Judge Lynette Gridiron Winston, Case Number: 23PSCV01453, Date: 2024-06-03 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV01453, Date: 2024-06-03 Tentative Ruling

Case Number: 23PSCV01453 Hearing Date: June 3, 2024 Dept: 6

CASE NAME: Ibrahim Mobarak, et al. v. Lourdes Juarez Garrison

Cross-Defendant Ibrahim Mobarak’s Motion to Strike Portions of Cross-Complaint

TENTATIVE RULING

The Court GRANTS Cross-Defendant Ibrahim Mobarak’s motion to strike portions of the cross-complaint without leave to amend. Cross-Defendant is ordered to serve and submit a proposed Order of Dismissal within ten calendar days of this order.

Cross-Defendant Ibrahim Mobarak is ordered to give notice of the Court’s ruling within ten calendar days of this order.

BACKGROUND

This is an auto accident case. On May 10, 2023, plaintiffs Ibrahim Mobarak (Ibrahim), Mia Mobarak, Kristian Mobarak, and Berlynn Mobarak (collectively, Plaintiffs or Cross-Defendants) filed this action against defendant Lourdes Juarez Garrison (Defendant or Cross-Complainant) and Does 1 to 10, alleging causes of action for motor vehicle and general negligence.

On November 27, 2023, Cross-Complainant filed the operative cross-complaint against Ibrahim and Roes 1 to 25, alleging causes of action for apportionment of fault, indemnification, and declaratory relief.

On April 26, 2024, Ibrahim moved to strike portions of the cross-complaint. On May 23, 2024, Cross-Complainant opposed the motion. Ibrahim did not reply.

LEGAL STANDARD

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” (Id., § 436.)

PRELIMINARY ISSUES

The Court notes that Cross-Complainant filed and served the opposition on May 23, 2024, more than three days after it was due on May 20, 2024. (See Code Civ. Proc., § 1005, subd. (b).) The Court exercises its discretion to still consider the opposition, but admonishes Cross-Complainant to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)

DISCUSSION

Meet and Confer

Per Code of Civil Procedure section 435.5, subdivision (a), Ibrahim was required to meet and confer in person, by telephone, or by video conference before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) Ibrahim provided no declaration evidencing any meet-and-confer efforts. (Id., § 435.5, subd. (a)(3).) Nevertheless, the Court may not deny a motion to strike for failure to adequately meet and confer. (Id., § 435.5, subd. (a)(4).) The Court will still consider the motion to strike, but admonishes Ibrahim to comply with the requirements of the Code of Civil Procedure going forward.

Analysis

Ibrahim seeks to strike each cause of action in the cross-complaint on the grounds that it fails to state facts sufficient to constitute a cause of action, is duplicative of the affirmative defenses pled in the answer to the complaint, and is otherwise improper against Ibrahim. With respect to the First Cause of Action for indemnification, Ibrahim contends it is equivalent to comparative negligence. Ibrahim then argues that it is improper because Cross-Complainant has asserted affirmative defenses of voluntary assumption of risk, negligence of others, apportionment of fault, lack of causation, and failure to wear proper seatbelts and safety restraints. Ibrahim contends that even if he bears some comparative fault, it will be reflected in a reduction of the total liability by virtue of Cross-Complainant’s affirmative defenses. Ibrahim also contends the passenger Plaintiffs are fault-free, but even if they are comparatively negligent, the answer asserts the affirmative seatbelt defense. Ibrahim contends the cross-complaint is proper as to the Roe cross-defendants, but not as to Ibrahim or the passenger Plaintiffs.

In opposition, Cross-Complainant contends Ibrahim has not demonstrated that any allegations are false, irrelevant, or improper, or that the cross-complaint violates any laws, court rules, or order of the Court. Cross-Complainant contends that the purported duplicative nature of the affirmative defenses alleged in the answer to the complaint is a novel theory of law, and that there is no rule or statute cited that allows for striking the pleading via a motion to strike. Cross-Complainant otherwise contends the cross-complaint properly pleads all required elements for indemnification.

