Judge: Walter P. Schwarm, Case: 30-2020-01175254, Date: 2022-08-02 Tentative Ruling

Cross-Defendants’ (Abdullah Jasim, Ahmed Mandil, and Rash Abdulrazzaq) Demurrer to Cross-Complaint of Newport-Mesa Unified School District’s First Amended Cross-Complaint (Demurrer), filed on 3-11-22 under ROA No. 84, is OVERRULED in part and SUSTAINED in part.

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint.[Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4^th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.[Citation.]”

The Demurrer challenges the first (Equitable Indemnity), second (Partial Equitable Indemnity), and third (Declaratory Relief) causes of action contained in Cross-Complainants’ (Newport-Mesa Unified School District) First Amended Cross-Complaint (FACC), filed on 2-18-22 under ROA No. 80, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f).

C.W. Howe Partners, Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700 (C.W.), explains, “Equitable indemnity, which ‘requires no contractual relationship,’ ‘ “is premised on a joint legal obligation to another for damages” ’; it is ‘subject to allocation of fault principles and comparative equitable apportionment of loss.’ [Citation.] ‘ “The elements of a cause of action for [equitable] 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.” ’ [Citation.]”

Paragon Real Estate Group of San Francisco, Inc.  v. Hansen (2009) 178 Cal.App.4th 177, 182-183 (Paragon), states, “After rejecting the ‘all-or-nothing’ doctrine in favor of comparative fault, the court then considered whether a defendant can join another alleged tortfeasor by cross-complaint. The court determined that the defendant may do so, even when the alleged tortfeasor has not been named as a defendant in the lawsuit. (American Motorcycle, supra, 20 Cal.3d at p. 607, 146 Cal.Rptr. 182, 578 P.2d 899.) In a critical passage, the court held that ‘under the governing provisions of  . . . Code of Civil Procedure [section 428.10, subdivision (b) ], a named defendant is authorized to file a cross-complaint against any person, whether already a party to the action or not, from whom the named defendant seeks to obtain total or partial indemnity. Although the trial court retains the authority to postpone the trial of the indemnity question if it believes such action is appropriate to avoid unduly complicating the plaintiff's suit, the court may not preclude the filing of such a cross-complaint altogether.” (American Motorcycle, supra, at p. 584, 146 Cal.Rptr. 182, 578 P.2d 899, italics added; see also Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1197–1198, 246 Cal.Rptr. 629, 753 P.2d 585 [under the principles articulated in American Motorcycle, supra, a defendant may pursue a comparative equitable indemnity claim against another tortfeasor ‘by filing a cross-complaint in the original tort action’].) (Italics in Paragon.)

Leko v. Cornerstone Building and Inspection Service (2001) 86 Cal.App.4th 1109, 1115 (Leko), states, “When the negligent acts of two tortfeasors are both a proximate cause of an indivisible injury, the tortfeasors are jointly and severally liable for that injury. (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 586 588, 146 Cal.Rptr. 182, 578 P.2d 899.) Joint tortfeasors may act in concert or independently of one another. (Id. at p. 587, 146 Cal.Rptr. 182, 578 P.2d 899.) ‘There seems to be no logical reason why the application of [joint and several liability] should turn on the relationship of the tortfeasors to each other. What is important is the relationship of the tortfeasors to the plaintiff and the interrelated nature of the harm done.’ [Citation.] [¶] Joint and several liability does not depend on whether the tortfeasors owe a duty to one another. ‘ “It would be unfair to require one tortfeasor to bear a loss disproportionate to his relative culpability simply because a tortfeasor who contributed to the loss owed a duty to the plaintiff but not to the defendant.” ’ [Citation.] Nor must joint tortfeasors owe the same duty of care to the plaintiff. ‘[A] defendant/indemnitee may in an action for indemnity seek apportionment of the loss on any theory that was available to the plaintiff upon which the plaintiff would have been successful.’ [Citations.]”

Fremont Reorganizing Corporation v. Faigin (2011) 198 Cal.App.4th 1153, 1176-1177 (FRC), states, “Equitable indemnity is an equitable doctrine that apportions responsibility among tortfeasors responsible for the same indivisible injury on a comparative fault basis. [Citation.] ‘[T]he equitable indemnity doctrine originated in the common sense proposition that when two individuals are responsible for a loss, but one of the two is more culpable than the other, it is only fair that the more culpable party should bear a greater share of the loss.’ [Citation.] A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury. [Citation.] [¶] FRC alleges in its equitable indemnity count that Faigin breached his fiduciary duties owed to FRC by causing the Commissioner to file an adversary action against FRC, and that FRC has been damaged as a result. FRC alleges that because Faigin has injured FRC in this manner, FRC is entitled to indemnity from Faigin if it is found liable to him on his complaint. [¶] FRC does not allege and presented no evidence that FRC and Faigin are liable to another person for the same injury, so there is no basis for equitable indemnity. [Citation.] Thus, FRC failed to establish a probability of prevailing on this count and we hold that it was properly stricken.” (Footnote 8 omitted.)

The Demurrer states, “NMUSD failed to allege causes of action for equitable indemnity because the FACC does not (1) set forth facts regarding Cross-Defendants alleged fault in regard to NMUSD’s breach of its own unique duties to Plaintiff, (2) facts sufficient to support equitable indemnity and\or (3) any facts that establish the Cross-Defendants had any duty or obligation to Plaintiff or to fulfill NMUSD’s duties and obligations towards Plaintiff. Instead, NMUSD’s FACC does nothing more than allege mere conclusions of law and fact.” (Demurrer; 3:3-8.)  “Plaintiff is not attempting to hold NMUSD liable for the alleged sexual assault, but instead NMUSD’s failure to properly address and prevent further harassment against Plaintiff from other NMUSD students, in which neither Plaintiff nor NMUSD allege Cross-Defendants had any involvement.” (Demurrer; 6:18-21.)

