Judge: Audra Mori, Case: 21STCV10777, Date: 2022-10-05 Tentative Ruling

Case Number: 21STCV10777    Hearing Date: October 5, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Silvana Moretti Vieira Palmieri (“Plaintiff”) filed this action against defendants City of Beverly Hills (the “City”) and Douglas Emmett 2013, LLC (“Emmett”) for damages relating to the alleged wrongful death of Helena Santos (“Decedent”).  Plaintiff alleges Decedent was standing in a line on a sidewalk on October 7, 2018, and that when the line moved forward, Decedent stepped into a large crack in the pavement that caused her to trip and fall.  Decedent fractured her right hip, underwent multiple surgeries, and contracted an infection at the surgery site.  After treatment for the infection, Decedent developed further complications and died. 

As relevant to this matter, on April 28, 2022, Emmett filed a cross complaint against Skanska Traylor Shea (“Shea”), the City, and Los Angeles County Metropolitan Transportation Authority (“LACMTA”).  Emmett’s cross-complaint asserts causes of action for (1) equitable indemnity against Shea, (2) apportionment of fault/contribution, (3) declaratory relief, and (4) equitable indemnity against Shea, the City and LACMTA. 

LACMTA now demurs to Emmett’s cross-complaint arguing that it fails to state sufficient facts to constitute any cause of action against it.  Emmett opposes the demurrer, and LACMTA filed a reply. 

LACMTA contends that Emmett failed to timely comply with the notice requirements of the California Tort Act (the “Act”), which is a prerequisite of any claim against LACMTA.  LACMTA provides that prior to her death, Decedent commenced an action for personal injuries against Emmett on June 25, 2019, with virtually identical allegations as those at issue in Plaintiff’s complaint in this matter.  LACMTA states that Decedent passed away on March 15, 2020, and then Plaintiff filed this action for wrongful death on March 19, 2021.  LACMTA contends that because it is a public entity, Emmett was required to serve a notice of claims on LACMTA within six months of being served with the complaint giving rise to its claim.  LACMTA asserts that Emmett filed its answer to Decedent’s prior action on November 14, 2019, but Emmett did not notify LACMTA of the claim until at least September 29, 2021. 

In opposition, Emmett asserts that it provided notice of its claim for equitable indemnity arising out of Plaintiff’s wrongful death claim on September 29, 2021.  Emmett argues that it was required to present its claim to LACMTA within one year of being served with Plaintiff’s complaint, and that it timely filed its claim well within a year of the filing of this action.  Emmett argues that Plaintiff’s wrongful death cause of action is a separate and distinct claim from any personal injury action filed by Decedent, and that accepting LACMTA’s position would mean that Emmett was required to file a notice of claim concerning Plaintiff’s claims prior to Plaintiff actually filing this lawsuit. 

In reply, LACMTA contends Emmett failed to timely present a government claim for damages.  In addition, LACMTA argues that it is irrelevant that Decedent’s prior action was for personal injuries, while this action is for wrongful death.  LACMTA asserts that Emmett’s indemnity claims accrued upon service of the personal injury complaint by Decedent in the prior action because both actions are based on the same facts.

2. Demurrer

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.)

a. Meet and Confer

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 LACMTA has fulfilled this requirement prior to filing the demurrer.  (Demurrer Iles Decl. ¶¶ 16-18.)

b. Request for Judicial Notice

LACMTA requests judicial notice be taken of (1) Decedent’s complaint filed in Case No. 19STCV22283, (2) that 19STCV22283 is a personal injury matter filed by Decedent prior to her death, and (3) that LACMTA is a government entity. 

The request is granted as to the complaint filed in 19STCV22283, and of the fact that LACMTA is a government entity.  (Evid. Code § 452(d), (h).)  As to the second request, judicial notice is taken of the allegations in the complaint filed in 19STCV22283; however, the Court does not take judicial notice of the truth of any matters alleged therein. 

Additionally, the Court on its own motion takes judicial notice of the Court’s records in this action and in 19STCV22283.  (Evid. Code § 452(d).) 

c. Analysis

Government Code § 945.5 provides, “No suit for damages may be maintained against a public entity unless [a] claim has been presented to it.”  Further, Government Code § 901 provides:

For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon. However, the date upon which a cause of action for equitable indemnity or partial equitable indemnity accrues shall be the date upon which a defendant is served with the complaint giving rise to the defendant's claim for equitable indemnity or partial equitable indemnity against the public entity.

