Judge: Lee W. Tsao, Case: 21STCV24604, Date: 2024-11-14 Tentative Ruling

Case Number: 21STCV24604    Hearing Date: November 14, 2024    Dept: C

SOLARES v. CITY OF NORWALK

CASE NO.:  21STCV24604

HEARING:  11/14/24

#9

Defendant/Cross-Defendant SOUTHERN CALIFORNIA EDISON COMPANY’s Motion to Strike Portions of Defendant/Cross-Complainant CITY OF NORWALK’s Cross Complaint is DENIED

Opposing Party to give notice.

No Reply filed as of November 12, 2024. Due by November 6, 2024.

This motor vehicle personal injury action was filed by Plaintiff CARINA SOLARES (“Plaintiff Solares”) against Defendants SOUTHERN CALIFORNIA EDISON COMPANY (“SCE”); HERMAN WEISSKER POWER (“HWP”); the CITY OF NORWALK (“CITY”) and other defendants on July 2, 2021. Plaintiff Solares settled with all Defendants and agreed to dismiss her Complaint against all Defendants, including SCE and it’s subcontractor HWP, as well as the City. However, indemnity Cross-Complaints, including the City’s Cross-Complaint (filed November 3, 2021) against SCE, which is at issue in this Motion, was excluded from the settlement.

Moving Party SCE now moves to dismiss the second and fourth causes of action as moot, because the City contributed nothing to fund the settlement with the Plaintiff and suffered no indemnifiable damages. Additionally, SCE moves to strike the City’s first and third causes action for breach of contract (duty to indemnify) and declaratory relief (duty to indemnify) causes of action against SCE because the City’s effort to relieve itself of liability through an indemnity provision in a construction contract runs afoul of Cal. Civ. Code §2782(b)(2).

In Opposition, the City argues that Cal. Civ. Code §2782(b) does not apply, and/or that exceptions to Section 2782 are applicable.

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP §436.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (CCP §437.)

“Except as provided in Sections 2782.1, 2782.2, and 2782.5, provisions, clauses, covenants, or agreements contained in, collateral to, or affecting any construction contract with a public agency entered into on or after January 1, 2013 that purport to impose on any contractor, subcontractor, or supplier of goods or services, or relieve the public agency from, liability for the active negligence of the public agency are void and unenforceable.”  

The Motion to Strike is DENIED. Both parties raise factual and evidentiary considerations improperly decided via Motion to Strike. Specifically, the Court finds that whether exceptions to Cal. Civ. Code §2782(b)(2) apply is a factual inquiry that cannot be determined on the face of the Cross-Complaint.