“It is not sufficient that 2 the third-party claim is a related claim; the claim must be derivatively based on the original 3 plaintiff’s claim.”
How later courts described this case
- “It is not sufficient that 2 the third-party claim is a related claim; the claim must be derivatively based on the original 3 plaintiff’s claim.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 ANNETTE KING, Case No.: 20-cv-01935-H-BLM
12 Plaintiff,
ORDER:
13 v.
(1) GRANTING PLAINTIFF’S
14 COSTCO WHOLESALE
MOTION FOR LEAVE TO FILE AN
CORPORATION; and DOES 1 to 10,
15 AMENDED COMPLAINT; AND
Defendants.
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[Doc. No. 13.]
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(2) GRANTING DEFENDANT’S
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MOTION FOR LEAVE TO FILE A
19 THIRD-PARTY COMPLAINT
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[Doc. No. 11.]
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On January 26, 2021, Defendant Costco Wholesale Corporation filed a motion for
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leave to file a third-party complaint. (Doc. No. 11.) On February 5, 2021, Plaintiff Annette
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King filed a motion for leave to file a first amended complaint. (Doc. No. 13.) To date,
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no opposition had been filed to either motion. A hearing on the two motions is currently
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scheduled for March 8, 2020. The Court, pursuant to its discretion under Civil Local Rule
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7.1(d)(1), determines the matter is appropriate for resolution without oral argument,
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submits the motions on the parties’ papers, and vacates the hearing. For the reasons below,
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1 the Court grants Plaintiff’s motion for leave to file a first amended complaint, and the Court
2 grants Defendant’s motion for leave to file a third-party complaint.
3 Background
4 The following facts are taken from the allegations in Plaintiff’s complaint. On July
5 1, 2018, Plaintiff needed gas and pulled into a Costco Gas station in Laguna Niguel,
6 California.1 (Doc. No. 1-2, Compl. at 4.) Plaintiff’s vehicle came to a complete stop as
7 she waited for an open gas pump. (Id.) Another driver, Michael Margiotta, pulled into the
8 gas station and collided with Plaintiff’s car. (Id.) The impact from the crash was so severe
9 that Plaintiff lost consciousness for almost two minutes. (Id.) Upon awakening, Plaintiff
10 using her car for support, walked back to inspect the damage and to speak with the other
11 driver. (Id.) They exchanged information and Margiotta left. (Id.)
12 Plaintiff alleges that Defendant Costco has “a duty of care to do everything possible
13 to ensure customers are safe from foreseeable, dangerous conditions when fueling [their]
14 vehicles.” (Id.) Plaintiff alleges that Costco breached this duty of care when, after the
15 collision, no Costco gas attendant came to her aid. (Id.) Plaintiff alleges that Costco’s
16 failure to render aid caused her injuries to significantly worsen because they went
17 unchecked for several days. (Id.)
18 On June 18, 2020, Plaintiff King filed a complaint against Defendant Costco in the
19 Superior Court of California, County of San Diego, alleging cause of actions for: (1)
20 negligence; and (2) premises liability. (Doc. No. 1-2, Compl.) On August 31, 2020,
21 Defendant filed an answer to Plaintiff’s complaint. (Doc. No. 1-4.) On September 29,
22 2020, Defendant removed the action to the United States District Court, Southern District
23 of California pursuant to 28 U.S.C. § 1441 on the basis of diversity jurisdiction under 28
24 U.S.C. § 1332. (Doc. No. 1, Notice of Removal.) On December 15, 2020, the Court issued
25 a scheduling order. (Doc. No. 9.)
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28 1 The Court notes that Laguna Niguel, California is in Orange County, California, which is located
1 By the present motion, Plaintiff moves pursuant to Federal Rule of Civil Procedure
2 15(a) for leave to file a first amended complaint. (Doc. No. 13-1.) In addition, Defendant
3 moves pursuant to Federal Rule of Civil Procedure 14 to file a third-party complaint against
4 Michael Margiotta. (Doc. No. 11-1.)
5 Discussion
6 I. Plaintiff’s Motion for Leave to Amend Complaint
7 A. Legal Standards
8 Federal Rule of Civil Procedure 15(a) allows a party leave to amend its pleading
9 once as a matter of right prior to service of a responsive pleading. Thereafter, “a party may
10 amend that party’s pleading only by leave of the court or by written consent of the adverse
