Judge Deirdre Hill, Case 20STCV05481 2022-10-28 Tentative Ruling

ALERT

Due to Coronavirus, please consider appearing by phone for Department M cases.

Department M strongly encourages the use of LA CourtConnect* for ALL hearings, without need for prior approval, unless live testimony by a witness is required.

The contact information for LA CourtConnect* is:

https://lacourt.portalscloud.com/VCourt/

*Parties with a fee waiver on file may be eligible to appear at no/reduced cost

Moving Parties: Defendants Eye Productions Inc. and CBS Studios, A division of CBS Studios Inc.

The demurrer to the SAC is OVERRULED. The motion to strike is DENIED. Defendants are ordered to file an answer within fifteen days.

On February 10, 2020, plaintiff Nicole Barnes filed a complaint against Warner Brothers Entertainment, Inc. and Eye Productions, Inc. for (1) battery, (2) negligence, and (3) premises liability. Plaintiff alleges that this is an action for personal injuries arising out of an incident on April 1, 2019. She alleges that she is an actress and was in full costume on the set of the television show, Jane the Virgin. Plaintiff, as part of the scene, was in heels, in a constricted costume, with her shoe or foot in a narrow space that was part of the set. Without warning or consent, defendant Doe 1, an employee and/or agent of defendants, grabbed plaintiff on the shoulder from behind and pulled her back. The force of this act caused plaintiff to fall and break her left foot. Plaintiff further alleges that the foot injury is severe, and plaintiff remains disabled from it.

On July 31, 2020, plaintiff filed an amendment designating CBS Television Studios, Inc. as Doe 2.

On August 10, 2020, plaintiff filed an amendment designating The CW Network, LLC as Doe 3.

On September 16, 2020, the court granted defendant Eye Productions’ motion to strike punitive damages.

On April 6, 2022, the court granted plaintiff’s motion for leave to amend. Plaintiff filed a FAC for (1) battery, (2) negligence, and (3) premises liability.

On June 30, 2022, the court sustained defendants’ demurrer to the FAC with leave to amend. The motion to strike was granted without leave to amend as to para. 31 and prayer for punitive damages.

On July 15, 2022, the court granted defendant Eye Productions Inc.’s motion to compel further responses to defendant’s Request for Production of Documents, Set Two, Nos. 20-26.

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP § 437.

Defendants Eye Productions Inc. and CBS Studios demur to the SAC on the grounds that it fails to state sufficient facts to constitute a claim for alter ego liability or a claim for joint venture liability.

On June 30, 2022, the court sustained defendants’ demurrer with leave to amend as to alter ego and joint venture.

Under “Parties” in the SAC, plaintiff alleges that defendants Does 1 through 20 were the agents, employees, supervisors, servants, and joint venturers of defendants and each other, and in doing the things hereafter alleged, were acting within the course, scope, and authority of such agency, employment, and joint venture and with the consent and permission of each of the other defendants and Does 1 through 20. All actions of each defendant alleged in the cause of action into which this paragraph is incorporated by reference were ratified and approved by the officers or managing agents of every other defendant and Does 1 through 20. SAC, ¶9.

The SAC further alleges that the set where plaintiff fell was owned and/or controlled by defendants Eye Productions, CBS, and/or Does 3 through 10. Id., ¶15. It was defendants Eye Productions and CBS’ policy not to physically touch extras on set without their permission. Id., ¶16. Immediately after the incident, plaintiff was rushed off set by defendant and was forced to wait in a hallway in the back of the set. She was denied re-entry to retrieve her clothes and personal belongings. One of the managers for Eye Productions and/or CBS attempted to deny her medical treatment, and told the medic that they were not responsible for plaintiff’s health. Id., ¶17. Defendants Eye Productions, CBS, and/or Does 3 through 20 are directly and vicariously liable for plaintiff’s injury. Id., ¶18. Defendants made no effort to investigate the incident, or identify or discipline the perpetrator, and fully ratified the assault against plaintiff. For instance, Katie Wincor, defendants’ second Assistant Director, who was in charge of looking into the incident, did not make any attempt to determine the perpetrator’s identity on the day of the incident, or take any remedial action. Although the incident occurred while multiple cameras were rolling, Wincor did not check if the accident involving plaintiff was filmed. No one spoke to the medic regarding his knowledge of what occurred. No one was ever punished or disciplined in connection with plaintiff’s incident. Id., ¶20. Kevin Berg, the senior executive vice-president of productions at CBS was told immediately after the incident of the assault but did not ask to identify the perpetrator, do any investigation, or discipline anyone on set. Id., ¶21.

