Kohlman vs. Adaptive Behavior Center, Inc

The Cross- Complaint sufficiently apprises Cross-Defendant of “basis upon which the plaintiff is seeking relief.” (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.) The Cross-Complaint sufficiently “acquaints” Cross-Defendant “with the nature, source and extent of” the relief that Cross-Complainant seeks against Defendant. (Ibid.) In particular, the Cross-Complaint puts Cross- Defendant on notice that Cross-Complainant will seek to recover from Cross-Defendant any liability or damages found against Cross-Complainant since Cross- Complainant alleges that Plaintiff’s damages are the fault and responsibility of Cross-Defendant.

Cross- Complainant apprises Cross-Defendant that it will seek to recover against Cross-Defendant via indemnity, apportionment, contribution, and/or declaratory relief should such mean of recovery be applicable once liability is determined.

However, the Demurrer is SUSTAINED WITH LEAVE TO AMEND as to the sixth cause of action for negligence.

A. FIRST CAUSE OF ACTION FOR EQUITABLE INDEMNITY AND FOURTH CAUSE OF ACTION FOR TOTAL INDEMNITY

In general, indemnity refers to ‘the obligation resting on one party to make good a loss or damage another party has incurred.’ ” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) “Historically, the obligation of indemnity took three forms: (1) indemnity expressly provided for by contract (express indemnity); (2) indemnity implied from a contract not specifically mentioning indemnity (implied contractual indemnity); and (3) indemnity arising from the equities of particular circumstances (traditional equitable indemnity).” (Ibid.) “Although the foregoing categories of indemnity were once regarded as distinct, we now recognize there are only two basic types of indemnity: express indemnity and equitable indemnity.” (Prince v.

Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) “Though not extinguished, implied contractual indemnity is now viewed simply as ‘a form of equitable indemnity.’ ” (Ibid.) “Equitable indemnity, which ‘requires no contractual relationship,’ ‘is premised on a joint legal obligation to another for damages’; it is ‘subject to allocation of fault principles and comparative equitable apportionment of loss.’” (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700.) “ ‘The elements of a cause of action for [equitable] indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible.’ ” (Ibid.; Bailey v.

Safeway, Inc. (2011) 199 Cal.App.4th 206, 217 [“The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible.”].) “There can be no indemnity without liability.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1159 [citing Children’s Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787].) “The purpose of equitable indemnification is to avoid the unfairness, under the theory of joint and several liability, of holding one defendant liable for e defendant to escape any financial responsibility for the loss.” (Bailey v.

Safeway, Inc. (2011) 199 Cal.App.4th 206, 212.) “Rules permitting a joint tortfeasor to cross-complaint against another joint tortfeasor for equitable indemnity ‘promote the public policy considerations underlying multiparty tort litigation: the maximization of recovery to the injured party; settlement of the injured party’s claim; and equitable apportionment of liability among concurrent tortfeasors.’” (Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177, 189.) “Courts have ‘consistently adopted procedures’ promoting these policies and ‘have rejected procedures which would undermine these policies.’” (Ibid.)

Here, Cross-Complainant alleges that the injuries Plaintiff incurred were the result of Cross-Defendant’s wrongdoings and therefore Cross-Complainant is entitled to “equitable indemnity of the liability as such liability would be based on a derivative form of liability not resulting from CROSS-COMPLAINANT’S conduct, but only from an obligation imposed by law.” (Cross-Complaint, ¶¶ 10 and 12.) Cross-Complainant alleges that Plaintiff “was in the sole care, custody and control of ABC at the time of his death.” (Cross- Complaint, ¶ 7.) “ABC knew that Decedent DONALD KOHLMAN required supervision while consuming food and failed to supervise him while he was eating on the day he died.” (Complaint, ¶ 8.) The Demurrer to the first cause of action for equitable indemnity and fourth cause of action for total indemnity is OVERRULED.

B. SECOND CAUSE OF ACTION FOR APPORTIONMENT OF FAULT

“The comparative fault doctrine is designed to permit the trier of fact to consider all relevant criteria in apportioning liability.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1285, as modified on denial of reh'g (Nov. 27, 2013).) “The doctrine ‘is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an ‘equitable apportionment or allocation of loss.’” (Ibid.) “Generally, a defendant has the burden of establishing that some nonzero percentage of fault is properly attributed to the plaintiff, other defendants, or nonparties to the action.” (Ibid.)

Here, Cross-Complainants alleges “Should Plaintiff and/or another party recover any amount of damages against CROSS-COMPLAINANTS by way of judgment, settlement or otherwise, then CROSS DEFENDANTS should be required to pay a share of Plaintiff’s judgment in proportion to the comparative negligence of CROSS-DEFENDANT’S negligence and reimburse CROSS COMPLAINANT for any payments CROSS-COMPLAINANT makes to Plaintiff or another party that is in excess of CROSS- COMPLAINANT’S proportional share of negligence among all parties.” (Cross-Complaint, ¶ 15.) The demurrer to the second cause of action for apportionment of fault is OVERRULED.

