Judge: Malcolm Mackey, Case: 22STCV17187, Date: 2023-03-08 Tentative Ruling
Case Number: 22STCV17187 Hearing Date: March 8, 2023 Dept: 55
WALLIS
v. ROBINSON HELICOPTER COMPANY, INC. 22STCV17187
Hearing Date: 3/8/23,
Dept. 55
#8:
VERIFIED APPLICATION FOR KRISTINA M. INFANTE FOR
PERMISSION TO APPEAR AS COUNSEL PRO HAC VICE FOR PLAINTIFF.
VERIFIED APPLICATION FOR STEVEN C. MARKS FOR
PERMISSION TO APPEAR AS COUNSEL PRO HAC VICE FOR PLAINTIFF.
Notice: Okay
No
Opposition
MP:
Plaintiff
RP:
Summary
On 5/24/22, Plaintiff KRISTEN M. WALLIS, as the
Personal Representative of the Estate of Tyson “Ty” Wallis, deceased, filed a
Complaint alleging wrongful death caused by Defendant’s helicopter breaking
apart in flight during a flying lesson.
MP
Positions
Applicants request an order granting permission to
appear pro hac vice for Plaintiff, on grounds including the following:
·
Applicant attorneys are members in good
standing of the State Bar of Florida.
·
Applicants are members in good standing in
all the membership bars and no disciplinary or grievance proceedings are
pending against them.
·
Applicant is not a resident of California,
nor engaged in the regular practice of law in California.
·
Applicants have not previously filed any
application to appear as counsel pro hac vice in this state within the
preceding two years.
·
Applicants paid the State Bar fee.
Tentative
Ruling
The applications are granted.
The Court finds that they sufficiently comply with
California Rules of Court, Rule 9.40, including the applicants’ declarations
addressing the rule elements.
Additionally, no reason appears to deny the
applications, including because of the absence of any opposition.
A judge’s determination of whether to grant an
application to appear pro hac vice is evaluated under the
abuse-of-discretion standard. Walter E. Heller Western, Inc. v. Sup.
*IF MOVING PARTY SUBMITS ON THE COURT’S TENTATIVE
RULING, PLEASE CALL THE COURTROOM AT 213-633-0655*
WALLIS
v. ROBINSON HELICOPTER COMPANY, INC. 22STCV17187
Hearing Date: 3/8/23,
Dept. 55
#8: DEMURRER TO CROSS-COMPLAINT.
Notice: Okay
Opposition
MP:
Cross-Defendant KRISTEN M. WALLIS
RP:
Cross-Complainant ROBINSON HELICOPTER
COMPANY, INC.
Summary
On 5/24/22, Plaintiff KRISTEN M. WALLIS, as the
Personal Representative of the Estate of Tyson “Ty” Wallis, deceased, filed a Complaint
alleging wrongful death caused by Defendant’s helicopter breaking apart in
flight during a flying lesson.
On 7/19/22, Defendant ROBINSON HELICOPTER COMPANY,
INC. filed a Cross-Complaint against Plaintiff, for total equitable
indemnity; comparative indemnity; equitable apportionment of fault;
contribution; and declaratory relief, alleging that alleged personal injuries from
a defective helicopter, set forth in the Trouts Plaintiffs’ Complaint, case no.
22TRCV00428, were proximately caused by the negligence and/or other tort of
Cross-Defendants.
MP
Positions
Moving party requests an order sustaining the demurrer
to the Cross-Complaint, on grounds including the following:
·
Robinson cannot allege a theory by which a
student pilot – technically a passenger as a matter of federal law – could be
at fault for the accident and how that student’s fault can be imputed to his
widow and estate.
·
The personal representative occupies a
fiduciary relationship to the heirs. Nathanson v. Superior Court (1974) 12
Cal.3d 355, 364-365; Estate of Sapp (2019) 36 Cal.App.5th 86, 102.
·
The doctrine of equitable indemnity
“applies only among defendants who are jointly and severally liable to the
plaintiff. [Citation.] ... [J]oint and several liability in the context of equitable
indemnity is fairly expansive.... [ ] One factor is necessary, however. With
limited exception, there must be some basis for tort liability against the
proposed indemnitor. [Citation.] Generally, it is based on a duty owed to the
underlying plaintiff [citations], although vicarious liability [citation] and
strict liability [citation] also may sustain application of equitable
indemnity.” BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc.
(2004) 119 Cal.App.4th 848, 852.
·
RP Positions
Opposing party advocates overruling, or leave to
amend, for reasons including the following:
·
Plaintiff/Cross-Defendant, Kristen Wallis
represents the estate of deceased student pilot, Ty Wallis.
·
The Cross-Complaint is adequately pled against
the decedent’s representative and supported by incorporating by reference the
related Complaint. Code of Civil
Procedure section 428.10, subdivision (b).
·
The Cross-Defendant’s requests for
Judicial Notice attempt to introduce two separate “Reports of the NTSB” which
contains inadmissible hearsay. “No part of a report of the Board, related to an
accident or an investigation of an accident, may be admitted into evidence or
used in a civil action for damages resulting from a matter mentioned in the
report.” 49 U.S.C. §1154(b).
