Cross-Defendant J Delgadillo Trucking, Inc.’s Demurrer to the Cross-Complaint
(37) Tentative Ruling
Re: Santos v. Palogix International Limited Superior Court Case No. 24CECG03568
Hearing Date: June 24, 2026 (Dept. 403)
Motion: Cross-Defendant J Delgadillo Trucking, Inc.’s Demurrer to the Cross-Complaint
Tentative Ruling:
To overrule the demurrer, with cross-defendant J Delgadillo Trucking, Inc. granted 10 days’ leave to file its answer to the cross-complaint. The time in which the answer can be filed will run from service by the clerk of the minute order.
Explanation:
The function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether a plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of a plaintiff’s possible difficulty or inability in proving the allegations of the complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against the demurrer, we treat the demurrer as admitting all material facts properly pleaded, bearing in mind the appellate courts’ well established policy of liberality in reviewing a demurrer sustained without leave to amend, liberally construing the allegations with a view to attaining substantial justice among the parties. (Glaire v. LaLanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918.)
Negligence
To plead negligence, a cross-complaint must allege the existence of a duty of care, breach of that duty, causation, and damages arising from said breach. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) Foreseeability of harm is a factor when considering the issue of duty. (Bily v. Arthur Young & Co., supra, 3 Cal.4th 370 at p. 398.) Here, the cross-complaint alleges that defendant J Delgadillo Trucking (hereinafter “JDT”) is the trucking company that hired plaintiff or plaintiff’s company DJT Transport, Inc. to pick up bins at the Palogix facility. (Cross-complaint, ¶ 2.)
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The cross-complaint alleges, “Cross-defendants owed a duty to Palogix to make sure their drivers were adequately trained to follow basic safety protocol and to ensure that all persons on the site followed said protocols as set forth above.” (Cross-complaint, ¶ 10.) These allegations are sufficient.
Additionally, JDT primarily argues the merits of the claims alleged in the crosscomplaint. This is not the proper purpose of a demurrer. In a demurrer, the court is not assessing the validity, veracity, or severity of a cross-complainant’s claims. Rather, the 5
court is assessing whether sufficient facts are pled for each element required in a given cause of action.
Furthermore, new arguments were made in the reply. The court may disregard new arguments made for the first time in a reply brief. (Balboa Ins. Co. v. Aguirre 1983) 149 Cal.App.3d 1002, 1010.) Of note, the new arguments made in the reply rely heavily on a discussion of the merits and cite solely to cases which were addressing summary judgment, not demurrer.
The Court overrules the demurrer with regard to the negligence cause of action.
Indemnity/Apportionment
California law regarding equitable indemnity permits “concurrent tortfeasor[s] to obtain partial indemnity from other concurrent tortfeasors on a comparative fault basis.” (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 591.) It is available where multiple tortfeasors are “responsible for the same indivisible injury”. (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1176-1177.) This is to provide restitution so that an otherwise jointly liable person is not “unjustly enriched at the expense of another when the other discharges liability that it should be his responsibility to pay.” (Children’s Hospital v.
Sedgwick (1996) 45 Cal.App.4th 1780, 1786.) A failure by an underlying plaintiff to sue the cross-defendants does not necessarily prohibit a claim against cross-defendants. (BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 853.) Here, the cross-complaint alleges facts that JDT’s conduct contributed to plaintiff’s injuries. (Cross-complaint, ¶¶ 2, 10.) Plaintiff’s failure to name JDT in the underlying complaint is not a basis for demurrer here.
The Court overrules the demurrer with regard to the indemnity/apportionment cause of action.
Uncertainty
A party may object by demurrer to any pleading on the ground that it is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” (Ibid.) Demurrers for uncertainty are disfavored. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty may be sustained when the complaint is drafted in a manner that is so vague or uncertain that the defendant cannot reasonably respond, e.g., the defendant cannot determine what issues must be admitted or denied, or what causes of action are directed against the defendant. (Ibid.) Demurrers for uncertainty are appropriately overruled where “ambiguities can reasonably be clarified under modern rules of discovery.” (Ibid.)
The cross-complaint alleges that JDT is the trucking company that hired crossdefendant Santos and/or his company DJT Transport, Inc. to pick up bins at Palogix’s facility. (Cross-complaint, ¶¶ 2-4.) The cross-complaint alleges failure to train drivers and that a particular driver, Santos, failed to follow safety protocol by standing near the truck while it was being loaded. (Id. at ¶ 7.) As such, uncertainty does not provide a basis for demurrer here.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: SMC on 6/23/26. (Judge’s initials) (Date)
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