Judge: Bruce G. Iwasaki, Case: 19STCV28457, Date: 2023-03-21 Tentative Ruling
Case Number: 19STCV28457 Hearing Date: March 21, 2023 Dept: 58
Judge Bruce G. Iwasaki
Hearing Date: March
21, 2023
Case
Name: Magda Angel
v. Monster Energy Co., et al.
and
Related Cross-Actions
Case
Nos.: 19STCV28457
Matters: Summary Adjudication
Seal
Filing
Moving
Parties: Defendant/Cross-Complainant
Monster Energy Company (Summary Adjudication)
Defendant/Cross-Complainant
Monster Energy Company and Defendant/ Cross-Defendant Promote Mexico, LLC dba Score
International (Seal Filing)
Responding Parties: Defendant/Cross-Defendant Promote Mexico, LLC dba Score International (Summary
Adjudication)
Tentative Rulings: Monster’s Motion for Summary Adjudication is granted.
The parties’
motion to seal filing is granted.
Background
On August
12, 2019, Plaintiff Magda Angel (“Plaintiff”) filed the operative Complaint
against Defendants Monster Energy Company (“Monster”), Langley Productions, Inc.
(“Langley Productions”), Cops Racing, LLC (“Cops Racing”), Morgan Langley
(“Langley”), and DOES 1 through 50 for (1) negligence, (2) negligence, and (3)
negligent hiring, supervision, and retention. Plaintiff alleges that she “was
performing her duties with due care and in a reasonably foreseeable manner as a
model for Defendants” when the race car controlled, owned, operated, and driven
by Defendants struck her, “throwing her into the air and slamming her down into
the pavement causing severe and life-altering injuries.” (Compl. ¶ 24.)
On April 21,
2021, Monster filed a First Amended Cross-Complaint against Promote Mexico, LLC
dba Score International (Promote Mexico), Langley, Cops Racing, Langley
Productions, Roger Norman, and Score International, S. De R.L. de C.V. for (1)
express indemnity, (2) breach of contract, (3) implied equitable indemnity, (4)
comparative indemnity, (5) contribution, (6) apportionment, and (7) declaratory
relief.
Monster’s Motion for Summary Adjudication
On
January 5, 2023, Monster filed a motion for summary adjudication against Promote
Mexico. Monster seeks a ruling that Promote Mexico has a duty to defend Monster
in this matter.
On March 7, 2023, Defendant
Promote Mexico, LLC, dba Score Marketing, formerly dba Score International,
filed an opposition to the motion.
On March 16, 2023, Monster
filed a reply.
Motion to Seal Filings
On
January 5, 2023, Monster filed a motion to seal filings in connection with its
motion for summary adjudication.
On March
7, 2023, Promote Mexico filed a motion to seal filings in connection with its
opposition to Monster’s motion for summary adjudication.
Both parties request an order placing
the Sponsorship Agreement they entered into with each other under seal. The
Sponsorship Agreement was attached as Exhibit D to Monster’s Declarations and Documentary
Evidence in Support of its Motion for Summary Adjudication and as Exhibit 1 to
the opposition to Monster’s motion for summary adjudication and lodged
conditionally under seal.
Objections
Summary Adjudication
Monster’s objections to Promote Mexico’s
opposition evidence, nos. 1-6, are overbroad and fail to target specific evidence
with pertinent objections. They are all overruled.
Legal Standard
Summary Adjudication
The Court
may summarily adjudicate an issue of duty.
Code of Civil Procedure section 437c, subdivision (f) provides, as
follows:
(1)¿A party may move for summary adjudication
as to one or more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of duty, if the
party contends that the cause of action has no merit, that there is no
affirmative defense to the cause of action, that there is no merit to an
affirmative defense as to any cause of action, that there is no merit to a
claim for damages, as specified in¿Section
3294 of the Civil Code, or that one or more defendants either owed or did not
owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication
shall be granted only if it completely disposes of a cause of action, an
affirmative defense, a claim for damages, or an issue of duty.
Seal Filings
Unless
confidentiality is required by law, court records are presumed to be open to
the public, pursuant to a potent “open court” policy
undergirded by the First Amendment and favoring the public nature of court
proceedings. (Cal. Rules of Court, rule 2.550(c); NBC Subsidiary
(KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1199-10.)
Consequently, pleadings, motions, discovery documents, and other papers may not
be filed under seal merely by stipulation of the parties; filing under seal
requires a court order. (Cal. Rules of Court, rule 2.551(a); see H.B. Fuller
Co. v. Doe¿(2007) 151
Cal.App.4th 879, 888.)
In order to
issue a sealing order, the Court must expressly find that: (1) there exists an
overriding interest that overcomes the right of public access to the record;
(2) the overriding interest supports sealing the record; (3) a substantial
probability exists that the overriding interest will be prejudiced if the
record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no
less restrictive means exist to achieve the overriding interest. (Cal.
