Case Number: BC678953 Hearing Date: June 05, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

David Adan Velasquez,

Plaintiff,

v.

Khosrow Mirblouk, et al.,

Defendants,

And All Cross Actions.

Case No.: BC678953

Hearing Date: June 5, 2018

[TENTATIVE] order RE:

motion for judgment on the pleadings by Plaintiff/Cross-defendant David Adan Velasquez

BACKGROUND

This action arises out of motor vehicle collision. Plaintiff David Adan Velasquez filed the Complaint on October 10, 2017 against Defendant Khosrow Mirblouk alleging causes of action for motor vehicle and negligence.

On November 20, 2017, Mirblouk (“Cross-Complainant”) filed a cross-complaint against Velasquez (“Moving Cross-Defendant”) and Key Auto Recovery, Inc. Cross-Complainant alleged against all Cross-Defendants causes of action for (1) Indemnity, (2) apportionment of fault, (3) declaratory relief, and (4) property damage.

Moving Cross-Defendant filed the instant motion for judgment on the pleadings as to the Cross-Complaint on the claims of indemnity, apportionment of fault, and declaratory relief. Cross-Complainant opposes the motion, and Cross-Defendant has replied.

LEGAL STANDARD

A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for demurrer has expired. (Code Civ. Proc., § 438, subd. (f).) Except as provided by statute, the rules governing demurrers apply. (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012.) “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Id. at p. 1013.) In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.)

DISCUSSION

Moving Cross-Defendant moves for judgment on the Cross-Complaint on grounds that Cross-Defendant and Cross-Complainant are not joint tortfeasors, and therefore, there can be no claims for indemnity, apportionment of fault, or declaratory relief.

The cause of action for indemnity rests upon the difference between the primary and secondary liability of two persons, each of whom is made responsible by law to an injured party. (Alisal Sanitary District v. Kennedy (1960) 180 Cal.App.2d 69, 75.) “[T]he right to indemnity flows from payment of a joint legal obligation on another’s behalf.” (AmeriGas Propane, LP v. Landstar Ranger, Inc. (2014) 230 Cal.App.4th 1153, 1167.) As such, a party pursuing a claim of indemnity must show the following elements: (1) fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible. (Expressions at Rancho Niguel Assoc. v. Ahmanson (2001) 86 Cal.App.4th 1135, 1139; Gouvis Engineering v. Superior Court (1995) 37 Cal.App.4th 642, 646.)

The Court finds that Cross-Complainant has failed to allege sufficient facts to support a claim of indemnity against Moving Cross-Defendant. It is clear that indemnity lies only against a culpable third party. Here, Cross-Complainant has not alleged sufficient facts to show that Cross-Complainant and Cross-Defendant acted in such a way as to cause harm to a third person. No facts are alleged that demonstrate that Cross-Complainant and Cross-Defendant owe a joint legal obligation to a separately injured third party. (AmeriGas Propane, LP, supra, at 1167.) Thus, the Moving Cross-Defendant cannot indemnify Cross-Complainant for any damages. As noted in Witkin:

In a number of situations, the plaintiff is entitled to recover from a defendant tortfeasor, but the liability of the latter is regarded as only secondary, and he may be entitled to bring a subsequent action for indemnity against a third person whose liability is regarded as primary. (See 5 Summary (9th), Torts, §89 et seq.)”. [7 Witkin, Cal. Proc. 4th (1997) Judgm, § 362, p. 929].

In this instance, if Cross-Complainant prevails in the underlying action, indemnity would not be allowed because Cross-Defendant would not be liable as a tortfeasor, let alone as the “primary” tortfeasor. Moreover, if Cross-Complainant does not prevail, the indemnity issues are moot. As explained in Schafer v. Wholesale Frozen Foods, Inc. (1957) 151 Cal.App.2d 96, 101, “[t]he rights which the defendants sought by their cross-complaint to have declared appear to have been substantially the very claims asserted by them in their answer by way of defense to the complaint. When the court finished disposing of their defenses, there was nothing of substance left to declare.” Based on the foregoing, the Cross-Complainant and the Moving Cross-Defendant are not joint tortfeasors, and thus a claim for indemnity has not been alleged with sufficient facts.

As to the claim of apportionment of fault., the Court also finds that Cross-Complainant has pled insufficient facts with respect to the Moving Cross-Defendant. Contribution, or apportionment of fault, is the right to recover not from the party primarily liable for the loss but from a co-obligor who shares liability with the party seeking contribution (Fireman’s Fund Insurance Co. v. Maryland Casualty Co. (1998) 65 Cal.App.4th 1279,1293.) As discussed above, insufficient facts have been pled to show that Cross-Complainant and Cross-Defendant are joint tortfeasors, and thus, they are not obligated under the law to share liability as to a third party’s damages.

Finally, as to the claim of declaratory relief, the Court also finds that Cross-Complainant has pled insufficient facts with respect to the Moving Cross-Defendant. An action for declaratory relief lies when there is an actual bona fide dispute between parties as to a legal obligation arising under the circumstances specified in CCP §1060 and, in addition, the controversy must be justiciable. (Western Motors Servicing Corp. v. Land Development & Inv. Co. (1957) 152 Cal.App.2d 509.) A complaint seeking declaratory relief must allege facts which justify the declaration of rights or obligations in respect to a matter of actual controversy, within the purview of §1060, and involving justiciable rights. (Foster v. Masters Pontiac Co. (1958) 158 Cal.App.2d 481.) Cross-Complainant’s claim for declaratory relief is inapplicable between the parties as Cross-Defendant and Cross-Complainant are not joint tortfeasors.

The Court notes that the Moving Cross-Defendant has not challenged the sufficiency of the fourth claim as to Property Damage. Such an affirmative action against Moving Cross-Defendant is viable. A defendant may cross-complain against a plaintiff for the plaintiff’s negligent acts which caused damage to the defendant. Claims for indemnity, apportionment of fault, and declaratory relief are not the proper claims under which Cross-Complainant may attempt to recover for negligent acts of the Plaintiff. Should the Cross-Complainant wish to hold the Moving Cross-Defendant liable for any personal injury suffered, then Cross-Complainant can allege affirmative claims, such as the property damages claim and claims for personal injury.

Based on the forgoing, the Court finds that Cross-Complainant has failed to allege sufficient facts to support the causes of action for indemnity, apportionment of fault, and declaratory relief. Thus, the Moving Cross-Defendant’s motion for judgment on the pleadings as to the first three causes of action is granted.

The Court grants this motion without leave to amend. The burden is on the complainant to show the court that a pleading can be amended successfully, in order to obtain an order allowing leave to amend. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78.) To satisfy that burden, a complainant must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Here, Cross-Complainant has not shown that the first three causes of action may be amended so as to change the legal effect of his pleading. Therefore, Cross-Complainant has failed to meet his burden, and leave to amend is denied. However, should Cross-Complainant wish to amend their complaint to allege affirmative claims of personal injury based on the Moving Cross-Defendant’s purported negligence, the Court would be inclined to grant such a motion.

CONCLUSION AND ORDER

For the reasons above, the Moving Cross-Defendant’s motion for judgment on the pleadings as to the first, second, and third causes of action of the Cross-Complaint is granted.

The Court notes that nothing in this ruling changes the effect of the fourth cause of action for property damage against the Moving Cross-Defendant or of the effect of the entire Cross-Complaint against Key Auto Recovery, Inc. as it is not a moving party on this motion.

All parties should note that the hearing on this motion and all future hearings will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5,

//

//

//

//

Los Angeles, CA 90012.

The moving party is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: June 5, 2018 ___________________________

Elaine Lu

Judge of the Superior Court