11 party and leave shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). The
12 Ninth Circuit has instructed that this policy is “‘to be applied with extreme liberality.’”
13 Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). “Five
14 factors are taken into account to assess the propriety of a motion for leave to amend: bad
15 faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the
16 plaintiff has previously amended the complaint.” Johnson v. Buckley, 356 F.3d 1067, 1077
17 (9th Cir. 2004) (citing Nunes v. Ashcroft, 348 F.3d 815, 818 (9th Cir. 2003)). The decision
18 whether to grant leave to amend “is entrusted to the sound discretion of the trial court.”
19 Pisciotta v. Teledyne Indus., 91 F.3d 1326, 1331 (9th Cir. 1996).
20 B. Analysis
21 In her motion, Plaintiff requests leave to amend her complaint in order to allege a
22 more focused and recognized theory of premises liability against Defendant that attributes
23 the cause of the collision to negligent design of the parking lot system where the collision
24 occurred. (Doc. No. 13-1 at 3.) A review of the relevant factors favors granting Plaintiff
25 leave to amend her complaint. See Johnson, 356 F.3d at 1077. Plaintiff has not previously
26 amended her complaint, and there is no evidence or suggestion of bad faith by Plaintiff or
27 prejudice to Defendant. Indeed, Defendant has not filed an opposition to Plaintiff’s motion
28 for leave to amend. In addition, there is no undue delay. Plaintiff filed the present motion
1 for leave to amend prior to the deadline for such motions set by the Court’s December 15,
2 2020 scheduling order. (Doc. No. 9 at 1.) Finally, the proposed amendment do not appear
3 to be futile. As such, the Court grants Plaintiff’s motion for leave to file a first amended
4 complaint.2
5 II. Defendant’s Motion for Leave to File a Third-Party Complaint
6 A. Legal Standard
7 Under Federal Rule of Civil Procedure 14(a)(1), “[a] defending party may, as third-
8 party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it
9 for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain
10 the court’s leave if it files the third-party complaint more than 14 days after serving its
11 original answer.” Fed. R. Civ. P. 14(a)(1). “The purpose of this rule is to promote judicial
12 efficiency by eliminating the necessity for the defendant to bring a separate action against
13 a third individual who may be secondarily or derivatively liable to the defendant for all or
14 part of the plaintiff’s original claim.” Sw. Administrators, Inc. v. Rozay’s Transfer, 791
15 F.2d 769, 777 (9th Cir. 1986).
16 A third-party claim may be asserted under Rule 14 “only when the third party’s
17 liability is in some way dependent on the outcome of the main claim and is secondary or
18 derivative thereto.” Stewart v. Am. Int’l Oil & Gas Co., 845 F.2d 196, 199 (9th Cir.1988).
19 “‘The crucial characteristic of a Rule 14 claim is that defendant is attempting to transfer to
20 the third-party defendant the liability asserted against him by the original plaintiff. The
21 mere fact that the alleged third-party claim arises from the same transaction or set of facts
22 as the original claim is not enough.” Id. at 200 (quoting Wright & Miller, 6 Fed. Prac. &
23 Proc. § 1446 at 257 (1971 ed.)); see also United States v. One 1977 Mercedes Benz, 450
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2 The Court notes that the proposed first amended complaint appears to contain an error. In the
26 proposed first amended complaint, Plaintiff alleges: “Venue is proper, as the Court where the action was
originally brought, Superior Court of the State of California County of Orange, is the county in which the
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liability arises.” (Doc. No. 13-2 ¶ 6.) This would appear to be an error as the complaint was originally
28 filed in the Superior Court of California, County of San Diego. (See Doc. No. 1-2.) Plaintiff must correct
1 SEL, VIN 11603302064538, 708 F.2d 444, 452 (9th Cir. 1983) (“It is not sufficient that
2 the third-party claim is a related claim; the claim must be derivatively based on the original
3 plaintiff’s claim.”).
4 “The decision to allow a third-party defendant to be impleaded under rule 14 is
5 entrusted to the sound discretion of the trial court.” One 1977 Mercedes Benz, 708 F.2d at
6 452; accord Southwest Administrators, 791 F.2d at 777. “‘Since the rule is designed to
7 reduce multiplicity of litigation, it is construed liberally in favor of allowing impleader.’”