(Emphasis added.)

California Government Code § 911.2(a) states, “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” 

“The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity [Citation]. The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint.”  (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.)

“A public entity cannot be sued for tort unless (1) a timely written claim has previously been presented to the governmental entity, (2) any late claim has been presented to the public entity and been excused by it or the court, or (3) conditions described by Government Code section 946.4 … have been met.”  (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 483.) 

“The failure to timely present a proper claim … bars a plaintiff from filing a lawsuit against that entity. [Citation.]”  (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.)  Thus, “[e]ven if the public entity has actual knowledge of facts that might support a claim, the claims statutes still must be satisfied. [Citation.]”  (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990.)  “The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.”  (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 767.) 

“ ‘A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is “wholly derivative....” [Citations.] This rule “is often expressed in the shorthand phrase ‘... there can be no indemnity without liability.’ ” [Citation.]’ ”  (Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1099.)  The plain language of Government Code § 901 “provides that a defendant's equitable indemnity cause of action against a public entity accrues upon the service of the complaint that contains the cause of action for which indemnity is sought.”  (Id. at 1101, citing State v. Superior Court (1983) 143 Cal.App.3d 754 (Shortstop); Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480.) 

Here, the complaint alleges that on or about October 7, 2018, Decedent tripped and fell on a sidewalk that resulted in Decedent fracturing her right hip.  (Compl. ¶ 9.)  “Thereafter, [Decedent] underwent multiple surgeries to repair her hip, contracted an infection at the surgery site and, after treatment for such infection, developed further complications and died.”  (Id. at ¶ 10.)  Attached to the complaint is a certificate of death stating that Decedent died on March 15, 2020.  (Id. Exh. B.)  Plaintiff, who is Decedent’s sister, alleges that “[a]s a result of the death of her only sister [Plaintiff]] has been injured and damaged due to the loss of her sister’s love, companionship, care, assistance, protection, affection, society and moral support. In addition, [Plaintiff]] incurred the costs of her sister’s funeral and burial expenses.”  (Id. at ¶ 16.)  Plaintiff filed this action on March 19, 2021, against the City and Emmett, and Emmett admits that it provided notice of its claim for equitable indemnity to LACMTA on September 29, 2021. 

On April 28, 2022, Emmett then filed its cross-complaint against LACMTA alleging in relevant part that LACMTA caused or contributed to the damages alleged by Plaintiff in the complaint.  (Cross-Complaint ¶ 4.)  Emmett further alleges that it complied with the “claims requirement and has served a claim pursuant to the Government Tort Claims Act as to Cross-Defendants.”  (Id. at ¶ 26.) 

In its demurrer, LACMTA avers that Emmett’s indemnity claims began to accrue when Emmett was served with Decedent’s complaint in 19STCV22283, but Emmett did not present a claim to LACMTA after it was served with such.  LACMTA contends that the time to present a claim under Government Code § 901 expired prior to Emmett serving its claim on LACMTA on September 29, 2021.

The judicially noticeable evidence and allegations of the complaint show that Decedent filed the complaint in 19STCV22283 against Emmett on June 25, 2019.  Decedent died on March 15, 2020, and her complaint was dismissed on November 24, 2020.  Plaintiff filed this action on March 19, 2021.  Both Decedent’s complaint and Plaintiff’s complaint allege that on October 7, 2018, Decedent was standing in a line and when the line moved forward, Decedent stepped into a large crack in the pavement causing her to trip and fall and fracture her right hip.  (Dem. Iles Decl. Exh. B ¶ 8.)  Decedent’s complaint and Plaintiff’s complaint in this action each contain a photograph of the same alleged crack at the same location.  (Dem. Iles Decl. Exh. B, exhibit A attached thereto; Compl. Exh. A.)  Where Decedent’s complaint sought damages for Decedent’s injuries, Plaintiff’s complaint seeks damages for Plaintiff’s injuries.  There is no proof of service located in the Court’s records in 19STCV22283, but Emmett filed an answer to Decedent’s complaint on November 14, 2019.[1] 

            The issue is whether Emmett’s equitable indemnity claim against LACMTA accrued when Emmett was served with Decedent’s complaint in 19STCV22283, or when Emmett was served with Plaintiff’s complaint in this matter. 

