Case Number: BC603920 Hearing Date: April 23, 2018 Dept: J

Re: Nougdeng Savengrith, et al. v. City of Pomona, et al. (BC603920)

DEMURRER TO WALNUT VALLEY COMMERCE CENTER’S FIRST AMENDED CROSS-COMPLAINT

Moving Party: Cross-Defendant Valley Business Center, LLC

Respondent: Cross-Complainant, Walnut Valley Commerce Center

POS: Moving OK; Opposing OK

This case involves a fatal car accident between plaintiffs’ son (“decedent”) and Defendant Javier Luviano (“Luviano”), which occurred after decedent had pulled out of the Walnut Valley Commerce Center (“WVCC”) onto Valley Boulevard. The complaint, filed on 12/11/15, asserts causes of action against Defendants City of Pomona (“City”), Luviano, Lizbeth Buciososa (“Bucisosa”), County of Los Angeles (“County”), State of California (“State”) and Does 1-100 for:

1. Premises Liability (Dangerous Condition of Public Property)

2. General Negligence

3. Motor Vehicle

4. General Negligence

On 2/3/16, Luviano and Bucisosa filed their cross-complaint, asserting causes of action therein against Cross-Defendants City, County, State and Roes 1-50 for:

1. Indemnity

2. Equitable Contribution

3. Declaratory Relief

On 2/23/16, City filed its cross-complaint, asserting causes of action therein against Cross-Defendants Luviano, Buciososa, WVCC and Roes 1-100 for:

1. Total Equitable Indemnity

2. Partial Equitable Indemnity

3. Declaratory Relief

On 3/7/16, Luviano and Buciososa filed an “Amendment to [Cross-]Complaint,” wherein WVCC was named in lieu of Roe 1. On 3/17/16, plaintiffs dismissed State, with prejudice. On 4/29/16, City filed an “Amendment to Cross-Complaint,” wherein Ventura Foods, LLC (“Ventura”) was named in lieu of Roe 1. On 5/11/16, plaintiffs dismissed County, without prejudice. On 5/16/16, plaintiffs filed an “Amendment to Complaint,” wherein WVCC was named in lieu of Doe 1. On 9/8/16, plaintiffs filed another “Amendment to Complaint,” wherein Ventura was named in lieu of Doe 2. On 12/6/16, plaintiffs dismissed Ventura, without prejudice. On 6/6/17, City dismissed Ventura, with prejudice.

On 10/16/17, the court granted WVCC’s motion for leave to file a cross-complaint against Wohl Property Group, RGA Architects, Thienes Engineering, Environs, Inc., OLtmans Construction Company, Norcal Engineering, Ajit Randhava & Associates, Valley Business Center and Roes 1-50 for:

1. Express Contractual Indemnity

2. Equitable Indemnity/Declaratory Relief

On 1/3/18, plaintiffs filed an “Amendment to Complaint,” wherein Randhava was named in lieu of Doe 3. On 1/4/18, plaintiffs filed “Amendment[s] to Complaint,” wherein Wohl was named in lieu of Doe 4, Thienes was named in lieu of Doe 5, Environs was named in lieu of Doe 6, Oltmans was named in lieu of Doe 7, NorCal was named in lieu of Doe 8 and VBC was named in lieu of Doe 9.

On 1/18/18, WVCC dismissed NorCal, without prejudice, and dismissed Environs as to its first cause of action, without prejudice.

On 1/23/18, Oltmans filed its First Amended Cross-Complaint, asserting causes of action therein against Cross-Defendants Calpak Landscape, Inc., RGA, Thienes, Environs, NorCal, Randhava, VBC, City and Roes 1-100 for:

1. Breach of Contract

2. Express Contractual Indemnity

3. Comparative Equitable Indemnity

4. Contribution

5. Declaratory Relief for Duty to Defend

6. Declaratory Relief for Duty to Indemnify

On 2/2/18, plaintiffs and Oltmans each dismissed Thienes, without prejudice. On 2/8/18, plaintiffs dismissed NorCal, without prejudice. On 2/8/18, Environs filed its cross-complaint, asserting causes of action therein against Moes 1-100 for:

1. Equitable Indemnity

2. Apportionment/Contribution

3. Declaratory Relief

4. Implied Indemnity

5. Express Indemnity

6. Breach of Contract

7. Declaratory Relief (Duty to Defend)

8. Declaratory Relief (Duty to Indemnify)

On 2/16/18, WVCC dismissed its first cause of action against Thienes, without prejudice. On 3/2/18, the court deemed WVCC’s First Amended Cross-Complaint (“FACC”) filed that day; said FACC asserts causes of action therein against Cross-Defendants Wohl, RGA, Thienes, Environs, Oltmans, NorCal, Randhava, VBC and Roes 1-50 for:

1. Express Contractual Indemnity

2. Equitable Indemnity/Declaratory Relief

On 4/4/18, WVCC dismissed its first cause of action against Wohl, without prejudice. On 4/11/18, Oltmans filed “Amendment[s] to [Cross-]Complaint,” wherein Luviano was named in lieu of Roe 1 and Buciososa was named in lieu of Roe 2.

Cross-Defendant VBC now demurs, per CCP § 430.10(e)& (f), to the second cause of action in Cross-Complainant WVCC’s First Amended Cross-Complaint (“FACC”), on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.

“Generally, ‘indemnity refers to “the obligation resting on one party to make good a loss or damage another party has incurred.”’ (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157, quoting Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628). There are two basic types of indemnity: express indemnity, which relies on an express contract term providing for indemnification, and equitable indemnity, which embraces ‘traditional equitable indemnity,’ and implied contractual indemnity. (Prince, at pp. 1157-1159).” Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 573.

“[U]nlike express indemnity, neither traditional equitable indemnity nor implied contractual indemnity is available ‘in the absence of a joint legal obligation to the injured party.’ ([Prince] at pp. 1160-1161). Under this principle, ‘”’there can be no indemnity without liability,’”’ that is, the indemnitee and the indemnitor must share liability for the injury. (Id. at p. 1165, quoting Children’s Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787). Thus, no indemnity may be obtained from an entity that has no pertinent duty to the injured third party (Prince, supra, 45 Cal.4th at p. 1159), that is immune from liability (Id. at pp. 1168-1169), or that has been found not to be responsible for the injury (Children’s Hospital v. Sedgwick, supra, 45 Cal.App.4th at p. 1787).” Id.

WVCC has adequately alleged its second cause of action against VBC in ¶¶ 9 and 13-16 of the FACC. The FACC states that VBC is an indemnitor to WVCC for the claims against WVCC by Plaintiffs Nougdeng Savengrith and Monica Savengrith (“plaintiffs”) and/or City of Pomona (“City”) based on the January, 2015 car accident of decedent in front of WVCC. (FACC, ¶¶ 9 and 13-16). The FACC incorporates by reference the facts contained in plaintiffs’ complaint and City’s cross-complaint. (Id., ¶ 9).

The demurrer, then, is overruled. VBC has 10 days to answer the First Amended Cross-Complaint.