Judge: John J. Kralik, Case: 21STCV05117, Date: 2023-04-21 Tentative Ruling
Case Number: 21STCV05117 Hearing Date: April 21, 2023 Dept: NCB
North Central District
|
marco morante, Plaintiff, v. theoldschool, llc, et al., Defendants. |
Case
No.: 21STCV05117 Hearing Date: April 21, 2023 [TENTATIVE]
order RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
of the Complaint
Plaintiff Marco Morante (“Plaintiff”) alleges
that on January 2019, he entered into a contract (the Participation Agreement)
with Defendants theoldschool, LLC (“theoldschool”) and Netflix, Inc. (“Netflix”)
for Plaintiff’s participation in a television show produced and distributed by
Defendants. Plaintiff alleges that
pursuant to the terms of the agreement, Defendants would administer a clothing
design competition called “Next in Show,” wherein Plaintiff and other
participants would create clothing designs at a television production set
maintained and operated by Defendants. Plaintiff
alleges that in April 2019, production for the television show began. He alleges that on April 22, 2019, he
suffered personal injuries on the premises of the production set when a loose
metal bar, which secured fabric to a materials rack, fell from the set and
struck his face. He alleges that the
accident occurred as a result of the negligent care and operation of the
production set by Defendants. He alleges
that the medical care received did not meet his medical needs. Plaintiff also alleges that Defendants
curtailed his ability to participate in the competition and deprived him of the
benefits of the Participation Agreement.
The complaint, filed February 9, 2022,
alleges causes of action for: (1) negligence; (2) gross negligence; (3) res
ipsa loquitor negligence; (4) breach of contract; and (5) unjust enrichment.
B. Motions on Calendar
On January 12, 2023, Defendants
filed a demurrer and a motion to strike portions of the complaint.
The Court is not in receipt
of an opposition brief.
On February 6, 2023,
Defendants filed a reply brief to the motion to strike, stating that they are
not in receipt of opposition briefs to either the demurrer or the motion to
strike.
DISCUSSION RE DEMURRER
Defendants demur to the 1st
to 5th causes of action alleged in the complaint.
A. Negligence (1st cause of action)
The elements of a negligence cause
of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen
v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) “All contracts which have
for their object, directly or indirectly, to exempt anyone from responsibility
for his own fraud, or willful injury to the person or property of another, or
violation of law, whether willful or negligent, are against the policy of the law.”
(Civ. Code, § 1668.)
In the 1st cause of
action, Plaintiff alleges that he suffered personal injuries as a result of a
metal bar falling on his face on the production set of the show which
Defendants dangerously and negligently operated and maintained on April 22,
2019. (Compl., ¶18.) Plaintiff alleges that on the same day just
prior to the incident, he gave Defendants actual notice of the dangerous
condition which led to and caused the incident by verbally notifying set
personnel for Defendants that the loose metal bar would likely fall from the
materials rack without being further secured.
(Id., ¶19.) Plaintiff
alleges Defendants failed to maintain the production set in a reasonably safe
condition and failed to take reasonable measures to ameliorate the dangerous
condition of which Defendants had actual notice. (Id., ¶¶20-21.) Plaintiff alleges he suffered permanent
personal injuries, loss of earnings due to incapacitation, and medical
expenses. (Id., ¶22.)
Defendants demur to the 1st
cause of action, arguing that the contract exempts Defendants from
negligence. They argue that the Application
and Voluntary Participation Agreement is a contract that does not affect the
public interest and therefore the exculpatory clause is enforceable.
