Superior Court of California 

County of Los Angeles – West District 

Beverly Hills Courthouse / Department 205 

 

 

 

BACKGROUND 

This case arises from a dispute between a homeowner and a water damage restoration company.  Plaintiff Victor Alexandroff’s home sustained water damage.  (First Amended Complaint (“FAC”) ¶17.)  He hired Defendant D&A Endeavors Inc. dba ServPro of Beverly Hills/Westwood to perform cleaning and restoration services and to prepare estimates that Plaintiff could then use to file a claim with his insurer.  (FAC ¶¶19-21.)   

Plaintiff alleges that Defendant’s estimates were so “poorly contrived” and full of errors, he fired Defendant.  (FAC ¶26.)  He also claims that Defendant’s brief remediation work caused silica dust to be disbursed throughout Plaintiff’s home and onto Plaintiff’s personal property.  (FAC ¶27.)  After the termination, Defendant invoiced Plaintiff $72,607.78 for the restoration work it performed.  (FAC ¶30.)  Defendant also claimed it was entitled to a percentage of any insurance payout Plaintiff received.  (FAC ¶¶30, 34.)   

The Complaint alleges claims for violation of the unfair competition law, breach of the implied covenant of good faith and fair dealing, and negligence.  Defendant has countersued,  seeking to recover amounts it claims to be owed by Plaintiff. 

Around the same time this litigation was initiated, Plaintiff’s insurer, Crestbrook Insurance Company (“Crestbrook”) filed a form complaint (the “Crestbrook complaint”) alleging a single claim for negligence against Servpro of Sunland Tujunga (“ServPro S/T”) and ServPro Industries, LLC (“ServePro Industries”).  (Ex. A to Ruttenberg Decl.)  Crestbrook alleges that ServPro S/T and ServPro Industries so negligently performed their services that they caused concrete/silica dust to cover all surfaces in Plaintiff’s home.  (Id. at 4.)  Crestbrook alleges ServePro S/T and ServPro Industries caused the damage on September 21, 2019, nearly a full two months before Defendant ever contracted with Plaintiff to clean and restore his home.  (Id.; FAC ¶19.)  Crestbrook further alleges it has paid a sum in excess of $2,000,000 and is subrogated to the rights and entitled to enforce the remedies of Plaintiff.  (Ex. A to Ruttenberg Decl. at 5.)   

ServPro S/T and ServPro Industries filed a motion for summary judgment based almost entirely on the one year statute of limitations in its form contract with Plaintiff.  (Plaintiff’s Request for Judicial Notice (“RJN”), Exs. B, C.)  One day before the hearing on the motion, the case settled.  The Crestbrook complaint was dismissed with prejudice.  (RFJN, Ex. D.) 

This hearing is on Defendant’s motion for joinder of parties pursuant to Code Civ. Proc. §389.  Defendant seeks to join Crestbrook, ServPro S/T and ServPro Industries as necessary parties to Plaintiff’s third cause of action for negligence.  Defendant argues that Crestbook is a necessary party because it is a partial subrogee, and ServPro S/T and ServPro Industries are also necessary parties because they are active participants in the alleged harm to Plaintiff.     

 

LEGAL STANDARD 

Joinder of parties is governed by¿Code Civ. Proc. § 389.  Section 389¿provides: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties¿or¿(2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest¿or¿(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.  If he has not been so joined, the court shall order that he be made a party. . . ." (Italics added.)  A person joined as a party pursuant to this provision is deemed a "necessary" party. (People¿ex rel.¿Lungren v. Community Redevelopment Agency¿(1997) 56 Cal. App. 4th 868, 876-879.)¿  

REQUEST FOR JUDICIAL NOTICE 

Plaintiff requests judicial notice of (1) the electronic case docket for the action captioned Crestbrook Insurance Co. v. ServPro of Sunland Tujunga, Case No. 21STCV19973 (the “Crestbrook Lawsuit”); (2) the notice of motion and motion for summary judgment filed by ServPro S/T and ServPro Industries in the Crestbrook Lawsuit, (3) the memorandum of points and authorities in support of ServPro S/T and ServPro Industries’ motion for summary judgment filed in the Crestbrook Lawsuit, and (4) the request for dismissal filed by Crestbrook Insurance in the Crestbrook Lawsuit.  The Court grants the request for judicial notice pursuant to Evid. Code §§ 425(c) and 453.  Judicial notice is limited to the existence of, filing of and legal effect of the pleadings but not as to the truth of any factual matter therein. 

DISCUSSION 

Crestbrook 

Defendant argues that Crestbrook is a necessary party and must be joined.  In opposition, Plaintiff argues that any claims by Crestbrook against Defendant would be time-barred and therefore, there is no risk of multiple or inconsistent obligations.  The Court agrees with Plaintiff.   

