Cross-Defendants Fermin Garcia and Alicia Maximino’s Demurrer to Cross-Complainant AIA Group’s Cross-Complaint; Cross-Defendant Zavian Garcia’s Demurrer to Cross-Complainant AIA Group’s Cross-Complaint

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On March 22, 2022, Plaintiffs Fermin Garcia (“Fermin”) and Alicia Maximino (“Maximino”) filed an action against Defendants Audi of America, LLC (“Audi”), Volkswagen Group of American, Inc. (“Volkswagen”), Audi AG (“AG”), Circle Automotive Group, Inc. (“CAG”), All in Auto Group (“All”), Roman Ramirez (“Ramirez”) and Zavian Garcia (“Zavian”) for wrongful death, negligence, strict liability – design defect, strict liability – manufacturing defect, strict liability – failure to warn and breach of implied warranties. Plaintiffs later amended the complaint to include Defendant AIA Group (“AIA”).

On April 22, 2022, Volkswagen filed an answer and a Cross-Complaint against Cross-Defendants Ramirez and All for negligence.

On April 25, 2022, CAG filed an answer and a Cross-Complaint against Cross-Defendants All and Ramirez for negligence.

On May 31, 2022, All filed an answer and a Cross-Complaint against Audi, Volkswagen, AG, Ramirez and Zavian for contractual indemnity, total indemnity, equitable indemnity, comparative contribution, breach of implied contract to indemnify and declaratory relief.

On December 21, 2022, the Court dismissed Audi, Volkswagen, AG and CAG, without prejudice, pursuant to Plaintiff’s request.

On December 29, 2022, AIA filed an answer. On December 30, 2022, AIA filed a Cross-Complaint against Audi, Volkswagen, AG, Ramirez and Zavian for contractual indemnity, total indemnity, equitable indemnity, comparative contribution, breach of implied contract to indemnify and declaratory relief.

On March 22, 2022, Plaintiffs Zavian and Sheryl James (“James”) filed this action against Defendants Audi, Volkswagen, CAG, All, Ramirez, Fermin and Maximo for wrongful death, negligence, strict liability – design defect, strict liability – manufacturing defect, strict liability – failure to warn and breach of implied warranties. Plaintiffs later amended the complaint to include Defendant AIA.

On October 10, 2022, Volkswagen filed an answer and a Cross-Complaint against Cross-Defendants Ramirez and All for negligence.

On October 10, 2022, CAG filed an answer and Cross-Complaint against Cross-Defendants All and Ramirez for negligence.

On October 27, 2022, All filed an answer and a Cross-Complaint against Cross-Defendants Audi, Volkswagen, AG, Ramirez and Zavian for contractual indemnity, total indemnity, equitable indemnity, comparative contribution, breach of implied contract to indemnify and declaratory relief. On November 7, 2022, the Court dismissed Garcia, without prejudice, pursuant to All’s request.

On November 14, 2022, Ramirez filed an answer and a Cross-Complaint against Cross-Defendants Audi, Volkswagen, AG, CAG, All and AIA for indemnification, apportionment of fault declaratory relief. On December 15, 2022, AIA and All filed an answer.

On December 15, 2022, AIA and All filed a Cross-Complaint against Cross-Defendants Audi, Volkswagen, AG, CAG, and Ramirez for contractual indemnity, total indemnity, equitable indemnity, comparative contribution, breach of implied contract to indemnify and declaratory relief. On January 3, 2023, Ramirez filed an answer.

On December 21, 2022, the Court dismissed Audi, Volkswagen, AG and CAG, without prejudice, pursuant to Plaintiff’s request.

On January 5, 2023, AIA filed an answer. On January 6, 2023, AIA filed a Cross-Complaint against Cross-Defendants Zavian, James, Audi, Volkswagen, AG, CAG, Fermin and Alicia for contractual indemnity, total indemnity, equitable indemnity, comparative contribution, breach of implied contract to indemnify and declaratory relief.