8 KKMB, LLC v. Khader, No. CV 18-5170-GW-JPRX, 2020 WL 7978993, at *4 (C.D. Cal.
9 June 17, 2020) (quoting Fed. Deposit Ins. Corp. v. Loube, 134 F.R.D. 270, 272 (N.D. Cal.
10 1991); accord J & J Sports Prods., Inc. v. Tolentino, No. 1:10-CV-02089-LJO, 2011 WL
11 5547144, at *2 (E.D. Cal. Nov. 14, 2011).
12 B. Analysis
13 Defendant Costco seeks leave to file a third-party complaint against Michael
14 Margiotta for equitable and comparable indemnity for causing injuries to Plaintiff. (Doc.
15 No. 11 at 3.) Defendant argues that its motion should be granted because its proposed
16 third-party complaint is entirely derivative of plaintiff’s original claims against Costco.
17 (Id. at 4.) The Court agrees.
18 Defendant Costco’s proposed equitable indemnity claim against Mr. Margiotta is
19 derivative of and dependent on Plaintiff’s original claims against Defendant. In the
20 complaint, Plaintiff alleges that Mr. Margiotta’s vehicle collided with her own causing her
21 to lose consciousness and sustain injuries. (Doc. No. 1-2, Compl. at 4.) Plaintiff alleges
22 that Defendant’s failure to render aid to her caused her injuries to significantly worsen.
23 (Id.) Based on these allegations, Plaintiff asserted claims against Defendant for negligence
24 and premises liability. (Id.) In the proposed third-party complaint, Defendant Costco seeks
25 to bring claims against Mr. Margiotta for equitable indemnity, alleging that Mr. Margiotta
26 is liable to Defendant in an amount commensurate with his negligence. (Doc. No. 11 at 4;
27 see Doc. No. 11-1 ¶¶ 7-11.)
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1 Under the doctrine of equitable indemnity, “‘defendants are entitled to seek
2 apportionment of loss between the wrongdoers in proportion to their relative culpability so
3 there will be equitable sharing of loss between multiple tortfeasors.’” Greystone Homes,
4 Inc. v. Midtec, Inc., 168 Cal. App. 4th 1194, 1208 (2008) (quoting Gem Developers v.
5 Hallcraft Homes of San Diego, Inc., 213 Cal. App. 3d 419, 431 (1989)); see also Stop Loss
6 Ins. Brokers, Inc. v. Brown & Toland Med. Grp., 143 Cal. App. 4th 1036, 1040 (2006)
7 (equitable indemnity is “available among tortfeasors who are jointly and severally liable
8 for the plaintiff’s injury”). A claim for equitable indemnity is “‘wholly derivative’” of the
9 injured party’s claims. Prince v. Pac. Gas & Elec. Co., 45 Cal. 4th 1151, 1158 (2009)
10 (“This rule is often expressed in the shorthand phrase . . . there can be no indemnity without
11 liability.” (cleaned up)). As such, Defendant Costco’s claim for equitable indemnity
12 against Mr. Margiotta may properly be brought pursuant to Rule 14(a)(1). See Stewart,
13 845 F.2d at 199–200.
14 In addition, the Court notes that Defendant’s motion was timely. Defendant filed
15 the present motion for leave to file its third-party complaint prior to the deadline for filing
16 such motions set forth in the Court’s December 15, 2020 scheduling order. (Doc. No. 9 at
17 1.) Further, there is no evidence or suggestion of bad faith or prejudice with respect to the
18 proposed pleading. As such, the Court grants Defendant Costco’s motion for leave to file
19 a third-party complaint.
20 ///
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I Conclusion
2 For the reasons above, the Court grants Plaintiff's motion for leave to file a first
3 ||amended complaint, and the Court grants Defendant’s motion for leave to file a third-party
4 ||complaint. Plaintiff must file her first amended complaint within fourteen (14) days from
5 ||the date this order is filed. Defendant must file its third-party complaint within twenty-
6 || one (21) days from the date this order is filed.
7 IT IS SO ORDERED.
8 || DATED: March 1, 2021 |
9 MARILYN ©. HUFF Distri ge
10 UNITED STATES DISTRICT COURT
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