Judge Elaine Lu, Case Number: 21STCV46495, Date: 2024-02-01 Tentative Ruling

On December 21, 2021, Plaintiff filed the instant sexual assault action against Defendants Sigma Alpha Mu Fraternity, Mu Theta Chapter at University of Southern California; Sigma Alpha Mu Fraternity, Inc.; SAM National Properties, LLC; SAM USC Housing LLC; SAM Property Management, LLC; JERO Enterprises, Inc., dba Brad Management[1]; and Peter Hwang.

On May 4, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants Sigma Alpha Mu Fraternity, Mu Theta Chapter at University of Southern California; Sigma Alpha Mu Fraternity, Inc.; SAM National Properties, LLC; SAM USC Housing LLC; SAM Property Management, LLC; Peter Hwang; and The Perfect Event, Inc. The SAC asserts ten causes of action for (1) Negligence, (2) Negligence – Premises Liability, (3) Negligence, (4) Negligent Security, (5) Negligent Hiring, Supervision, and Retention, (6) Negligent Hiring, Supervision, and Retention, (7) Assault, (8) Battery, (9) Intentional Infliction of Emotional Distress, and (10) Negligent Infliction of Emotional Distress.[2]

On March 24, 2023, Cross-Complainant The Perfect Event, Inc. (“TPE”) filed the cross-complaint at issue against Cross-Defendant Sigma Alpha Mu Fraternity, Mu Theta Chapter at University of Southern California. The cross-complaint at issue asserts six causes of action for (1) Equitable Indemnity, (2) Contribution, (3) Apportionment of Fault, (4) Contractual Indemnity, (5) Breach of Contract, and (6) Declaratory Relief. On August 1, 2023, Cross-Complainant The Perfect Event, Inc. named Sigma Alpha Mu Fraternity, Inc. (“SAM”) as Moe 1 of the cross-complaint.

On October 2, 2023, Cross-Defendant SAM filed the instant demurrer to the cross-complaint. On February 20, 2024, Cross-Defendant SAM filed a reply. Though the reply refers to an opposition, Cross-Complainant never filed such opposition with the Court.

“On or about January 21, 2020, THE PERFECT EVENT entered into a written agreement with SIGMA ALPHA MU, one of the Defendants herein in which THE PERFECT EVENT agreed to provide, inter alia, the following services to SIGMA ALPHA MU at MU THETA CHAPTER’S event scheduled for January 25 and 26, 2020 on the Subject Property described herein.” (SAC ¶ 6.)

On January 25, 2020 and January 26, 2020, Plaintiff went to visit a friend at the University of Southern California (“USC”). (SAC ¶ 23.) “Plaintiff and her friends pre-partied at student housing which included consuming alcohol” before heading to a party at Sigma Alpha Mu Fraternity, Mu Theta Chapter at University of Southern California’s (“Mu Theta Chapter”) house (the “Subject Property”). (SAC ¶ 23.) “Plaintiff was visibly intoxicated and having some difficulty walking correctly before she entered the MU THETA CHAPTER party on the Subject Property and expressed concern to the attendees before she entered the Subject Property about whether she was too intoxicated to attend.” (SAC ¶ 23.)

“Plaintiff then went to the MU THETA CHAPTER of SIGMA ALPHA MU on the Subject Property to attend a party. Plaintiff did not receive a bracelet or any mark which would indicate that she was underage from individuals at the door of the or at any time when she was on the Subject Property. The individuals who attended the party with her were also underage and did not receive any bracelet or any mark that would indicate that any of them were underage.” (SAC ¶ 24.) “At the time that she entered the party on the Subject Property, Plaintiff was under the age of twenty-one years and a virgin for religious reasons. Specifically, she had committed to waiting to have sex until she was married. Even though Plaintiff had previously had boyfriends for more than a year at a time, she did not have sex, since she was waiting until marriage.” (SAC ¶ 26.)

“At the MU THETA CHAPTER party on the Subject Property, Plaintiff’s underage friend was served alcohol by a bartender at the party either hired by the Defendants and each of them, or assigned by the Defendants and each of them, even though she already was visibly intoxicated at the time and did not have any identification to indicate that she was of legal age to consume alcohol.” (SAC ¶ 27.) “MU THETA CHAPTER members, as well as bartenders, security personnel and/or property managers and/or their agents on the Subject Property present saw Plaintiff and her friends being handed and drinking alcohol and some of their other activities at the party, even though they were underage.” (SAC ¶ 32.)

