STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS JUAN CARLOS GONZALEZ

Tentative Rulings

Case Number: 18STLC15171    Hearing Date: December 09, 2019    Dept: 94

State Farm v. Gonzalez, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Cross-Defendants Yrin Jannete Pereida And Yris Pereira’s Demurrer to the Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

ANALYSIS:

On December 20, 2018, Plaintiff State Farm Mutual Automobile Insurance Company (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Juan Carlos Gonzalez (“Cross-Complainant”). On February 14, 2019, Cross-Complainant filed a Cross-Complaint for indemnity and apportionment of fault against Cross-Defendants Yrin Jannete Pereida And Yris Pereira (“Cross-Defendants”). Cross-Defendants filed the instant demurrer to the Cross-Complaint on July 22, 2019. Cross-Complainant filed an opposition on August 7, 2019 and Cross-Defendants replied on August 9, 2019.

The Demurrer initially came for hearing on August 19, 2019, at which time the Court found Cross-Defendants had not satisfied the meet and confer requirements. The Demurrer came again for hearing on October 21, 2019 with the same result. Cross-Defendants then filed a meet and confer declaration on October 23, 2019 and Statement of the Case on November 12, 2019.

Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). Specifically, a demurrer may be brought per Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. Per Code of Civil Procedure section 430.10, subdivision (a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Discussion

The Court now finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Magpapian Decl., filed 10/23/19.) In demurring to the Cross-Complaint, Cross-Defendants contends that Walker fails to allege facts to support a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (d).) The Cross-Complaint alleges causes of action for indemnification and apportionment of fault.

1st Cause of Action for Indemnification

Although the Cross-Complaint does not specify the type of indemnification—express, implied or equitable—the allegations make it clear only the equitable kind is at issue. “A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177.) There is no allegation here that the parties are liable to a third party other than Plaintiff. (See Cross-Compl., ¶6.) Plaintiff, however, is only bringing this action as Cross-Defendants’ subrogee and simply stands in their shoes. (See Compl., ¶8; Fireman's Fund Ins. Co. v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1292.) The cases on which Cross-Complainant relies do not involve a subrogor-subrogee relationship. Therefore, there is no “other person” to whom Cross-Defendants are liable. To the extent Cross-Complainant contends Cross-Defendants’ own negligence caused the accident, this is set forth as an affirmative defense. (See Answer, filed 2/11/19, ¶5.)

The demurrer to the first cause of action for indemnification is sustained.

2nd Cause of Action for Apportionment of Fault

Apportionment of fault similarly requires a separate party to whom the alleged joint-tortfeasors are liable. (See Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177, 182.) Therefore, the demurrer to the second cause of action is also sustained.

Leave to Amend

Cross-Complainant asks for leave to amend if the demurrer is sustained but shows no basis for amendment. There can be no cross-claim against Cross-Defendants for damages Plaintiff incurred as their insurer. Cross-Complainant, therefore, has not met his burden to demonstrate that leave to amend is appropriate. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

Conclusion

Cross-Defendants Yrin Jannete Pereida And Yris Pereira’s Demurrer to the Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.