Judge: Michael E. Whitaker, Case: 21STCV42301, Date: 2023-03-17 Tentative Ruling

Case Number: 21STCV42301    Hearing Date: March 17, 2023    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. 







March 17, 2023




Demurrer to Cross-Complaint; Motion to Strike Portions of Cross-Complaint


Cross-Defendant David Halls


Cross-Complainant Alexander R. Baldwin, III




Plaintiff Mamie Mitchell (Plaintiff) sued Defendants Alexander R. Baldwin, III (Baldwin) and El Dorado Pictures, Inc. based on injuries Plaintiff alleges she sustained when Baldwin discharged a firearm towards Plaintiff. 


Baldwin then filed a Cross-Complaint against Cross-Defendants Hannah Gutiérrez-Reed, David Halls, Seth Kenney, PDQ Arm and Prop, LLC, and Sarah Zachry (collectively, Cross-Defendants). 


Cross-Defendant David Halls (Halls) demurs to the second and third causes of action in the Cross-Complaint for equitable indemnity and equitable contribution.  Halls further moves to strike Baldwin’s second and third causes of action, as well as his prayer for punitive damages, nominal damages, statutory damages, reasonable litigation expenses, attorney’s fees, expert fees, and prejudgment interest.  Baldwin opposes the demurrer and motion to strike.  Halls replies.




  1. Demurrer


It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)


A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.)  Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)


a.     Equitable Indemnity


Halls demurs to Baldwin’s second cause of action for failure to plead facts sufficient to state a cause of action and for uncertainty. 


The elements of a cause of action for equitable indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is equitably responsible. (C.W. Howe Partners, Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700.)  “The purpose of equitable indemnification is to avoid the unfairness, under the theory of joint and several liability, of holding one defendant liable for the plaintiff's entire loss while allowing another potentially liable defendant to escape any financial responsibility for the loss.”  (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 212 (hereafter Bailey).) 


To state a claim for equitable indemnification, Hall contends that Baldwin must plead facts which establish Baldwin is a joint tortfeasor with Halls.  However, Halls attests that Baldwin alleges he is not liable to Plaintiff for the underlying harm and has no joint legal obligation to Plaintiff.  As such, according to Hall, Baldwin has failed to assert a cognizable claim for equitable indemnity. 


In support of his contention, Halls relies on Bailey.  Yet, Bailey is factually and legally distinguishable.  First, the Court of Appeal did not address whether the claim for equitable indemnity against Safeway was sufficiently pled.  Second, the appellate court found that underlying finding by a jury that Safeway was not negligent in causing Bailey’s harm barred Bailey’s claim for equitable indemnity against Safeway.  (See Bailey, supra, 199 Cal.App.4th at p. 213 [“there was no negligence to provide a basis for equitable indemnity”].)  Third, as Baldwin contends, a claim for equitable indemnity fails when a cross-complainant does not allege that a cross-defendant is at fault for any underlying harm.  (Id. at p. 217 [“Nowhere in Bailey's complaint does he allege actual “fault” on the part of Safeway or state why Safeway should, in equity, be responsible for part of the damages”].)  Halls makes a contrary argument claiming that Baldwin’s second cause of action is defective because Baldwin does not concede fault on his part for Plaintiff’s alleged harm. 


Further, Halls’ reliance on American Motorcycle Association v. Superior Ct (1978) 20 Cal.3d 578 and Prince v. Pacific Gas. & Elec. Co. (2009) 45 Cal.4th 1151, is faulty.  The Court finds that both cases are factually and legally distinguishable.  In fact, the Court finds that neither American Motorcycle nor Prince stand for the proposition that Baldwin must plead he is at fault, partial or otherwise, to properly state an equitable indemnity cause of action.


Here, the Court finds that Baldwin has sufficiently pled facts establishing fault for the underlying incident on the part of Halls (see, e.g., Cross-Complaint,  ¶¶ 87-97, 110-124, 135-137) and resulting damages to Baldwin for which Halls is equitably responsible (see, e.g., Cross-Complaint ¶¶ 138-139).  As such, the Court further determines that Baldwin’s claim for equitable indemnity is not uncertain.


Accordingly, the Court overrules in part Hills’s demurrer to the second cause of action for equitable indemnity.


b.     Equitable Contribution


Halls demurs to the third cause of action for equitable contribution, arguing that Baldwin’s claim is premature as it is not based on any judgment. 


“Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided.”  (Code Civ. Proc., § 875, subd. (a).)  “Such right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof. It shall be limited to the excess so paid over the pro rata share of the person so paying and in no event shall any tortfeasor be compelled to make contribution beyond his own pro rata share of the entire judgment.”  (Code Civ. Proc., § 875, subd. (c).)  Under Section 875, a claim for contribution arises after judgment is entered against two or more tortfeasors.  (See General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925 [“It has now been repeatedly held that the condition of this statute—a money judgment rendered jointly against two or more defendants—must exist before either may assert a right to contribution from the other”].)  And when the conditions set forth in Section 875 have not been met, a cross-complaint does not properly assert a claim for contribution.  (Id. at p. 926; see also Buffington v. Ohmert (1967) 253 Cal.App.2d 254, 255.)  


Here, Baldwin does not allege in the Cross-Complaint that a judgment has been rendered jointly against two or more defendants stemming from Plaintiff’s harm, and does not present any argument in his opposition that the third cause of action has been properly pled.


Accordingly, Baldwin’s third cause of action for equitable contribution is defective, and the Court will sustain in part Halls’ demurrer to the equitable contribution claim.    


  1. Motion to Strike


Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)


Halls moves to strike Baldwin’s prayer for punitive damages, as well as any portions of the Cross-Complaint related to a claim for punitive damages.  In addition, Halls moves to strike the following prayers for relief alleged in the Cross-Complaint:  Nominal Damages, Statutory Damages, Litigation Expenses, Expert Fees, Attorney’s Fees and Prejudgment Interest.  Lastly, Halls seeks to strike the claims for equitable indemnity and equitable contribution.


a.     Punitive Damages


In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,


(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.


(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 


Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 


Here, Halls argues Baldwin’s prayer for punitive damages cannot be based on the causes of action for equitable indemnity and equitable contribution because those claims arise from Halls’ purported acts of negligence as opposed to acts of oppression, fraud, or malice.  Specifically, Halls attests that Baldwin’s allegations concerning Halls’ failure to (1) check the firearm carefully before announcing the firearm was safe and handing it to Baldwin; and (2) enforce safety standards, fail to rise to the level of oppression, fraud, or malice, on Halls’ part. 


In opposition, Baldwin argues that the Cross-Complaint’s categorization of Halls’ conduct as negligent, does not preclude that same conduct from supporting a claim for punitive damages.  Baldwin notes that on December 6, 2022, this Court denied a motion to strike punitive damages from Plaintiff’s Second Amended Complaint, which contained similar language to the allegations in Baldwin’s Cross-Complaint.  (See Minute Order, December 6, 2022.)  To that end, Baldwin points to the following allegations in the Cross-Complaint, which he argues, sufficiently allege malice on the part of Halls:



(See Cross-Complaint, ¶¶ 89, 111-114, 131.)  The Court finds that the foregoing allegations establish circumstances in which Halls should have been placed on notice to further inspect the subject firearm, or voice concerns about the subject firearm.  However, based on the facts set forth in the Cross-Complaint, Halls failed to address the safety issues surrounding the subject firearm, resulting in Baldwin possessing and discharging the subject firearm with live ammunition. 


            For pleading purposes, the Court finds that Baldwin has sufficiently pled a claim for punitive damages against Halls, and therefore, the Court will deny in part Halls’ motion to strike. 


b.     Nominal and Statutory Damages


“Some causes of action permit recovery of nominal damages, even though no harm has been caused by tortious conduct. However, actual damage in the sense of harm is necessary to a cause of action in negligence; nominal damages are not awarded.  This is reflected in the California statutes. Compensatory damages are allowed to one who suffers detriment.   Detriment is a loss or harm suffered in person or property.”  (Duarte v. Zachariah (1994) 22 Cal.App.4th 1652, 1661–1662 [cleaned up].) 


Here, Baldwin’s Cross-Complaint sounds in negligence and as such he is not entitled to nominal damages.  Moreover, concerning statutory damages, Baldwin fails to identify any statute in support of the prayer for statutory damages in the Cross-Complaint. 