“There was a dance platform during the MU THETA CHAPTER party on the Subject Property with several tiers in a poorly lit room. The music was loud and it was difficult to hear or to ask for assistance of any kind. Plaintiff and her friends were dancing on the platform and her friends had expressed concern that Plaintiff would fall or would not be able to navigate or get down from the platform. There was no security or any individuals present near the platform to ensure the safety of Plaintiff, her friends, or other guests, attendees, or invitees. The lighting in the room with the platform was dim making the platform and the room difficult to navigate. There were bottles of soda and beer on the floor and strewn about the area as well as cups, plates of food, and other trash or debris, both on tables and on the floor. There was no clear supervisor, manager or individual overseeing the MU THETA CHAPTER party on the Subject Property. There was no security visible or actively present or monitoring the rooms or areas in the MU THETA CHAPTER residence on the Subject Property during the event. Some of the residents at the event were visibly or admittedly intoxicated, impaired from marijuana use or were either seen or admitted to using or being involved in illegal recreational drug use, including cocaine, on the Subject Property on the dates of January 25th and 26th, 2020.” (SAC ¶ 29.)

“MU THETA CHAPTER had minimal safeguards in place to ensure the safety of the guests and invitees at their event, including posting security at specific sites, having a system in place to verify the age of attendees and invitees, to ensure the safety of its invitees, guests, and attendees, and to ensure that underage minors were not served or consuming alcohol on the premises on the Subject Property during the course of the MU THETA CHAPTER party[.]” (SAC ¶ 33.)

“At all relevant times, Defendant HWANG was a member of the MU THETA CHAPTER of SIGMA ALPHA MU. Plaintiff never met Defendant HWANG before the party. Defendant HWANG was sober during this MU THETA CHAPTER party which took place on January 25th and 26th, 2020 on the Subject Property. At the time, HWANG was a resident on the Subject Property.” (SAC ¶ 35.)

“During the party, after Plaintiff was already too intoxicated to know where she was, let alone to give consent to any kind of sexual contact, Defendant HWANG forced Plaintiff into the gymnasium of the MU THETA CHAPTER on the Subject Property. There were representations made by SIGMA ALPHA MU and MU THETA CHAPTER members that security was assigned to guard the door of the gymnasium during the MU THETA CHAPTER party on the Subject Property on the dates alleged within this Second Amended Complaint. There was no security at the gymnasium to prevent fraternity members, guests, residents, attendees, or invitees from entering or to check on whether any individuals had entered the gymnasium. If security had been properly placed or in attendance on the Subject Property as represented as a safety measure, this sexual assault and subsequent activity and damages may not have taken place. Defendant HWANG then incapacitated the Plaintiff and placed Plaintiff in a ‘Saturday Night’ hold, a wrestling or martial arts move designed to subdue an opponent, or similar type hold to disable her so she could not fend him off or get away from him. Defendant HWANG looped his arms underneath Plaintiff’s shoulders and his hands were on Plaintiff’s shoulders pulling her towards the ground. Defendant HWANG pushed Plaintiff’s face into a mat on the floor so she could not move.” (SAC ¶ 36.)

“Defendant HWANG then raped Plaintiff.” (SAC ¶ 37.) Defendant Hwang was sober and Plaintiff was severely intoxicated and could not consent to sexual activities. (SAC ¶¶ 38-39.) Further, “[Plaintiff] did not consent to any sexual activities with Defendant HWANG, did not know him and did not know his name. After assaulting the Plaintiff, HWANG then left the gymnasium and left Plaintiff undressed and partly conscious on the gymnasium floor in the gymnasium.” (SAC ¶ 39.) As a result of the rape, Plaintiff sustained numerous physical injuries including “a. a swollen, black eye; b. hand and fingerprint marks, as well as bruising and scratches on her shoulders and arms; c. abrasions and scratch marks on her arms; d. vaginal tearing and bleeding so severe that Plaintiff almost had to be hospitalized; e. severe bruising and soreness; and f. a urinary tract infection.” (SAC ¶ 40.)