·
To the extent the Cross-Complaint
incorporates reliance on a potential contractual relationship with the
Cross-Defendant, it should not render any cause of action to be dismissed at
this phase of the litigation. All aircraft purchased from Cross-Complainant are
subject to an addendum to the purchase agreement, which confers indemnification
if the aircraft is misused under certain conditions.
Tentative
Ruling
The demurrer is overruled.
The requests for judicial notice are denied.
Twenty days to answer.
The demurrer asserts fact questions falling far
outside of the subject pleading requirements and allegations. The subject Cross-Complaint and related
Complaint do not allege facts regarding a joint tortfeasor status existing or
not.
A claim for equitable indemnity is very easily
alleged, as follows:
Platt v. Coldwell Banker Residential Real
Estate Services (1990) 217 Cal. App. 3d 1439, 1445 n.7
(“To state a claim for equitable indemnity, a defendant must allege the same
harm for which he may be held liable is properly attributable -- at least in
part -- to the cross-defendant.”); Expressions
at Rancho Niguel Assn. v. Ahmanson Developments, Inc. (2001) 86 Cal. App.
4th 1135, 1139. See also Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177(“A right of
equitable indemnity can arise only if the prospective indemnitor and indemnitee
are mutually liable to another person for the same injury.”); Leko v. Cornerstone Building Inspection
Service (2001) 86 Cal.App.4th 1109, 1115 (requiring tortfeasors
causing injury, jointly and severally liable, but not any duty owed); BFGC Architects Planners, Inc. v.
Forcum/Mackey Construction, Inc. (2004) 119 Cal. App. 4th 848, 852
(equitable indemnity “applies only among defendants who are jointly and
severally liable to the plaintiff.”); Stop
Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.
App. 4th 1036, 1040 (“equitable indemnity is only available among tortfeasors
who are jointly and severally liable for the plaintiff's injury…. In addition, implied contractual indemnity
between the indemnitor and the indemnitee can provide a basis for equitable
indemnity.”); Weseloh Family Ltd.
Partnership v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal. App. 4th
152, 175 (there must be some basis for tort liability against an indemnitor,
which generally is based upon a duty owed to the plaintiff, although other
theories may apply, including vicarious or strict liability); Considine Co. v. Shadle (1986) 187
Cal. App. 3d 760, 769 (“A defendant sued for breach of contract may have a
right of implied indemnity against a third person whose wrong caused the
defendant's breach.”); Stratton v.
Peat (1987) 190 Cal. App. 3d 286, 291-92 (“implied contractual indemnity is
a form of equitable indemnity…” based on “equitable considerations brought into
play … by contractual language not specifically dealing with
indemnification….”); Bay Dev. v. Sup.
Ct. (1990) 50 Cal. 3d 1012, 1033 (“When an indemnity claim is based on an
implied contractual indemnity theory, … there is no written indemnification
clause….”); Ranchwood Cmtys. P'ship
v. Jim Beat Constr. Co. (1996) 49 Cal. App. 4th 1397, 1419 (if parties
expressly contracted with respect to indemnification, then the claim must be
determined based on the agreement and not on equitable indemnity).
“‘[J]udicial notice of matters upon demurrer will be
dispositive only in those instances where there is not or cannot be a factual
dispute concerning that which is sought to be judicially noticed.’” Unruh-Haxton v. Regents of Univ. of Cal.
(2008) 162 Cal.App.4th 343, 365. "'When
judicial notice is taken of a document ... the truthfulness and proper
interpretation of the document are disputable." Aquila, Inc. v. Sup. Ct. (2007) 148
Cal.App.4th 556, 569 (quoting StorMedia Inc. v. Sup. Ct. (1999) 20
Cal.4th 449, 457 n. 9). Judicial notice
is improper to resolve the very dispute over the fact that occasioned the
request for judicial notice. Cruz v.
County of Los Angeles (1985) 173 Cal. App. 3d 1131, 1134. While courts may take judicial notice of
official acts and public records, that does not include the truth of the
matters asserted in the documents. Arce
ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471,
482; Aquila, Inc. v. Sup. Ct.
(2007) 148 Cal.App.4th 556,
569; Mangini v. R.J. Reynolds
Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds by In
re Tobacco Cases II (2007) 41 Cal.4th 1257;
Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182,
193
Complainants harmed by decedents can file actions
against the estate representative before the time to file a claim in the
probate action expires. E.g., Est. of Prindle (2009) 173 Cal. App.
4th 119, 128. The statute of limitations
in Code of Civil Procedure section 366.2 governs causes of action against a decedent
that existed at the time of death, including a cross-complaint against a
decedent's estate for equitable indemnity.
Bradley v. Breen (1999) 73 Cal. App. 4th 798, 800.
*IF MOVING PARTY SUBMITS ON THE COURT’S
TENTATIVE RULING, PLEASE CALL THE COURTROOM AT 213-633-0655*