Judge: Keri G. Katz, Case: 37-2023-00006742-CL-PA-CTL, Date: 2023-11-09 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 08, 2023

11/09/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Limited  PI/PD/WD - Auto Demurrer / Motion to Strike 37-2023-00006742-CL-PA-CTL STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS ZOQUE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Cross-Defendant Lisa Gratteau's demurrer to the cross-complaint of Defendant/Cross-Complainant Katherine Zoque and Cross-Complainant Aspire General Insurance Company is SUSTAINED.

The cross-complaint alleges three causes of action on behalf of both cross-complainants against cross-defendant Gratteau for declaratory relief/comparative indemnity, apportionment of fault and subrogation. As to the indemnity-based causes of action, Gem Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419 explains, ' '[t]here can be no indemnity without joint and several liability by the prospective indemnitor and indemnitee....' ' (Home Budget Loans, Inc. v. Jacoby & Meyers Law Offices (1989) 207 Cal.App.3d 1277, 1286, 255 Cal.Rptr. 483; Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, 212, 227 Cal.Rptr. 887; Munoz v. Davis (1983) 141 Cal.App.3d 420, 425, 190 Cal.Rptr. 400.) Gem Developers, 213 Cal.App.3d at 430.

As pled the cross-complaint fails to allege facts sufficient to support a finding that Gratteau and Zoque/Aspire General are joint tortfeasors. Absent such allegations, Zoque/Aspire General's declaratory relief/comparative indemnity cause of action fails. As the apportionment cause of action is also premised on comparative indemnity [XC ¶ 9], this cause of action fails for the same reasons. See also, Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1142.

As to the subrogation cause of action, to the extent the cross-complaint alleges this cause of action on behalf of Zoque, the court finds, as pled, the cross-complaint fails to allege facts sufficient to state a cause of action for subrogation on behalf of Zoque (Aspire General's alleged insured) [XC ¶ 16]. The allegations fail to establish Zoque's standing to pursue subrogation. To the extent the cross-complaint alleges this cause of action on behalf of Aspire General, such cross-complaint is improper. Pursuant to CCP § 428.10 a cross-complaint may only be brought by a party to the complaint/cross-complaint and Aspire General is not a party to Plaintiff's complaint.

As this is the first pleading challenge, the court allows Zoque/Aspire 10 days leave to amend.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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2984311  3 CASE NUMBER: CASE TITLE:  STATE FARM MUTUAL AUTOMOBILE INSURANCE  37-2023-00006742-CL-PA-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

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