C. THIRD CAUSE OF ACTION FOR CONTRIBUTION

“Indemnity either imposes the entire loss on one of two or more tortfeasors or apportions it based on comparative fault. Contribution, on the other hand, is a creature of statute and distributes the loss equally among all tortfeasors. The former requires a determination of fault on the part of the alleged indemnitor; the latter requires a showing that one of several joint tortfeasor judgment debtors has paid more than a pro rata share of a judgment. Where a right of indemnity exists, there can be no right of contribution. (Code Civ.

Proc., § 875, subd. (f).) A right of contribution can come into existence only after rendition of a judgment declaring more than one defendant jointly liable to the plaintiff. (Code Civ. Proc., § 875, subd. (c).)” (Coca-Cola Bottling Co. v. Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1378.) “In view of such subordination, a resolution of the losssharing claims of multiple tortfeasors is most often completely resolved by a comparative indemnification cross-complaint in the underlying action rather than by a post-judgment claim for contribution. (Lamberton v.

Rhodes-Jamieson, supra, 199 Cal.App.3d at pp. 752- 753.) However, it does not follow that a defendant is limited to such procedure against its codefendants; nor do we see any reason to conclude that one defendant who unsuccessfully seeks indemnification is prohibited from thereafter seeking contribution if the statutory preconditions are met. The statute prohibits contribution only if a right to indemnity has been established. (Code Civ. Proc., § 875, subd. (f).) In other words, a defendant cannot recover under both procedures, but there is no reason to deny a right to at least one of them. ” (Coca-Cola Bottling Co. v.

Lucky Stores, Inc. (1992) 11 Cal.App.4th 1372, 1379.)

In addition to the allegations discussed above, Cross- Complainants allege “CROSS-COMPLAINANT is entitled to contribution from CROSS DEFENDANTS, for the injuries and damages allegedly sustained by Plaintiff, if any, as a result of any judgment or settlement awarded against CROSS- COMPLAINANTS herein.” (Cross-Complaint, ¶ 17.) These allegations are sufficient to state a cause of action for contribution. The demurrer to the third cause of action for contribution is OVERRULED.

D. FIFTH CAUSE OF ACTION FOR DECLARATORY RELIEF

“Declaratory relief is available to a party ‘who desires a declaration of his or her rights or duties with respect to another ....’” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Code Civ. Proc., § 1060].) “A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties and requests that the rights and duties of the parties be adjudged by the court.” (Monterey Coastkeeper v.

Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022).) “If these requirements are met and no basis for declining declaratory relief appears, the court should declare the rights of the parties whether or not the facts alleged establish the plaintiff is entitled to favorable declaration.” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Ludgate Ins. Co. v.

Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606].) “Declaratory relief operates prospectively, serving to set controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed.” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022).) “Thus the remedy is to be used to advance preventative justice, to declare rather than execute rights. [Citation.]” (Id. [citing Kirkwood v. California State Automobile Assn.

Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59, 122 Cal.Rptr.3d 480].) “In essence, declaratory relief operates to declare future rights, not to address past wrongs.” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Canova v. Trustees of Imperial Irrigation Dist. Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497].) “In assessing whether declaratory relief is available, a court determines whether ‘a probable future dispute over legal rights between parties is sufficiently ripe to represent an ‘actual controversy’ within the meaning of the statute authorizing declaratory relief (Code Civ.

Proc., § 1060), as opposed to purely hypothetical concerns ....”’ (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Steinberg v. Chiang (2014) 223 Cal.App.4th 338, 343].) “An ‘actual controversy’ under the declaratory relief statute is ‘one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts.’ [Citation.]” (Monterey Coastkeeper v.

Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13, as modified (Mar. 28, 2022) [citing Gilb v. Chiang (2010) 186 Cal.App.4th 444, 459].) “Declaratory relief is an equitable remedy and need not be awarded if the circumstances do not warrant.” (Artus v. Gramercy Towers Condominium Assn. (2018) 19 Cal.App.5th 923, 930.)

Here, Cross-Complainant seeks a declaration of its rights as to its liability to Plaintiff. The demurrer to this cause of action is OVERRULED.

E. SIXTH CAUSE OF ACTION FOR NEGLIGENCE

The Demurrer is SUSTAINED WITH LEAVE TO AMEND as to the sixth cause of action for negligence. The Court finds that, as written, the Cross-Complaint does not sufficiently allege what duty Cross-Defendant owed to Cross-Complainant. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662 [“To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff’s damages or injuries.”].)

In sum, the Demurrer to the Cross-Complaint is OVERRULED as to the first cause of action for equitable indemnity, second cause of action for apportionment of fault, third cause of action for contribution, fourth cause of action for total indemnity, fifth cause of action for declaratory relief, and SUSTAINED WITH LEAVE TO AMEND as to the sixth cause of action for negligence. Cross-Complainant to give notice.

105 OSP Health Management Inc. vs. Pole USA Investment One, LLC

26-01546948 1. Demurrer to Answer 2. Motion to Strike Portions of Answer 3. Case Management Conference

(1-3) Continued to 10/20/2026 at 10:00 AM

Moving party to give notice.