“Despite the fact that Plaintiff was underage and visibly intoxicated when she arrived at the party, that she drank additional alcohol and then became even more intoxicated, none of the MU THETA CHAPTER members or any bartenders, security personnel or property managers present, if any, intervened to make sure that she was all right, whether she needed assistance or medical care, or took measures to prevent Defendant HWANG from sexually assaulting Plaintiff or to ensure similar type safety measures for its guests, invitees, attendees and other individuals present on the Subject Property on the dates alleged herein MU THETA CHAPTER and SIGMA ALPHA MU had no reasonable system or mechanism of supervision or security on the Subject Property to prevent a fraternity member from bringing an obviously drunk girl to the gymnasium and raping them. There were no safety measures put into place to ensure that physical battery, such as subduing an individual, did not happen which is a common sense safety precaution at an event with a large group of people in which alcohol is served.” (SAC ¶ 45.)

TPE is “a corporation analogized [sic] to do business” and does do business in California. (X-Complaint ¶¶ 1-2.)

“[T]the true names and capacities, whether individual, corporate, associate or otherwise, of Cross-Defendants ROES 1 through 20, inclusive, are unknown to THE PERFECT EVENT INC. who therefore sues said Cross-Defendants by such fictitious names and will ask leave of court to show their true names and capacities when the same have been ascertained. THE PERFECT EVENT INC. is informed and believes and thereupon alleges that each of said Cross-Defendants is, negligently or in some other actionable manner, legally responsible for proximately causing the events, happenings and occurrences referred to herein.” (Id. ¶ 3.) “[TPE] is informed and believes, and based upon such infer-nation [sic] and belief alleges, that each cross-defendant designated as a Roe herein is responsible in some manner for the acts, occurrences, and liabilities hereinafter alleged and referred to.” (Id. ¶ 5.) “At all times herein mentioned, each cross-defendant was the agent, servant, and employee of each and every other remaining cross-defendant. The acts of each cross-defendant were within the course and scope of said agency and employment.” (Id. ¶ 6.)

On December 21, 2021, Plaintiff filed the instant underlying complaint against Sigma Alpha Mu Fraternity, Mu Theta Chapter at University of Southern California (“Mu Theta”) regarding a sexual assault that occurred on January 25, 2020 that took place at the fraternity house and at a party hosted by Mu Theta. (Id. ¶ 7.) On January 26, 2024, Mu Theta filed a cross-complaint for indemnification against TPE. (Id. ¶ 8.)

“To the extent Plaintiff has incurred and/or sustained damages as an alleged result of the incident described in Plaintiff’s Complaint, those alleged damages are the fault and/or responsibility of Cross-Defendants, and each of them.” (Id. ¶ 9.) “[TPE] is informed and believes, and based thereon alleges, that Plaintiff’s alleged damages, as pled in the Complaint in the Underlying Action, were alleged to have been incurred by Plaintiff as the result of, and are/were connected to, the actions of [Mu Theta] at the event thrown by [Mu Theta] as alleged in the Underlying Action.” (Id. ¶ 11.) “[TPE] is informed and believes, and therefore alleges, that the damage or loss, incurred by Plaintiff JANE DOE, if any, was a direct and proximate result of the conduct of Cross-Defendant and ROES 1 through 50, and each of them, including negligence, willful misconduct, carelessness, failure to act, unlawful conduct and/or a breach of implied and/or expressed contractual terms.” (Id. ¶ 12.)

TPE and Mu Theta entered into a contract that contained an express indemnity clause wherein Mu Theta agreed to defend, indemnify and hold harmless TPE. (Id. ¶ 22, Exh. A.) Further, Mu Theta breached the contract by failing to indemnify TPE. (Id. ¶ 33.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts “give the complaint a reasonable interpretation, and read it in context.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) “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 Ct. (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, supra, 147 Cal.App.4th at p.747.)

Code of Civil Procedure § 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension. (CCP § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id.¿at (a).)

Here, Cross-Defendant SAM has fulfilled the meet and confer requirements. (Ball Decl. ¶¶ 7-10, Exhs. 5-6.)

Cross-Defendant SAM contends that the entire cross-complaint against it is uncertain. The Court agrees.