The SAC further alleges that CBS was an alter ego and/or joint venturer with defendant Eye Productions in connection with production of Jane the Virgin, for the purposes of liability for plaintiff’s injury. Id., ¶22. Defendants CBS and Eye Productions jointly controlled Jane the Virgin production and shared a unity of interest for alter ego purposes, including in relation to the following: a. Eye Productions does not have any of its own regular employees. Eye Productions’ operations are conducted through employees of CBS who also act on behalf of Eye Productions as dual employees. b. All executives of Eye Productions are employees or executives of CBS. c. Eye Productions is a wholly owned subsidiary of CBS. d. Eye Productions and CBS at all relevant times shared the same business address, located in Studio City. e. CBS leased, possessed, and retained the property interest in the premises used for production of Jane the Virgin. f. Defendants disregarded corporate formalities and legal requirements, including purporting to verbally assign the lease for the premises used for production of Jane the Virgin from CBS to Eye Productions in violation of the statute of frauds. g. Kevin Berg is a senior executive vice-president of production at CBS and acted in a dual role as an executive for Eye Productions in connection with the production of Jane the Virgin. h. Hieu Huynh is a CBS employee and was covering executive and managed product integration for Jane the Virgin at the time of the incident. i. CBS executive Lee Hollis was VP of Current Programs for CBS and was initially responsible as the covering executive for Jane the Virgin for the first seasons of its production. j. The scripts for Jane the Virgin was pitched to CBS’ covering executives; CBS’ covering executives approve the scripts and have the opportunity to make revisions or reject scripts, including as to costume, set design, and any other aspects. k. CBS’ covering executives hired writers, directors, and producers for Jane the Virgin production. l. Several of CBS’ departments were responsible for and worked on Jane the Virgin, including business affairs, labor, human resources, production, and casting. m. Ken Knowling was a CBS employee and worked as VP of production in charge of Jane the Virgin production. n. CBS contracted for payroll services and workers compensation for the talent and crew of its productions. Id., ¶23.

The SAC further alleges that there would be an inequitable result unless the alter ego relationships between defendants is recognized because a. Eye Productions only has $5 million in liability insurance, and plaintiff’s damages exceed that amount, and plaintiff would have difficulty fully recovering for her damages without recognizing the alter ego relationship. b. CBS was responsible for the wrongful conduct, including ratifying the assault on plaintiff, and without recognizing the alter ego relationship, the culpable party will not be held to account. Id., ¶24. Eye Productions is a wholly owned subsidiary of CBS. Eye Productions has no employees and only acts through employees of CBS. CBS and Eye Productions shared the same address. CBS leased the set of Jane the Virgin from a third party for Eye Productions to utilize the filming the television show. CBS was the possessor of the premises at the time of the incident at issue. Id., ¶25. Defendants jointly control the production of Jane the Virgin. Defendants have an ownership interest in the joint venture to produce, and have the profits for Jane the Virgin series. Id., ¶26.

The purpose of alter ego liability is to disregard the fictional facade of the corporation and hold those individuals doing business under the corporate name liable for the corporation debts in order to prevent an injustice. See, e.g., Sonora Diamond Corp. v. Superior Court (2000) 83 Cal. App. 4th 523, 538. The doctrine of alter ego comes into play when a plaintiff claims a defendant “is using the corporate form unjustly and in derogation of the plaintiff’s interests.” Mesler v. Bragg Management Co. (1985) 39 Cal. 3d 290, 300. The alter ego doctrine “is an extreme remedy, sparingly used.” Sonora Diamond, 83 Cal. App. 4th at 538-539. The plaintiff has the burden of overcoming the presumption the corporate entity has a separate existence. Mid-Century Ins. Co. v. Gardner, 9 Cal. App. 4th 1205, 1212. “In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” Sonora Diamond, 83 Cal. App. 4th at 538.

Among the factors relevant to determining an alter ego relationship are “the commingling of funds and other assets, the failure to separate the assets of separate entities, the treatment of the corporation’s assets as those of an individual or other corporation, holding out that the individual or other corporation is personally liable for the first corporation’s debts, the failure to maintain separate records or the commingling of the records of the entities, identical equitable ownership in the two entities, the equitable owners’ domination and control of the entities, the use of the same business location, an identity of employees or attorneys in separate entities, the use of the corporation as a mere shell or instrumentality for the conduct of the affairs of another entity, the failure to maintain arm’s length transactions between entities and the diversion of assets.” United Community Church v. Garcin (1991) 231 Cal. App. 3d 327, 343.

Plaintiff has pled sufficiently as to vicariously liability and direct liability against Eye Productions.

The court finds that the allegations are also sufficient to support alter ego. Plaintiff has alleged facts to support such a unity of interest and ownership between Eye Productions and CBS that the “separate personalities of the corporation and the shareholder do not in reality exist” and an inequitable result if the acts in question are treated as those of Eye Productions alone. See SAC, ¶¶23-26.

“There are three basic elements of a joint venture: the member must have joint control over the venture (even through they may delegate it), they must share the profits of the undertaking, and the members much each have an ownership interest in the enterprise.” Orosco v. Sun Diamond Corp. (1997) 51 Cal. App. 4^th 1659, 1666.

Defendants contend that while plaintiff alleges joint control, plaintiff does not allege any factual support for ownership interest in the enterprise or sharing of profits.

The court finds that the allegations are sufficient as to joint venture. See SAC, ¶26.

Defendants request that the court strike all references, wherever they appear, which attempt to allege, or establish a foundation for alleging, alter ego and/or joint venture liability, including paragraphs 22, 23, 24, 25, and 26.

Defendants note in the motion that they have also filed a demurrer challenging plaintiff’s claims for alter ego and joint venture liability but “[i]n an abundance of caution, however, to the extent that a motion to strike is more appropriate, Defendants also move to strike these allegations.” Defendants make the same arguments as in their demurrer.