Judge: Richard S. Whitney, Case: 37-2022-00044480-CU-FR-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Fraud Demurrer / Motion to Strike 37-2022-00044480-CU-FR-CTL GARNSEY VS SALAS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANTS AND CROSS-DEFENDANTS AFFILIATE ESCROW AND GASSAN 'GUS' JALEEL'S DEMURRER TO RUBEN SALAZAR'S CROSS-COMPLAINT is SUSTAINED, in part, and OVERRULED, in part.

Defendants and Cross-Defendants Affiliate Escrow and Gassan 'Gus' Jaleel (collectively 'Cross-Defendants') demurrer to Cross-Complainant RUBEN SALAZAR's ('Cross-Complainant') cross-complaint. Cross-Complainant does not oppose the demurrer as to the second and third causes of action for set off and declaratory relief. The demurrer is sustained as to the second and third causes of action for set off and declaratory relief.

'Demurrers for uncertainty under Code of Civil Procedure section 430.10, subdivision (e) are disfavored.

[Citation] 'A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.'' (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [Citation omitted].) The Court must accept as true the allegations of the cross-complaint. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) The Court must also accept as true 'facts that may be implied or inferred from those expressly alleged.' (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) Cross-Defendants' demurrer was filed before this Court ruled on Cross-Defendants' demurrer to the complaint. As this Court ruled as to the demurrer, Plaintiff sufficiently alleged facts to support the causes of action in the complaint. Cross-Complainant incorporates the allegations of the complaint and alleges that, in the case Cross-Complainant is found liable: Cross-defendants, and each of them, were also negligent and/or otherwise at fault in causing Plaintiff's injuries, if any, and that the actions of Cross-defendants, and each of them, were a proximate cause of such injuries, if any. As a result, Cross-defendants are obligated to indemnify Cross-complainant partially or fully for sums which Cross-complainant may be compelled to pay as a result of any damages, judgment or other awards recovered by Plaintiff against Cross-complainant.

(Cross-Complaint, ¶16.) 'Under the law, a tortfeasor generally is liable for all damages proximately caused by his tortious conduct. (See Civ. Code, § 1714.) Where multiple tortfeasors are responsible for an indivisible injury suffered by the plaintiff, each tortfeasor is jointly and severally liable to the plaintiff for those damages and thus may be held individually liable to the injured plaintiff for the entirety of such damages.' Calendar No.: Event ID:  TENTATIVE RULINGS

2986930  66 CASE NUMBER: CASE TITLE:  GARNSEY VS SALAS [IMAGED]  37-2022-00044480-CU-FR-CTL (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139.) '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.' (Id.) A joint tortfeasor may be a party who commits a separate and distinct tort, even if it is not committed concurrently, but successively, and may still be liable for equitable indemnity.

(See Considine Co. v. Shadle, Hunt & Hagar (1986) 187 Cal.App.3d 760, 767.) The Court finds Cross-Complainant has adequately alleged equitable indemnity as he alleges fault and damages that are equitably attributable to Cross-Defendants. Cross-Defendants rely upon the same arguments as to indemnity to assert the cause of action for contribution fails. As the argument fails as to indemnity, it also fails as to contribution. 'Contribution and indemnity are related doctrines, but contribution 'presupposes a common liability which is shared by the joint tortfeasors on a pro rata basis.' [Citation]' (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1162 [Citation omitted].) Cross-Complainant properly alleges 'Cross-defendants are obligated to indemnify Cross-complainant partially or fully for sums which Cross-complainant may be compelled to pay as a result of any damages, judgment or other awards recovered by Plaintiff against Cross-complainant.' (Cross-Complaint, ¶ 16.) In sum, the demurrer is sustained as to the second and third causes of action without leave to amend and the demurrer is overruled as to the first and fourth causes of action.

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2986930  66