This case was last updated from Los Angeles County Superior Courts on 10/09/2020 at 05:12:53 (UTC).

JESUS ORLANDO MEJIA VS UNION PACIFIC RAILROAD COMPANY

Case Summary

On 02/09/2018 JESUS ORLANDO MEJIA filed a Personal Injury - Other Personal Injury lawsuit against UNION PACIFIC RAILROAD COMPANY. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, MARGARET MILLER BERNAL, KRISTIN S. ESCALANTE, MARK A. BORENSTEIN and PAUL BRUGUERA. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3579

  • Filing Date:

    02/09/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Norwalk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GEORGINA T. RIZK

MARGARET MILLER BERNAL

KRISTIN S. ESCALANTE

MARK A. BORENSTEIN

PAUL BRUGUERA

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

MEJIA JESUS ORLANDO

TITAN TERMINAL AND TRANSPORT INC. A CALIFORNIA CORPORATION

Defendants, Respondents and Cross Plaintiffs

UNION PACIFIC RAILROAD COMPANY

DOES 1 TO 100

TITAN TERMINAL AND TRANSPORT INC. A CALIFORNIA CORPORATION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

DUPONT MARK P. ESQ.

DUPONT MARK PHILIP ESQ.

Defendant and Respondent Attorneys

JOHNSON MICHAEL L. ESQ.

QUINN STEPHANIE L

Defendant and Cross Plaintiff Attorney

QUINN STEPHANIE L

Cross Defendant Attorneys

JOHNSON CATIE R

MALONE NATHAN EDWARD

SOMES RICHARD G.

 

Court Documents

Notice - NOTICE OF ENTRY OF ORDER GRANTING UNION PACIFIC RAILROAD COMPANYS MOTION FOR LEAVE TO FILE AMENDED CROSS COMPLAINT

10/7/2020: Notice - NOTICE OF ENTRY OF ORDER GRANTING UNION PACIFIC RAILROAD COMPANYS MOTION FOR LEAVE TO FILE AMENDED CROSS COMPLAINT

Response - RESPONSE OF PLAINTIFF TO DEFENDANT UPRC'S MOTION FOR LEAVE TO FILE AMENDED CROSS-COMPLAINT

9/15/2020: Response - RESPONSE OF PLAINTIFF TO DEFENDANT UPRC'S MOTION FOR LEAVE TO FILE AMENDED CROSS-COMPLAINT

Minute Order - MINUTE ORDER (COURT ORDER - PRE DEPLOYING THE MANDATORY SETTLEMENT CONFEREN...)

9/11/2020: Minute Order - MINUTE ORDER (COURT ORDER - PRE DEPLOYING THE MANDATORY SETTLEMENT CONFEREN...)

Objection - OBJECTION OF PLAINTIFF'S TO DEFENDANTS' EVIDENCE SUBMITTED IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY

8/3/2020: Objection - OBJECTION OF PLAINTIFF'S TO DEFENDANTS' EVIDENCE SUBMITTED IN SUPPORT OF ITS MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY

Minute Order - MINUTE ORDER (COURT ORDER)

5/11/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Opposition - OPPOSITION PLAINTIFF JESUS MEJIA'S OPPOSITION TO THIRD-PARTY TITAN'S MOTION TO CONTINUE THE TRIAL SETTING

4/13/2020: Opposition - OPPOSITION PLAINTIFF JESUS MEJIA'S OPPOSITION TO THIRD-PARTY TITAN'S MOTION TO CONTINUE THE TRIAL SETTING

Notice - NOTICE PLAINTIFF JESUS MEJIA'S NOTICE TO WITHDRAW HIS MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S DISCOVERY TO CROSS-DEFENDANT TITAN TERMINAL AND TRANSPORT, INC. AND REQUEST FOR MONETAR

2/18/2020: Notice - NOTICE PLAINTIFF JESUS MEJIA'S NOTICE TO WITHDRAW HIS MOTION TO COMPEL FURTHER RESPONSES TO PLAINTIFF'S DISCOVERY TO CROSS-DEFENDANT TITAN TERMINAL AND TRANSPORT, INC. AND REQUEST FOR MONETAR

Case Management Statement

11/20/2019: Case Management Statement

Reply - REPLY CROSS-DEFENDANT TITAN TERMINAL AND TRANSPORT, INC.S REPLY TO CROSS-COMPLAINANT UNION PACIFICS OPPOSITION TO TITANS DEMURRER TO UNION PACIFICS CROSS-COMPLAINT

