Case Number: BC677879 Hearing Date: March 04, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

Amir M. Abdalla ;

Plaintiff,

v.

HAYDER ALI RADHI, ARNOLD JOONHO LEE, EAN HOLDINGS, LLC, NICOLETTE ELAGO;

Defendants.

NICOLETTE ELAGO, ARNOLD JOONHO LEE;

Cross-Complainants,

v.

HAYDAR ALI RADHI, EAN HOLDINGS, LLC,

Cross-Defendants.

Case No.: BC677879

Hearing Date: March 4, 2019.

[TENTATIVE] order RE:

Demurrer TO THE CROSS-COMPLAINT

Background

Plaintiff Amir M. Abdalla (“Plaintiff”) filed a complaint on October 7, 2017, alleging causes of action for motor vehicle and general negligence. On June 5, 2018, Defendant Ean Holdings, LLC (“Defendant EAN”) was dismissed by Plaintiff’s motion. On August 15, 2018, Defendants Nicolette Elargo and Arnold Joonho Lee (“Cross-Complainants”) filed a cross-complaint against previously dismissed Defendant EAN for: (1) equitable indemnity, (2) contribution, and (3) declaratory relief. Defendant EAN demurs to the cross-complaint, arguing that the allegations are conclusory and Defendant is not liable under federal law, because it is in the business of renting vehicles. The Court sustains the demurrer with leave to amend.

LEGAL STANDARD

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) 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 Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) 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.” (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.) “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.)

MEET AND CONFER REQUIREMENT

Code of Civil Procedure section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Code Civ. Proc. § 430.41(a).) A similar meet and confer process and declaration is required for motions to strike. (Code Civ. Proc. § 435.5.)

It does not appear that Defendant EAN’s counsel satisfied this requirement. The responsive pleading with due in September 2018, and the meet-and-confer declarations suggest that Defendant EAN’s counsel only attempted to meet-and-confer during the week of January 21, 2019. (Stone Decl., ¶ 8.) Defendant EAN also demurred late to the cross-complaint, because it was served on August 15, 2018, meaning that Defendant EAN had until September 14, 2018 to file a demurrer. This demurrer was filed on January 25, 2019. The Court will decide this motion on the merits. However, if Defendant EAN does not comply with the Court’s rules, the Court will deny its motions on procedural grounds without addressing the merits.

DISCUSSION

A. Request for Judicial Notice

Defendant EAN requests that the Court take judicial notice that it is in the business of renting and/or leasing vehicles. There are two problems with this request. First, the request for judicial notice is not made in a separate pleading, as required by California Rule of Court, rule 3.1113(l). Second, only facts of common knowledge that cannot reasonably be the subject of dispute may be judicially noticed. (Evid. Code § 452(g).) Historical and geographical facts are the type of facts which can properly be judicially noticed under Section 452(g). The nature of EAN’s business is not such a matter of undisputable common knowledge. Simply, the Court does not know what business “EAN Holdings, LLC” conducts. Therefore, the request for judicial notice is denied.

B. The Allegations

The cross-complaint asserts causes of action for equitable indemnity, contribution, and declaratory relief. However, there are no facts supporting these causes of action. Cross-complainants must allege some facts to put Defendant EAN on notice as to their theory why Defendant EAN is subject to equitable indemnity, contribution, and declaratory relief. Therefore, the Court sustains the demurrer with leave to amend.

C. Federal Preemption

Defendant EAN relies on federal law, specifically, the Graves Amendment, set forth at section 30106 of title 49 of the United States Code. The Graves Amendment preempts state law liability for motor vehicle rental and leasing companies provided there is no negligence or criminal wrongdoing on the part of the companies. However, the Court must accept the allegations in the cross-complaint as true, and it does not allege that Defendant EAN is a vehicle rental and leasing company. Nor does it allege the existence of a rental agreement between any of the parties. As discussed, the Court cannot take judicial notice of those facts, either. Thus, the Court cannot find federal preemption at this stage. The Court’s ruling is without prejudice to Defendant filing a motion for summary judgment on this issue when the Court has authority to consider the evidence in the case, e.g., documents establishing Defendant EAN’s business, any rental agreement, etc.

CONCLUSION AND ORDER

Defendant EAN’s demurrer is sustained with leave to amend. Cross-Complainants shall file a first amended cross-complaint within twenty (20) days of notice of this order. Defendant EAN shall give notice and file proof of such with the Court.

DATED: March 4, 2019 ___________________________

Hon. Stephen I. Goorvitch

Judge of the Superior Court