Judge: Michael E. Whitaker, Case: 19STCV28186, Date: 2022-12-12 Tentative Ruling

Case Number: 19STCV28186    Hearing Date: December 12, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Rafael Gonzalez and Alicia Gonzalez (collectively, Plaintiffs) sued Defendants Christopher M. Smith, Klein’s Gourmet Group, LLC, and Edible Arrangements (collectively, Defendants) based on a vehicular collision.  Defendants Christopher M. Smith and Klein’s Gourmet Group, LLC (collectively, Cross-complainants) filed a cross-complaint against Plaintiffs for apportionment of negligence and partial indemnity. Plaintiffs move for a common law motion for judgment on the pleadings of the cross-complaint.  Cross-Complainants oppose the motion.  Plaintiffs reply.

PROCEDURAL DEFICIENCIES

Cross-Complainants argue Plaintiffs’ motion should be denied as procedurally defective on two grounds. 

1. Meet and Confer Requirement

First, Cross-Complainants assert that the motion should be denied because Plaintiffs failed to comply with the meet and confer requirement pursuant to Code of Civil Procedure, section 439, subdivision (a).  “Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.”  (Code Civ. Proc., § 439, subd. (a).)  However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.”  (Code Civ. Proc., § 439, subd. (a)(4).) 

In reply, Plaintiffs argue that a common law motion for judgment on the pleadings does not have a requirement that a meet and confer prior to filing the motion be conducted via telephone or in person.

Nevertheless, the Court finds Plaintiffs’ meet and confer letter served upon Cross-Complainants outlining the claims to be raised in the instant motion and providing information to contact Plaintiffs’ counsel as well as an invitation to reach out telephonically was sufficient to substantially comply with the meet and confer requirement.

2. Timeliness of Motion

Next, Cross-Complainants assert that Plaintiffs’ motion is untimely as the hearing for the motion will be heard on the same day of trial in violation of Code of Civil Procedure section 438, subdivision (e).  Code of Civil Procedure section 438, subdivision (e) provides that no motion for judgment on the pleadings may be made “if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise permits.” (Code Civ. Proc., §¿438, subd. (e).) 

However, a non-statutory motion for judgment on the pleadings may be made any time before or during trial.  (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)  As the Court construes this as a non-statutory motion for judgment on the pleadings, the time limitations of Code of Civil Procedure section 438 are inapplicable. The Court finds that the motion is timely.

JUDICIAL NOTICE

            The Court grants Plaintiffs’ request for judicial notice of the Cross-Complaint filed on August 2, 2021, by Cross-Complainants pursuant Evidence Code section 452, subdivision (d).

ANALYSIS

“Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1013.)  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)

Here, Plaintiffs’ argue that the causes of action included in the Cross-Complaint for apportionment and partial indemnity are not recognized causes of action within California.  Plaintiffs assume that Cross-Complainants intention in asserting these two causes of action is to address comparative negligence on the part of Plaintiffs in the underlying incident.  Plaintiffs assert a cross-complaint is the inappropriate venue to apportion liability between Plaintiffs and Cross-Complainants in light of the availability of a proposed Special Verdict Form that has a section for the jury to make such a determination.  

The Cross-Complaint alleges in pertinent part the following:

• Cross-complainants’ said vehicle was being driven and operated on or about the time, place and date set forth in the complaint of plaintiffs Rafael Gonzalez and Alicia Gonzalez; at said time and place the cross-defendants, and each of them, so recklessly, carelessly and negligently owned, maintained, operated and controlled their said vehicle so as to cause it to collide with cross-complainant’s vehicle.
• As a result of the aforesaid collision, plaintiffs Rafael Gonzalez and Alicia Gonzalez have filed a lawsuit against cross-complainants, alleging that the negligent conduct of cross-complainant was the proximate cause of injury and damage to plaintiffs Rafael Gonzalez and Alicia Gonzalez.
• Cross-complainants deny negligence toward plaintiffs Rafael Gonzalez and Alicia Gonzalez, proximately causing any injury, and deny any liability to plaintiffs Rafael Gonzalez and Alicia Gonzalez.
• Cross-complainants maintain and claim, however, that in the event cross-complainants are found to be liable to plaintiffs Rafael Gonzalez and Alicia Gonzalez on the basis of negligence, that because of the negligence of cross-defendants, and each of them, in causing the injuries and damages to plaintiffs Rafael Gonzalez and Alicia Gonzalez, that cross-complainants are entitled to an apportionment of fault as between cross-complainants and cross-defendant Rafael Gonzalez and ROES 1 to 30, and each of them, based on the relative proportion of fault or negligence of the cross-defendants, and each of them.
• WHEREFORE, cross-complainants pray for judgment against cross-defendant, and each of them, as follows: (1) For an apportionment of negligence between cross-complainants’ negligence, if any, and the negligence of cross-defendants, and each of them. (2) For partial indemnity from cross-defendants, and each of them, to cross-complainants according to the percentage of negligence of cross-defendants, and each of them.

(Cross-Complainant, ¶¶ 3-6.).

            Plaintiffs argue that California law does not recognize claims for “apportionment of negligence” and “partial indemnity.”  The Court finds that Plaintiffs’ contentions are simply a matter of form over substance.  The Court finds that at the center of the cross-complaint is Cross-Complainants’ attempt to apportion liability for the underlying collision among themselves and Plaintiffs, i.e., comparative fault or comparative negligence.  “[I]n all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.”  (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [Li held that California's common law doctrine of “all-or-nothing” contributory negligence should be replaced by a rule of comparative negligence].)  Further, the Court notes that the cross-complaint does not assert two separate claims although the caption states “Cross-Complaint for Apportionment of Negligence and Partial Indemnity.” 

            Moreover, Plaintiffs contend that the defense set forth in the cross-complaint may be addressed in a special verdict form.  Notwithstanding, cross-complaints may proceed even though equivalent relief could be obtained by pleading an affirmative defense in an answer to a complaint.  (See, e.g., Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177, 187 [“without a corresponding special relationship, a cross-complaint for equitable indemnity is not subject to dismissal solely because an apportionment of fault is available through the assertion of affirmative defenses—the precise rationale used to strike down the cross-complaint here”]; see also Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 240 [“a named defendant is authorized to file a cross-complaint against any person, whether already a party to the action or not, from whom the named defendant seeks to obtain total or partial indemnity”].) 

CONCLUSION AND ORDER 

Therefore, the Court denies Plaintiffs’ common law motion for judgment on the pleadings.  The Clerk of the Court shall provide notice of the Court’s ruling.