Judge: Mark E. Windham, Case: 24STLC01052, Date: 2024-08-08 Tentative Ruling

Case Number: 24STLC01052    Hearing Date: August 8, 2024    Dept: 26

State Farm v. Hernandez-Fernandez, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Cross-Defendant Eva Castaneda’s Demurrer to the Cross-Complaint is OVERRULED. CROSS-DEFENDANT IS TO FILE AND SERVE AN ANSWER TO THE CROSS-COMPLAINT WITHIN 20 DAYS OF THIS RULING.

ANALYSIS:

On February 13, 2024, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the Complaint in this action against Defendant Flavio Hernandez-Fernandez aka Flavio Benjamin Hernandez aka Flavio Hernandez Benjamin (“Cross-Complainant Hernandez-Fernandez”). On April 18, 2024, Cross-Complainant Hernandez-Fernandez filed an answer to the Complaint, and with Aspire General Insurance Company (“Cross-Complainant Aspire), filed a cross-complaint against Cross-Defendant Eva Castaneda (“Cross-Defendant”).

Cross-Defendant filed the instant Demurrer to the Cross-Complaint on July 3, 2024. Cross-Complainants filed an opposition on July 26, 2024.

Discussion

Allegations in the Pleadings

The Complaint alleges that Cross-Complainant Hernandez-Fernandez negligently caused Plaintiff’s insured, Andres Flores Tercero, and/or his/her permissive users and/or passengers, to incur damages in a motor vehicle accident. (Compl., ¶6.) Plaintiff allegedly paid its insured for the damages in the amount of $5,989.11 and now seeks subrogation of those damages from Cross-Complainant Hernandez-Fernandez. (Id. at ¶¶7-9.)

In the Cross-Complaint, Cross-Complainants bring causes of action for (1) declaratory relief and comparative indemnity; (2) apportionment of fault; and (3) subrogation. The Cross-Complaint confusingly refers only to “Cross-Complainant” without specifying whether it is referring to Cross-Complainant Hernandez-Fernandez or Cross-Complainant Aspire. Only the third cause of action for subrogation is brought by “Cross-Complainants.” The allegations are as follows. If Cross-Complainant is held liable, then Cross-Defendant was negligent or liable in some manner for the damages alleged by Plaintiff. (Cross-Compl., ¶6.) Specifically, that on May 8, 2023, at 235 West 60th Street, Los Angeles, California, Cross-Defendant “negligently owned, entrusted, maintained, operated and controlled their motor vehicle in such a fashion that they proximately caused a collision with Cross-Complainant’s vehicle.” (Id. at ¶¶8, 18.) Cross-Complainant has not been negligent and is not liable for Plaintiff’s alleged damages. (Id. at ¶10.) However, if Cross-Complainant is held liable, then Cross-Defendant was contributorily negligent in causing any damages alleged by Plaintiff and Cross-Complainant is entitled to be indemnified by Cross-Defendant for the full amount of any judgment entered against Cross-Complainant, reduced to the extent Plaintiff’s damages are attributable to any negligence or liability of Cross-Complainant. (Ibid.) Cross-Complainant Aspire seeks subrogation of damages it paid to Cross-Complainant Hernandez-Fernandez due to the accident. (Id. at ¶¶15-20.)

Demurrer

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Reese Decl., ¶¶4-7 and Exh. A.) Cross-Defendant demurs to the Cross-Complaint for failure to allege facts sufficient to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).) The Demurrer is brought on the grounds that indemnification and apportionment of fault are inapplicable between Plaintiff’s insured, Cross-Defendant, and Cross-Complainant Fernandez-Hernandez because Cross-Complainant Fernandez-Hernandez and Cross-Defendant are not joint tortfeasors to the Plaintiff. Cross-Defendant argues that it cannot be a joint tortfeasor with respect to Plaintiff because they were Tercero’s permissive driver at the time of the accident. (Demurrer, p. 2:3-14.) This argument, however, relies on facts outside of the pleadings. The Demurrer does not point to any allegations in the Cross-Complaint, or to any judicially noticeable facts, that state Cross-Defendant was the driver of Tercero’s vehicle. As this is the entire basis of the Demurrer, the Court overrules the Demurrer as to each cause of action in the Cross-Complaint.

Conclusion

Cross-Defendant Eva Castaneda’s Demurrer to the Cross-Complaint is OVERRULED. CROSS-DEFENDANT IS TO FILE AND SERVE AN ANSWER TO THE CROSS-COMPLAINT WITHIN 20 DAYS OF THIS RULING.

Court clerk to give notice.