Judge: John J. Kralik, Case: 21STCV05117, Date: 2023-10-13 Tentative Ruling

Case Number: 21STCV05117    Hearing Date: October 13, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations of the Complaint

Plaintiff Marco Morante (“Plaintiff”) alleges that in 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.  Plaintiff alleges that prior to the metal bar’s falling, he gave actual notice of the dangerous condition existing on the production set, but Defendants refused or neglected to ameliorate the dangerous condition. 

Plaintiff alleges that Defendants undertook to furnish medical care by medical professionals, but the medical care furnished 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 first amended complaint (“FAC”), filed July 11, 2023, alleges a cause of action for gross negligence.    

B.     Motions on Calendar

On August 14, 2023, Defendants filed a demurrer and a motion to strike portions of the FAC.

On October 3, 2023, Plaintiff filed a single, untimely opposition brief to the demurrer and motion to strike.

On October 6, 2023, Defendants filed a single reply brief.

REQUEST FOR JUDICIAL NOTICE

            Defendants request judicial notice of Exhibit 3 to the declaration of Edward Romero: The Notice of Entry of Order on Demurrer and Motion to Strike, filed in this action on May 9, 2023.  The request is granted.  (Evid. Code, § 452(d).) 

DISCUSSION RE DEMURRER

            Defendants demur to the sole cause of action for gross negligence in the FAC on the grounds that it fails to state sufficient facts to constitute a cause of action against them.

“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 sole cause of action for gross negligence, Plaintiff alleges that he suffered personal injuries as a result of a metal bar falling on his face while on the production set of the show, which Defendants dangerously and negligently operated and maintained on April 22, 2019.  (FAC, ¶18.)  He alleges that Defendants failed to maintain the production set in a reasonably safe condition in that they failed to take reasonable measures to ameliorate the dangerous condition of which Plaintiff had given Defendants actual notice.  (Id., ¶¶20, 26.)  He alleges that Defendants knew or reasonably should have known that failing to maintain the premises in a reasonably safe condition was inadequate in ensuring Plaintiff’s health and wellness on the production set.  (Id., ¶21.)  He alleges that Defendant had sole control over the set design and construction required for the show, including the installation of the fabric racks, and that they installed the fabric racks which would not actually hold fabric when the contestant would access the rack to dispense fabric; instead, the rack would dislodge thereby causing a reel of fabric to fall dangerously upon contestants when accessed.  (Id., ¶¶24-25.)  He alleges that Defendants’ acts and omissions, including their negligent construction of the fabric racks and their refusal to ameliorate the dangerous condition despite notice, constituted a want of scant care and an extreme departure from the ordinary standard of care.  (Id., ¶¶23, 27.)  Plaintiff alleges that as a cause of Defendants’ gross negligence, he sustained damages of permanent and serious personal injuries, loss of earnings, and medical expenses.  (Id., ¶¶22, 28.)

Defendants argue that Plaintiff has changed his allegations from the initial complaint to the FAC without explanation.  Specifically, Defendants argue that the “subject incident” was defined as his injury when the accident occurred as a result of Defendants’ negligent care and operation of the production set. (Compl., ¶¶12, 18.)  They also argue that Plaintiff attempts to redefine the term “dangerous condition” because the initial complaint defined it as the metal bar falling onto Plaintiff’s face, while the FAC attempts to expand this definition to the construction of the materials rack. 

The Court does not find these additional allegations in the FAC to be an unexplained sham pleading or a departure from the original definitions in the complaint.  Rather, the allegations of the FAC provide additional background facts that were not fully alleged in the initial complaint.  It may very well be that the alleged negligent construction of the materials rack caused the loose metal bar holding fabric to fall on Plaintiff’s face.  The metal bar was on the constructed rack.  Plaintiff’s additional facts regarding the construction of the materials’ rack are not necessarily inconsistent with the allegations of the initial complaint.  Yet they are also not necessarily sufficient to make a showing of “gross” negligence. 

Next, Defendants argue that Plaintiff has not alleged sufficient facts to show that Defendants’ conduct was extreme.  They argue that the FAC alleges that “on that same day just prior to the Subject Incident, Plaintiff gave defendants actual notice of the dangerous condition which led to and caused the Subject Incident by verbally notifying production set personnel working for defendants that the loose metal bar would likely fall from the materials rack without being further secured.”  (FAC, ¶19.)  Defendants argue that Plaintiff has not alleged the time between speaking with (unidentified) personnel and when he was injured.  They also argue that Plaintiff has not alleged sufficient facts showing that Defendants engaged in extreme conduct with respect to the maintenance or repair of the metal bar on the materials rack or allegations showing how the rack was defective. 

In opposition, Plaintiff argues that he has alleged facts showing that Defendants’ acts and omissions amount to “want of even scant care” or “an extreme departure from the ordinary standard of conduct.”  (Opp. at p.5.)  While the FAC alleges these phrases, the allegations supporting these are not supported by facts.  Plaintiff’s allegations merely recite the elements of gross negligence in a conclusory fashion and do not support these allegations with facts to show that Defendants’ conduct constituted anything beyond ordinary negligence.  The Court raised this issue in its prior ruling on the demurrer to the initial complaint and the same defect persists.  (Further, as noted in the Court’s prior order on the demurrer to the initial complaint, the Participation Agreement included an exculpatory clause that barred Plaintiff’s claim for negligence.) 

            As the allegations currently stand, Plaintiff’s FAC fails to allege sufficient facts to allege a cause of action for gross negligence against Defendants.  Based on Plaintiff’s opposition papers, Plaintiff has not shown how, upon amendment, he can include additional facts to allege a cause of action for gross negligence against Defendants.  As such, the demurrer is sustained without leave to amend.  

DISCUSSION RE MOTION TO STRIKE

            Defendants move to strike the entirety of the FAC and paragraphs 15 and 16.

            In light of the ruling on the demurrer, the motion to strike is taken off-calendar as moot.

CONCLUSION AND ORDER

Defendants TheOldSchool, LLC and Netflix, Inc.’s demurrer to the FAC is sustained without leave to amend as to the sole cause of action for gross negligence.

Defendants’ motion to strike is taken off-calendar in light of the ruling on the demurrer.

Based upon the above ruling, this case is dismissed with prejudice.   

Defendants shall provide notice of this order.