Judge: David B. Gelfound, Case: 23CHCV03097, Date: 2024-05-06 Tentative Ruling

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Case Number: 23CHCV03097    Hearing Date: May 6, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-49

MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT

Motion filed: 3/11/24

MOVING PARTY: Defendants/Cross-Defendants Monina Carlos and Ramon Mendoza Carlos (erroneously sued herein as Carlos Mendoza) (collectively, “Defendants/Cross-Defendants”)

RESPONDING PARTY: None

NOTICE: OK 

RELIEF REQUESTED: An order from this Court striking the language regarding attorney’s fees in the Cross-Complaint.

TENTATIVE RULING: The motion is GRANTED.

BACKGROUND

This action arises from a three-vehicle collision that allegedly occurred on October 22, 2021. (Compl., at p. 4)

On October 13, 2023, Plaintiff Ninnette Rodriguez Lopez (“Plaintiff”) filed the Complaint against Defendants/Cross-Defendants, and Defendant /Cross-Complainant Maria Mata (“Defendant/Cross-Complainant”), and Does 1 through 25, alleging (1) Motor Vehicle Liability, and (2) General Negligence. Subsequently, Defendants/Cross-Defendants and Defendant/Cross-Complainant filed their separate Answers to the Complaint on December 1, 2023, and December 15, 2023, respectively.   

On December 22, 2023, Defendant/Cross-Defendant filed her Cross-Complaint against Defendants/Cross-Defendants, and Roes 1 through 25, alleging (1) Indemnity, (2) Comparative Contribution, and (3) Declaratory Relief.

On March 11, 2024, Defendants/Cross-Defendants filed the instant Motion to Strike (the “Motion”) to the Cross-Complaint.

            On April 26, 2024, the moving party, Defendants/Cross-Defendants, filed a Notice of Non-Opposition to the Motion.

No opposing papers have been received by the Court.

ANALYSIS

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz, 42 Cal. 2d 767, 782 (1954) [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)    An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

A.    Procedural Requirements

1.      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).) 

Here, Defendants/Cross-Defendants’ counsel attests that he attempted to engage in a good faith meet and confer with the counsel for Defendant/Cross-Complainant on January 11, 2024; however, no responses from Defendant/Cross-Complainant have been received. (Matamoros Decl., ¶ 3.)

Accordingly, the Court finds that the requirement for meet and confer declaration has been met, pursuant to Code of Civil Procedure section 435.5, subdivision (a)(3)(B).

2.      Timeliness

“A party served with a cross-complaint may within 30 days after service move, demur, or otherwise plead to the cross-complaint in the same manner as to an original complaint.” (Code Civ. Proc., § 432.10) 

“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 [e.g., 30 days after the service of the complaint or cross-complaint unless extended by court order or stipulation.]” (Code Civ. Proc. § 435, subd. (b)(1).)

“Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days, but the extension shall not apply to extend the time for filing any of the following[.] [inapplicable here]” (Code Civ. Proc., §1010.6, subd. (a)(3)(B).)

“If the parties are unable to meet and confer at least 5 days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due[.]” (Code Civ. Proc. § 435.5, subd. (a)(2).)

Here, the Cross-Complaint was served via email on Defendants/Cross-Defendants on December 21, 2023. (Cross-Complaint, at p. 6, Proof of Service), establishing the deadline for Defendants/Cross-Defendants to file a motion to strike as January 24, 2024.

Furthermore, the moving party’s declaration establishes that Defendant/Cross-Complainant did not respond to their meet and confer attempt, thus they were unable to meet and confer “at least five days before the date the motion to strike must be filed.” Consequently, under Code of Civil Procedure section 435.5, subdivision (a)(2), the moving party should be granted an automatic 30-day extension of time, extending the deadline to file the Motion to February 23, 2024.

Here, Defendants filed their Motion on March 11, 2024, missing the established deadline. Consequently, the Court considers the filing of the Motion to be untimely.

However, the Court exercises its discretion to address the Motion on its merits.

