Judge Lisa K. Sepe-Wiesenfeld, Case Number: 22STCV31025, Date: 2023-10-11 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 22STCV31025, Date: 2023-10-11 Tentative Ruling

Cross-Defendant Samsung C&T America, Inc. (“Samsung”) requests judicial notice of the Statement of Information for Samsung C&T America, Inc., filed with the California Secretary of State on April 19, 2023. Samsung’s request is GRANTED, pursuant to Evidence Code section 452, subdivision (h).

Defendant/Cross-Complainant Mycotoo, Inc. (“Mycotoo”) requests judicial notice of Plaintiff Ashton Kennedy, a minor, by his Guardian ad Litem, Robert Kennedy (“Plaintiff”)’s complaint in this action, Mycotoo’s cross-complaint in this action, a document produced by Mycotoo in discovery, and Mycotoo’s Roe amendment in this action. Mycotoo’s request is GRANTED as to the court records pursuant to Evidence Code section 452, subdivision (d), and DENIED as to the discovery document, as there is no basis to take judicial notice of this document.

Samsung also requests judicial notice of the extent of its business as evidenced by its website, Samsung’s responses to discovery requests, and portions of a deposition transcript. There is no basis to take judicial notice of these documents here; notably, the case cited by Samsung, Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, allows a court to take judicial notice of discovery contained in court records, and the present discovery is not part of a court record. Thus, Samsung’s request is DENIED.

As an initial matter, the Court notes that Samsung’s meet-and-confer declaration is insufficient, as Code of Civil Procedure section 430.41, subdivision (a)(3), and section 435.5, subdivision (a)(3), require description of the means by which the parties met and conferred, and counsel states only that he corresponded by Mycotoo’s counsel and believes the parties have sufficiently met and conferred. The purpose of the meet-and-confer requirement is to encourage the parties to reach an agreement as to the issues raised in the demurrer and motion to strike without court intervention, and the Court can make no meaningful evaluation of those efforts where counsel simply provides a conclusory statement that the requirement was satisfied. Nonetheless, in the interest of judicial efficiency, the Court exercises its discretion to consider the merits of Samsung’s demurrer and motion to strike, but it notes that subsequent failures to comply with statutory obligations may result in a continuance of the hearing on the subject motion.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon 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).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“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.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Samsung argues it is not a proper party to this action because there are no allegations describing why it may be held liable here. Indeed, there are no specific allegations against Samsung which may allow Samsung, the Court, or the trier of fact to determine the basis of liability against Samsung. Simply referring to Plaintiff’s complaint is insufficient, as this does not describe a basis for indemnity. Given this case has been pending for over a year, Mycotoo presumably has some specific facts it can allege to support a claim for indemnity.

Second, Mycotoo’s claim for “total indemnity” does not state how it is any different from an equitable indemnity claim. If Mycotoo’s claim is one for express indemnification, it must so state. Otherwise, it would appear a claim for “total indemnity” is no different than the second cause of action for equitable indemnity. “Equitable indemnity, which requires no contractual relationship, is premised on a joint legal obligation to another for damages; it is subject to allocation of fault principles and comparative equitable apportionment of loss.” (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700, quotation marks omitted.) “The elements of a cause of action for equitable 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.” (Ibid., quotation marks, brackets, and ellipses omitted.) Should Mycotoo wish to assert an equitable indemnification claim against Samsung, it must do so with specific facts to support such a claim.

As to the declaratory relief claim, “[t]o qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909, quotation marks and brackets omitted.) A cause of action for declaratory relief should not be used as a second cause of action for the determination of identical issues raised in another cause of action. (General of America Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) “The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” (California Insurance Guarantee Association v. Superior Court (1991) 231 Cal.App.3d 1617, 1624), and a duplicative cause of action is subject to demurrer (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290). Further, “there is no basis for declaratory relief where only past wrongs are involved.” (Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 366, quotation marks omitted.) There are no facts here that would allow the Court to determine whether the declaratory relief claim is any different from the claim for equitable indemnification or that it concerns anything but past wrongs.