Judge: Gregory Keosian, Case: 22STCV22519, Date: 2023-09-20 Tentative Ruling

Case Number: 22STCV22519    Hearing Date: September 20, 2023    Dept: 61

Cross-Defendant Express Employment Professionals’ Demurrer to Active Transport, LLC’s First Amended Cross-Complaint is OVERRULED. Cross-Defendant to answer within 30 days.

I.                DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. V. Mirda (2007) 147 Cal.App.4^th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”]

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4^th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5^th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4^th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Cross-Defendant Express Employment Professionals (Cross-Defendant) demurrers to the first amended cross-complaint (FAXC) of Defendant Active Transport LLC. Cross-Defendant contends that the first cause of action for indemnification is defective because Active Transport has not yet been found liable to Plaintiff John Hernandez. (Demurrer at pp. 7–8.) Cross-Defendant further contends that insufficient facts are pleaded upon which to ground the indemnification claim. (Demurrer at p. 8.) Finally, Cross-Defendant contends that the second cause of action for declaratory relief is derivative of the indemnity claim and therefore fails. (Demurrer at pp. 8–9.)

“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 ... equitably responsible.” (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 217.) This court previously sustained Cross-Defendant’s unopposed demurrer to Active Transport’s original cross-complaint on the grounds that it stated no supporting facts supporting liability, but only conclusions of law.

The defects of the original cross-complaint have been rectified. The FAXC states that liability is proper against Cross-Defendant for this employment retaliation case because Cross-Defendant was Plaintiff’s employer, and responsible for all relevant employer functions. (FAXC ¶¶ 2–3.) Cross-Defendant contends that the matter is unripe, since no judgment has been entered against Active Transport, and thus no liability can yet be found against Cross-Defendant. But Cross-Defendant cites no authority holding for this proposition, and it is indeed customary for defendants to plead equitable indemnity against cross-defendants prior to an ultimate adjudication. “[A] cross-complaint for equitable indemnity against an alleged joint tortfeasor states a cause of action unless, under the particular facts alleged, the cross-complaint would operate inequitably.” (Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177, 186.)

The demurrer is therefore OVERRULED.