Rules of Court, rule 2.550(d)(1)-(4), (e); McGuan v. Endovascular Techs., Inc.¿(2010) 182 Cal.App.4th 974,
988.) The constitutional policy favoring for disclosure must be balanced
against other factors, e.g., privacy rights. (People v. Jackson
(2005) 128 Cal.App.4th 1009, 1026-27.) The Court acts within its
discretion in making factual determinations on a motion to seal. (Universal
City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273,
1285.)
A sealing order
must be sought by means of a motion (or application) and accompanied by a
memorandum of points and authorities, as well as evidence and testimony
containing facts sufficient to justify the mandatory findings required to
support a sealing order. (Cal. Rules of Court, rules 2.550(d) and
2.551(b).) The proponent of the sealing order must also conditionally
lodge the unredacted matter to be sealed with the court. (Id.,
rule 2.551(b)(4).)
Undisputed Facts
Monster and Promote
Mexico entered into two sponsorship agreements regarding the 2018 Baja 1000
race: the “Sponsorship Agreement” and the “Television Sponsorship Agreement.”
(Response to SSUMF 1-2.)[1] Although the agreements are between Monster
and “Score International,” there is no dispute that Score International was the
dba for Defendant Promote Mexico. Promote
Mexico/Score International was designated in the agreements as the “Producer.” To prevent confusion and to use the actual
entity name, in this ruling the Court refers to Promote Mexico rather than to its
former dba, Score International.
In Section 6.01 of the Sponsorship
Agreement and Section 6.01(a) of the TV Sponsorship Agreement, Promote Mexico
agreed that it “shall indemnify, protect, defend and hold harmless
[Monster]…from and against any and all claims…arising from or connected with…(iii)
any death or injury to any person…related to the Event by the actions of Producer,
its respective employees, servants, and agents.” (Response to SSUMF 4; PMAUMF
3.) Plaintiff Angel claims she was injured by Promote Mexico’s negligent
actions at the 2018 Baja 1000 race. (Response to SSUMF 7.) On January 15, 2019,
Monster emailed Promote Mexico and demanded that it “indemnify, protect, defend
and hold harmless Monster for [Plaintiff’s] injuries.” (Response to SSUMF 6.) Promote
Mexico refused to defend Monster in this action. (Response to SSUMF 8-9.)
Analysis
Monster’s
Motion for Summary Adjudication
Monster argues
that Promote Mexico has a duty to defend Monster in this action and that the
duty arose immediately upon Monster’s tender on January 15, 2019.
Monster relies
primarily on our Supreme Court’s decision in Crawford v. Weather Shield
Manufacturing, Inc. (2008) 44 Cal.4th 541.) In Crawford, the subcontractor, Weather
Shield agreed to manufacture and supply wood-framed windows for a project
overseen by the general contractor JMP.
Homeowners brought an action against JMP and Weather Shield for construction
defects, including improper design, manufacture, and installation of windows. JMP
brought a cross-complaint against Weather Shield seeking declaratory relief in
part as to the issue of whether Weather Shield had a duty to defend. The Supreme
Court held that the language of the subject indemnity provision mandated that
Weather Shield defend JMP. The Court also concluded that the duty arises as
soon as the promisee makes a tender and regardless of the outcome of the
claims. The Court held that “the duty ‘to
defend’ JMP against claims ‘founded upon’ damage or loss caused by Weather
Shield’s negligent performance of its work, …imposed such duties on Weather
Shield as soon as a suit was filed against JMP that asserted such claims, and
regardless of whether it was ultimately determined that Weather Shield was actually
negligent.” (Id. at p. 568.)
Monster argues
that the defense and indemnity provisions in the Sponsorship Agreements are
nearly identical to those in the relevant agreement in Crawford. The
agreement in Crawford stated that Weather Shield promised to “indemnify
and save [JMP] harmless against all claims for damages, loss, … and/or theft …
growing out of the execution of [Weather Shield’s] work.” (Crawford, supra,
44 Cal.4th at p. 548.) Weather Shield also promised “at
[its] own expense to defend any suit or action brought against [JMP] founded
upon the claim of such damage[,] … loss, … or theft.” (Id. at p. 548.) In the motion filed by Monster, under the
Sponsorship Agreements, Promote Mexico agreed to “indemnify,
protect, defend and hold harmless” Monster
“against any and all claims, liabilities, losses,
damages, injuries, demands, actions, causes of action, suits, proceedings,
judgments, and expenses” “arising from or connected with” “any death or injury
to any person … related to the Event by the actions of Producer [Promote Mexico],
its respective employees, servants, and agents.” [Response to SSUMF 4; PMAUMF
3.] Indeed, the language of the Sponsorship
Agreements makes the obligation to defend even more explicit than in Crawford
because it states that Promote Mexico agrees to “defend” Monster, as well as
indemnify it and hold it harmless.
