Judge Michelle C. Kim, Case 21STCV43271 2023-05-03 Tentative Ruling

On November 24, 2021, Plaintiff Donna Gamble (“Plaintiff”) filed this action against Defendant City of Los Angeles (the “City”) for injuries relating to Plaintiff’s trip and fall on an alleged defective concrete walkway that occurred on December 2, 2019. On February 25, 2022, the City filed a cross-complaint for indemnification, apportionment of fault, and declaratory relief against Roes 1-20. As relevant to this proceeding, on October 3, 2022, the City filed an Amendment to Cross-Complaint naming Jade Enterprises, LLC (“Jade”) as Roe 3.

Jade now demurs to the cross-complaint arguing that it fails to state sufficient facts to constitute any claim against it. The City opposes the demurrer, and Jade filed a reply.

Jade contends that the City was on notice of Plaintiff’s claim against it since at least January 31, 2020, when Plaintiff filed a claim for damages with the City, but the City waited over two years to file its cross-complaint. Jade argues that because the City filed its cross-complaint after two years, the cross-complaint is barred under CCP § 335.1 because the applicable statute of limitations expired. Further, Jade contends that the cross-complaint fails to allege what fault Jade has in connection to the incident.

In opposition, the City asserts that after Plaintiff’s deposition, it learned that the sidewalk deviation that caused Plaintiff to fall may have been caused by vehicles that frequent a parking lot that is owned, controlled or maintained by Jade. The avers that its cross-complaint is not barred by the statute of limitations because CCP § 335.1 is not applicable to claims for indemnity, contribution and declaratory relief, and the City contends that the cross-complaint states sufficient facts to constitute a claim against Jade. Lastly, the City argues that Jade’s demurrer is untimely, and that Jade failed to meet and confer prior to filing the demurrer.

In reply, Jade argues that the City fails to satisfy the pleading requirements for stating a claim against Jade, which was named as a Roe defendant almost three years after the City was put on notice of Plaintiff’s claim. Jade further asserts that it attempted to meet and confer with the City prior to filing the demurrer but received no response.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Cruz Decl. ¶ 2.)

The City provides that it served its Roe amendment to the cross-complaint on February 17, 2023, so Jade was required to serve a response by March 22, 2023, which includes 30 days plus an additional two days pursuant to CCP § 1005(b). The City, thus, contends that the demurrer was filed and served one day late on March 23, 2023, and should be overruled. Pursuant to Jackson v. Doe (2011) 192 Cal.App.4th 742, 749, the Court has the discretion to consider an untimely demurrer. In the absence of evidence of any prejudice to the City, the Court considers Jade’s demurrer on the merits.

To state a claim for equitable indemnity, the defendant must allege the same harm for which the defendant may be held liable is properly attributable wholly or partly to the cross-defendant. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445 n. 7.) “The elements of a cause of action for 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 contractually or equitably responsible.” (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177 [“A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.”].)

The purpose of equitable indemnification is to avoid the unfairness, under joint and several liability theory, of holding one defendant liable for the plaintiff’s entire loss while allowing another responsible defendant to escape liability. (GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 426.) A defendant “has a right to bring in other tortfeasors who are allegedly responsible for plaintiff’s action through a cross-complaint ... for equitable indemnification.” (Platt, supra, 217 Cal.App.3d at 1444.)

Furthermore, the elements of contribution are: (1) money judgment; (2) rendered jointly against defendants; (3) in tort action; (4) application of equity principles; (5) payment by tortfeasor of more than pro rata share; and (6) no intentional injury by the tortfeasor. (CCP §875; General Elec. Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925.)

Additionally, there are two essential elements for declaratory relief: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Cross-Complainant's] rights or obligations.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

Jade asserts that the City was on notice of Plaintiff’s claim against it since January 31, 2020, when Plaintiff filed a claim for damages with the City, but the City waited over two years to file cross-complaint. In particular, Jade asserts that because the two-year statute of limitations for Plaintiff to bring a personal injury action expired on December 2, 2021, which was two years after the alleged incident, the City’s cross-complaint filed after this date is precluded.

CCP § 335.1 provides that the statute of limitations for “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” is two years. However, “Under well-established California law … a cause of action for equitable indemnity arises only when the indemnitee actually incurs a loss by payment of the underlying claim or judgment; the statute of limitations on such an action does not accrue at the time of the commission of the underlying tort.”¿ (U.S. Cold Storage v. Matson Navigation Co.¿(1984) 162 Cal.App.3d 1228, 1231.) To hold otherwise would create the situation where indemnity claimants would be forced to file protective suits before they knew the amount, if any, of damages they faced, sometimes unnecessarily subjecting others to litigation or “littering court calendars” with actions that might not be prosecuted. (Id. at 1231, 1234.)

