Judge: Peter A. Hernandez, Case: 23STCV19989, Date: 2025-03-06 Tentative Ruling
Case Number: 23STCV19989 Hearing Date: March 6, 2025 Dept: 34
Cross-Defendants S.H.E. Global Inc. and Eddie E. Lin’s Demurrer to
Cross-Complainant Seung Hyun Kim’s Cross-Complaint is SUSTAINED.
Background
On August 21, 2023, Plaintiff Sunmi Kim (“Plaintiff”)
filed a complaint against Defendants SSS & E, Inc. (“SSS & E”), Huihui Chang (“Chang”), Eddy Lin (“Lin”),
Seung Hyun Kim (“S. Kim”), and Henry Kim (“H. Kim” and collectively as “Defendants”)
arising from Plaintiff’s employment with Defendants alleging causes of action
for:
1.
Failure To Pay Overtime Wages in Violation of Labor Code § 204, 510
2.
Failure To Pay Minimum Wages in Violation of Labor Code § 1194, 1194.2,
1197.1;
3.
Failure To Provide Meal Periods in Violation of Labor Code § 226.7, 512;
4.
Failure To Provide Rest Periods in Violation of Labor Code § 226.7;
5.
Gender Discrimination;
6.
Hostile Work Environment Harassment;
7.
Failure To Prevent Discrimination or Harassment in Violation of FEHA;
8.
Intentional Infliction of Emotional Distress;
9.
Battery;
10.
Constructive Discharge in Violation of The Public Policy;
11.
Failure To Furnish Accurate Itemized Wage Statement in Violation of Labor
Code § 226;
12.
Retaliation In Violation of The FEHA;
13.
Failure To Provide Final Wages at Separation in Violation of Labor Code §
201, 203;
14.
Violation of California Business and Professions Code § 17200.
On October 11, 2023, at the request of
Plaintiff, the court dismissed all causes of action against Defendants SSS
&E, Chang, and Lin with prejudice.
On May 6, 2024, S. Kim filed an answer
to Plaintiff’s complaint.
On September 12, 2024, the court
granted Plaintiff’s Motion for Leave to File a First Amended Complaint.
On September 19, 2024, Plaintiff filed
a First Amended Complaint (“FAC”) against Defendant S. Kim alleging causes of
action for:
1.
Hostile Work Environment Harassment;
2.
Intentional Infliction of Emotional Distress;
3.
Battery; and
4.
Violation of California Business and Professions Code § 17200.
On October 10, 2024,
Defendant/Cross-Complainant S. Kim filed a cross-complaint against Cross-Defendants
S.H.E. Global, Inc. (“SHE”), SSS & E, Lin, and Chang (“Cross-Defendants”)
alleging causes of action for:
1.
Indemnity;
2.
Apportionment of Fault;
3.
Declaratory Relief; and
4.
Contribution.
On October 10, 2024, Defendant S. Kim filed an answer to Plaintiff’s FAC.
On February 4, 2025, Cross-Defendants SHE
and Lin filed this Demurrer to Cross-Complainant S. Kim’s cross-complaint. On
February 20, 2025, S. Kim filed an opposition. On February 27, 2025, Cross-Defendants
SHE and Lin filed a reply.
Legal Standard
“The
party against whom a complaint or cross-complaint has been filed may object, by
demurrer or answer as provided in Section 430.30, to the pleading on any one or
more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)
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 pleading alone, and not the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)
As such, the court assumes the truth of the complaint’s properly pled or
implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where
a demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court
that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation
Dist. (1969) 70 Cal.2d 240, 245).
Discussion
Cross-Defendants SHE and Lin
(“Cross-Defendants”) demur to Cross-Complainant S. Kim’s cross-complaint pursuant to Code of Civil Procedure section
430.10, subdivision (e) and (f), on the grounds that it does not state
facts sufficient to constitute causes of action and is uncertain.
First Cause of Action – Indemnity
“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 . . . equitably
responsible.”¿ (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206,
217.)¿Breach of contract is not a cognizable claim on which to base equitable
indemnity.¿ (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction,
Inc. (2004) 119 Cal.App.4th 848, 852-853.)¿ In order for the doctrine of
equitable indemnity to apply, the proposed indemnitee must plead some basis for
tort liability against the proposed indemnitor, which generally is based on a
legal duty owed by the proposed indemnitor to the underlying injured party.¿ (Ibid.)¿
Cross-Defendants argue that S. Kim’s
claims fail as there are no facts alleging any relationship between the parties
to warrant the relief sought. (Demurrer, at p. 7.) Cross-Defendants argue that S.
Kim fails to specify whether the indemnity sought is express or implied as it
relates to Cross-Defendants. (Id., at pp. 8-9.) Cross-Defendants also argue
that the cross-complaint fails to allege any fault on the part of Cross-Defendants
and only alleges that Cross-Defendants are “in some manner responsible for the
events, happenings, actions, actions and omissions” claimed in Plaintiff’s FAC.
