Judge: Serena R. Murillo, Case: 22STCV13610, Date: 2023-04-20 Tentative Ruling
Case Number: 22STCV13610 Hearing Date: April 20, 2023 Dept: 29
TENTATIVE
Cross-Defendants Uber
Technologies, Inc., and Portier, LLC’ demurrer to the first amended
cross-complaint is SUSTAINED with 30 days leave to amend.
Legal Standard
A demurrer for sufficiency tests
whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
When considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216,
1228.) The court “treat[s] the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law
….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) The
only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action. (Hahn,
supra, 147 Cal.App.4th at 747.)
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.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th
612, 616.) A demurrer for uncertainty will be sustained only where the complaint
is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., §
430.10, subd. (f).)
Meet and Confer
The demurrer is accompanied by the
declaration of Nicole Davidov, which satisfies the meet and confer
requirement. (Code Civ. Proc. § 430.41.)
Discussion
“Indemnity
may be defined as the obligation resting on one party to make good a loss or
damage another party has incurred.” (McCrary Construction Co. v. Metal
Deck Specialists, Inc. (2005) 133 Cal.App.4th 1528, 1536.) “This
obligation may be expressly provided for by contract [citation], it may be
implied from a contract not specifically mentioning indemnity [citation], or it
may arise from the equities of particular circumstances [citation].” (Ibid.)
“To state a claim for equitable indemnity, a defendant must allege the same
harm for which he may be held liable is properly attributable – at least in
part – to the cross-defendant.” (Platt v. Coldwell Banker Residential
Real Estate Services (1990) 217 Cal.App.3d 1439, 1444, fn. 7.)
Equitable
contribution is the right to recover from a co-obligor who shares liability
with the party seeking contribution. (Fireman’s Fund Ins. Co. v.
Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1293.)
Cross-Complainant incorporates by reference
the allegations of Plaintiff’s Complaint. The complaint alleges that on January 28, 2021, Plaintiff slipped and
fell at the Great White Hut’s food stand. The floor was wet and slippery. Defendants had taken the seat covers from the stools and
have left the metal pedestals of the stools exposed. Plaintiff slipped on the
slippery floor, fell on metal pedestal of the stool and then fell on the floor.
Plaintiff sustained injuries as a result of the fall. Defendants had a duty to
maintain the Premises in a reasonably safe condition. Defendants failed to
maintain the Premises in a reasonably safe condition by failing to clean the
floor and leaving the metal pedestals next to the slippery floor.
The first amended cross-complaint alleges
that Plaintiff was a delivery driver for Cross-Defendants and was picking up
orders for Cross-Defendants’ customers. Thus, Cross-Defendants had a duty to
properly select, screen, train, instruct Plaintiff as their agent, employee, or
independent contractor when delivering for Cross-Defendants. If Plaintiff
sustained injuries, it was a direct result of the negligence of Cross-
Defendants.
I.
Cross-Defendants as Alleged Employers
Cross-Defendants argue that, as a
matter of law, they cannot be subject to a Cross-Complaint in this instance.
Courts have consistently held that when an injured employee sues a third-party
defendant, not his employer, in tort, the defendant cannot file a cross-complaint
against the employer when seeking an offset for the employer’s alleged
concurrent negligence. (See, e.g. Difko Admin. (US) Inc. v. Superior Court (1994)
24 Cal.App.4th 126; CJL Construction Inc. v. Universal Plumbing (1993)
18 Cal.App.4th 376.) The third party claiming a right based on the employer’s
concurring negligence can do so only by raising the issue in its affirmative
defenses. (Difko Admin, supra, 18 Cal.4th 126 at 134-35.)
Cross-complainant cannot cross-complain for indemnity
against Cross-Defendants, as employers, under Difko. An
allegation of negligent training fails for a different, but related reason.
Cross-complainants have not alleged any factual allegations to overcome the
general rule of nonliability for the hirer of an independent contractor for the
negligent acts of the contractor. (Johnson v. Ralphs Grocery Co. (2012)
204 Cal.App.4th 1097, 1107.)
To the extent Cross-Defendants are the employers of Plaintiff, the
first amended cross-complaint must fail as asserted separately against the employer and should be
included as a defense in Cross-Complainant’s answer.
II. Cause of Action for
Equitable Contribution
Next, Cross-Defendants
argue that a right of
contribution can come into existence only after rendition of a judgment
declaring more than one defendant jointly liable to the plaintiff, and there
are no allegations in the first amended cross-complaint that a judgment has
been entered against Cross-Defendants.
A "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." (Code Civ.
Proc., § 875 (c).) A "right of contribution is strictly limited, coming
into existence only after a money judgment has been rendered jointly against
them. (citations). Unless and until that event occurs, no right exists between
joint tortfeasors." (Buffington v. Ohmert (1967) 253 Cal.App.2d
254, 255.) Unlike a right to equitable indemnity, which can be asserted before
judgment in the same underlying action, "[a] right of contribution can
come into existence only after rendition of a judgment declaring more than one
defendant jointly liable to the plaintiff." (Coca Cola Bottling Co. v.
Lucky Stores, Inc. (1992) 11 7 Cal.App.4th 1372, 1378.)
Here, as
Cross-Defendants argue, there are no allegations in the first amended
cross-complaint that a judgment has been rendered jointly against two or more
defendants in this case, as required to support a claim for contribution.
Cross-Complainant has not advanced arguments regarding its equitable
contribution claim in the opposition.
Accordingly,
Cross-Complainant’s claim for contribution fails as it is premised on
Plaintiff’s Complaint which has yet to reach a final judgment. Thus, the
demurrer to the cause of action for contribution is sustained.
III. Failure to Plead Sufficient Facts to Constitute Causes of
Action for Indemnity and Contribution
As separate grounds,
Cross-Defendants argue that Cross-Complainant cannot plead facts to establish
any cause of action against Cross-Defendants as the first amended
cross-complaint proffers no facts establishing or causation.
The Court agrees. There are no facts
alleged as to how Cross-Defendants in any way caused or contributed to
Plaintiff slipping and falling on the wet floor on Cross-Complainant’s
premises. “In the ordinary personal injury lawsuit, in which the
complaint’s factual recitations show plainly the connection between cause and
effect, it suffices to plead causation succinctly and generally.” (Bockrath
v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 78.) However, where “the
pleaded facts of negligence and injury do not naturally give rise to an
inference of causation[,] the plaintiff must plead specific facts affording an
inference the one caused the others. . . . That is, the plaintiff must allege
facts . . . explaining how the conduct caused or contributed to the
injury.” (Ibid.) How would properly training Plaintiff on safety matters
prevent this incident from occurring if the floor where Plaintiff slipped was
wet? For example, was Plaintiff running at the time, such that if there were
proper training informing delivery drivers not to run when the floor is wet,
Plaintiff would not have fallen? If Plaintiff simply slipped while taking a
step, how could safety training prevent his fall on a wet and slippery floor?
As it stands, the Court finds that
the first amended cross-complaint fails to state causes of action for indemnity
and contribution against Cross-Defendants as Cross-Complainant has not properly
alleged that the harm it may be liable for is attributable to Cross-Defendants.
The demurrer is also sustained on this ground.
Conclusion
Accordingly, Cross-Defendants’ demurrer to the first amended cross-complaint
is SUSTAINED with 30 days leave to amend.
Moving party is ordered to give notice.