Case Number: BC534200    Hearing Date: July 29, 2014    Dept: 56

Case Name: Sajche v. Gurrola, et al.
Case No.: BC534200
Motion: Demurrer and Motion to Strike
Moving Party: Cross-Defendants LA County MTA and Traylor
Responding Party: Cross-Complainants JG Demolition and Gurrola

Tentative Ruling: Demurrer is sustained; Motion to strike is denied.

Plaintiff Santiago Sajche filed this personal injury action against Defendants Ignacio Gurrola and JG Demolition & Cleanup Inc. Plaintiff’s claims arise from a bus collision on 10/23/12. This case has been related to other cases involving personal injury claims by others involved in the collision.

Defendants Gurrola and JG Demolition (collectively JG Demolition) filed a cross-complaint against Los Angeles County MTA and its driver Lakisha Traylor for indemnity, contribution, comparative fault, and declaratory relief. MTA and Traylor (collectively MTA) demur and move to strike the cross-complaint.

Demurrer –
MTA demurs on the ground that there are no allegations of compliance with the Government Tort Claims Act, GC §945.4. Compliance is a condition precedent to a lawsuit for personal injury claims, including claims for indemnity from a government entity stemming from an underlying personal injury action. See So. Cal. Edison v. City of Victorville (2013) 217 Cal.App.4th 218, 237.

JG Demolition argues that compliance is not required because MTA is aware of the many claims arising from the 10/23/12 collision, and the purpose of the claims presentation requirement has been served. JG Demolition points to other related actions arising from the collision, where MTA was named as a defendant, filed its own cross-complaint, JG Demolition filed a cross-complaint against MTA, and MTA answered the cross-complaint. In those cases, MTA filed its own cross-complaint and JG Demolition’s cross-complaint was defensive. See Krainock v. Superior Ct. (1990) 216 Cal.App.3d 1473; So. Cal. Edison, supra 217 Cal.App.4th at 239-40, n.16. JG Demolition’s cross-complaint is not defensive in this case, because MTA has not filed a cross-complaint and is not even a party. When no exception applies, Tort Claims Act compliance is strictly applied. E.g. Nelson v. County of LA (2003) 113 Cal.App.4th 783, 796.

The demurrer is sustained with leave to amend within 30 days after compliance with §945.4.

Motion to Strike –
MTA moves to strike JG Demolition’s claim for attorney fees on the ground that the cross-complaint fails to allege a contract or statutory basis. In opposition, JG Demolition assert that it can claim attorney fees under CCP §1021.6, which permits recovery of fees on an implied indemnity claim after a determination of fault. This is sufficient support for the claim.

While the motion to strike is technically moot because the demurrer has been sustained, for purposes of repleading MTA’s motion is denied.