12/3/2019: Reply - REPLY CROSS-DEFENDANT TITAN TERMINAL AND TRANSPORT, INC.S REPLY TO CROSS-COMPLAINANT UNION PACIFICS OPPOSITION TO TITANS DEMURRER TO UNION PACIFICS CROSS-COMPLAINT

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

12/10/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Notice of Posting of Jury Fees

7/8/2019: Notice of Posting of Jury Fees

Case Management Statement

6/28/2019: Case Management Statement

Demurrer - without Motion to Strike - DEMURRER - WITHOUT MOTION TO STRIKE AND GENERAL AND SPECIAL DEMURRER TO CROSS-COMPLAINT OF UNION PACIFIC RAILROAD COMPANY

7/5/2019: Demurrer - without Motion to Strike - DEMURRER - WITHOUT MOTION TO STRIKE AND GENERAL AND SPECIAL DEMURRER TO CROSS-COMPLAINT OF UNION PACIFIC RAILROAD COMPANY

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO CROSS-COMPLAINT OF UNION PACIFIC RAILROAD COMPANY

7/5/2019: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEMURRER TO CROSS-COMPLAINT OF UNION PACIFIC RAILROAD COMPANY

Notice - Notice of Entry of Order

12/27/2018: Notice - Notice of Entry of Order

Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order REGARDING SETTING CASE FOR CASE MANAGEMENT CONFER...) of 12/31/2018

12/31/2018: Certificate of Mailing for - Certificate of Mailing for Minute Order (Court Order REGARDING SETTING CASE FOR CASE MANAGEMENT CONFER...) of 12/31/2018

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT)

3/14/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT)

SUBSTITUTION OF ATTORNEY -

8/10/2018: SUBSTITUTION OF ATTORNEY -

109 More Documents Available

 

Docket Entries

  • 03/09/2021
  • Hearing03/09/2021 at 10:30 AM in Department C at 12720 Norwalk Blvd., Norwalk, CA 90650; Hearing on Motion to Compel Further Discovery Responses

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  • 02/08/2021
  • Hearing02/08/2021 at 09:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Jury Trial

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  • 01/27/2021
  • Hearing01/27/2021 at 09:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Final Status Conference

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  • 01/12/2021
  • Hearing01/12/2021 at 10:00 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Mandatory Settlement Conference (MSC)

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  • 01/12/2021
  • Hearing01/12/2021 at 14:30 PM in Department C at 12720 Norwalk Blvd., Norwalk, CA 90650; Hearing on Motion - Other Bifurcation

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  • 10/07/2020
  • DocketAmended Cross-Complaint; Filed by Union Pacific Railroad Company, a Delaware Corporation (Cross-Complainant)

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  • 10/07/2020
  • DocketNotice (OF ENTRY OF ORDER GRANTING UNION PACIFIC RAILROAD COMPANY?S MOTION FOR LEAVE TO FILE AMENDED CROSS COMPLAINT); Filed by Union Pacific Railroad Company (Defendant)

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  • 10/06/2020
  • Docketat 09:30 AM in Department C; Hearing on Motion for Leave to Amend (to File Amended Cross-Complaint) - Held - Motion Granted

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  • 10/06/2020
  • DocketMinute Order ( (Hearing on Motion for Leave to Amend to File Amended Cross-Co...)); Filed by Clerk

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  • 10/06/2020
  • DocketCourt Order/Ruling (Hearing 10-6-20); Filed by Clerk

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144 More Docket Entries
  • 08/10/2018
  • DocketSubstitution of Attorney; Filed by MICHAEL L. JOHNSON, ESQ. (Attorney)

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  • 08/10/2018
  • DocketSUBSTITUTION OF ATTORNEY

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  • 03/12/2018
  • DocketAnswer; Filed by Union Pacific Railroad Company (Defendant)

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  • 03/12/2018
  • DocketDEFENDANT UNION PACIFIC RAILROAD COMPANY'S ANSWER TO COMPLAINT

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  • 02/21/2018
  • DocketProof-Service/Summons; Filed by Jesus Orlando Mejia (Plaintiff)

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  • 02/21/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/09/2018
  • DocketCOMPLAINT FOR DAMAGES (FEDERAL EMPLOYERS' LIABILITY ACT AND SAFETY APPLIANCE ACT)

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  • 02/09/2018
  • DocketCIVIL DEPOSIT

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  • 02/09/2018
  • DocketComplaint; Filed by Jesus Orlando Mejia (Plaintiff)

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  • 02/09/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC693579    Hearing Date: October 06, 2020    Dept: C

MEJIA v. UNION PACIFIC RAILROAD COMPANY

CASE NO.: BC693579

HEARING: 10/6/20

JUDGE: OLIVIA ROSALES

#4

TENTATIVE ORDER

Cross-Complainant Union Pacific Railroad Company’s motion for leave to file amended cross-complaint is GRANTED. Cross-Complainant is ordered to immediately file and serve its amended cross-complaint.