(Ibid.) As such, Cross-Defendants contend that the cross-complaint does
not allege any meaningful causal link between any specific conduct alleged by
Plaintiff against S. Kim and why Cross-Defendants would or should, in whole or
in part, be found responsible for any judgment against S. Kim for the same. (Ibid.)
Cross-Defendants also contend that the indemnity relief sought by S. Kim is
illusory in nature as no liability has been established and no judgment has
been rendered. (Ibid.) Lastly, Cross-Defendants argue that the claim for
indemnity is uncertain. (Id., at p. 10.)
In opposition, S. Kim argues that the
cross-complaint and Plaintiff’s FAC make that Cross-Defendants were or are
employers of Plaintiff warranting S. Kim’s causes of action for equitable indemnity,
apportionment of fault, and contribution. (Opp., at p. 6.)
The court finds that Seung fails to
sufficiently allege a cause of action for indemnity. The allegations made are
entirely conclusory and fail to identify what legal duty, agreement, contract,
or legal obligation gives rise to Cross-Defendants’ alleged liability. Even if
such basis for liability was inferred from Plaintiff’s Complaint or FAC, it is
clear that Cross-Defendant SHE was not
named in either pleading. As such, S. Kim should have included specific
allegations as to SHE, which he did not. Additionally, the claim is based solely
on the contention that “[i]f upon
the trial of Plaintiff’s Complaint, Cross-Complainants is found liable to
Plaintiff, then Cross-Complainant is entitled to a judgment of indemnification
against Cross-Defendants for the total amount of any judgment awarded against
Cross-Complainant.” (Cross-Complaint, ¶ 27.) As it stands, the Cross-Complaint fails
to allege sufficient facts “with reasonable precision and with particularity
sufficiently specific to acquaint the defendant with the nature, source, and
extent of his cause of action.” (Gressley v. Williams (1961) 193
Cal.App.2d 636, 643-644.)
As such, Cross-Defendants’ demurrer
is sustained as to S. Kim’s first cause of action for indemnity.
Second Cause of Action – Apportionment of Fault
Apportionment
of fault is “conduct on the part of the plaintiff which falls below the
standard to which he should conform for his own protection, and which is a
legally contributing cause cooperating with the negligence of the defendant in
bringing about the plaintiff's harm.” (Li
v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809.) The rule is “rooted in the long-standing
principle that one should not recover from another for damages brought upon
oneself.” (Id., at p. 810.)
Cross-Defendants
argue that S. Kim failed to carry his burden to establish concurrent or
alternative causes for the damages alleged in Plaintiff’s FAC by making
conclusory allegations that Cross-Defendants are responsible for Plaintiff’s
damages in some manner. (Demurrer, at p. 11.)
The court finds that S. Kim has not
alleged any facts to support a cause of action to seek apportionment of fault
from Cross-Defendants. S. Kim does not allege how Cross-Defendants were
responsible for the injuries suffered by Plaintiff. Nor does the cross-complaint allege facts
showing that Plaintiff was responsible, in whole or in part, for his own damages.
Instead, S. Kim merely provides a boilerplate paragraph.
As such, Cross-Defendants’ demurrer
is sustained as to Seung’s second cause of action for apportionment of fault.
Third Cause of Action – Declaratory Relief
“To qualify for declaratory relief, a
party would have to demonstrate its action presented two essential elements:
(1) a proper subject of declaratory relief, and (2) an actual controversy
involving justiciable questions relating to the party’s rights or
obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213
Cal.App.4th 872, 909, cleaned up.) A cause of action for declaratory
relief should not be used as a second cause of action for the determination of
identical issues raised in another cause of action. (General of America
Insurance Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.) “The availability
of another form of relief that is adequate will usually justify refusal to
grant declaratory relief.” (California Insurance Guarantee Association v.
Superior Court (1991) 231 Cal.App.3d 1617, 1624.) Further, “there is no
basis for declaratory relief where only past wrongs are involved.” (Osseous
Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191
Cal.App.4th 357, 366, quotation marks omitted.)
The court notes that S. Kim has not
alleged any facts to support a declaratory judgment that Cross-Defendants were at
fault in whole or in part under the Fair Responsibility Act of 1968.
(Cross-Complaint, ¶ 33.) Conclusory allegations do not withstand
demurrer. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167
Cal.App.4th 531, 538.)
As such, Cross-Defendants’ demurrer
is sustained as to Seung’s third cause of action for declaratory relief.
Fourth Cause of Action – Contribution
Code of Civil Procedure section 875
provides that “(a)¿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…(c)¿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, subds.
(a),(c).)
The
court finds that as S. Kim fails to allege that a money judgment has been
rendered or paid more than his pro rate share of the judgment. As such, Seung
has not alleged facts sufficient to claim contribution.
As such, Cross-Defendants’ demurrer
is sustained as to Seung’s fourth cause of action for contribution.
Conclusion
Cross-Defendants S.H.E. Global Inc. and Eddie E. Lin’s Demurrer to
Cross-Complainant Seung Hyun Kim’s Cross-Complaint is SUSTAINED.