The Participation
Agreement states that Plaintiff is entering into the agreement voluntarily. (Compl., Ex. A [Participation Agreement,
¶1].) In the Release, Waiver, and
Indemnity portion of the agreement, the “Released Parties” are defined as
theoldschool (producer), Sullivan Compliance Company (producer), and Netflix,
and any other licensees or assignees of the series or the material, the other
contestants, all other persons and entities connected with the series,
etc. (Participation Agreement,
¶39.) The release terms states:
To
the maximum extent permitted by law, on behalf of myself and my heirs …
(collectively, the “releasing parties”), I irrevocably and unconditionally
release and forever discharge from any and all, and agree not to sue or institute any other legal proceeding against
each of the Released Parties based on, any claims, actions, complaints,
damages, demands, allegations, suits, liabilities, losses, liens, costs,
expenses and injuries of any kind whatsoever (including, without limitation,
attorneys’ fees and costs and expert witness fees) (collectively, “Claims”)
directly or indirectly caused by, arising out of, resulting from, relating to,
or by reason of my participation in or in connection with the Series
(including, without limitation, the contestant selection process, any travel I
undertake in connection with my participation in or in connection with the
Series, any exploitation of the Series, my appearance on the Series, the
failure of Procedure to Select me as a contestant in the Series, the
cancellation of the Series, the exercise by Producer, Netflix or anyone else of
any rights granted by me under this Agreement, or any taxes or other
obligations I may incur as a Result of my participation in the Series), on any
legal or equitable theory whatsoever (including, without limitation, negligence,
rights of privacy and publicity, defamation, false light, infliction of emotion
distress, breach of contract and copyright infringement) collectively,
the “Released Claims”). The Released Claims specifically include without
limitation, any and all complaints to and proceedings before the FCC, NLRB,
EEOC and any claims resulting from the action of another contestant or any other
third party at any time, or from any participation or appearance in the Series,
or activities associated with the Series, whether occurring out of the
negligence, gross negligence or intentional misconduct of any of the Release
Parties.
(Participation Agreement, ¶40.) In the “Miscellaneous Provisions,” the parties
agreed that damages recoverable by any party for breach shall be limited to
actual damages and in no event shall any party be entitled to recover punitive
or exemplary damages. (Id.,
¶46.)
In the section entitled “Consents, Authorization and
Assumption of Risks,” Plaintiff agreed as follows in paragraph 27:
I
understand that participation in the Series may involve my performance of and
participation in activities that are or may become hazardous, dangerous, unusual,
exhausting, embarrassing, and emotionally and/or otherwise challenging and/or
difficult (including, without limitation, use of and proximity to scissors,
cutting shears and needles) and that may expose me to risks of physical,
emotional, and mental stress or injury whether or not I participate in the
activities or no amount of planning and preparation can eliminate the risks
inherent or otherwise in these activities. I voluntarily agree to participate
in the Series with full knowledge of the foregoing and freely and voluntarily
assume all risk associated therewith.
(Participation Agreement, ¶27.) In paragraph 31, Plaintiff authorized the
producer to arrange for and provide medical assistance. (Id., ¶31.) In paragraph 32, Plaintiff agreed that any
medical procedure offered to him in connection with his participation in the
series may involve risks of complications, infection, disfigurement, injury, or
even death and that he assumed all risks with respect thereto. (Id., ¶32.)
By alleging the terms of the contract, Plaintiff has not
alleged facts showing that it implicates a matter of public interest. Rather, the contract appears to be a
voluntary agreement made between private individuals, Defendants and Plaintiff. (Benedek v. PLC Santa Monica, LLC (2002)
104 Cal.App.4th 1351, 1359 [“The general
principle remains unaltered that ‘there is no public policy which “ ‘opposes
private, voluntary transactions in which one party, for a consideration, agrees
to shoulder a risk which the law would otherwise have placed upon the other
party....’ ”].) The Supreme Court of
California in Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92
listed examples of cases that affected the public interest.
In placing particular contracts within or without the category of those
affected with a public interest, the courts have revealed a rough outline of
that type of transaction in which exculpatory provisions will be held invalid.
Thus the attempted but invalid exemption involves a transaction which exhibits
some or all of the following characteristics. It concerns a business of a type
generally thought suitable for public regulation.[] The party seeking
exculpation is engaged in performing a service of great importance to the
public,[] which is often a matter of practical necessity for some members
of the public.[] The party holds himself out as willing to perform this
service for any member of the public who seeks it, or at least for any member
coming within certain established standards. [] As a result of the
essential nature of the service, in the economic setting of the
transaction, the party invoking exculpation possesses a decisive advantage of
bargaining strength against any member of the public who seeks his services.[] In
exercising a superior bargaining power the party confronts the public with a
standardized adhesion contract of exculpation,[] and makes no provision
whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence.[] Finally, as a result of the
transaction, the person or property of the purchaser is placed under the
control of the seller,[] subject to the risk of carelessness by the seller
or his agents.
While obviously no public policy opposes private, voluntary transactions in
which one party, for a consideration, agrees to shoulder a risk which the law
would otherwise have placed upon the other party, the above circumstances pose
a different situation. In this situation the releasing party does not
really acquiesce voluntarily in the contractual shifting of the risk, nor can
we be reasonably certain that he receives an adequate consideration for the
transfer. Since the service is one which each member of the public, presently
or potentially, may find essential to him, he faces, despite his economic
inability to do so, the prospect of a compulsory assumption of the risk of
another's negligence. The public policy of this state has been, in substance,
to posit the risk of negligence upon the actor; in instances in which this
policy has been abandoned, it has generally been to allow or require that the
risk shift to another party better or equally able to bear it, not to shift the
risk to the weak bargainer.