Moving Party to give NOTICE.

Cross-Complainant Union Pacific Railroad Company moves for leave to file an amended cross-complaint pursuant to CCP § 473.

“A court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleadings.” (CCP § 473(a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the courts discretion will usually be exercised liberally to permit amendments of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) 

Cross-Complainant seeks leave to add indemnity claims against Titan based on recent discovery regarding the written agreements.

In opposition, Titan contends Movant has been dilatory, but the court disagrees. Titan had the contracts and did not produce the contracts until recently.

Further, the motion is not procedurally improper because the Cross-Complaint was attached to the Covarrubias declaration as Ex. P.

Accordingly, the motion is GRANTED. Cross-Complainant is ordered to immediately file and serve its Cross-Complaint.

Case Number: BC693579    Hearing Date: August 18, 2020    Dept: C

MEJIA v. UNION PACIFIC RAILROAD COMPANY, et al.

CASE NO.: BC693579

HEARING:  8/18/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

#12

TENTATIVE ORDER

Defendant Union Pacific Railroad Company’s motion for an order compelling Plaintiff’s further responses to special interrogatories, set two and to requests for production of documents, set two is GRANTED. No sanctions.

Moving Party to give NOTICE.

Defendant Union Pacific Railroad Company (“Union Pacific”) moves to compel further responses to discovery.

The complaint alleges that on 2/9/18, Plaintiff Jesus Orlando Mejia (“Mejia”) sustained injuries when he fell from a ladder on Union Pacific’s railcar while working as a trainman on 8/17/15 under the Federal Employers’ Liability Act and Safety Appliance Act.

CCP §§ 2030.300 and 2031.310 allow a party to file a motion compelling further answers to interrogatories and document requests if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP §§ 2030.300(b); 2031.310(b).)

Special Interrogatory No. 81 and Request for Production Nos. 89 and 90

These discovery requests seek data that is recorded by a physical activity tracker application on a smart device. Plaintiff admitted in deposition and in response to Defendant Union Pacific’s Special Interrogatory No. 105 that he owns an Apple Watch, and it is common knowledge that Apple Watches are automatically loaded with a “Health” application that records the wearer’s physical activity, as well as other aspects of the wearer’s health.

Plaintiff has placed his physical well-being into controversy. Plaintiff’s Complaint at ¶ 5 alleges that he suffered physical injuries to his person. Plaintiff further claims that as a result of his physical injuries, his ability “work, labor, and enjoy the normal pursuits of life” has been and will continue to be “impaired and lessened” in the past, present, and foreseeable future. (Complaint, ¶ 7.) Therefore, Plaintiff’s physical health is directly relevant to his claims.

Further, the constitutional right of privacy is not absolute; it may be abridged when there is a compelling state interest. Inquiry into one’s private affairs will not be constitutionally justified simply because the inadmissible and irrelevant matter sought might lead to other relevant evidence. The burden is on the party seeking the constitutionally protected information to establish direct relevance. (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the compelling public need for discovery against the fundamental right of privacy. If an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the “least intrusive means” to satisfy the interest. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854-1855.) 

Evidence regarding Plaintiff’s physical well-being and activities are directly relevant to this lawsuit. In balancing Plaintiff’s privacy interests against the state’s interest in the information, the state’s interest is compelling. The court recognizes that there exists a degree of confidentiality in one’s health, but like other discovery requests in personal injury matters, once Plaintiff has placed his health at issue, documents concerning his health are discoverable. Similarly, here, the health tracker is electronically stored information concerning Plaintiff’s health. That electronically stored information is discoverable like a document. To ensure that Plaintiff’s privacy interests are protected, any “environmental noise exposure” will be redacted. What remains are purely health information such as “sinus rhythm EEGs, heart rate and VO Max.” (Opposition, 1:25-26.)