            LACMTA argues that the indemnity claim accrued at the latest by November 14, 2019, when Emmett filed its answer to Decedent’s complaint in 19STCV22283 because it alleges the precise claim Emmett seeks indemnity for- that is, for Decedent’s trip and fall on October 7, 2018.  However, Decedent’s complaint in 19STCV22283 alleged a single cause of for negligence for injuries to Decedent and was dismissed after Decedent died.   Until Decedent passed away, Plaintiff could not state a cause of action for wrongful death.  Plaintiff’s complaint alleges a claim for wrongful death based on Plaintiff’s own injuries, including the loss of Decedent’s love, companionship, care, assistance, protection, and support.  As Emmett contends, Plaintiff’s cause of action for wrongful death is separate and distinct from any personal injury suffered by Decedent. 

            “It has long been the law in California that ‘[a]n action for wrongful death is wholly distinct from an action by the decedent, in his lifetime, for the injuries which ultimately cause[d] his [or her] death [citation].”  (Castaneda v. Dept. of Corrections (2013) 212 Cal.App.4th 1051, 1063; Ruiz v. Podolsky (2010) 50 Cal.App.4th 838, 844 [wrongful death statutes “create[] a new cause of action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he survived.”].)  “A cause of action for wrongful death is ... a statutory claim. (Code Civ. Proc., §§ 377.60–377.62.) Its purpose is to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death. [Citations.] The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.”  (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969 [internal quotations omitted].) 

            Accordingly, Plaintiff’s cause of action for wrongful death is based on distinct elements and injuries than that Decedent alleged in the complaint filed in 19STCV22283.  (Castaneda, 212 Cal.App.4th at 1063.) 

LACMTA and Emmett primarily cite to Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090 (“Centex Homes”), in disputing when Emmett’s equitable indemnity claim accrued.  In Centex Homes, a Homeowners’ association (“HOA”) filed an action against a builder, Centex Homes (“Centex”), on April 20, 2009, for violations of various statutory building standards under Civil Code § 896 relating to Centex’s construction of a residential building.[2]  (Centex Homes, 214 Cal.App.4th at 1093.)  None of the alleged violations related to the building’s plumbing or sewer systems.  (Id. at 1094.)  In March 2012, Centex presented a claim to the city of San Diego pursuant to Government Code § 900 et seq., which referenced a preliminary statement sent by the HOA to Centex on April 1, 2011, that represented the subject building’s cast iron waste piping was defective, and the claim stated that Centex conducted an inspection of the pipes in February 2012 that revealed crystallization on the pipes caused by hydrochloric gasses emitting from the city’s sewer system.  (Id.)  In May 2012, the city denied Centex’s claim because it had not been presented within six months after the event or occurrence, and so in August 2012, Centex filed a motion for relief from the Government Code claims requirement and for leave to file a cross-complaint against the city.  (Id. at 1095.)  Centex’s proposed cross-complaint contained causes of action for equitable indemnification, contribution and repayment, and declaratory relief as to the City's duty to indemnify.  (Id. at 1096.)  The trial court denied Centex’s motion finding:

“Here, the Complaint giving rise to [Centex's] claims for equitable indemnity or partial equitable indemnity was filed on April 20, 2009. Defendants had one year from this date to file an equitable indemnity claim. [Centex] filed [its] claims for equitable indemnity of March 28, 2012. Thus, the statute of limitations expired prior to [Centex] filing [its] claims for equitable indemnity.”

(Id. at 1097.) 

However, the Court of Appeal found that the trial court erred in concluding the April 20, 2009, complaint gave rise to Centex’s claim for equitable indemnity against the city, as “section 901 provides that a defendant's equitable indemnity cause of action accrues when the ‘defendant is served with the complaint giving rise to the defendant's claim for equitable indemnity....’ ”, and the April 2009 complaint did not give rise to Centex’s claim for equitable indemnity against the city for violations of statutory plumbing and sewer standards.  (Id. at 1101-03 [emphasis in original].) 

