2012-00130629-CU-PO

Mary Amant vs. Rai Brothers Partners

Nature of Proceeding:   Hearing on Demurrer

Filed By:  Jones, Michael G.

If oral argument is requested, the hearing for the oral argument will be on Monday
June 23, 2014 in Department 53 at 2:00 p.m.  If this date is not convenient, the parties
shall meet and confer on a later date for oral argument and inform the court clerk by
4:00 p.m. on June 19.

Cross-defendants Nicole Brown and Nancy Sjostedt-Brown’s Demurrer to the Cross-
Complaint is ruled upon as follows:

The Complaint alleges that defendants were negligent in failing to maintain a safe
environment in their parking lot. Plaintiff tripped over a log and injured her shoulder.
Plaintiff alleges causes of action for negligence and premises liability.

Cross-complainant contends that Cross-defendants proximately caused the injuries
and damages alleged by plaintiff in the complaint. Cross-defendants allegedly were
involved in rear-end auto accidents with Plaintiff’s vehicle, some time after the incident
alleged in this Complaint when Plaintiff tripped over a log and injured her shoulder.
Cross-complainant alleges that Cross-defendants contributed to Plaintiff’s alleged
damages. Cross-complainant alleges three causes of action:  implied equitable
indemnity, contribution, and declaratory relief and apportionment.

1st Cause of Action Implied Equitable Indemnity:  Overruled

Cross-defendants demur to the first cause of action on the grounds that the cross
complaint fails to state a cause of action.

Cross-Complainant alleges that if Cross-complainant is found liable, the liability will
arise solely because of the conduct and negligence of Cross-defendants in this action.
Cross-defendants contend that no claim for indemnity can be asserted against them
because they had nothing to do with the condition of the premises that gave rise to the
claim in the Complaint.  Furthermore, cross-defendants contend there is no connection
between the harm caused to Plaintiff in the injury in the parking lot and the car
accident between Plaintiff and Cross-defendants which occurred 14 months later.

Code. Civ. Proc. § 428.10(b) provides that a party may file a cross complaint “if the
cause of action asserted in the cross-complaint 1) arises out of the same transaction,
occurrence, or series of transactions or occurrences as the harm brought against him.”
Cross-complaints for comparative equitable indemnity are almost by definition
transactionally related to the same harm which plaintiff seeks to hold defendant
attributable.”  Time for Living, Inc. v. Guy Hatfield Homes (1991) 230 Cal. App. 30, 38,
39. “[T]he elements of the causes of action for indemnity are (1) a showing of fault on
the part of the indemnitor and (2) resulting damage to the indemnitee for which
[indemnitor] either contractually or equitably should be responsible. Gouvis
Engineering v. Superior Court (1995) 37 Cal.App.4th 642, 647-48. “The doctrine of
comparative equitable indemnity is available to apportion liability among wrongdoers
based on their relative culpability provided only that the actions of the parties
combined to create an indivisible injury to the plaintiff.”  Willdan v. Sialic Contractors
Corp. (2007) 158 Cal.App.4th 47, 56. Plaintiff seeks damages for her shoulder injuries
that occurred in three separate incidents.  Cross-complainant is entitled to seek
indemnification based on apportionment. Analogously, it has been held the policy of
CCP section 877.6, subdivision (c) is to encourage settlement by providing finality to
litigation for the settling tortfeasor. (Cf.  American Motorcycle Assn. v. Superior Court
(1978) 20 Cal.3d 578, 603, discussing a similar provision in Code Civ. Proc., § 877.)
“This policy applies with equal force to all tortfeasors joined in a single action
regardless of whether their acts were successive or contemporaneous.” Turcon
Constr. v. Norton-Villiers, (1983) 139 Cal. App. 3d 280, 283. More to the point, as
noted in El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal. App. 4th
1337, 1353, “The term “’joint tortfeasor’” is broad. [citation] It may include nonsettling
and settling defendants “joined in a single action regardless of whether their acts were
successive or contemporaneous.” [citation] In addition, where multiple defendants
cause damage and “ ‘are not acting in concert, if the results produced by their acts are
indivisible, each person is held liable for the whole. …’ ” (Sanchez v. Bay General
Hospital (1981) 116 Cal. App. 3d 776, 796.)”

2nd Cause of Action Contribution:  Overruled.

Cross-defendant demurs to the second cause of action on the ground that the cross-
complaint fails to state a cause of action for contribution.

Cross-complainants request an adjudication and determination of the respective
degrees of liability on its part and on the part of cross-defendants. Cross-defendants
contend that they are not responsible for the incident that occurred on cross-
complainant’s property. However, as stated above, cross-complainant is entitled to
contribution, even from successive tortfeasors, in the event that plaintiff’s claimed
injuries can be apportioned to the later auto-accidents.

3rd Cause of Action Declaratory Relief and Apportionment:  Overruled.

Cross-defendant demurs to the third cause of action on the ground that the cross-
complaint fails to state a cause of action for declaratory relief.

Cross-complainants request a declaration of its rights to indemnification in the
controversy that Cross-defendants are either entirely or partially responsible for the
damages claimed by Plaintiff and that Cross-defendants are obligated to indemnify,
partially or fully, Cross-complainant.

“The fundamental basis of declaratory relief is the existence of an actual, present
controversy over a proper subject.”  City of Cotati v. Cashman (2002) 29 Cal.4th 69,
79. “[T]hat declaratory relief may be asked for alone or with other relief, that the court
may make a binding declaration of rights whether or not other relief is or could be
claimed at the time, and that the remedy is cumulative, that the mere fact that the
contract has already been breached and a cause of action therefor (one of the
traditional remedies) has accrued, does not necessarily deprive the court of the power
to grant declaratory relief under the law.” Bertero v. National General Corp. (1967) 254
Cal.App.2d 126, 136

Answer to be filed and served on or before June 30, 2014.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.