Judge: Mark C. Kim, Case: 19TRCV00698, Date: 2023-03-07 Tentative Ruling



Case Number: 19TRCV00698    Hearing Date: March 7, 2023    Dept: S27

1.     Background Facts

Plaintiffs, Chih and Yin Change and Else and Scott Haley, individually and as trustees of their family trusts, filed this action against Defendants, John and Dina Gample and their family trust, as well as Juge Company, Inc., Joseph Harold Juge, Jr., Juge Design and Construction, John Juge, and Juge & Juge for damages arising out of construction work done on Defendants’ property. 

 

Plaintiffs’ operative Second Amended Complaint includes causes of action for Breach of Statutory Building Codes and Ordinances, Trespass on Real Property, Trespass on Real Property, Negligence, Invasion of Privacy, and Quiet Title.  Plaintiffs added the City as a defendant in the SAC because the Gample Defendants, in their cross-complaint, seek to use an alleged City easement as a drain line over Plaintiffs’ property.  Plaintiffs, by way of their amended complaint, seek a declaration that there is no such easement. 

 

2.     Cross-Complaint

Joseph Harold Juge, Jr. and Juge Company, Inc. (“Juge”) filed a cross-complaint on 3/10/20.  The complaint is pled against Roes 1-100 and seeks implied contractual indemnity, total equitable indemnity, apportionment, and declaratory relief.  On 8/13/22, Juge filed a Roe amendment naming Showtime Construction Engineering P.C. as Doe 1 and Art Negrity as Doe 2; notably, it appears this is a misspelling of Art Negrete, whose name appears on the caption of all matters on calendar today.

 

3.     Motion to Quash Cross-Complaint

a.     Notice of Motion

Negrete filed a motion to quash service of the summons and cross-complaint.  In his notice of motion, he indicates the motion is made on the ground that the Court lacks personal jurisdiction over him; the notice of motion goes on, however, to indicate the bases for the above assertion include that Juge was not genuinely ignorant of his existence when it filed the cross-complaint, Juge unreasonably delayed in filing the roe amendment, and the roe amendment was not proper because there was no order of the Court permitting the amendment per CCP §472(a)(2). 

 

b.     Waiver of Personal Jurisdiction Argument

The grounds for Negrete’s motion are not entirely certain.  To the extent he is contending the Court lacks personal jurisdiction over him, his argument has been waived because he served discovery prior to the hearing on the motion.  See Factor Health Mgmt. v. Superior Court (2005) 132 Cal.App.4th 246, 250, making clear that propounding discovery constitutes a general appearance and waives any jurisdictional objection. 

c.     CCP §474

It appears that Negrete’s real argument is that he has been improperly named as a roe cross-defendant when Juge was not genuinely ignorant of his identity and/or role in the construction defects at issue in this case at the time Juge filed his original cross-complaint.  The threshold question is whether a motion to quash is the proper mechanism to challenge a roe amendment.  Negrete relies on McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375 to support his position that it is.  Notably, McClatchy did so hold, and also cited A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1063-1065, to explain, “a motion to quash under §419.10 challenges personal jurisdiction and may not be the proper procedure to challenge Doe amendment, but court should look to substance of motion, not its label, in assessing whether §474 was satisfied.” 

 

Thus, the Court finds a motion to quash is the proper vehicle to challenge the roe amendment at issue here.  The Court will consider the motion on its merits.

 

Page 3, line 26 through page 4, line 14 of the points and authorities in support of the motion to quash set forth various facts that Negrete contends collectively establish Juge knew of Negrete’s identity and role in the subject construction project at the time Juge filed his cross-complaint.  These facts, however, are not supported by any citation to any evidence; notably, no evidence was filed with the motion.  The Court therefore cannot and will not consider these purported facts.

 

Negrete then argues that the complaint itself appears to reference Negrete, because it references a bobcat tractor digging in the earth around the property.  Negrete does not point to any facts pled in the complaint or cross-complaint, nor to any evidence, to support his apparent position that he was the one driving the bobcat tractor mentioned in the complaint.  The motion to quash on the ground that the roe amendment was not proper because Juge knew of Negrete’s identity at the time he filed the original cross-complaint is denied; Negrete has presented no evidence in support of his position, and the Court cannot consider the arguments made in the moving papers to be evidence. 