Promote Mexico
refused to defend Monster, claiming such a duty “has
not been triggered.” [SSUMF No. 8.] Promote Mexico argues that its duty to
defend is triggered only if three conditions are met: (1) the injuries suffered
by the plaintiff must be caused by the actions of Score International, 2) the
injury must not be tied to Monster’s active negligence, and 3) the injury must
be unrelated to personnel supplied by Monster. Promote Mexico’s contentions are erroneous. The
first two conditions would require a final determination of the claim. This is inconsistent with the distinction
between indemnifying and providing a defense explained in the Crawford decision. (Crawford, supra, 44 Cal.4th
at pp. 557-558.) Crawford also made
clear that the outcome of Plaintiff’s negligence claim is irrelevant to whether
Score International has a duty to defend against the claim from the outset. Promote
Mexico’s third condition is also without merit. It is based on Section 6.11 of
the Sponsorship Agreements, which states: “Monster will be solely
responsible for all wages, income taxes, worker’s compensation and any other
requirements for all personnel it supplies pursuant to this Agreement.” (PM
NOL, Ex. 1.) This language has no application here; undertaking to pay its own
employees does not indicate any limitation on a right to a defense.
Promote Mexico’s
duty to defend has been triggered. Plaintiff Magna Angel claims that she was
injured at the Race due, in part, to the actions of both Monster and Promote
Mexico. [SSUMF No. 5.] On August 29, 2022, Plaintiff filed a First Amended
Complaint in which she makes direct claims for negligence against Promote
Mexico for causing the Incident and her claimed injuries. [SSUMF No. 7.] On
January 15, 2019, Monster demanded that Promote Mexico indemnify, protect,
defend and hold Monster harmless from the Incident and Plaintiff’s anticipated lawsuit pursuant to the
terms of the Agreement. [SSUMF No. 6.] Therefore, Monster has taken the
necessary steps to trigger Promote Mexico’s duty to defend.
Monster’s
motion for summary adjudication on the duty to defend issue is granted. Promote Mexico is ordered to pay Monster’s
reasonable and necessary defense fees and costs retroactive to the date of tender. To that end, Promote Mexico shall pay to
Monster all fees and costs incurred by Monster from January 15, 2019 to the
present in defending (but not prosecuting) this matter. Such payment shall be made within 45 days of
Promote Mexico’s counsel being served with documentation of such fees and
costs. Thereafter, Promote Mexico shall
pay invoices for Monster’s defense in this action within 45 days of written
notice to Promote Mexico’s counsel in this matter.
Motion to Seal Filings
Both
parties request that the Sponsorship Agreement be protected from public
disclosure and filed under seal. Section 6.04 of the Sponsorship Agreement
between Promote Mexico and Monster states that the Sponsorship Agreement was
intended to remain confidential. The Sponsorship Agreement was attached as
Exhibit D to Monster’s
Declarations and Documentary Evidence in Support of its Motion for Summary
Adjudication and as Exhibit 1 to Promote Mexico’s opposition to Monster’s
motion for summary adjudication and lodged conditionally under seal.
The parties
argue that their interest in keeping the Agreement under seal constitutes an
overriding interest because it contains information Monster asserts is highly
confidential, proprietary and trade secret information related to Monster’s
sponsorship of events. (Sonnhalter
Decl. ¶ 3.); (Bassirian Decl.
¶ 3.) The parties assert
that such confidential language has independent economic value to the parties
as a result of it not being generally known to the public or to competitors, which
is why the Agreement was produced and designated by Monster as “CONFIDENTIAL”
pursuant to the Protective Order entered by the Court in this action on
February 5, 2021. The California Supreme Court has recognized that enforcement
of binding contractual obligations not to disclose may constitute an overriding
interest sufficient to justify sealing documents. (NBC Subsidiary, Inc.,
supra, 20 Cal.4th at p. 1222 n. 46 [citing Publicker Industries, Inc. v. Cohen (3d Cir. 1984) 733 F.2d
1059].) Thus, a court may permit sealing of documents that include a binding
contractual obligation not to disclose certain information when there is a
substantial probability that the party will be prejudiced absent closure or
sealing. Universal City Studios, Inc. v. Superior Court (2003) 110
Cal.App.4th 273, 1283.
The parties
assert that they will be prejudiced if the Court were to deny the request
because public disclosure would allow competitors to capitalize on the highly
confidential, bargained-for sponsorship information and details revealed during
negotiations. Moreover, the general public will not be significantly prejudiced
by not having access to an agreement pertaining to racing events in a foreign
country. The proposed sealing is narrowly tailored in that it only seeks to
seal one exhibit. Less restrictive means to achieve the overriding interest may
exist, such as redacting information in the Agreement that is confidential.
However, it is not clear that redacting parts of the Sponsorship Agreement will
effectively protect its confidential parts.
Given
that the parties demonstrate that they have an overriding interest in
protecting trade secret information and little to no prejudice will result to
the general public if the Court were to grant the motion, the Court grants the
parties’ request to seal
the Sponsorship Agreement.