The Court finds Ibrahim’s motion to be well taken. Equitable indemnity is an equitable doctrine that apportions responsibility among tortfeasors responsible for the same indivisible injury on a comparative fault basis. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 598.) “[T]he equitable indemnity doctrine originated in the common sense proposition that when two individuals are responsible for a loss, but one of the two is more culpable than the other, it is only fair that the more culpable party should bear a greater share of the loss.” (Id. at p. 593.) “Although the body of law defining and applying principles of equitable indemnity has not fully gelled but is still evolving, one thing is clear: The doctrine applies only among defendants who are jointly and severally liable to the plaintiff.” (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 852, emphasis added.) Thus, “a right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177, emphasis added.)

Cross-Complainant alleges in its indemnification (equitable indemnity) count that in the principal action (the Complaint) Ibrahim alleges conduct entitling him to compensatory damages against Cross-Complainant. (Cross-Complaint, First Cause of Action, ¶ 7.b.) Cross-Complainant further alleges that if found liable, his liability would be based solely upon a derivative form of liability resulting from an obligation imposed upon him by law, and therefore he would be entitled to complete indemnity from each cross-defendant, which includes only Ibrahim as the cross-defendant named. (Cross-Complaint, First Cause of Action, ¶ 7.c.) There are no allegations that Cross-Complainant and Ibrahim are liable to another person for the same injury, only that Ibrahim is liable to Cross-Complainant for the injuries Ibrahim suffered. Thus, there is no basis for equitable indemnity.

Moreover, this First Cause of Action is duplicative of affirmative defenses in Cross-Complainant’s answer. The answer asserts affirmative defenses of comparative fault alleging any damages suffered by Ibrahim are the result of the comparative fault of Ibrahim and must be adjusted accordingly. (Answer – Tenth, Eleventh Affirmative Defenses.) The Second Cause of Action for apportionment of fault likewise alleges that if Cross-Complainant is liable for any damages suffered by Ibrahim, those damages were caused in whole or in part by Ibrahim and Ibrahim should be required to pay a share of Ibrahim’s judgment in proportion to his comparative negligence. (Cross-Complaint, Second Cause of Action, ¶ 8.a., b.) Thus, the Second Cause of Action against Ibrahim also duplicates Cross-Complainant’s affirmative defenses — both allege Ibrahim, not Cross-Complainant, is responsible for his own damages (Answer – First, Tenth, Eleventh Affirmative Defenses.) Therefore, Cross-Complainant can obtain the remedy he seeks via his affirmative defenses and the Cross-Complaint is unnecessary. (See Lauriedale Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439, 1444 [The cross-complaint was properly dismissed as unnecessary because equivalent relief was available through affirmative defenses asserted by defendant].)

Finally, "when an issue can be raised by means of an affirmative defense, a trial judge may therefore dismiss a declaratory relief claim raising the same questions in the cross-complaint." (C.J.L. Construction, Inc. v. Universal Plumbing (1993) 18 Cal.App.4th 376, 391; see also Welfare Investment Co. v. Stowell (1933) 132 Cal.App. 275, 276-278 [trial judge "properly" struck cross-complaint when all of the issues raised by that pleading were likewise alleged as affirmative defenses].) Here, the Third Cause of Action for declaratory relief seeks a declaration regarding liability alleging that the subject accident was caused in whole or in party by Ibrahim’s negligence. (Cross-Complaint, Third Cause of Action, ¶ 9.) As with the first and second causes of action, the Third Cause of Action raises the same issues of comparative negligence/fault asserted in the Answer as affirmative defenses. Thus, the Third Cause of Action can be stricken.

Based on the foregoing, the Court GRANTS the motion to strike the First, Second and Third Causes of Action in the Cross-Complaint without leave to amend as to Ibrahim.

CONCLUSION

Cross-Defendant Ibrahim Mobarak is ordered to give notice of the Court’s ruling within ten calendar days of this order.