Motion to Compel Production
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5 Doe vs. Boys & Girls Club Of Central New Mexico
2022-01296308 Motion for Leave to File Cross Complaint
The unopposed Motion for Leave to File a Cross-Complaint brought by Defendant Dominic Yannoni is GRANTED, pursuant to Code of Civil Procedure section 428.50, subdivision (c). Defendant shall separately file and serve the proposed Cross-Complaint, within 10 days of this order.
Defendant Dominic Yannoni seeks leave to file a Cross-Complaint against Boys & Girls Club of Central New Mexico, which seeks: (1) Implied Contractual Indemnity; (2) Equitable Indemnity; (3) Failure to Defend; (4) Declaratory Relief; and (5) Apportionment of Fault. (¶9 of Marchiondo Declaration and Exhibit A thereto.)
The proposed Cross-Complaint specifically identifies the instant action and asserts the proposed Cross-Defendant shares liability for the injuries sustained by Plaintiff, to the extent those injuries arise from Plaintiff’s negligence claims. (¶1, ¶7, ¶17 -¶18, ¶23-¶24, ¶28 and ¶38 of Proposed Cross-Complaint [Exhibit A of Marchiondo Declaration.]) The Proposed Cross-Complaint additionally alleges a duty to defend, within this action. (Id. at ¶28.)
“Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes/ All American Development Co. (1991) 230 Cal.App.3d 30, 38.) “An indemnity claim effectively seeks to apportion among the parties to the indemnity action the precise liability claimed by the plaintiff in the main action; therefore the indemnity claim of necessity arises out of the same occurrence or series of occurrences as asserted by the plaintiff.” (Id. at p. 39.)
Based on the above, the proposed pleading qualifies for leave pursuant to Code of Civil Procedure section 428.10, subdivision (b)(1).
Additionally, as no prejudice has been shown, the Court finds that leave to plead serves the interest of justice. (Code Civ. Proc., § 428.50, subd. (c).)
Defendant to give notice.
6 Espinoza vs. Nissan North America, Inc.
Motion to Compel Production
Defendant Nissan North America, Inc.’s motion to compel the inspection of Plaintiff Gabriel Espinoza’s vehicle is denied.
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The motion is brought pursuant to Code Civ. Proc., § 2031.310, which states in part, “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand...” (Emphasis added.)
Defendant acknowledges in its motion that it never served a notice/request for inspection pursuant to Code Civ. Proc., § 2031.010 et seq. (Rabin Decl., ¶ 6.) Despite this, Defendant complains that Plaintiff’s counsel has not produced the subject vehicle for inspection and seeks to compel the same.
Because Defendant is seeking the inspection, the onus is on Defendant to propound an actual inspection demand per the code on Plaintiff.
Code Civ. Proc., § 2031.030 specifies the form and content of the demand, and § 2031.040 prescribes the method for service. While this concerns inspection of a vehicle, as opposed to documents, the procedure is the same.
The motion is denied. Given that Defendant never served an inspection demand, there is nothing to compel a response to, under Code Civ. Proc., § 2031.310.
Plaintiff shall give notice.
7 Fisher vs. Ford Motor Company
2024-01450044 Motion for Summary Judgment and/or Adjudication
Defendant Ford Motor Company’s motion for summary adjudication on the first, second, third, and sixth causes of action asserted against it in plaintiff Jeffrey Fisher’s first amended complaint (“FAC”) is denied. Defendant Lincoln South Coast’s motion for summary judgment on the fifth cause of action for negligent repair asserted in the FAC – the only cause of action directed against Lincoln South Coast – is denied.
Purportedly, the motion for summary adjudication and judgment was personally served on Plaintiff’s counsel. But the only proof of service provided is by an employee of Defendants’ counsel who arranged for