Special Interrogatory Nos. 89, 93, 97, and 101; and Request for Production Nos. 104, 106, 108, and 110

These requests seek any emails that Plaintiff may have sent or received in connection with various trips that Plaintiff has made following the alleged accident that is the subject of the present lawsuit. Plaintiff was impeached during his deposition with public photographs from Facebook where he had claimed his back was feeling bad and he did not travel. (Johnson Decl., ¶ 3, Ex. A, Mejia Depo pp. 284:16-285:17, 287:15-20.) Plaintiff was not forthcoming about his level of activity after the incident and his travels. (Johnson Decl., ¶ 3, Ex. A, Mejia Depo pp. 292:15-293:24.)

Through meet and confer, Union Pacific agreed to narrow the scope of its request to only the emails containing references to dates and methods of travel for each trip and physical activities that Plaintiff planned to engage in and/or actually engaged in during the corresponding trips, with redactions for any financial or third party-identifying information (Johnson Decl., ¶ 7; Ex. M). Union Pacific also agreed to limit the scope of any future discovery stemming from the emails to potential interferences with Plaintiff’s efforts to mitigate his damages.

Plaintiff’s objections are without merit. This discovery is directly relevant to Plaintiff’s personal injury claims. Emails discussing dates and methods of travel, as well as physical activities engaged in during or planned for each trip that occurred after the subject incident may show that Plaintiff’s activities were not as encumbered by his alleged injuries as asserted.

Defendant has established good cause for the information because Plaintiff was impeached during his deposition with public photographs from Facebook where he had claimed his back was feeling bad and he did not travel. (Johnson Decl., ¶ 3, Ex. A, Mejia Depo pp. 284:16-285:17, 287:15-20.)

Further, the constitutional right of privacy is not absolute; it may be abridged when there is a compelling state interest. Inquiry into one’s private affairs will not be constitutionally justified simply because the inadmissible and irrelevant matter sought might lead to other relevant evidence. The burden is on the party seeking the constitutionally protected information to establish direct relevance. (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.) Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the compelling public need for discovery against the fundamental right of privacy. If an intrusion on the right of privacy is deemed necessary under the circumstances of a particular case, any such intrusion should be the “least intrusive means” to satisfy the interest. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1854-1855.) 

Evidence regarding Plaintiff’s activities and travels are directly relevant to this lawsuit. In balancing Plaintiff’s privacy interests against the state’s interest in the information, the state’s interest is compelling. Plaintiff has alleged that his injuries have encumbered his day to day activities. Defendant is entitled to information proving this claim false. Further, the court finds that Defendant’s concessions during the meet and confer process are reasonable and protects Plaintiff and third party privacy concerns. Union Pacific agreed to narrow the scope of its request to only the emails containing references to dates and methods of travel for each trip and physical activities that Plaintiff planned to engage in and/or actually engaged in during the corresponding trips, with redactions for any financial or third party-identifying information (Johnson Decl., ¶ 7; Ex. M). Union Pacific also agreed to limit the scope of any future discovery stemming from the emails to potential interferences with Plaintiff’s efforts to mitigate his damages.

Accordingly, the motion is GRANTED. The court declines to award sanctions because Plaintiff opposed the motion with substantial justification. The court appreciates the efforts made by both counsels to informally resolve their discovery disputes with professional courtesy.

Case Number: BC693579    Hearing Date: March 24, 2020    Dept: SEC

MEJIA v. UNION PACIFIC RAILROAD COMPANY

CASE NO.:  BC693579

HEARING 3/24/20

#5

TENTATIVE ORDER

Plaintiff Mejia’s motion to compel further responses to discovery is taken OFF-CALENDAR pursuant to movant’s request on 2/18/20.

Case Number: BC693579    Hearing Date: December 10, 2019    Dept: SEC

MEJIA v. UNION PACIFIC RAILROAD COMPANY, et al.

CASE NO.: BC693579

JUDGE: OLIVIA ROSALES

HEARING:  12/10/19

#8

TENTATIVE ORDER

Defendant Titan Terminal and Transport, Inc.’s demurrer to Cross-Complainant Union Pacific’s Cross-Complaint is OVERRULED.

Defendant is ordered to file and serve its Answer within 10 days

Defendant to give NOTICE.

BACKGROUND

On February 9, 2018, Jesus Orlando Mejia (“Mejia”) filed an action against his employer, Union Pacific (“Union Pacific”), for injuries sustained when he fell from a ladder on Union Pacific’s railcar while working as a trainman on August 17, 2015 under the Federal Employers’ Liability Act and Safety Appliance Act.

On March 14, 2019, the court granted Union Pacific’s unopposed motion for leave to file a Cross-Complaint to assert causes of action against Titan Terminal and Transport, Inc. (“Titan”).

