SANDRA DIFRANCO v. MADHU SRIDHAR, ET AL
Case No.: 1-12-CV-228954
DATE: May 20, 2014
TIME: 9:00 a.m.
DEPT.: 3

A motion for judgment on the pleadings (“JOP”) is the functional equivalent of a general demurrer. “In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” Blank v. Kirwan (1985) 39 Cal.3d 311, 318. See also Witkin, California Evidence (4th Ed., 2000) 1 Judicial Notice §3(3) (“It has long been established in California that allegations in a pleading contrary to judicially noticed facts will be ineffectual; i.e., judicial notice operates against the pleader.”)

Cross-Defendants’ request for judicial notice of five documents (exhibits 1-5) is GRANTED pursuant to Evid. Code §452(d). Exhibits 1-3, Plaintiff’s original, 1st amended and 2nd amended complaints, are not noticed as to the truth of their contents but can be noticed as to the types of claims alleged against the various defendants. Exhibit 4, establishing that a dismissal with prejudice of Plaintiff DiFranco’s claim for Unjust Enrichment was entered on Nov. 29, 2012, and Exhibit 5, the December 16, 2013 Order of the Court (Hon. McKenney) granting Cross-Defendants’ motion for summary judgment of all remaining claims alleged against them in Plaintiff DiFranco’s Third Amended Complaint (the 1st & 2nd causes of action), can be and are noticed as to the truth of their contents.

The Court on its own motion also takes judicial notice pursuant to Evid. Code §452(d) of 1) the May 22, 2013 Order of the Court (Hon. McKenney) granting Plaintiff’s motion to amend her complaint to add two defendants (resulting in the Third Amended Complaint) on the condition that the 9th cause of action for Unjust Enrichment be stricken, and; 2) Cross-Defendants’ April 1, 2014 dismissal of their cross-complaint.

Cross-Defendants’ Motion for JOP directed at Defendant/Cross-Complainant Jim Pusateri’s cross-claims for 1) Equitable Indemnity; 2) Comparative Fault and Indemnity, and 3) Declaratory Relief, on the ground that there can be no right to contribution in favor of an intentional tortfeasor pursuant to CCP §875(d) is GRANTED. All of the causes of action asserted against Defendant Pusateri by Plaintiff (as shown in the Ex. 3 to Cross-Defendants’ RJN) allege intentional wrongdoing. Even if it were assumed for purposes of argument that Plaintiff would obtain a judgment against Pusateri, a judgment against him could only be based on intentional wrongdoing and Pusateri would have no right to seek contribution.

More fundamentally, the motion is GRANTED on the additional and independent basis that judicially noticeable material, the Court’s Dec. 16, 2013 Order granting Cross-Defendants’ MSJ, establishes that all three cross-claims fail as a matter of law against the moving Cross-Defendants as they have been found not liable to Plaintiff and there can be no judgment against them in favor of Plaintiff. See Weseloh Family Ltd. Partnership v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 175 (“The doctrine [of equitable indemnity] applies only among defendants who are jointly and severally liable to the plaintiff.”) Stated differently, “there can be no indemnity without liability.” Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1159.

Plaintiff’s 3rd cause of action also fails against these Cross-Defendants. It seeks “a declaration of the comparative liability of cross-complainant and cross-defendants, and each of them, for [Plaintiff’s] damages, and a declaration of cross-defendants’ responsibility for comparative indemnity to cross-complainant for any sums that cross-complainant may be compelled to pay and for which cross-defendants are determined responsible, entirely or in part.” Cross-Complaint at 14. The Dec. 16, 2013 Order establishes that the moving Cross-Defendants are not responsible for any of Plaintiff’s claimed damages, as all her claims against them are both time-barred and are also independently barred by the January 2011 Release Plaintiff signed (the “Second Release”). Accordingly there is no longer any present controversy (an essential element of the claim) on the issue of the moving Cross-Defendants’ responsibility to pay Pusateri for any portion of Plaintiff’s claimed damages.

Leave to amend is denied as no amendment can change the effect of the Dec. 16, 2013 Order on Pusateri’s Cross-Complaint. The bare request for leave to amend in the opposition (Opp. at 4:26-5:4) fails to explain how any amendment to the cross-claims could change the outcome dictated by the Dec. 16, 2013 Order. See Medina v. Safe-Guard Products (2008) 164 Cal App 4th 105, 112 fn. 8 (“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”)