Judge: Michael E. Whitaker, Case: 22STCV09010, Date: 2023-01-17 Tentative Ruling

Case Number: 22STCV09010    Hearing Date: January 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. 

TENTATIVE RULING

MOTION

Plaintiff Hugo Salcedo (Plaintiff) sued Defendant Veritiv Operating Company (Defendant) based on a trip and fall incident occurring in Defendant’s parking lot.  Defendant later filed a cross-complaint against Cross-Defendants XPO Logistics Freight, Inc., XPO Logistics Cartage, LLC, and PDQ Plastics, Inc. asserting causes of action for express indemnity, implied/equitable indemnity, contribution, and declaratory relief.  Cross Defendant XPO Logistics Cartage, LLC (Cross-Defendant) demurs to the First Amended Cross-complaint (FAXC).  Cross-Complainant Veritiv Operating Company (Cross-Complainant) opposes the motion.  Cross-Defendant replies.  

ANALYSIS

“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.)  

1. FAILURE TO STATE A CAUSE OF ACTION

    

   Cross-Defendant argues that Cross-Complainant’s second, third, and fifth causes of action for express implied/equitable indemnity, contribution, and apportionment of fault, fail to state causes of action as a matter of law.  A cause of action for equitable indemnity requires the following elements: (1) the same harm for which claimant may be held liable and (2) is properly attributable wholly or partly to cross-defendant.  (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal. App. 3d 1439, 1445.)  Similarly, contribution also requires a finding of joint liability. (See Coca Cola Bottling Company v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378.)  Apportionment of fault “apportions liability in direct proportion to fault.”  (Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804, 827.)

    

   Cross-Defendant specifically argues the second, third, and fifth causes of action fail because Cross-Complainant and Cross-Defendant are not joint tortfeasors with regard to Plaintiff.  Here, Cross-Complainant is being held liable for an allegedly dangerous condition on its property.  Cross-Defendant attests that it does not have a role with regard to the subject property where Plaintiff’s incident took place and thus is not liable for Plaintiff’s injuries.  Cross-Complainant fails to allege in the Cross-Complaint, Cross-Defendant’s role in regard to the property in question, and thus fails to allege that Cross-Defendant is liable in tort to Plaintiff as well. 

    

   In opposition, Cross-Complainant points to the following allegations pled in its FAXC:

    

• On or about March 2, 2020, Cross-Complainant (the buyer) and Cross-Defendant PDQ MANUFACTURING, INC. (the seller), by and through their authorized representatives, entered into a Purchase Order Agreement ("Purchase Agreement"), for the purchase/sale of cleaning products.
• Upon information and belief, and on that basis Cross-Complainant alleges, that Cross-Defendant PDQ MANUFACTURING, INC. contracted with Cross-Defendant XPO LOGISTICS CARTAGE, LLC, to deliver the purchased goods to Cross-Complainant.
• In the Underlying Action, Plaintiff alleges that on March 17, 2020, he was exiting a Semi 18-wheeler truck at Cross-Complainant's parking lot, located at 7500 Amigo Avenue, Downey, California, 90242 ("Premises") when he tripped and fell as a result of a pothole, which caused him to sustain injuries. (Pltf.'s Compl., ¶ 5)
• Upon information and belief, and on that basis Cross-Complainant alleges, that on March 17, 2020, Plaintiff was operating a semi-truck owned and/or operated by Cross-Defendant, XPO LOGISTICS CARTAGE, LLC, carrying products owned, and/or manufactured, and/or supplied by Cross-Defendant, PDQ MANUFACTURING, INC.
• Upon information and belief, and on that basis Cross-Complainant alleges, that on March 17, 2020, Plaintiff was Cross-Defendant XPO LOGISTICS CARTAGE, LLC's employee and/or agent, and/or representative, and/or was authorized to act on Cross-Defendant XPO LOGISTICS CARTAGE, LLC's behalf.

(FAXC, ¶¶ 7-11.)

            Cross-Complainant attests it has sufficiently plead Cross Defendants’ joint tortfeasor status by alleging Plaintiff was either an employee, agent, or representative of Cross-Defendant, and was acting within the scope of this role when he was injured.

            In reply, Cross-Defendant argues that alleging an employment/agency relationship is insufficient to plead the subject causes of action without specifying an act or omission by Cross-Defendant that caused or contributed to Plaintiff’s injuries.

            The Court agrees.  In its opposition, Cross-Complainant cites to legal issues which may be at play due to Cross-Defendant’s status as Plaintiff’s principal or employer such as whether Plaintiff was properly trained, or whether he was provided proper protective equipment.  However, there is no mention of these possible breaches of Cross-Complainant’s applicable duty to Plaintiff in the FAXC.  Without alleging how Cross-Defendant breached its duty to Plaintiff as Plaintiff’s alleged principal or employer, Cross-Complaint has failed to plead that Cross-Defendant is liable to Plaintiff as a joint-tortfeasor and thus the second, third, and fifth causes of action for implied/equitable indemnity, contribution, and apportionment of fault fail as they all derive from establishment of Cross-Defendant’s joint liability.  Accordingly, the Court sustains the demurrer to the second, third, and fifth causes of action.

CONCLUSION AND ORDER

Therefore, the Court sustains Cross-Defendant’s demurrer to the FAXC with leave to amend and orders Cross-Complainant to file and serve an amended cross-complaint within 20 days of notice of the Court’s ruling.

Cross-Defendant shall provide notice of the Court’s ruling and file a proof of service of such.