These cases were deemed related on September 30, 2022.

On February 7, 2023, Fermin and Maximo filed a Demurrer to AIA’s Cross-Complaint to be heard on March 8, 2023. On February 23, 2023, AIA filed an opposition. On March 1, 2023, Plaintiffs filed a reply.

On February 7, 2023, Zavian filed a Demurrer to AIA’s Cross-Complaint to be heard on March 8, 2023. On February 23, 2023, AIA filed an opposition. On March 1, 2023, Plaintiffs filed a reply.

Trial is currently set for September 19, 2023

PARTY’S REQUESTS

Fermin and Maximo request the Court sustain the demurrer to AIA’s Cross-Complaint.

Zavian requests the Court sustain the demurrer to AIA’s Cross-Complaint.

AIA requests the Court overrule the demurrers.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

“Thus, no indemnity may be obtained from an entity that has no pertinent duty to the injured party [citations], that is immune from liability [citations], or that has been found not to be responsible for the injury.” (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 573-574.) “Equitable indemnity is only available among tortfeasors who are jointly and severally liable for the plaintiff's injury.” (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1040-1041.)

CCP Section 1060 states that a party may request declaratory relief based upon “actual controversy relating to the legal rights and duties of the respective parties.”

DISCUSSION

Plaintiffs’ underlying complaints allege that Decedent’s vehicle was defective and posed a safety risk to occupants and others. Plaintiffs claim the vehicle was sold to Decedent without Defendants disclosing the defective nature of the vehicle and, due to this defect, the vehicle became disabled on the road. As a result of this, Decedent was struck and killed by Ramirez’s vehicle.  The Cross-Complaint alleges Volkswagen and AG manufactured and sold the subject vehicle. There are no clear allegations against Plaintiffs.

The Court first notes that Fermin and Maximo’s demurrer is filed in the incorrect case; the case it has been filed in does not have the subject Cross-Complaint. However, given that AIA filed a meaningful opposition, the Court will rule on it on the merits, assuming it was intended to be filed in 22STCV09865, which does have the subject Cross-Complaint.

Contractual Indemnity

AIA has agreed to voluntarily dismiss this cause of action.

Total Indemnity, Equitable Indemnity, and Breach of Implied Contract to Indemnify

Indemnity is a system in which liability caused by concurrent tortfeasors will be borne by each individual tortfeasor in director proportion to their prospective fault. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 598.) Within the Cross-Complaint, the Court does not find any allegations that would give rise to liability on behalf of Plaintiffs. Volkswagen and AG are identified as the manufacturing and selling parties. There is one general statement that all Cross-Defendants are assumed to be employees or agents of Co-Cross-Defendants, but that alone is not enough to support causes of action based in indemnity against Plaintiffs.

AIA effectively argues that Plaintiffs are ignoring the possibility that Decedent was at fault in causing the accident, which would entitle AIA to indemnification. However, AIA does not allege as such in the Cross-Complaint. The only factual allegation regarding Decedent was that he was “allegedly driving the vehicle in a safe manner” and got into an accident. There are no allegations of negligence or unsafe driving or anything that would give rise to fault or liability. Therefore, AIA’s Cross-Complaint has not provided a basis for indemnity.

                Declaratory Relief and Comparative Contribution

Declaratory relief and comparative contribution also fail as there are no factual allegations presented that would impose liability on Decedent or Decedent’s representatives. There must be a controversary or potential liability to present these causes of action; AIA’s Cross-Complaint does not meet this standard.

The Court sustains both demurrers.

CONCLUSION

Cross-Defendants Fermin Garcia and Alicia Maximino’s Demurrer to Cross-Complainant AIA Group’s Cross-Complaint is SUSTAINED, with 30 days leave to amend.

 Cross-Defendant Zavian Garcia’s Demurrer to Cross-Complainant AIA Group’s Cross-Complaint is SUSTAINED, with 30 days leave to amend.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.