B.     Motion to Strike Attorney’s Fees

Defendants/Cross-Defendants move for the Court to strike the following portions concerning attorney’s fees in the Cross-Complaint:

On page 3, paragraph 8, First Cause of Action, which reads as follows: “By reason of the foregoing, Cross-Complainants will be compelled to incur attorneys’ fees, costs of suit, and expenses of litigation in the defense of the main action herein, and the prosecution of these Cross-Complaints, the whole of which the actively negligent Cross-Defendants, and each of them, should be compelled to pay and reimburse Cross-Complainants.”

On page 4, paragraph 12, Second Cause of Action, which reads as follows: “By reasons of the foregoing allegations, if this Cross-Complainants incur expenses in the defense of this lawsuit with regard to any judgment or any settlement, these Cross-Complainants are entitled to judgment against Cross-Defendants, and each of them, for all sums that is incurred by reason of said judgment, settlement expenses, investigations, including Attorneys’ fees and court costs in defending the within action.”

On page 5, Prayer for Relief, ¶ 4, which reads as follows: “4. That Cross-Complainants recover their Attorneys' fees, costs of suit, and expenses of litigation incurred herein;”

California Code of Civil Procedure section 1021 provides for attorney’s fees specifically provided by statute or by agreement between the parties. (Code Civ. Proc. § 1021, Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504.)

In Watson v. Department of Transportation (1998) 68 Cal.App.4th 885 (Watson), a motorist sued a second driver, Watson, and the Department of Transportation (“Caltrans”), for injuries sustained in a motor vehicle collision that occurred while traffic signals were being reset. Watson cross-complained against Caltrans on a theory of equitable indemnity or, in the alternative, indemnity for comparative fault. (Id., at p. 888.) The Court of Appeal reversed the trial court’s award of attorney’s fees and cost on Watson’s cross-complaint, finding that the claims that Watson defended in the principal case were not a cause of action for implied indemnity. (Id., at 890.)

Furthermore, the Court of Appeal analyzed that the duty that Caltrans allegedly owed to Watson differs in kind from a duty of indemnity to hold Watson harmless from the consequence of such an injury by a third party. (Id., at p. 894.) The Watson court further explained that “[e]very motorist owes a duty of care to avoid injury to other motorists. When an injured motorist sues two or more other motorists, their duty to avoid injury to each other is immaterial to the question whether there is a duty of indemnity between the defendants. That duty must be found upon a relationship which under the exemplars of the common law or statute gives rise to a duty of complete indemnity, as to which an ancillary duty to defend arises.” (Id., at p. 894.)

            In the present case, it is clear that Cross-Complaint does not cite any statute that specifically provides attorney’s fees under any of its causes of action.

Moreover, the Court finds no basis for implied indemnity available to Defendant/Cross-Complainant, pursuant to the ruling in Watson.

Firstly, similar to the second driver in Watson, Defendant Maria Mata cross-complains Defendants/Cross-Defendants for attorney's fees and costs incurred by her defense of the principal action filed by Plaintiff.

            Secondly, mirroring the rationale in Watson, the Court finds that the causes of action in the principal action do not give rise to established categories of implied indemnity, e.g., implied contractual indemnity, vicarious liability, or an intentional tort giving rise to complete equitable indemnity. (See Watson, supra, 68 Cal.App.4th, at 891.)

Thirdly, the Court determines that the Cross-Complaint does not implicate any duty owed by Defendants/Cross-Defendants beyond the general duty of every motorist to avoid injuring others, which is distinct from a duty to indemnity Defendant/Cross-Complainant. Therefore, the precedent set in Watson leads to the conclusion that there is no basis for a claim of implied indemnity under which Defendant/Cross-Complainant could be entitled to attorney’s fees.

            Consequently, the Court determines that attorney fees are unrecoverable under the causes of action alleged in the Cross-Complaint.

Based on the above, the unopposed Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND.

CONCLUSION

The Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND.

Moving party is ordered to give notice.