Judge Audra Mori, Case 22STCV02303 2022-09-14 Tentative Ruling

Plaintiff Douglas Christian (“Plaintiff”) filed this action against Defendants Warsawa Trucking Inc. and Balkar Singh (collectively, “Defendants”) for damages arising from a motor vehicle accident. The complaint alleges causes of action for negligence and motor vehicle. Defendants have filed a cross-complaint against Plaintiff. Following Plaintiff’s demurrer to their cross-complaint, which was sustained with leave to amend, Defendants filed their operative First Amended Cross-Complaint (“FACC”) asserting claims for (1) equitable indemnity, (2) contribution, (3) declaratory relief, and (4) negligence.

Plaintiff now demurs to the FACC arguing it fails to state a claim against him and is uncertain. Defendants oppose the demurrer, and Plaintiff filed a reply.

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includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.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 Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Decl. Michaelson ¶ 6.)

Plaintiff requests judicial notice be taken of Defendants’ answer filed in this action, the Minute Order dated July 6, 2022, Defendants’ FACC, Plaintiff’s form interrogatories, set one, served on Defendants, and Defendants’ responses and further responses to the form interrogatories. Defendants also request judicial notice be taken of their FACC.

As to the discovery requests and responses, “a complaint's allegations may be disregarded when they conflict with judicially noticed discovery responses…,” subject to judges' interpretations of the nature and extent of any discovery admissions. (Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4th 71, 83.) It is true that a court may take judicial notice of a party's admissions or concessions, but only in cases where the admission ‘cannot reasonably be controverted,’ such as in answers to interrogatories or requests for admission, or in affidavits and declarations filed on the party's behalf.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.)

Therefore, the request is granted as to Plaintiff’s form interrogatories and Defendants responses thereto.

The elements of a cause of action for negligence are duty, breach, causation, and damages. (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255; Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) There is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

In this case, Plaintiff argues that the negligence claim in Defendants’ FACC fails because Defendants have admitted in discovery responses that they did not suffer property damage in the subject accident, so the FACC cannot state a viable claim for damages. Admittedly, the judicially noticeable evidence shows that Defendants are not making a claim for property damages in this litigation, and Defendants fail to address Plaintiff’s arguments concerning the negligence cause of action in their opposition. However, the FACC, on its face, is not requesting property damages only for Plaintiff’s alleged negligence. The FACC alleges that Defendants suffered “harm and damages, including but not limited to their insurance deductible, due to cross-defendant tortfeasor’s negligence.” (FACC ¶ 26.) Plaintiff makes no argument to address the allegation that the damages are the deductible, not property damage. Consequently, Defendants’ discovery responses stating they are not seeking property damages does not establish that Defendants cannot recover any damages for Plaintiff’s alleged negligence.

d. 1^st, 2^nd and 3^rd Causes of Action for Equitable Indemnity, Contribution, and Declaratory Relief

A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following:

(b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.

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, Plaintiff demurs to the FACC arguing that the claims for equitable indemnity, contribution, and declaratory relief are not proper against Plaintiff because he is not jointly liable with Defendants for his own injuries. Plaintiff contends that Defendants are attempting to assert that Plaintiff is liable to himself for his own injuries, but Plaintiff cannot be legally liable to himself as a cross-defendant because he is the plaintiff in this matter. Plaintiff argues Defendants have filed an answer that includes affirmative defenses alleging Plaintiff’s comparative negligence, and so the cross-complaint is superfluous and improper.

In opposition, Defendants contend that the FACC properly pleads claims for equitable indemnity, contribution, and declaratory relief. Defendants argue that the FACC is permitted because due to the availability of insurance, “an affirmative recovery may be obtained for defense, indemnity and apportionment of fault.” (Opp. at p. 2:1-2.) Defendants contend that the FACC properly asserts claims for equitable indemnity, contribution, and declaratory relief to allow for a potential offset, and this cannot be accomplished through an answer, so the cross-complaint is necessary.

