Judge: Joel R Wohlfeil, Case: 37-2020-00023341-CU-BC-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 26, 2023

09/29/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2020-00023341-CU-BC-CTL HAMBY VS REED [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/30/2023

The general Demurrer (ROA # 255) of Cross-Defendants RODERICK HAMBY and TRACY REED ('Cross-Defendants') to each cause of action in the Second Amended Cross-Complaint ('SAC-C') is SUSTAINED IN PART and OVERRULED IN PART.

The Demurrer is sustained without leave to amend as to cause of action 1 and overruled as to cause of action 2.

Cross-Defendants are ordered to file and serve their Answer to the remaining cause of action within twenty (20) days of this hearing.

This ruling is based on the analysis set forth below.

1st COA: ONTRIBUTION - Civil Code §1432 '... [A] party to a joint, or joint and several obligation, who satisfies more than his share of the claim against all, may require a proportionate contribution from all the parties joined with him.' Civ. Code 1432.

'Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them ....' Code Civ. Proc. 875(a).

The condition of section 875 (a money judgment rendered jointly against two or more defendants) must exist before either may assert a right to contribution from the other. General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal. App. 3d 918, 925.

Trang Reed is the only Defendant named within the Fourth Amended Complaint. There can be no 'joint, or joint and several obligation' owing to Plaintiff: Roderick Hamby on behalf of Copilotco, LLC. There is no possibility of a money judgment 'rendered jointly against two or more defendants.' Thus, this cause of action is not permissible as a matter of law, and the Demurrer is sustained on this basis.

2nd COA: INDEMNITY This cause of action alleges a claim for equitable indemnity. As alleged, any company funds that were misappropriated by Trang Reed were utilized to the benefit of Tracy Reed, and such withdrawals were made 'with full knowledge and authorization of Roderick Hamby.' As alleged, Tracy Reed and Roderick Calendar No.: Event ID:  TENTATIVE RULINGS

3008963 CASE NUMBER: CASE TITLE:  HAMBY VS REED [IMAGED]  37-2020-00023341-CU-BC-CTL Hamby must indemnify Trang Reed if Trang Reed is found to be liable.

Cross-Defendants argue that Trang Reed cannot seek to be indemnified to the extent Trang Reed was an intentional tortfeasor. Cross-Defendants argue indemnity is not available if the tortfeasor acted intentionally regardless of whether the tort itself is categorized as 'intentional.' Even assuming this is a correct statement of applicable legal authority, whether Trang Reed's conduct was intentional is a question of fact that cannot be adjudicated via this Demurrer. As alleged in the SAC-C, Cross-Complainant Trang Reed was authorized to make the subject withdrawals of company funds such that no intentional tort was committed.

Cross-Defendants also argue this cause of action fails because it must be pled as a declaratory relief cause of action. In support of this argument Cross-Defendants cite Valley Circle Estates v. VTN Consolidated, Inc. (1983) 33 Cal. 3d 604, but without a citing a specific page. The Valley Circle Estates opinion does not appear to address this issue. As a result, Cross-Defendants have not satisfied their burden and the Demurrer to this cause of action is overruled.

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3008963