Furthermore, concerning Jade’s contentions that Plaintiff did not name it as a defendant in the complaint, “The lack of a lawsuit by the plaintiff does not act as a bar to a complaint for equitable indemnity which seeks to make such determinations.” (Gem Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 428.) “As part of the comparative equitable indemnity doctrine, a defendant who is sued has a right to bring in other tortfeasors who are allegedly responsible for plaintiff's action through a cross-complaint or by a separate complaint for equitable indemnification.” (Id.)

Accordingly, the statute of limitations applicable to Plaintiff’s claims is thus not determinative of the City’s claims in the cross-complaint. “[A] tort defendant's equitable indemnity action is separate and distinct from the plaintiff's tort action. The indemnity action, unlike the plaintiff's claim, does not accrue for statute of limitations purposes when the original accident occurs, but instead accrues at the time that the tort defendant pays a judgment or settlement as to which he is entitled to indemnity.” (People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 748.)

Jade fails to show that the City’s cross-complaint against it is barred by the applicable statute of limitations.

Jade further contends that the cross-complaint fails to allege any facts stating what fault Jade has in relation to the incident, and that Plaintiff’s complaint is premised on Government Code § 835, which is not alleged against Jade as a private entity.

As to the indemnification and apportionment of fault claims, the cross-complaint alleges:

a. Cross-defendants were the agents, employees, co-venturers, partners, or in some manner agents or principals, or both, for each other and were acting within the course and scope of their agency or employment.

b. The principal action alleges, among other things, conduct entitling plaintiff to compensatory damages against me. I contend that I am not liable for events and occurrences described in plaintiff's complaint.

c. If I am found in some manner responsible to plaintiff or to anyone else as a result of the incidents and occurrences described in plaintiff's complaint, my liability would be based solely upon a derivative form of liability not resulting from my conduct, but only from an obligation imposed upon me by law; therefore, I would be entitled to complete indemnity from each cross-defendant.

a. Each cross-defendant was responsible, in whole or in part, for the injuries, if any, suffered by plaintiff.

b. If I am judged liable to plaintiff, each cross-defendant should be required: (1) to pay a share of plaintiffs judgment which is in proportion to the comparative negligence of that cross-defendant in causing plaintiff's damages; and (2) to reimburse me for any payments I make to plaintiff in excess of my proportional share of all cross-defendants' negligence.

To prevail against a demurrer or judgment on the pleadings, a plaintiff need only plead ultimate facts and need not plead probative or evidentiary facts. (McCaughey v. H. C. Schuette (1897) 117 Cal. 223, 224; Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126.) The City’s cross-complaint sufficiently states ultimate facts. The cross-complaint alleges that if the City is found liable for Plaintiff’s claims in the complaint, the liability would be based solely on a derivative form of liability not resulting from the City’s conduct, and that the City would be entitled to complete indemnity from Jade. Furthermore, the cross-complaint alleges Jade was responsible, in whole or in part, for Plaintiff’s injuries, and that if the City is found liable to Plaintiff, Jade should pay a share of Plaintiff’s judgment in proportion to Jade’s comparative negligence. This is sufficient at the demurrer stage.

Jade demurrer to first and second causes of action in the cross-complaint is overruled.

As to the third cause of action for declaratory relief, the cross-complaint alleges in relevant part, “An actual controversy exists between the parties concerning their respective rights and duties because cross-complainant contends and cross-defendant disputes as follows: as specified in plaintiff’s complaint.” (Cross-Compl. ¶ 9.) Plaintiff’s complaint seeks damages for injuries relating to a trip and fall on a walkway. It does not contain any allegations concerning a controversy between the City and Jade or their rights or obligations. (Brownfield, 208 Cal.App.3d at 410.)

Therefore, the third cause of action for declaratory relief fails to state a claim against Jade. The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) In this case, the City requests leave to amend the cross-complaint. The Court finds there is a reasonable possibility the City can amend the pleadings to state a claim for declaratory relief against Jade.

Jade’s demurrer to the cross-complaint is sustained as to the third cause of action for declaratory relief with twenty (20) days leave to amend.

Jade’s demurrer to the City’s cross-complaint is overruled as to first cause of action for indemnification and second cause of action for apportionment of fault.

Jade’s demurrer is sustained as to third cause of action for declarator relief with twenty (20) days leave to amend.

Hon. Michelle C. Kim

Judge of the Superior Court