A special demurrer for uncertainty, Code of Civil Procedure §430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Further, a pleading is subject to a demurrer for uncertainty, when it is unintelligible by “attempt[ing] to state numerous causes of action in a very loose and rambling manner without any attempt at separately stating them.” (Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73.) However, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Khoury, supra, 14 Cal.App.4th at p.616.)

Here, as noted in the procedural history above, SAM was named through a fictitious name amendment as “MOE 1” in TPE’s cross-complaint. (See e.g., Ball Decl. ¶ 7, Exh. 4.) However, there is no “MOE 1” in TPE’s cross-complaint. The only fictious name utilized in TPE’s cross-complaint are ROES 1-50. As there is no MOE 1 in TPE’s cross-complaint, there is no allegation made against SAM. In the absence of any allegation made against SAM, SAM cannot reasonably respond to the allegations of TPE’s cross-complaint because there is nothing to admit nor deny.

Even presuming that SAM was intended to be named as “ROE 1” instead of “MOE 1,” the allegations in TPE’s cross-complaint are still insufficient. The ROE cross-defendants are named as defendants to the first, second, third, fifth, and sixth causes of action.

The first, second, third, and sixth causes of action seek equitable indemnity, apportionment, and contribution if TPE is found liable for the claims Plaintiff has brought against TPE in the SAC. (X-Complaint ¶¶ 14-21, 37-39.) However, the only allegation against ROES 1-50 is “that the damage or loss, incurred by Plaintiff JANE DOE, if any, was a direct and proximate result of the conduct of Cross-Defendant and ROES 1 through 50, and each of them, including negligence, willful misconduct, carelessness, failure to act, unlawful conduct and/or a breach of implied and/or expressed contractual terms.” (Id. ¶ 12.) Notably, there is no allegation of what ROES 1-50 did. TPE’s cross-complaint alleges a basis for liability only as to Mu Theta. (X-Complaint ¶ 11, [“Plaintiff’s alleged damages, as pled in the Complaint in the Underlying Action, were alleged to have been incurred by Plaintiff as the result of, and are/were connected to, the actions of [Mu Theta] at the event thrown by [Mu Theta] as alleged in the Underlying Action.”].) Accordingly, TPE’s cross-complaint fails to set forth any facts as to why any ROE defendant would be liable for equitable indemnity, apportionment, or contribution as sought in the first, second, third, and sixth causes of action.

As to the fifth cause of action for breach of contract, Cross-Complainant TPE fails to include any allegation as to any ROE cross-defendant. TPE’s cross-complaint alleges merely that TPE and Mu Theta entered into a contract, (X-Complaint ¶ 30, Exh. A), TPE performed under the contract, (Id. ¶ 31), Mu Theta’s performance was due under the contract, (Id ¶ 32), and Mu Theta breached the contract by not indemnifying TPE under the express indemnity clause, (Id. ¶ 33). There is no allegation that any ROE defendant breached the contract or is even a party to the contract. The sole mention of the ROE defendants is in the caption for the fifth cause of action. Absent any allegation of the elements for a breach of contract claim against the ROE defendants, the cross-complaint is uncertain as to the basis of the claims against the ROE defendants.

Accordingly, even presuming SAM was intended as a ROE defendant – despite being named as “MOE 1” – the cross-complaint is uncertain as it fails to set forth any facts against the fictitiously named cross-defendants. Therefore, Cross-Defendant SAM’s demurrer for uncertainty is SUSTAINED. TPE’s cross-complaint does not allege any facts against SAM. Thus, the Court declines to address SAM’s additional arguments.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Goodman v. Kennedy, supra, 18 Cal.3d at p.348; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.)

As this is the first time that a complaint has been sustained against TPE’s cross-complaint, the Court finds it is proper to allow TPE an opportunity to cure the defects discussed in this order. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037.)

Cross-Complainant The Perfect Event Inc.’s is to file an amended cross-complaint no later than March 8, 2024. The case management conference is continued to March 19, 2024 at 8:30 am.

[1] On May 18, 2022, Plaintiff dismissed JERO Enterprises, Inc., dba Brad Management from the instant action without prejudice.

[2] The Court notes that the caption for the SAC is incorrect in the order of the claims alleged. Accordingly, the Court refers to the claims in the order that they appear in the body of the SAC.

Superior Court of California

County of Los Angeles

Department 26