(Tunkl
v. Regents of University of Cal. (1963) 60 Cal.2d 92, 98–101
[footnotes omitted].)
As
currently alleged in the complaint and based on the Voluntary Participation
Agreement entered by Plaintiff with Defendants, Plaintiff entered the agreement
on a voluntary basis so that he could participate in a show on Netflix. As stated in Tunkl, this action is
more akin to a voluntary transaction in which public policy is not implicated
because Plaintiff (for consideration) agreed to shoulder the risk of injury and
medical care while on set. Further,
entering this agreement was not a “service” in which a Plaintiff as member of
the public would find “essential” to him; rather, the Participation Agreement
laid out terms regarding the voluntary nature of the agreement.
Based on
the exculpatory clause entered into by the parties in the Participation
Agreement, the negligence cause of action based on Plaintiff’s injury while on
set would be barred by the parties’ contractual term. Thus, the demurrer to the 1st
cause of action is sustained. The Court
notes that Plaintiff has not filed an opposition to the demurrer and,
therefore, has not shown how upon amendment Plaintiff can cure the defects in
this cause of action. However, as this
is the first attempt at the pleading, the Court will provide Plaintiff an
opportunity to amend the 1st cause of action in the event there are
any allegations that would somehow invalidate the exculpatory clause in the
Participation Agreement.
B. Gross Negligence (2nd cause of action)
“Gross negligence is pleaded by alleging the
traditional elements of negligence: duty, breach, causation, and
damages. [Citation.] However, to set forth a claim for ‘gross
negligence’ the plaintiff must allege extreme conduct on the part of the
defendant. [Citation.] The conduct alleged must rise to the level of
‘either a “want of even scant care” or “an extreme departure from the ordinary
standard of conduct.” ’ ” (Rosencrans
v. Dover Images, Ltd. (2011) 192
Cal.App.4th 1072, 1082 [internal quotation marks omitted].)
In the 2nd
cause of action, Plaintiff alleges that the acts and omissions of Defendants constituted
a want of scant care and an extreme departure from the ordinary standard of
care. (Compl., ¶24.) He alleges that their conduct constituted
gross negligence, which resulted in Plaintiff sustaining permanent and serious
bodily injuries. (Id., ¶25.)
While
Plaintiff alleges that Defendants’ conduct amount to a “want of even scant care” or “an extreme departure
from the ordinary standard of conduct,” Plaintiff’s allegations merely recite
the elements of gross negligence in a conclusory fashion and does not support
these allegations with facts to show that Defendants’ conduct constituted
anything beyond negligence. As such, the
demurrer to the 2nd cause of action is sustained with leave to amend.
C. Res Ipsa Loquitor Negligence (3rd cause of action)
The Court of Appeal in Vebr v. Culp (2015) 241
Cal.App.4th 1044 discussed res ipsa loquitor as follows:
“In California, the doctrine
of res ipsa loquitur is defined by statute as ‘a presumption affecting the
burden of producing evidence.’ (Evid. Code, § 646, subd. (b).) The presumption
arises when the evidence satisfies three conditions: ‘ “(1) the accident must
be of a kind which ordinarily does not occur in the absence of someone's
negligence; (2) it must be caused by an agency of instrumentality within the exclusive control of
the defendant; (3) it must not have been due to any voluntary action or
contribution on the part of the plaintiff.” ’ ”
(Vebr v. Culp (2015) 241 Cal.App.4th 1044,
1058.)
Defendants demur to this cause of
action, arguing that it is not a valid cause of action but is rather a way for
Plaintiff to use circumstantial evidence to prove negligence. “If applicable, the doctrine of res ipsa loquitur establishes a presumption
of negligence requiring the defendant to come forward with evidence to disprove
it. [Citations.]” (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540.)
The Court will sustain the demurrer without
leave to amend as to the 3rd cause of action as this is not a
separate cause of action for negligence.
However, if this action proceeds to the summary
judgment or trial stage on the negligence cause of action, then Plaintiff may
invoke the doctrine of res ipsa loquitor to try to prove his claim of
negligence against Defendants.