Plaintiff’s Complaint, filed on 12-18-20 under ROA No. 2, appears to identify Cross-Defendant—Abdullah Jasim as the individual who allegedly assaulted Plaintiff. (Complaint; ¶¶ 20-24.)  The Complaint alleges that the assault was videotaped. (Complaint; ¶ 24.)  The Complaint pleads, “On October 12, 2018, P.H. first learned that A.J. had videotaped the coerced oral sex, and that he and other students were sharing the video at school. P.H. was at the afterschool program at the church, sitting with a group of NHHS students who started talking about the video. Among that group were NHHS students E.H. and J.K.” (Complaint, ¶ 25.)  “Since the rape, A.J. has moved out of the District and transferred schools. NHHS students have repeatedly circulated the video and P.H. has repeatedly been sexually harassed, slut shamed and bullied by other students on campus and online.” (Complaint, ¶ 31.)  In terms of damages the Complaint alleges, “As a result of the above-described conduct, Plaintiff has suffered, and continues to suffer, great pain of mind and body, shock, emotional distress, physical manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation, and loss of enjoyment of life; has suffered and continues to suffer spiritually; was prevented and will continue to be prevented from performing Plaintiff’s daily activities and obtaining the full enjoyment of life; has sustained and will continue to sustain loss of earnings and earning capacity; and/or has incurred and will continue to incur expenses for medical and psychological treatment, therapy, and counseling.” (Complaint, ¶¶ 71 and 75.)

The FACC pleads: (1) Plaintiff P.H. has filed a complaint against Cross-Complainant alleging that as a proximate result of the tortious conduct of Cross-Complainant therein, she has suffered certain injuries and damages. Said operative complaint is incorporated herein by reference only and for no other purpose.” (FACC, ¶ 4.); (2) “Plaintiff alleges she was sexually assaulted by Cross-Defendant ROE 1-ABDULLAH JASIM in or around October 9, 2018 while they were off-campus. During this sexual assault, CrossDefendant ROE 1-ABDULLAH JASIM coerced Plaintiff into performing oral copulation on him and surreptitiously videotaped her performing that sexual act.” (FACC, ¶ 5.); (3) “Shortly following the sexual assault, Plaintiff claims she discovered Cross-Defendant ROE 1-ABDULLAH JASIM had surreptitiously videotaped her performing oral copulation on him and was disseminating it at school to other students.” (FACC, ¶ 6.); (4) “Plaintiff alleges since the sexual assault in or around October 9, 2018, students have repeatedly circulated the videotape, and Plaintiff has been repeatedly sexually harassed, slut shamed, and bullied by other students on campus and online. She contends the harassing and bullying messages continued for over a year following the sexual assault and dissemination of the surreptitious recording.” (FACC, ¶ 7.); and (5) “Due to the alleged bullying and harassment, she asserts that she sustained emotional injuries and sought medical and psychological treatment, therapy, and counseling.” (FACC, ¶ 8.)

Here, the court finds that the FACC adequately pleads the first and second causes of action. First, the court notes that Plaintiff’s Complaint seeks emotional distress damages resulting from the assault, the sharing of the video, the bullying, and Cross-Complainant’s failure to take action as alleged in the Complaint (for example, see Complaint at ¶¶ 41-55, 65, 70, 74, and 78).  First, the FACC pleads fault on the part of the alleged indemnitor, Cross-Defendant—Abdullah Jasim, as to Plaintiff’s emotional distress damages. (FACC, ¶¶ 4-14.)  The FACC sufficiently pleads that Cross-Defendant—Abdullah Jasim was a proximate cause of and Plaintiff’s emotional distress damages.  Plaintiff’s emotional distress damages are an indivisible injury because the FACC pleads that Cross-Defendant—Abdullah Jasim is liable for the same emotional distress damages as Plaintiff alleges against Cross-Complainant in the Complaint. (For example, see FACC at ¶¶ 4-11.)  Second, the FACC sufficiently alleges resulting damages to the indemnitee, Cross-Complainant. (For example, see Complaint at ¶¶ 10 and 11.)  Therefore, the court finds that the FACC sufficiently pleads the first and second causes of action, and OVERRULES the Demurrer to the first and second causes of action. 

As to the third cause of action for Declaratory Relief,  Code of Civil Procedure section 1060 states, “Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”

 “ ‘The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.’ [Citation.]”  (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79; Italics in City of Cotati.) “ ‘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.” ’ [Citation.]  (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)

Here, the FACC does not allege that there is a controversy involving a “written instrument,” “contract”, “over or upon property.”  The dispute that the FACC alleges pertains to the whether Cross-Complainant, Cross-Defendants, or both were the proximate cause of the tort damages alleged in Plaintiff’s Complaint.  Since the FACC does not allege a basis for declaratory relief, the court SUSTAINS the Demurrer to the third cause of action.

To the extent that the Demurrer relies on uncertainty under Code of Civil Procedure section 430.10, subdivision (f), the court OVERRULES the Demurrer pursuant to A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.

Based on the above, the court OVERRULES Cross-Defendants’ (Abdullah Jasim, Ahmed Mandil, and Rash Abdulrazzaq) Demurrer to Cross-Complaint of Newport-Mesa Unified School District’s First Amended Cross-Complaint, filed on 3-11-22 under ROA No. 84, as to the first two causes of action.  The court SUSTAINS the Demurrer to the third cause of action with 15 days leave to amend from the date of service of the notice of the court’s ruling. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)

Cross-Complainant is to give notice.