On March 19, 2019, Union Pacific filed a Cross-Complaint against Titan asserting the following causes of action:

  1. Equitable Indemnity

  2. Apportionment

  3. Implied Contractual Indemnity

  4. Contribution

  5. Tort of Another

  6. Declaratory Relief

Defendant Titan Terminal and Transport, Inc. now demurs to the entire Cross-Complaint on the grounds that it fails to state how Defendant is in any way involved in the allegations made by Mejia in the underlying Complaint and that the pleading is uncertain. Defendant Titan Terminal and Transport, Inc. also generally demurs to the 3rd cause of action for implied contractual indemnity because the pleading fails to state facts sufficient to support a cause of action, it is uncertain, and that the 3rd cause of action is duplicative of Union Pacific’s 1st cause of action for equitable indemnity.

ANALYSIS

  1. Meet and Confer

Code of Civil Procedure section 430.41, subdivision (a) 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.” (Emphasis added.) 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).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id., subd. (a)(3).)

Titan’s counsel asserts that on April 16, 2019 she sent detailed meet and confer correspondence to Union Pacific’s counsel. (Minnick Decl., ¶ 2.) Titan’s counsel further attests that she met and conferred with Union Pacific’s counsel by phone and written correspondence from April 16, 2019 to April 24, 2019. (Ibid.) However, the last time she reached out to speak with Union Pacific’s counsel by email on June 26, 2019, Union Pacific’s counsel did not respond. (Ibid.) This declaration is sufficient to comply with the statutory requirements. (Code Civ. Proc., § 430.41, subd. (a)(3)(B).)

  1. Defendant Titan Terminal and Transport, Inc.’s Demurrer

Legal Standard

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, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994; SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) No other extrinsic evidence can be considered. (Ibid.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1228.)

A special demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) is disfavored and will only be sustained where the pleading is so bad that defendant or plaintiff cannot reasonably respond because it cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 (Khoury).) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

  1. INSUFFICIENT FACTS TO STATE A CLAIM AGAINST TITAN

Titan argues that Union Pacific’s claims fail to allege any specific facts setting forth what Titan is purported to have done or failed to do.

“Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred.” (McCrary Construction Co. v. Metal Deck Specialists, Inc. (2005) 133 Cal.App.4th 1528, 1536.) “This obligation may be expressly provided for by contract [citation], it may be implied from a contract not specifically mentioning indemnity [citation], or it may arise from the equities of particular circumstances.” (Ibid.)

At this juncture, the court must accept Union Pacific’s allegations as true. Additionally, particularity in pleading is not required for indemnity claims.

Here, the Cross-Complaint incorporates by reference the underlying Complaint. (Cross-Complaint, ¶ 1.) The Cross-Complaint further alleges that Titan Terminal and Transport, Inc. is a business that is legally responsible in some manner for the events and happenings referred to in the underlying Complaint and thereby proximately caused injuries and damages to Union Pacific. (Id. at ¶¶ 3-4.) Union Pacific also alleges that any liability of Union Pacific may be attributed to the affirmative and primary negligent and careless acts or omissions of Titan. (Id. at ¶ 6.) Read liberally and in context with the Complaint, Union Pacific alleges that on or before August 17, 2015, Titan was legally responsible for the injuries suffered by Union Pacific’s employee, Mejia, when he fell from the ladder on the railcar. Moreover, Union Pacific alleges that according to the terms of the “Confidential Rail Transportation Contract,” Titan is subject to the terms and conditions of UP Tariff 6004-series, Up Tariff 6600-series, and UP Tariff 6601-series (“Tariffs”). (Id. at ¶ 24.) According to these Tariffs, Titan was to defend and indemnify Union Pacific for any damages sustained by Mejia as alleged in the Complaint. (Ibid.) Although, the underlying Complaint makes no reference to Titan Terminal and Transport, Inc., Union Pacific’s Cross-Complaint places Titan on notice of the issues sufficient to enable it to prepare a defense. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549–550.) Specifically, Titan can determine from the Cross-Complaint that Union Pacific’s theory of indemnity is derived from Titan’s negligent omissions in maintaining the railcar.

Demurrer is OVERRULED.