Subdivision (a)(2) of section 389 sets forth two prongs under which a party may be deemed necessary—(a)(2)(i) and (a)(2)(ii).  Defendant contends Crestbrook is a necessary party under 389(a)(2)(i) because it claims an interest as a partial subrogee and its absence puts Defendant at risk of double or inconsistent obligations.   

Caselaw holds that partial subrogees are necessary parties to actions brought by partial subrogors against the entity alleged to be liable for the loss at issue.  (See Bank of the Orient v. Superior Court (1977) 67 Cal.App.3d 588, 595.)  If the rule were otherwise, a single cause of action could be impermissibly split and made the basis for several suits.  (Id.)  Allowing the partial subrogor to proceed without joining the partial subrogee to the action prejudices a defendant by “exposing [it] to the harassment and expense of having to defend multiple lawsuits on the same [alleged loss].”  (California Practice Guide: Civil Procedure Before Trial, ¶¶2:171-172 (The Rutter Group).)    

Here, however, Crestbrook cannot claim an interest in this action because any claim it may have against Defendant is long since time-barred by the statute of limitations set forth in the parties’ contract.  (Ex. 1 to Cross-Complaint.)  The parties’ contract provides that: “NO ACTION, REGARDLESS OF FORM, RELATING TO THE SUBJECT MATTER OF THIS CONTRACT MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE CLAIMING PARTY KNEW OR SHOULD HAVE KNOWN OF THE CAUSE OF ACTION.”  (Id.)  A contractual provision shortening the statute of limitations is enforceable.  (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 76.)  Because Crestbrook cannot assert a claim against Defendant, there is no risk of double, multiple or otherwise inconsistent obligations.   

Defendant argues that Crestbrook is not a party to the contract between Plaintiff and Defendant, so any limitations period in the contract would not bar Crestbrook from suing.  But in suing Defendant, Crestbrook would have to stand in the shoes of Plaintiff, and accordingly, it would be subject to the limitations period set forth in the parties’ contract.  (Smith v. Parks Manor (1987) 197 Cal. App. 3d 872, 878 (the insurer as¿subrogee stands in the same shoes as the insured).) 

Accordingly, Crestbrook is not a necessary party and need not be joined.   

ServPro S/T and ServPro Industries 

Defendant argues that ServPro S/T and ServPro Industries are necessary parties because they were active participants in the alleged wrongdoing.  Plaintiff asserts that Defendant’s argument rests solely on an unverified complaint which the Court cannot consider, and in any event, the statute of limitations bars it from asserting a claim against ServPro S/T and ServPro Industries.  The Court agrees with Plaintiff.   

ServPro S/T and ServPro Industries are joint tortfeasors.  While joint tortfeasors are usually not held to be necessary parties, they “will be considered a necessary party when the absent party emerges as an active participant in the allegations made in the complaint that are critical to the disposition of the important issues of in the litigation.”  (Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of Am. (2015) 234 Cal.App.4th 1168, 1175.) 

Here, the sole basis for Defendant’s claim that ServPro S/T and ServPro Industries are active participants is an unverified complaint by Crestbrook.  Defendant has not cited any authority that the Court may consider such evidence in ruling on a motion for joinder.     

Defendant’s citation to Dreamweaver Andalusians LLC v. Prudential Ins. Co. of Am. (2015) 234 Cal.App.4th 1168, 1175 is unavailing.  There, the trial court’s findings were based on a declaration from an employee of the necessary party establishing that her employer was an active participant in the alleged wrongdoing set forth in the complaint.  (Id. at 1175.)  Here, by contrast, Defendant has not offered any declaration or other admissible evidence to establish that ServPro S/T and ServPro Industries are active participants.   

Additionally, the joinder of ServPro S/T and ServPro Industries would only waste judicial resources as any such claim would ultimately be dismissed given the one-year statute of limitations in the parties’ form contract.   

Joining Crestbrook as plaintiff on the negligence claim while adding ServPro S/T and ServPro Industries also raises res judicata concerns.  Crestbrook already sued ServPro S/T and ServPro Industries for negligence, and those claims were dismissed with prejudice.  (RJN, Ex. D.)  Because of the dismissal with prejudice, res judicata bars Crestbrook from again suing ServPro S/T and ServPro Industries.  (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 821.) 

In sum, Defendant has not shown ServPro S/T and ServPro Industries are active participants, and in any event, any claim against them would be time-barred.  This result does not mean Defendant is left without any remedy.  Defendant may always cross-claim against ServPro S/T and ServPro Industries for indemnity.           

 

CONCLUSION 

Based on the foregoing, the Court DENIES Defendant’s motion for joinder.   

 

IT IS SO ORDERED. 

 

DATED: September 20, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court