Because Baldwin does not present any argument in his opposition addressing his prayers for nominal or statutory damages, the Court will grant in part Halls’ motion to strike.


c.      Litigation Expenses and Expert Fees


Per Code of Civil Procedure section 1032, subdivision (b), “[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”  Code of Civil Procedure section 1033.5, subdivision (a), lists the allowable costs under Section 1032, and Code of Civil Procedure section 1033.5, subdivision (b) lists items that are not allowable as costs, except when expressly authorized by law, which includes “fees of experts not ordered by the court.  (Code Civ. Proc. § 1033.5, subd. (b)(1).)


Accordingly, if Baldwin is a prevailing party, he will be entitled to recoup certain costs as permitted under the Code of Civil Procedure. Of course, if costs are not allowed such as fees of experts not ordered by the court, Baldwin will not be entitled to them even if he prevails on the claims set forth in the Cross-Complaint. 


Notwithstanding those statutory requirements, Halls has not cited to any authority that precludes Baldwin from asserting such prayers for relief in the Cross-Complaint, and the Court is unaware any such authority.  Therefore, the Court will deny in part Halls’ motion to strike. 


d.     Attorney’s Fees


Per Code of Civil Procedure section 1033.5, attorney’s fees are only allowable as costs under Section 1032 “when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.” (Code Civ. Proc., § 1033.5, subd. (a)(10)(A)-(C).) 


Here, Halls moves to strike Baldwin’s prayer for attorney’s fees arguing that Baldwin has failed to assert the basis for such relief in the Cross-Complaint.  The Court agrees.  And in the absence of any counter argument from Baldwin, the Court will grant in part Halls’ motion to strike. 

e.      Prejudgment Interest

“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt.”  (Civ. Code, § 3287, subd. (a).)  Civil Code section 3287 mandates an award of prejudgment interest where the amount of the plaintiff's claim can be determined by established market values or by computation. Thus, it is clear that Civil Code section 3287 looks to the certainty of the damages suffered by the plaintiff, rather than to a defendant's ultimate liability, in determining whether prejudgment interest is mandated. An award of prejudgment interest is intended to make the plaintiff whole for the accrual of wealth which could have been produced during the period of loss.”  (Wisper Corp. v. California Commerce Bank (1996) 49 Cal.App.4th 948, 958 [cleaned up].) 

Nevertheless, Halls has not cited to any authority that precludes Baldwin from asserting a prayer for Prejudgment Interest in the Cross-Complaint, and the Court is unaware any such authority.  Whether Baldwin will be entitled to Prejudgment Interest is an issue for another day.  Therefore, the Court will deny in part Halls’ motion to strike. 


f.      Equitable Indemnity and Equitable Contribution


Based on the Court’s analysis of Halls’ demurrer to the second and third causes of action, the Court determines that Halls’ motion to strike both causes of action is moot. 

3.     Leave to Amend

Baldwin has the burden of showing in what manner the Cross-Complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.)  Baldwin must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc, supra, 14 Cal.App.5th at p. 189.)  Moreover, Baldwin does not meet his burden by merely stating in the opposition to the demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)


Here, Baldwin has failed to meet his burden. Baldwin’s opposition to the demurrer merely states:  “Nonetheless, if the Court sustains Hall’s [sic] demurrer in any respect, Baldwin respectfully requests that the Court grant him an opportunity to address any such pleading defects.”  (See Opposition to Demurrer, p. 5:12-14.)   In addition, Baldwin makes no request for leave to amend in his opposition to the motion to strike.  Consequently, the Court will deny Baldwin leave to amend the Cross-Complaint. [1] 




Based upon the Court’s analysis of Halls’ demurrer to, and motion to strike, Baldwin’s Cross-Complaint, the Court rules as follows:


·       Demurrer - Second Cause of Action – Overruled.

·       Demurrer - Third Cause of Action – Sustained without leave to amend.

·       Motion to Strike – Second and Third Causes of Action – Denied as moot.

·       Motion to Strike – Prayer for Punitive Damages – Denied.

·       Motion to Strike – Prayers for Litigation Expenses, Expert Fees and Pre-Judgment Interest – Denied. 

·       Motion to Strike – Prayers for Nominal Damages, Statutory Damages and Attorney’s Fees – Granted without leave to amend.


Halls shall provide notice of the Court’s orders and file a proof of service of such.


[1] “In light of the fact that Bailey has failed to indicate how his complaint for equitable indemnification can be amended to state a  proper cause of action, he has failed to meet his burden of showing that the trial court abused its discretion in sustaining Safeway's demurrer without leave to amend.”  (Bailey, supra, 199 Cal.App.4th at p. 218.)