Case Name: Price, et al. v. Guerrero, et al.
Case No.: 17-CV-313375
Defendants/cross-defendants LSE Logistics, Inc. (“LSE”) and Benito Galindo Guerrero (“Guerrero”) (collectively, the “LSE Defendants”) demur to the cross-complaint (“Cross-Complaint”) filed by defendant/cross-complainant Sebring Transport, Inc. (“Sebring”).
This is an action for negligence arising out of a fatal collision between an automobile and a tractor trailer. According to the allegations of the underlying complaint (the “Complaint”), on March 31, 2017, the decedent Born King was killed while driving in a vehicle with his daughter, Born Queen, when a semi-truck driven by Guerrero backed up and crashed into his 2000 Silver Pontiac Firebird. (Complaint, ¶¶ 2-3.) The semi-truck belonged to LSE, while the attached trailer belonged to Sebring. (Id., ¶ 3.) At all times alleged in the Complaint, defendant/cross-defendant Core General Contractor, Inc. (“Core”) was in possession and control of the main entrance gate of the construction jobsite where Guerrero was directed to back up his semi-truck with its attached trailer. (Id., ¶ 20.) Core’s agents and/or employees improperly directed Guerrero to back up the truck across all four lanes of Park Avenue, ultimately causing the subject accident. (Id., ¶ 21.) As a result of improper directions and failures to warn by the “flag men,” Guerrero became confused and abruptly backed into the eastbound #1 lane of travel on Park Avenue from the intersection of McEvoy Street at the same time that Born King was traveling in the #1 eastbound lane on Park Avenue, colliding his tractor trailer with Born King’s vehicle. (Id., ¶ 26.) Born King’s vehicle wedged under the trailer of the semi-truck, resulting in his immediate death. (Id., ¶ 27.)
On July 21, 2017, Plaintiffs filed the Complaint asserting the following causes of action: (1) general negligence (against the LSE Defendants, Sebring, Core, et al.); (2) respondeat superior (against LSE and Sebring); (3) respondeat superior (against Core, etc.); (4) negligence per se (against Guerrero, LSE, Sebring, etc.); (5) wrongful death (against Guerrero, LSE, Sebring, etc.); and (6) gross negligence (against all defendants).
On August 31, 2017, Sebring filed the Cross-Complaint against the LSE Defendants asserting the following causes of action: (1) equitable indemnity; (2) contribution; (3) express contractual indemnity (against LSE); and (4) declaratory relief (against LSE). According to the allegations of this pleading, on October 31, 2016, Sebring entered into a Carrier Agreement (the “Agreement”) with LSE whereby, among other things, LSE agreed to indemnify and defend Sebring for any losses/liability caused by its actions. (Cross-Complaint, ¶ 21.) Sebring alleges that the damages claimed by the plaintiffs in the Complaint “arose out of and were directly connected to the business conducted by Sebring pursuant to the Agreement such that [LSE] is obligated to defendant Sebring …. Sebring has tendered its defense and indemnity to [LSE] and demand that it immediately and unequivocally provide Sebring with defense and indemnity in this action.” (Id., ¶ 22.) Sebring further alleges that prior to the filing of the Cross-Complaint, LSE has not “unequivocally” accepted the tender to defend and indemnify it pursuant to the Agreement. (Cross-Complaint, ¶ 22.) Sebring seeks a declaration from the Court that LSE has a duty to defend it in this action and a duty to indemnify it for any costs that it incurs as a result of the litigation. (Id., ¶ 28.)
On November 29, 2017, the LSE Defendants filed the instant demurrer to each of the four causes of action asserted in the Cross-Complainant on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subds. (e) and (f).) Sebring opposes the motion.
As an initial matter, the LSE Defendants’ demurrer to the first through fourth causes of action on the ground of uncertainty is easily disposed of. A demurrer for uncertainty is disfavored, and will be sustained only where the allegations of the complaint are so unintelligible and/or ambiguous that the defendant cannot reasonably respond to them. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made on this ground, it must distinctly specify how or why the pleading is uncertain, and where the uncertainty appears. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809.) Here, not only do the LSE Defendants fail to articulate how or why the Cross-Complaint is uncertain, but none of the allegations contained therein can properly be characterized as “unintelligible” or “ambiguous.” Accordingly, the LSE Defendants’ demurrer to the four causes of action asserted in the Cross-Complaint on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.
Turning to the first cause of action asserted in the Cross-Complaint, the LSE Defendants assert that Sebring cannot state a claim for equitable indemnity because it has already agreed to indemnify and defend Sebring in this action upon receiving the tender and defense of this matter from Sebring after the Complaint was filed. However, as Sebring notes in its opposition, the first cause of action is not asserted against LSE or Guerrero, but rather defendants/cross-defendants Core General Contractor, Inc., Laurel Grove Lane, LP and Pacific Structures, Inc. Thus, the LSE Defendants’ demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action with respect to Sebring is OVERRULED.
The LSE Defendants are also not named in the second cause of action for contribution, which is asserted against the same parties as the first cause of action. Accordingly, the LSE Defendants’ demurrer to the second cause of action on the ground of failure to state facts sufficient to constitute a cause of action with respect to Sebring is OVERRULED.
As for the third cause of action for express contractual indemnity, the LSE Defendants argue, as they did in connection with the first cause of action, that Sebring cannot state such a claim because Sebring has acknowledged in its Cross-Complaint that LSE accepted its tender of defense and indemnity in the underlying action by the plaintiffs. However, this is not clear from what is actually alleged; the LSE Defendants appear to be arguing that by requesting that LSE “immediately and unequivocally provide Sebring with defense and indemnity to this action,” Sebring has made it evident that LSE already accepted its tender of defense and indemnity. The Court cannot discern how the inclusion of the term “unequivocal” can be interpreted to mean that LSE has already proffered the aforementioned acceptance and thus does not read it as such. The LSE Defendants have also attached correspondence exchanged between themselves and Sebring in which Sebring purportedly tendered the defense and indemnity to LSE and LSE accepted it, however, the Court will not consider the substance of these materials as a demurrer is limited to defects that appear on the face of the pleading under attack or matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) LSE may very well have accepted Sebring’s tender to defend and indemnify it, but at this juncture this is a factual issue that cannot be resolved on demurrer. Consequently, the LSE Defendants’ demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.
The LSE Defendants make the same argument with respect to the final cause of action asserted in the Cross-Complaint for declaratory relief. That is, they argue that because they have already accepted Sebring’s tender of defense and indemnity, no actual, justiciable controversy exists to be resolved by the Court and thus no claim for declaratory relief has been or can be stated. However, because it is not clear based solely on the pleadings that said tender has been accepted by LSE, this argument does not compel the sustaining of the demurrer. Therefore, the LSE Defendants’ demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.