The FACC alleges that Plaintiff, as the cross-defendant, was solely negligent in causing his own harm, and that Defendants are entitled to complete indemnity from Plaintiff as a result. The FACC requests Defendants be fully defended, indemnified, and held harmless from and against any judgment rendered against them; that judgment be entered in favor of cross-complainants, and against cross-defendants for defense costs, contribution, and/or indemnity, and that the Court declare the respective rights and duties of cross-complainants and cross-defendants, including declaring cross-defendants are solely at fault. However, as Plaintiff asserts, Defendants in these causes of action are not seeking to recover any damages against Plaintiff, rather Defendants are attempting to bring the crossclaims against Plaintiff for Plaintiff’s own injuries.

Plaintiff and Defendant are not joint tortfeasors that jointly caused harm to Plaintiff. Plaintiff filed this action against Defendants for the subject accident. Defendants do not cite any authority holding that equity indemnity principles permit a defendant to recover from the plaintiff the damages that the defendant may owe to the plaintiff. (See Jaffe v. Huxley Architecture (1988) 200 Cal.App.3d 1188, 1191.) Defendants’ citation to Platt v. Coldwell Banker Residential Real Estate Servs. (1990) 217 Cal.App.3d 1439, 1445, is unavailing. In Platt, plaintiffs Contreras, et al. filed a legal malpractice action against defendant Platt. Platt then filed a cross-complaint naming plaintiff Contreras, a general partner of PMHI, plaintiff PMHI, a partnership, and Coldwell Banker, who was not a plaintiff. The trial court sustained the demurrers of all cross-defendants. Platt appealed only the sustaining of the demurrer of Coldwell Banker. The Court properly reversed the sustaining of the demurrer as to Coldwell Banker. Coldwell Banker, unlike Contreras and PMHI, could be considered a joint tortfeasor to plaintiffs.

Furthermore, Defendants’ answer alleges affirmative defenses requesting indemnification and contribution against all other persons in accordance with apportionment of fault, and that the doctrine of offset applies to Plaintiff’s claims. (Answer ¶¶ 3, 7.) Nothing is added by way of these causes of action in the FACC against Plaintiff, as the claims are merely duplicative of those in Defendants’ answer and “legally unnecessary.” (Jaffe, 200 Cal.App.3d at 1193.) To the extent that Defendants may be successful in proving at trial that Plaintiff contributed to his own injuries, Defendants’ liability to Plaintiff will be reduced by the principles of comparative fault. Therefore, equivalent relief is available through the affirmative defenses Defendants have asserted and the claims for equitable indemnity, contribution, and declaratory relief are unnecessary.

Defendants’ citation to Jess v. Herrmann (1979) 26 Cal.3d 131, is also easily distinguishable. In Jess, the Supreme Court addressed the proper applicable of setoff principles in comparative negligence or comparative fault cases; the Court did not hold that a defendant is permitted to seek indemnity, contribution, or declaratory relief against a plaintiff for the plaintiff’s own injuries. (26 Cal.3d at 134.) Additionally, although Defendants repeatedly assert that vehicle operators are required to have vehicle insurance under Vehicle Code § 16020(a), Defendants do not articulate or cite any authority holding that this alone is a basis to seek indemnity or contribution against Plaintiff for Plaintiff’s own injuries. Defendants are not otherwise requesting any affirmative relief by way of these causes of action against Plaintiff not already asserted in Defendants’ answer.

Therefore, the FACC fails to state a claim for equitable indemnity, contribution, and declaratory relief against Plaintiff. Plaintiff’s demurrer to the FACC is sustained as to the first, second and third causes of action against Plaintiff.

The burden is on Defendants to show in what manner they can amend the FACC, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Defendants request leave to amend the FACC; however, Defendants fail to provide any explanation as to how the above defects can be cured. Further, a demurrer to these same causes of action was previously sustained with leave to amend, and Defendants did not allege any different facts concerning these claims than pled in the original cross-complaint.

Plaintiff’s demurrer is sustained as to first, second, and third causes of action without leave to amend.

Hon. Audra Mori

Judge of the Superior Court