Case Name: De La Cruz v. Nippon Trends Food Service, Inc., et al.
Case No.: 2015-1-CV-277925

Defendant/cross-complainant Nippon Polystar Co., LTD (“NP”) moves for judgment on the pleadings against claims for affirmative relief asserted by defendant/cross-defendant Mentechno Sekkei Jimusho Kaubshiki Kaisha (“Mentechno”).

I. Factual Background

On November 21, 2014, plaintiff Celia De La Cruz (“Plaintiff”) suffered a severe right hand injury/multiple digit amputation while operating a power press machine at defendant Nippon Trends Food Service, Inc. (“NTFS”). (Complaint, ¶ GN-1.) The manufacturer of the power press designed the power press with guards and/or installed guards on the power press. (Id.) Defendant NTFS removed and/or failed to install guards on the subject power press. (Id.) Based on the foregoing allegations, on March 11, 2015, Plaintiff filed a Judicial Council form complaint against defendant NTFS and Doe defendants asserting causes of action for (1) general negligence and (2) products liability.

II. Procedural Background

On March 11, 2015, Plaintiff filed its Judicial Council form complaint against defendant NTFS and Doe defendants. Plaintiff subsequently filed an amendment substituting NP for a fictitiously named Doe Defendant. Defendant Mentechno was also substituted in for a Doe defendant. NP later filed a cross-complaint against Mentechno in February 2016 for indemnity. After NP attempted to effectuate service of its cross-complaint on Mentechno, the latter entity moved to quash service of summons in April 2016 based on NP’s purported failure to comply with the service requirements of the Hague Convention. The motion was granted, but service was ultimately successfully effectuated.

In June 2017, Mentechno served NP with a pleading entitled “Answer to Cross Claims of Nippon Polystar Co., Ltd. And Counterclaims Against Nippon PolyStar Ltd.” This document purported to assert the following claims for affirmative relief against NP: (1) negligence in design; (2) negligence in maintenance and support; (3) breach of warranty; (4) breach of contract; and (5) Japanese law. The document was never filed with the Court. (See Declaration of Bonnie Margaret Ross in Support of Motion for Judgment on the Pleadings (“Ross Decl.”), ¶ 4.) Mentechno then filed and served a “corrected” pleading with a similar title on May 31, 2017. (Id., ¶ 5, Exhibit B.) NP filed an “answer” to this document on June 29, 2017. No cross-complaint was ever served by Mentechno on NP.

On October 29, 2018, the Court signed an order granting NP’s Motion for Confirmation of Good Faith Settlement, which Mentechno had opposed. The order also dismissed with prejudice “any cross-complaints pending against [NP], including the cross-claim of [Mentechno] for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence, or comparative fault ….” (Ross Decl., ¶ 7, Exhibit D.) Mentechno subsequently filed a motion for reconsideration objecting to the language of the aforementioned order, which was modified by the Court on January 30, 2019. (Ross Decl., ¶ 8, Exhibit E.)

On April 3, 2019, NP filed the instant motion for judgment on the pleadings as to the pleading filed by Mentechno on May 31, 2017. Mentechno opposes the motion.

III. Motion for Judgment on the Pleadings

NP maintains that a motion for judgment on the pleadings is appropriate in the instant circumstance because Mentechno’s entire “corrected” “crossclaims” pleading, as well as every cause of action therein, fails to state facts sufficient to constitute a cause of action because it is not a pleading in which a defendant may assert affirmative claims for relief.

Generally speaking, any claim for affirmative relief by a defendant must be pleaded in a separate cross-complaint, and not in the answer. (See Code Civ. Proc., § 431.30, subd. (c).) There are exceptions, but the Court is not aware of any which would apply to the situation at bar, and Mentechno offers no authority which provides as much. A cross-complaint must be a separate document. (Code Civ. Proc., § 428.40.) The document to which NP’s motion is directed appears to be a combined answer/cross-complaint. The first four pages assert a general denial by Mentechno as to causes of action asserted against it in a cross-complaint filed by NP, as well as ten affirmative defenses. On the fifth page, there is a heading entitled “Counterclaims,” followed by the pleading of five purported causes of action against NP.

There is no doubt that the method by which Mentechno attempted to assert claims against NP is entirely wrong and contrary to applicable statute. However, the Court is not persuaded that there is a basis to grant NP’s motion and issue judgment in its favor on claims that were never properly placed at issue in the first place. Thus, NP’s motion for judgment on the pleadings is DENIED. However, the Court emphasizes that Mentechno has not asserted any viable claims or cross-claims against NP in this action (including in the pleading at issue filed by Mentechno on May 31, 2017) in response to the cross-complaint filed by NP. To the extent that Mentechno wishes to do so, it must comply with all applicable statutory provisions.

Lastly, in its opposition, Mentechno requests that the Court dismiss NP’s cross-complaint against it in accordance with the good faith settlement determination it previously made. If Mentechno believes that NP can no longer maintain its cross-complaint against it based on the settlement reached, it can file a properly noticed motion to that effect. The Court will not dismiss claims asserted in a cross-complaint based on a request contained in an opposition to a motion aimed at a different pleading.