Case Number: BC603920 Hearing Date: March 02, 2018 Dept: J

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

DEMURRER TO CROSS-COMPLAINT; MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT

Moving Party: Cross-Defendant Thienes Engineering, Inc.

Respondent: Cross-Complainant, Walnut Valley Commerce Center[1]

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:

Premises Liability (Dangerous Condition of Public Property)

General Negligence

Motor Vehicle

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:

Express Contractual Indemnity

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:

Breach of Contract

Express Contractual Indemnity

Comparative Equitable Indemnity

Contribution

Declaratory Relief for Duty to Defend

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:

Equitable Indemnity

Apportionment/Contribution

Declaratory Relief

Implied Indemnity

Express Indemnity

Breach of Contract

Declaratory Relief (Duty to Defend)

Declaratory Relief (Duty to Indemnify)

On 2/16/18, WVCC dismissed its first cause of action against Thienes, without prejudice. A Trial Setting Conference is set for 4/20/18.

DEMURRER TO CROSS-COMPLAINT:

Cross-Defendant Thienes Engineering, Inc. (“Thiene”) demurs, per CCP § 430.10(e)& (f), to the first cause of action in Cross-Complainant Walnut Valley Commerce Center’s (“WVCC”) cross-complaint, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain. Thiene also demurs to the entirety of WVCC’s cross-complaint, per subsection (h), on the basis that WVCC failed to comply with the provisions of CCP § 411.35.

REQUEST FOR JUDICIAL NOTICE:

Thiene’s request for judicial notice is granted.

At the outset, the court notes that Thiene’s demurrer is moot as it pertains to the first cause of action, due to WVCC’s dismissal of same without prejudice on 2/16/18.

With respect to the second cause of action, Thiene concedes that it failed to file a Certificate of Merit as required by CCP § 411.35. This section provides, in relevant part, that “[i]n every action, including a cross-complaint for damages or indemnity, arising out of the professional negligence of a person holding a valid architect’s certificate issued pursuant to Chapter 3 (commencing with Section 5500) of Division 3 of the Business and Professions Code, or of a person holding a valid registration as a professional engineer issued pursuant to Chapter 7 (commencing with Section 6700) of Division 3 of the Business and Professions Code, or a person holding a valid land surveyor’s license issued pursuant to Chapter 15 (commencing with Section 8700) of Division 3 of the Business and Professions Code on or before the date of service of the complaint or cross-complaint on any defendant or cross-defendant, the attorney for the plaintiff or cross-complainant shall file and serve the certificate specified by subdivision (b).” (Emphasis added).

This is a basis for demurrer under CCP § 430.10(h). WVCC has conceded the issue and filed a Certificate of Merit and First Amended Cross-Complaint on 2/16/18.

Accordingly, Thiene’s demurrer to the second cause of action is sustained. The court deems WVCC’s First Amended Cross-Complaint filed as of 3/2/18.

MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT:

Cross-Defendant Thienes Engineering, Inc.’s motion to strike portions of Walnut Valley Commerce Center’s cross-complaint is moot, based on the foregoing rulings on the demurrer.

[1] Although WVCC purported to file its First Amended Cross-Complaint (“FACC”) on 2/16/18, leave to do so was required, in that other cross-defendants have already answered its cross-complaint.