Judge: Peter A. Hernandez, Case: 22PSCV01463, Date: 2023-05-25 Tentative Ruling

Case Number: 22PSCV01463    Hearing Date: May 25, 2023    Dept: K

1.         Plaintiff/Cross-Defendant Carla Arroyo Guijosa’s Demurrer to the Cross-Complaint is OVERRULED in part (i.e., as to the First and Fourth Causes of Action) and SUSTAINED in part (i.e., as to the Second and Third Causes of Action).

2.         Plaintiff/Cross-Defendant Carla Arroyo Guijosa’s Motion to Strike the Cross-Complaint is DENIED as MOOT in part (i.e., as to Paragraphs 13-16 and Prayer, Page 5, Lines 16-17) and otherwise DENIED.

Background[1]  

Plaintiffs Carla Arroyo Guijosa (“Arroyo”) and Carmen Guijosa (“Guijosa”) (together, “Plaintiffs”) allege that they sustained injuries in a July 17, 2021 automobile collision on Interstate 60. On October 25, 2022, Plaintiffs filed a complaint, asserting causes of action against Defendants XPO Logistics Freight Inc. (“XPO”), Miguel Cruz (“Cruz”) and Does 1-30 for:

1.                  Negligence/Negligence Per Se

2.                  Negligent Entrustment

3.                  Negligent Hiring

On February 3, 2023, XPO and Cruz filed a cross-complaint, asserting causes of action against Arroyo and Roes 1-10 for:

1.                  Indemnity

2.                  Contribution

3.                  Contribution

4.                  Declaratory Relief

A Case Management Conference is set for September 7, 2023.

1.         Demurrer

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Arroyo demurs to the first through fourth causes of action in XOP and Cruz’s cross-complaint, on the basis that they each fail to state facts sufficient to constitute causes of action and are uncertain.

Timeliness

At the outset, the court rejects XPO and Cruz’s contention that the demurrer is untimely. Email correspondence between counsel attached as Exhibit A to the Declaration of Sylvia Shen (“Shen”) reflects that on March 15, 2023, Shen granted Arroyo’s counsel a 30-day extension from March 7, 2023 for Arroyo “to respond to the cross-complaint.” On April 4, 2023, Guijosa’s counsel filed a Judicial Council Form CIV-141, advising that that she had “been sick and out of the office since March 28, 2023” and that she spoke with Shen on April 4, 2023 in an attempt to meet and confer but Shen informed her that she was unavailable to do so at that time. (Shen Decl., ¶ 6, Exh. B.) The court, then, will proceed to the merits of the demurrer.

First Cause of Action (i.e., Indemnity)

Arroyo first asserts that XOP’s and Cruz’s first cause of action is uncertain “because it fails to articulate what type of indemnity is being sought.” (Dem., 6:24-25). Not so. Paragraph 11 of the cross-complaint states that “Cross-Complainants are informed and believe, and based thereon, allege that they are in no way legally responsible for the damages alleged in Plaintiff's Complaint. Cross-Complainants further allege that if, as a result of the matters alleged in Plaintiff's Complaint, Cross-Complainants are held liable for any part of the claims asserted against them, Cross-Complainants are entitled to partial equitable indemnity so that Cross-Complainants can recoup from Cross-Defendants, and each of them, any sum Cross-Complainants must pay to Plaintiff. . .” (Emphasis added).

Arroyo next asserts that XOP’s and Cruz’s first cause of action is uncertain because “it is asking for Plaintiff to indemnify Defendants/Cross-Complainant’s [sic] for a judgment or money that they would ultimately owe her” (Dem., 6:26-7:1); in doing so, Arroyo ignores the fact that the cross-complaint is only directed against her, for Plaintiff Carmen Guijosa’s (“Guijosa”) damages.

Finally, Arroyo asserts that, assuming that the first cause of action is one for equitable indemnity, it fails because “there are no facts showing any predicate tort allegedly committed by Plaintiff.” (Dem., 7:12). However, XOP and Cruz specifically allege on October 25, 2022, Guijosa filed a complaint in the instant case for personal injuries against XOP, Cruz and others (Cross-Complaint, ¶ 7), that Carmen alleged therein that she sustained injuries on or about July 17, 2021 when involved in a vehicular accident (Id., ¶ 18), that if the allegations of Guijosa’s complaint are true, Arroyo’s negligent conduct contributed to Guijosa’s damages described in the complaint (Id., ¶ 9) and that, if XOP and Cruz are found negligent under the allegations of Guijosa’s complaint, then XOP and Cruz allege that Arroyo’s conduct was “active, primary, and affirmative” and that their negligence, if any, was “passive, derivative, and secondary only” (Id., ¶ 10).

Arroyo’s demurrer to the first cause of action is overruled.

Second and Third Causes of Action (i.e., Contribution)

Arroyo correctly asserts that XOP and Cruz’s second and third causes of action are premature, because there is no judgment. “Contribution. . . is a creature of statute and distributes the loss equally among all tortfeasors. . . [it] requires a showing that one of several joint tortfeasor judgment debtors has paid more than a pro rata share of a judgment. . . A right of contribution can come into existence only after rendition of a judgment declaring more than one defendant jointly liable to the plaintiff. (Code Civ. Proc., § 875, subd. (c).)” (Coca-Cola Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378.)

Arroyo’s demurrer to the second and third causes of action is sustained.

Fourth Cause of Action (i.e., Declaratory Relief)

Arroyo asserts that the fourth cause of action is based entirely on the first cause of action. (Dem., 8:13-14). The first cause of action, however, has been adequately pled.