 

d.     Unreasonable Delay

Negrete next argues the motion to quash should be granted because Juge unreasonably delayed in bringing him into the action.  Pursuant to Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 9, delay alone cannot support refusal to permit a doe amendment; prejudice must also be shown.  Because there is no evidence submitted with the moving papers, Negrete has necessarily failed to meet his burden to show any delay has prejudiced him.

 

e.     Relation Back

Negrete’s final argument is that the roe amendment does not relate back to the filing of the cross-complaint because the roe amendment is not proper.  This is, however, a restatement of his prior argument, and the motion to quash on this ground is therefore also denied.

 

f.      CCP §472(a)(2)

Negrete’s notice of motion argues the roe amendment is not proper because it was not permitted by the Court per CCP §472(a)(2).  Negrete does not brief this argument in his points and authorities.  CCP §474 provides that doe amendments “must” be made upon discovery of the defendant’s true identity.  These amendments, therefore, are made on a form document and do not require a noticed motion.  Thus, to the extent this argument is being advanced, it is rejected. 

 

g.     Conclusion

The motion to quash is denied. 

 

4.     Demurrer

a.     Statute of Limitations

Negrete’s first argument is that the entire cross-complaint is subject to demurrer as time-barred.  This argument is rejected for the reasons stated above.  Juge added Negrete as a roe cross-defendant, and nothing on the face of the cross-complaint shows that it was time-barred at the time it was filed.

 

b.     Implied Contractual Indemnity

Negrete demurs to the cause of action for implied contractual indemnity on the ground that Juge has not pled the existence of any contract running between Juge and Negrete.  Juge’s opposition is silent in this regard.  The demurrer is sustained; leave to amend is granted if and only if Juge can allege the existence of a contract running between Juge and Negrete that supports the cause of action.

 

c.     Total Equitable Indemnity

Negrete demurs to the cause of action for equitable indemnity, contending Juge has not pled specific facts showing how Negrete is jointly responsible for the plaintiffs’ claimed damages.  Negrete cites no authority for the position that such specificity is required at the pleading stage.  It is common to plead a claim for indemnification in very general terms; notably, the cause of action sounds largely in negligence, which can be pleaded generally.  See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.  Absent authority requiring specificity in pleading a claim for indemnification, the demurrer to this cause of action is overruled.

 

d.     Contribution and Apportionment of Fault

Negrete argues that a plaintiff has the right to control who is a party to the action, and the defendant cannot force the plaintiff to add additional parties to the action absent exceptional circumstances.  This is correct.  It has, however, nothing to do with whether or not the defendant can file a cross-complaint against third parties to seek relief so long as the requirements to do so are met.

 

Similarly, Negrete argues that contribution and apportionment of fault can be asserted as affirmative defenses.  This is, of course, true, so long as the defendant is asserting that the plaintiff contributed to his own injuries and/or fault for the injuries should be apportioned between the plaintiff and the defendant.  If, as here, the defendant wishes to have fault apportioned between it and a non-party to the lawsuit, the defendant needs to bring the non-party into the lawsuit by way of a cross-complaint.

 

Negrete’s demurrer to the cause of action for contribution and apportionment of fault is overruled.

 

e.     Declaratory Relief

Negrete correctly notes that a cause of action for declaratory relief is invoked to declare rights but not to determine or try issues.  Juge failed to address this argument in opposition to the demurrer, and failed to show how the cause of action for declaratory relief is necessary and proper.  It appears the other causes of action asserted in the cross-complaint are sufficient to resolve all issues between the parties, and no declaration of rights is necessary.  The demurrer to this cause of action is therefore sustained without leave to amend.

 

f.      Conclusion

Negrete’s demurrer to the cause of action for implied contractual indemnification is sustained with leave to amend.  His demurrer to the cause of action for declaratory relief is sustained without leave to amend.  His demurrer to the causes of action for equitable indemnity and contribution/apportionment of fault is overruled. 

 

Juge is ordered to file an amended cross-complaint within ten days.  Negrete is ordered to file a responsive pleading within the statutory time thereafter. 

 

Negrete 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 any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.