D. Breach of Contract (4th cause of action)
Defendants demur
to the 4th cause of action, arguing that Plaintiff has not alleged
any breach against Netflix or against theoldschool.
In the 4th
cause of action, Plaintiff alleges that the Participation Agreement constitutes
a written contract. (Compl., ¶32, Ex.
A.) Plaintiff alleges he has performed
all of his obligations under the agreement.
(Id., ¶33.) He alleges
that Defendants breached the agreement and that Plaintiff suffered
damages. (Id., ¶¶34-35.)
While the
complaint includes a copy of the Participation Agreement, it is unclear which term(s)
of the agreement Plaintiff is claiming each of the Defendants breached. To the extent Plaintiff is claiming
inadequate medical care, Plaintiff agreed in the Participation Agreement to
accept the medical care provided by Defendants and that he was aware of and
assumed the risks of any complications, infection, disfigurement, or
injury. (Participation Agreement,
¶32.) With respect to whether his time
on the show was curtailed, Plaintiff also agreed that Defendants had the right
to select Plaintiff as a contestant and eliminate Plaintiff from the show, and they
had the sole discretion to change, add to, delete from, modify, and/or amend
the series rules, terms, and conditions.
(Id., ¶¶16, 25, 26.) Further,
as discussed above, Plaintiff agreed to release all claims against Defendants,
including for breach of contract. (Id.,
¶40.) Finally, as noted by Defendants,
the Participation Agreement is not entered into by Netflix, but was only
entered into by Plaintiff and theoldschool.
(Id. at p.10.)
Thus, the demurrer to the 4th
cause of action is sustained. However,
as stated above, because this is Plaintiff’s first attempt at the pleading, the
Court will allow leave to amend.
E. Unjust Enrichment (5th cause of action)
DISCUSSION RE MOTION TO STRIKE
Defendants move to
strike allegations regarding: (1) the quality of medical care provided to
Plaintiff (paragraph 14 at lines 9-10); (2) oppression, fraud, and malice
(paragraph 27 at lines 21-22); and (3) for punitive damages (paragraph 27 at
lines 22-24; Prayer to 2nd cause of action at p. 10).
A.
Medical Care
Defendants move to strike the allegation in
paragraph 14 (lines 9-10) that Defendants failed to provide adequate medical
care. Specifically, the paragraph
alleges in part: “However, the medical care furnished by defendants did not
meet the medical needs of Plaintiff, and Plaintiff suffered permanent physical
injuries as a result thereof.”
Defendants argue that this is not an action
for medical malpractice, but instead for personal injury for Defendants’
alleged failure to keep the production set in a reasonably safe condition. Thus, Defendants argue that this is
irrelevant matter that should be stricken from the complaint.
Here, Plaintiff has not
alleged a cause of action against Defendants for medical malpractice. Reading the complaint as a whole in context
with the Participation Agreement, the Court construes this allegation as an
attempt by Plaintiff to support his cause of action for breach of
contract. (However, as discussed above,
the Court has sustained the demurrer to the 4th cause of
action.) As such, the Court declines to
strike this allegation as it appears to be background information for the case
and in support of Plaintiff’s claims.
The motion to strike
paragraph 14 is denied.
B.
Oppression, Fraud, and Malice and Punitive Damages
In the 2nd cause of action for gross negligence, Plaintiff
alleges: “defendants' conduct constitutes
oppression, fraud and/ or malice as define in Civil Code 3294, and Plaintiff
should recover, in addition to actual damages, exemplary and punitive damages
to make an example of and to punish defendants, in an amount according to
proof.” (Compl., ¶27.) Plaintiff also seeks punitive damages in
connection with the 2nd cause of action in the prayer for
damages. (Compl. at p.10.)
Defendants move to strike the allegation for oppression,
fraud, and malice and the request for punitive damages.
In light of the ruling on the demurrer to the
2nd cause of action, the motion to strike the allegations for
punitive damages in connection with the 2nd cause of action is moot.
CONCLUSION AND ORDER
Defendants theoldschool, LLC and Netflix, Inc.’s demurrer to the complaint
is sustained with 20 days leave to amend as to the 1st, 2nd,
and 4th causes of action. The
demurrer is sustained without leave to amend as to the 3rd and 5th
causes of action.
Defendants’ motion to strike is moot as to the allegations for punitive
damages in light of the Court’s ruling on the demurrer to the 2nd
cause of action. The motion to strike allegations
regarding medical care is denied.
Defendants shall provide notice of this order.