Judge: Mark C. Kim, Case: 18STCV07682, Date: 2022-09-20 Tentative Ruling
Case Number: 18STCV07682 Hearing Date: September 20, 2022 Dept: S27
1. Background
Facts
Plaintiff, Ursula Carmody filed
this action against Defendant, City of Los Angeles for (1) negligence – direct liability,
(2) negligence – city vicarious liability/employee, and (3) negligence – city/employee
failed to inspect and warn of dangerous condition. Plaintiff alleges she was a volunteer at Harbor
Animal Care Shelter, which is owned by the City. She alleges the City breached a duty to
inspect and evaluate a dog under its control, and failed to warn Plaintiff or others
that the animal was dangerous. Plaintiff
alleges Defendant instructed her to groom, bathe, and walk the dog, and the dog
knocked her down, attacked her, mauled her, and bit her in her head, face, and
armpit.
On 8/24/22, the Court signed the parties’
stipulation to permit Plaintiff to file a First Amended Complaint adding a
claim for gross negligence. The Court
does not have any record of Plaintiff ever actually filing the amended
complaint. On 9/16/21, the City filed
its operative First Amended Answer, which indicates it is to Plaintiff’s “complaint,”
not FAC. It therefore appears Plaintiff’s
original complaint remains operative.
On 1/18/22, the Court granted the City’s
unopposed motion for leave to file a cross-complaint. On 1/26/22, the City filed a cross-complaint
against Plaintiff. The cross-complaint includes
causes of action for indemnification, apportionment of fault, declaratory
relief, and breach of contract. The prayer
seeks indemnity, judgment in a proportionate share, a judicial determination
for indemnification, and compensatory damages.
2. Demurrer
Plaintiff demurs to the entire
cross-complaint, as well as to the ninth affirmative defense in the amended
answer, which contends Plaintiff’s action is barred by the provisions of the
parties’ indemnity waiver and the release of liability and assumption of risk
receipt of volunteer handbook.
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true, however
improbable they may be.
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. Blank v. Kirwan 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], §
430.30 [as to any matter on its face or from which judicial notice may be
taken], and § 430.50(a) [can be taken to the entire complaint or any cause of
action within]. Specifically, a demurrer
may be brought per CCP § 430.10(e) if insufficient facts are stated to support the
cause of action asserted. Per CCP
§430.10(a) a demurrer may be brought where the court has no jurisdiction of the
subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot reasonably
respond. CCP § 430.10(f).
However, in construing the
allegations, the court is to give effect to specific factual allegations that
may modify or limit inconsistent general or conclusory allegations. Financial
Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the
facts pled in the complaint are inconsistent with facts which are incorporated
by reference from exhibits attached to the complaint, the facts in the
incorporated exhibits control. Further, irrespective of the name or label given
to a cause of action by the plaintiff, a general demurrer must be overruled if
the facts as pled in the body of the complaint state some valid claim for relief.
Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v.
Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show
the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (CCP §430.41(a).) The parties are to meet and confer
at least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).)
Thereafter, the demurring party shall file and serve a declaration detailing
their meet and confer efforts. (CCP §430.41(a)(3).)
The Court was originally scheduled
to hear this demurrer on 7/12/22. Prior
to the hearing, the Court found that the parties had not met and conferred
concerning the issues raised, provided guidance, and continued the hearing to
8/23/22.
On 8/23/22, the Court overruled the
demurrer on the ground that the release and waiver agreement was unenforceable. The Court held, however, that the parties had
failed to brief the issue of whether the cross-complaint was necessary and proper,
and ordered the parties to meet and confer further in this regard. The Court continued the hearing to 9/20/22,
and ordered the City to file points and authorities in support of the necessity
of its cross-complaint.
The City filed points and
authorities on 9/08/22. The City
explains that it is not seeking to recover attorneys’ fees under an attorneys’
fees provision in the parties’ agreement, but instead as an element of damages
under the release and indemnification provision of the parties’ agreement. The City contends Monster, LLC v. Superior Court
(2017) 12 Cal.App.5th 1214 is directly on point. In Monster, the plaintiff entity sued the
defendant entity for fraud. The defendant
entity cross-complained for breach of contract, alleging the filing of the
complaint was a breach of the parties’ contract, which entitled it to
damages. The trial court granted the
defendant’s motion for summary judgment on the complaint, finding it was barred
by the parties’ release agreement. The defendant
then took the position that it was entitled to a jury trial on its cross-complaint
for breach of contract. The trial court
instead set the matter for hearing on a motion for attorneys’ fees. The Court of Appeals reversed, finding that the
cross-complaint asserted a proper claim for breach of contract, and the attorneys’
fees sought were merely an element of damages due to the breach. It therefore held that the defendant was
entitled to a trial, rather than hearing on a motion, concerning its claimed damages
(attorneys’ fees).
The Court is satisfied that the claims
for breach of express indemnification agreement can go forward by way of
cross-complaint in light of Monster. The
demurrer to the third and fourth causes of action for express indemnification
and declaratory relief is therefore overruled.
Less clear is the issue of implied
indemnification. The City cites cases
holding that a claim for implied indemnification can be sought by way of
cross-complaint against any person, whether a party or not, to the action. The City then cites cases holding that a claim
for implied indemnification is proper by one defendant against other
co-defendants. This is clearly the case,
because co-defendants are jointly and severally liable for the plaintiff’s
economic damages so long as they are found to be even minimally at fault. If, for example, one defendant is found to be
1% at fault, and other one 99% at fault, but the plaintiff pursues collection
against the 1% at fault defendant, that defendant is, in turn, entitled to indemnification
from the 99% at fault defendant. It is
not clear how that analysis applies here.
Fault will be apportioned between plaintiff and defendant through
affirmative defenses. Notably, the City
relies on CCP §428.10(b), which permits a “party against whom a cause of action
has been asserted in a complaint or a cross-complaint” to file a cross-complaint
setting forth “any cause of action he has against a person alleged to be liable
thereon, whether or not such a person is already a party to the action.” This means the City is claiming the plaintiff
is liable on the plaintiff’s claims. This,
however, makes no sense. How can she be liable
to herself? The Court finds the first
cause of action for indemnification and apportionment of fault are superfluous
and sustains the demurrer to those causes of action without leave to
amend.
Plaintiff’s demurrer to the first
and second causes of action in the City’s cross-complaint is sustained without
leave to amend. Plaintiff’s demurrer to
the third and fourth causes of action is overruled. Plaintiff is ordered to file an answer to the
cross-complaint, with the first and second causes of action deemed stricken, within
ten days.
3. CMC
and TSC
The Court remind the parties that
there is a CMC and TSC on calendar concurrently with the hearing on this demurrer,
and asks Counsel to make arrangements to appear remotely at the hearing.
Plaintiff is ordered to give notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative. If
the parties do not submit on the tentative, they should arrange to appear remotely.