor at the time of the accident, so Cross-Defendants cannot be liable for Plaintiff’s injuries.

In opposition, Cross-Complainants contend that their causes of action did not accrue when Plaintiff filed the complaint, but instead accrue at the time a judgment or settlement is paid. Cross-Complainants assert that at the time of the accident, Plaintiff was driving his vehicle doing an UberEats delivery, and that Cross-Defendants were substantial factors in causing the accident.

In reply, Cross-Defendants again argue that there can be no indemnity without liability, nor can claims for comparative contribution or declaratory relief survive in the absence of a joint and legal obligation to the inured party- Plaintiff. Cross-Defendants aver Cross-Complainants misinterpret the relevant authority and fail to address Cross-Defendants’ independent contractor argument.

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). (CCP §§ 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.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[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.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The Court finds Cross-Defendant have fulfilled this requirement prior to filing the demurrer. (Demurrer Pantuch Decl. ¶ 5.)

Cross-Defendants, with their reply, submit eight objections to evidence submitted with Cross-Complaints’ opposition. The objections pertain to Cross-Complainants’ declaration and various exhibits attached thereto, including a traffic collision report, Plaintiff’s responses to special interrogatories, deposition transcripts, a photo of Plaintiff’s vehicle, and Terms and Conditions. The Court may not consider evidence on demurrer, as a complaint is limited to the face of the cross-complaint and matters of which the Court make take judicial notice, of which Cross-Complainants do not establish it is proper to do so. All objections are therefore sustained.

Cross-Defendants request the Court take judicial notice of (1) Plaintiff’s complaint filed in this action on November 10, 2020, and (2) that on July 1, 2021, Plaintiff was deposed and testified to being an independent contractor for Uber. Cross-Defendants state that Plaintiff’s relevant deposition testimony was attached to the declaration of Cross-Complainants’ counsel filed with their motion for leave to file a cross-complaint. Cross-Complainants object to judicial notice being taken of Plaintiff’s deposition testimony.

The request is granted as to Plaintiff’s complaint filed in this case; however, the Court does not take judicial notice of the truth of any matters alleged therein. (Evid. Code § 452(d).)

As to the request concerning Plaintiff’s deposition testimony, Cross-Defendants are relying on the testimony and transcript to establish that at the time of the accident, Plaintiff was an independent contractor for Uber. Cross-Complaints, in opposition, contend that the testimony is not dispositive of the issues, and that Plaintiff’s employment status is disputed by the parties. (Richtek USA, Inc. v. uPI Semiconductor Corporation (2015) 242 Cal.App.4th 651, 660 [“A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (internal quotations and citations omitted)]; see also Freemont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-115 [“Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.”].)

Because Plaintiff’s employment status is disputed and relevant to the claims, the Court does not take judicial notice of Plaintiff’s deposition testimony.

To state a claim for equitable indemnity, the defendant must allege the same harm for which the defendant may be held liable is properly attributable wholly or partly to the cross-defendant. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445 n. 7.) “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177 [“A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.”].)

The purpose of equitable indemnification is to avoid the unfairness, under joint and several liability theory, of holding one defendant liable for the plaintiff’s entire loss while allowing another responsible defendant to escape liability. (GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 426.) A defendant “has a right to bring in other tortfeasors who are allegedly responsible for plaintiff’s action through a cross-complaint ... for equitable indemnification.” (Platt, supra, 217 Cal.App.3d at 1444.)

Furthermore, the elements of contribution are: (1) money judgment; (2) rendered jointly against defendants; (3) in tort action; (4) application of equity principles; (5) payment by tortfeasor of more than pro rata share; and (6) no intentional injury by the tortfeasor. (CCP §875; General Elec. Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925.)

Additionally, there are two essential elements for declaratory relief: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Cross-Complainant's] rights or obligations.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

Here, in arguing that Cross-Defendants have no liability to Plaintiff for the subject accident, which Cross-Defendants contend is a complete bar to the cross-complaint, Cross-Defendants assert that Plaintiff is time-barred from filing a lawsuit against Uber. Cross-Defendants contend that pursuant to CCP § 335.1 and Emergency Rule 9, which tolled the statute of limitations, because the accident occurred on December 7, 2019, Plaintiff would have had to file a lawsuit against Cross-Defendants by June 7, 2022. Cross-Defendants assert that because Plaintiff did not do so, Cross-Defendants cannot be liable for Plaintiff’s injuries, and the cross-complaint against them is barred.

In making this contention, Cross-Defendants primarily rely on Prince v. Pacific Gas & Elec. Co. (2009) 45 Cal.4th 1151. In Prince, the Supreme Court found that there could be no crossclaim for equitable indemnity against Pacific Gas & Electric Company (“PG&E”) after the underlying plaintiff's direct claim against it was found to be statutorily barred. (Id. at 1155.) Plaintiff, guardian ad litem for a child injured while trying to retrieve his kite from an electrical power line, had first sued PG&E. (Id. at 1156.) That suit was dismissed after the trial court found PG&E to be immune from liability under the recreational use immunity statute, Civil Code § 846. (Id.) Plaintiff then sued the owner of the property where the injury occurred, and the property owner cross-claimed against PG&E for equitable indemnity. (Id.) The Supreme Court held that where there was no basis for liability of the cross-defendant to the plaintiff, as was the case in Prince due to the statutory immunity, there could be no basis for equitable indemnity. (Id. at 1158-59.) “A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is wholly derivative and subject to whatever immunities or other limitations on liability would otherwise be available against the injured party. … This rule ‘is often expressed in the shorthand phrase “there can be no indemnity without liability.” ’ ” (Id. at 1158-1159 [citations omitted].)