  1. THIRD CAUSE OF ACTION – Implied Contractual Indemnity

Titan argues that Union Pacific’s cause of action for implied contractual indemnity is defective because (1) fails to specifically plead a breach of contract upon which its claim relies, (2) the pleading is vague and uncertain because it does not set forth verbatim the terms of the purported contract, and (3) it is duplicative of Union Pacific’s 1st cause of action for equitable indemnity.[1]

  1. Sufficiency of Implied Contractual Indemnity Claim

“The right to implied contractual indemnity is predicated upon the indemnitor’s breach of contract, ‘the rationale ... being that a contract under which the indemnitor undertook to do work or perform services necessarily implied an obligation to do the work involved in a proper manner and to discharge foreseeable damages resulting from improper performance absent any participation by the indemnitee in the wrongful act precluding recovery.’ ” (West v. Superior Court (1994) 27 Cal.App.4th 1625, 1633.)

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’ ” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

“A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.)

Titan contends that Union Pacific’s Cross-Complaint admits that the only contract between them expired. (Demurrer, p. 4:17-19.) Therefore, Titan argues, there is no contract upon which Union Pacific may base their implied contractual indemnity claim. However, the court finds that Union Pacific’s allegations state a claim for an implied contract. Union Pacific alleges that Union Pacific and Titan continued to operate by the terms of the agreement after the original written contract expired. (Cross-Complaint, ¶ 24.) Specifically, Union Pacific alleges that Titan was obligated to defend and indemnify Union Pacific for damages for personal injury such as those alleged by Mejia in the underlying Complaint. (Ibid.) Union Pacific further alleges that Titan breached the implied contract between them by failing to defend and indemnify Union Pacific for damages associated with personal injury in accordance with their implied contract derived from the Rail Transportation Contract. (Ibid.)

The court finds the allegations are sufficiently particular. Demurrer for failure to state facts sufficient is OVERRULED.

  1. Uncertainty

Titan also contends that Union Pacific’s claim for implied contractual indemnity is uncertain because it refers to a “contractual duty, express or implied.” (Demurrer, p. 4:23-24.)

“A written contract may be pleaded by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) “In order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms.” (Ibid.)

Here, as discussed above in section A on page 4, the contract implied between Union Pacific and Titan obligated Titan to defend and indemnify Union Pacific from personal injury suits such as those brought by Mejia in the underlying Complaint.

The court finds that the Cross-Complaint is not so uncertain that Titan cannot reasonably respond. Demurrer on ground of uncertainty is OVERRULED.

  1. Duplicative of Union’s First Cause of Action for Equitable Indemnity

Titan also asserts that Union Pacific’s 3rd cause of action for contractual indemnity is improperly duplicative of its first cause of action for equitable indemnity.

A demurrer may be sustained when a cause of action is duplicative of another cause of action and “thus adds nothing to the complaint by way of fact or theory of recovery.” (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501; see Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) However, “[w]hen a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)

“Though not extinguished, implied contractual indemnity is now viewed simply as “a form of equitable indemnity.’ ” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) The Court in Prince did not hold that pleading an equitable indemnity claim bars a plaintiff from pleading an implied contractual indemnity claim. (Id at pp. 1158–1160.) Rather, the Court held that plaintiff was unable recovery under either theory of indemnity because the entity from which it sought indemnification was immune from liability to the injured party. (Ibid.)

Here, Union Pacific’s alleges two causes of action for equitable indemnity and implied contractual indemnity. Although implied contractual indemnity is viewed as a form of equitable indemnity, Union Pacific alleges separate theories of recovery for each cause of action. Specifically, Union Pacific alleges that it is entitled to recover on its equitable indemnity claim because of Titan’s direct negligence, carelessness, acts, omissions, and/or other fault. (Cross-Complaint, ¶ 12). On the other hand, Union Pacific alleges that it is entitled to recover on its implied contractual indemnity claim because of Titan’s contractual obligation to defend and indemnify Union Pacific from personal injury suits pursuant to the implied contract between Union Pacific and Titan. (Id. at ¶ 24.) Union Pacific’s implied contractual indemnity claim adds an alternative theory of recovery, based upon an implied contract between the parties, that is not entirely duplicative of its equitable indemnity claim. Discovery can be used for clarification and can resolve issues of ambiguity between these two causes of action as raised by Titan’s demurrer.

These separate theories of recovery demonstrate that Union Pacific’s 1st cause of action is not duplicative of its 3rd cause if action.

Demurrer is OVERRULED.

  1. Conclusion and Order

Defendant Titan Terminal and Transport, Inc.’s demurrer is OVERRULED.

Defendant is ordered to file and serve its Answer within 10 days

Defendant to give NOTICE.


[1] Although in its Notice of Demurrer Titan sets forth grounds for a special demurrer under Code of Civil Procedure section 430.10, subdivision (g), it does not argue those grounds in its memorandum of points and authorities.