The Association's April 2009 complaint alleges numerous defects in the Project that could be construed as constituting alleged violations of various building standards contained in Civil Code section 896. However, the Association's April 2009 complaint does not contain any allegations related to defects in the Project's cast iron waste line. In fact, the April 2009 complaint does not allege any defects that could be construed as constituting violations of the building standard related more generally to the plumbing or sewer standards contained in Civil Code section 896, subdivision (e).

(Id. at 1102-03 [emphasis in original].)  Because there were no allegations in the HOA’s April 2009 complaint pertaining to a violation of Civil Code § 896(e) regarding plumbing or sewer standards, the complaint did not give rise to Centex’s equitable indemnity claim against the city.  (Id. at 1103.)  “There is nothing in section 901 that suggests that the Legislature intended for the service of a complaint to cause the accrual of an equitable indemnity claim seeking to apportion potential liability of a claim that is not pled in the complaint.”  (Id. at 1107.)

            As in Centex Homes, where there were no allegations concerning the relevant plumbing or sewer standards, Decedent’s complaint filed in 19STCV22283 did not contain any allegations regarding Plaintiff’s wrongful death claim against Emmett.  Indeed, Plaintiff is not mentioned anywhere in Decedent’s complaint, and Plaintiff could not have stated a cause of action for wrongful death while her sister was alive.  Decedent’s complaint focuses only on her own injuries caused by the subject incident.  In contrast, Emmett is now seeking equitable indemnity for Plaintiff’s separate and distinct wrongful death claim against it. 

            The fact that Decedent’s complaint concerned the trip and fall incident on October 7, 2018, was not sufficient to trigger the six month period in which Emmett had to provide LACMTA with notice of its claim for equitable indemnity related to Plaintiff’s yet to be filed wrongful death claim.  There was no mention of Plaintiff or facts to put Emmett on notice that a wrongful death claim would be asserted against it by Decedent’s sister, Plaintiff.  The “precise claim” for which Emmett seeks equitable indemnity- Plaintiff’s wrongful death cause of action- is alleged in Plaintiff’s complaint filed in this action.  (Centex Homes, 214 Cal.App.4th at 1108.)  Therefore, pursuant to Government Code § 901, Emmett’s equitable indemnity claim against LACMTA accrued upon service of Plaintiff’s complaint on Emmett. 

            Furthermore, Emmett’s equitable indemnity claim “ ‘in essence states a claim “for money or damages,” against the [governmental entity], “relating to a cause of action ... for injury to person,” and hence is subject to the requirement that a claim be presented “not later than [six months] after the accrual of the cause of action.” [Citations.]’ ”  (Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 238, citing State v. Superior Court (1983) 143 Cal.App.3d 754, 757.)[3]  Emmett, thus, had six months from the service of Plaintiff’s complaint to present its claim for equitable indemnity to LACMTA. 

As Emmett argues, if the Court accepted that Emmett’s equitable indemnity claim accrued before or November 14, 2019- the date Emmett filed an answer in 19STCV22283- this would mean that Emmett would have had six months from this date to file a claim with LACMTA concerning Plaintiff’s wrongful death claim.  This is unreasonable as Decedent did not pass away until March 15, 2020, and there is no indication that Emmett had knowledge of Plaintiff’s wrongful death claim prior to this action being filed on March 19, 2021.   

            Moreover, to date, Plaintiff has not filed proof of service of the complaint on Emmett, and LACMTA does not provide any judicially noticeable evidence showing when Emmett was served with the complaint.  Consequently, LACMTA does not establish that Emmett failed to timely present a claim to LACMTA within six months after being served with Plaintiff’s complaint.  Moreover, Emmett is allowed to plead compliance with the claims presentation requirement in the Act using a general allegation, which Emmett has done in paragraph 26 of its cross-complaint.  (Esparza v. Kaweah Delta District Hospital (2016) 3 Cal.App.5th 547, 554, [“the ultimate fact of compliance with the claims presentation requirement in the Government Claims Act can be pled using a general allegation.”]; Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1237.) 

            Based on the foregoing, Emmett’s cross-complaint sufficiently states a cause of action against LACMTA.  LACMTA’s demurrer to Emmett’s cross-complaint is overruled.  LACMTA is ordered to file its answer to the cross-complaint within 30 days. 

LACMTA is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 5^th day of October 2022