Arroyo then asserts that the fourth cause of action is “inherently uncertain” because it does not specify the rights XOP and Cruz want declared. (Id., 8:16-17). Not so. XOP and Cruz allege that an actual controversy has arisen and now exists between them and Arroyo in that they contend that “they are in no way legally responsible for the injuries or damages alleged in [Guijosa’s] complaint” and that if they are held liable, then (1) the amount of Arroyo’s negligence which contributed to Guijosa’s damages, if any, should be declared and (2) Arroyo is liable to them on a comparative negligence basis, so that the damages, if any, sustained by Guijosa may be distributed in accordance with relative fault. (FAC, ¶ 18). Paragraph 1 of the prayer, moreover, seeks a “judgment declaring the respective responsibility and liability of the parties hereto for Plaintiff’s damages, if any.”

Arroyo’s demurrer to the fourth cause of action is overruled.

2.         Motion to Strike

Legal Standard

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Discussion

Arroyo moves the court for an order striking out the following portions of the cross-complaint:

1.                  Paragraph 9 (i.e., “[i]f the allegations of Plaintiff's Complaint are true (which allegations this Cross-Complainants have denied and continue to deny), Cross-Complainants are informed and believe, and based thereon allege that the negligent conduct of CARLA ARROYO GUIJOSA and Cross-Defendants, and each of them, contributed to the damage as alleged and described in the above-described Complaint, and to the damage, if any, sustained by the Plaintiff therein”);

2.                  Paragraph 10 (i.e., “[i]f it be found that the Cross-Complainants were negligent under the allegations contained in Plaintiff's Complaint (which allegations Cross-Complainants deny) then Cross-Complainants are informed and believe, and based thereon, allege that the negligent conduct of CARLA ARROYO GUIJOSA and the Cross-Defendants, and each of them, was active, primary, and affirmative, and the negligence of the Cross-Complainants, if any, was passive, derivative, and secondary only”);

3.                  Paragraph 11 (i.e., “Cross-Complainants are informed and believe, and based thereon, allege that they are in no way legally responsible for the damages alleged in Plaintiff's Complaint. Cross-Complainants further allege that if, as a result of the matters alleged in Plaintiff's Complaint, Cross-Complainants are held liable for any part of the claims asserted against them, Cross-Complainants are entitled to partial equitable indemnity so that Cross-Complainants can recoup from Cross-Defendants, and each of them, any sum Cross-Complainants must pay to Plaintiff, which sum, when compared to the total judgment for Plaintiff, is in excess of the proportionate amount of Cross-Complainants' negligence assessed by the trier of fact”);

4.                  Paragraph 12 (i.e., “[b]y reason of the foregoing allegations, Cross-Complainants will be damaged to the extent that Cross-Complainants must pay any sum in excess of the proportionate amount of Cross-Complainants' negligence, if any, assessed by the trier of fact”);

5.                  Paragraphs 13-16;

6.                  Paragraph 17 (i.e., “Cross-Complainants incorporate by this reference Paragraph 1 through 16, inclusive, of this Cross-Complaint as though fully set forth at this point”);

7.                  Paragraph 18 (i.e., “[a]n actual controversy has arisen and now exists between Cross-Complainants and Cross-Defendants, and each of them. Cross-Complainants contend that they are in no way legally responsible for the injuries or damages alleged in Plaintiff's Complaint. Cross-Complainants further allege that if, as a result of the matters alleged in Plaintiff's Complaint, Cross-Complainants are held liable for any part of the claim asserted against them, then: (a) The amount of negligence of Cross-Defendants, and each of them, which contributed to Plaintiff's damages, if any, should be declared; and, (b) Cross-Defendants, and each of them, are liable to Cross-Complainants on a comparative negligence basis, so that the damages, if any, sustained by Plaintiff may be distributed in accordance with relative fault”);

8.                  Paragraph 18 (#2) (i.e., “Cross-Complainants are informed and believe, and based thereon, allege that Cross-Defendants, and each of them, deny Cross-Complainants' allegations”);

9.                  Prayer, Page 5, Lines 6-9 (i.e., “[f]or a judgment against Cross-Defendants, and each of them, by way of partial equitable indemnity for any sum Cross-Complainants must pay to Plaintiff, which sum when compared to the total judgment for Plaintiff, is in excess of the proportionate amount of Cross-Complainants' negligence as assessed by the trier of fact”);

10.              Prayer, Page 5, Lines 10-12 (i.e., “[f]or a judgment against Cross-Defendants, and each of them, by way of indemnification for any sum adjudged against Cross-Complainants, if any, in favor of Plaintiff herein”);

11.              Prayer, Page 5, Lines 13-15 (i.e., “[f]or a judgment against Cross-Defendants, and each of them, for Cross-Complainants' attorney's fees, court costs, investigative costs, and other costs incurred in defending this action, according to proof”);

12.              Prayer, Page 5, Lines 16-17; and

13.              Prayer, Page 5, Lines 18-19 (i.e., “[f]or costs incurred in prosecuting the Cross-Complaint and for such other and further relief as the Court may deem just and proper”).

At the outset, XPO and Cruz’s timeliness argument is rejected (see above).

The motion is denied as moot as to Paragraphs 13-16 and Prayer, Page 5, Lines 16-17, based upon the ruling made on the demurrer. The motion is otherwise denied, based upon the ruling made on the demurrer.