As Cross-Complainants argue, the Prince Court did not address a defendant claiming that an indemnity claim against it was barred because the statute of limitations for the underling claim had expired. Rather, Prince concerned a cross-defendant’s statutory immunity for the underlying claims, which is not at issue in this case.

The fact that Plaintiff did not file an action against Cross-Defendants does not preclude Cross-Complainants from seeking equitable indemnity. “Under well-established California law … a cause of action for equitable indemnity arises only when the indemnitee actually incurs a loss by payment of the underlying claim or judgment; the statute of limitations on such an action does not accrue at the time of the commission of the underlying tort.”¿ (U.S. Cold Storage v. Matson Navigation Co.¿(1984) 162 Cal.App.3d 1228, 1231.) To hold otherwise would create the situation where indemnity claimants would be forced to file protective suits before they knew the amount, if any, of damages they faced, sometimes unnecessarily subjecting others to litigation or “littering court calendars” with actions that might not be prosecuted. (Id. at 1231, 1234.) “The lack of a lawsuit by the plaintiff does not act as a bar to a complaint for equitable indemnity which seeks to make such determinations.” (Gem Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 428.) “As part of the comparative equitable indemnity doctrine, a defendant who is sued has a right to bring in other tortfeasors who are allegedly responsible for plaintiff's action through a cross-complaint or by a separate complaint for equitable indemnification.” (Id.)

The statute of limitations applicable to Plaintiff’s claims is thus not determinative of Cross-Complainants’ equitable indemnity claims. “[A] tort defendant's equitable indemnity action is separate and distinct from the plaintiff's tort action. The indemnity action, unlike the plaintiff's claim, does not accrue for statute of limitations purposes when the original accident occurs, but instead accrues at the time that the tort defendant pays a judgment or settlement as to which he is entitled to indemnity.” (People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 748.)

Although Cross-Complainants cite to People ex rel. Dept. of Transportation v. Superior Court (“People ex rel. Dept. of Transportation”) in their opposition, Cross-Defendants fail to address or distinguish it from this matter. The reasoning articulated in People ex rel. Dept. of Transportation is instructive. In People ex rel. Dept. of Transportation, the plaintiff was injured in an automobile accident on a public highway and filed a lawsuit against a number of individuals, but the plaintiff did not timely file a claim against the State of California as required by a former version of the California Tort Claims Act. (26 Cal.3d at 747.) Several of the named defendants then filed an equitable indemnity crossclaim against the state, to which the state demurred arguing that because the plaintiff failed to timely file a claim and could not pursue a claim against the state himself, the defendants’ indemnity action was also precluded. (Id. at 747-48.) The demurrer was properly overruled. (Id.) The defendants’ indemnity claim was not barred simply because the plaintiff could not pursue an action against the state because of his own failure to timely file a claim. (Id. at 748.) “The indemnity action, unlike the plaintiff's claim, does not accrue for statute of limitations purposes when the original accident occurs, but instead accrues at the time that the tort defendant pays a judgment or settlement as to which he is entitled to indemnity.” (Id.) “Moreover, the controlling precedents also teach that a tort defendant does not lose his right to seek equitable indemnity from another tortfeasor simply because the original plaintiff's action against the additional defendant may be barred by the statute of limitations. The defendant's equitable indemnity action is independent of the plaintiff's action and a defendant is entitled to pursue his own indemnity action so long as the statute of limitations on that action has not expired.” (Id.)

As in People ex rel. Dept. of Transportation, where the defendants’ indemnity claim was not barred because the plaintiff did not timely file an action against the state, Cross-Complainants’ equitable indemnity claims against Cross-Defendants are not barred merely because Plaintiff did not timely file a case against Cross-Defendants. Plaintiff “enjoys no right to single out only one or a few of the tortfeasors to bear all of the loss.” (Id. at 747.) “[A] named defendant who has been so selected for suit has a right to pursue his own equitable indemnity action against an additional unnamed tortfeasor to obtain indemnity for any liability that should properly be borne by such additional tortfeasor.” (Id.)

Based on the foregoing, Cross-Defendants do not establish that the cross-complaint is barred against them based on the statute of limitations argument.

Cross-Defendants additionally argue that they have no liability to Plaintiff because Plaintiff was an independent contractor at the time of the accident. However, in making this argument, Cross-Defendants rely on Plaintiff’s deposition testimony, of which judicial notice was denied because whether Plaintiff was actually an independent contractor is disputed by the parties. There are no allegations in the cross-complaint, or in the complaint, stating that Plaintiff was an independent contractor at the time of the accident.

Cross-Defendants fail to satisfy their burden to show that the cross-complaint fails as a matter of law on this basis. Cross-Defendants do not otherwise challenge that the cross-complaint adequately pleads a claim against them for equitable indemnity, contribution and apportionment of fault, and declaratory relief.

Hon. Audra Mori

Judge of the Superior Court