Judge: Kevin C. Brazile, Case: 20STCV17462, Date: 2023-05-02 Tentative Ruling

Hearing Date: May 2, 2023

Case Name: Warren, et al. v. ITV America, Inc., et al.

Case No.: 19STCV40405 

Matter: (1) Motion for Summary Judgment/Adjudication

(2) Motion for Leave to File Cross-Complaint

Moving Party: (1) Defendant Warner Brothers Discovery, Inc. aka Discovery 

Communications, LLC

(2) Defendants Kerry Hibbs and Diane Hibbs

Responding Party: (1) Plaintiffs Gregory Warren and Victoria Warren

(2) Defendant Warner Brothers Discovery, Inc. aka Discovery 

Communications, LLC

Notice: OK

Ruling: The Motion for Summary Judgment/Adjudication is denied.

The Motion for Leave to File Cross-Complaint is granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On March 25, 2020, Plaintiffs filed the operative First Amended Complaint (“FAC”) against Defendants Discovery, Inc., Kerry Hibbs, and Diane Hibbs for (1) general negligence, (2) premises liability, (3) premises liability—dangerous condition, and (4) loss of consortium.  Plaintiffs allege that “[t]his action arises from a trip-and-fall incident that occurred during the filming of a television series entitled ‘I Want That Wedding.’ I Want That Wedding is TV series produced by Defendant Discovery, whereby each episode follows newly engaged couples working with wedding planners and attempting to agree on the ideal wedding budget.  [¶] On November 11, 2017, Plaintiff Gregory Warren (‘Mr. Warren’), age 61, was attending an evening filming of I Want That Wedding at a commercial residence owned [and] operated by the Hibb Defendants, located at 39285 Calle De Companero, Murrieta, CA 92562 (the ‘Premises’). During the filming at approximately 8:30 p.m. Mr. Warren, fell off an unreasonably dangerous outdoor deck, which was elevated, dimly lit, and contained no safety railing, markings, warnings, signs, barricades, or other devices to notify Mr. Warren or others of the dangerous condition of the deck. As a result, Mr. Warren, fell approximately five feet before landing forcefully on the ground below and rolling several more feet down an elongated hill before eventually coming to a stop. The fall resulted in significant injuries to Mr. Warren, including but not limited to chronic neck and back pain, muscle spasms, dizziness, migraines, difficulty breathing and a severe decrease in mobility.”

1. MSJ/MSA

Defendant Warner Brothers Discovery, Inc. aka Discovery Communications, LLC now moves for summary judgment or, alternatively, summary adjudication of all causes of action in the FAC because (1) it was never present at the subject property; (2) the owners of the subject property agreed to take precautions with the property; and (3) it agreed with the owners to only be liable for acts of gross negligence.  

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In reviewing a motion for summary judgment or adjudication, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue, in which case the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue.  (Code Civ. Proc. § 437c(p)(2).)  To show a triable issue of material fact exists, the opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto.  (Aguilar, at p. 849.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Negligence requires duty, breach of duty, proximate causation, and damages.  (N.N.V. v. American Assn. of Blood Banks (1999) 75 Cal.App.4th 1358, 1402.) 

The elements of a premises liability claim are: (1) the defendant owned, leased, occupied, or controlled the property; (2) the defendant was negligent in the use or maintenance of the property; (3) the plaintiff was harmed; and (4) the defendant's negligence was a substantial factor in causing the plaintiff's harm.  (CACI 1000; Rodriguez v. United States (C.D. Cal. Mar. 6, 2017) 2017 WL 924458, at *2.)  “ ‘The crucial element is control.’ [Citation.]”  (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1158.) “[W]e have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.”  (Preston v. Goldman (1986) 42 Cal.3d 108, 119.) 

As mentioned, Defendant argues that Plaintiffs cannot establish duty, breach, or control because Defendant was never at the subject property and the subject location agreement limited its liabilities and obligations.  

There are triable issues because the location agreement allowed Defendant to enter the subject property for filming purposes.  It also allowed Defendant to place equipment on the property and make minor alterations.  Therefore, there was some control over the premises by Defendant.  While Defendant was not apparently present at the subject property itself, Defendant was somehow involved with another entity, Circus Dog Productions, Inc., that was also a party to the location agreement and performed filming services.  Plaintiffs present evidence that Circus Dog Productions, Inc. did visit the subject property and, therefore, had an opportunity to notice the deck area.  That is, there is some evidence that an agent or the like of Defendant was present at the subject property.  

Further, while the location agreement states it requires indemnification only for acts of gross negligence by Defendant, the location agreement is only between Defendant Discovery Communications, LLC, Circus Dog, and the property owners (the Hibbs Defendants).  It does not directly control the liabilities between Defendant Discovery Communications, LLC and the Plaintiffs. 

Because there are triable issues, the Motion for Summary Judgment/Adjudication is denied.  The objections are overruled.

2. Leave to File Cross-Complaint

Defendants Kerry Hibbs and Diane Hibbs seek leave to file a cross-complaint for indemnity, contribution and apportionment, express contractual indemnity, implied express contractual indemnity, breach of contract, and declaratory relief against Dyana Padilla, Discovery Communications, LLC, Circus Dog Productions, Inc., and Pie Town Productions, Inc.

Cross-complaints fall into two categories—permissive and compulsory.  Compulsory cross-complaints consist of those causes of action existing at the time of service of the answer that the defendant must bring against the plaintiff, or else forfeit the right to bring them in any other action.  (Code Civ. Proc. § 426.30(a).)  Specifically, compulsory cross-complaints consist of those causes of action that “arise out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.”  (Id. § 426.10(c).)  To avoid piecemeal litigation, courts liberally construe the term “transaction”—it is “ ‘not confined to a single, isolated act or occurrence . . . but may embrace a series of acts or occurrences logically interrelated.’ ” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 960.)  Parties seeking to file untimely compulsory cross-complaints may file with the Court for leave to do so, even though the failure to timely file resulted from oversight, inadvertence, mistake, neglect, or other cause.  (Code Civ. Proc. § 426.50.)  In such a case, after notice to the adverse party, the Court must grant leave to file the cross-complaint if the party acted in good faith.  

Unrelated claims and those claims arising after service of the answer are permissive, not compulsory.  (Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.)  Permissive cross-complaints are governed by Code of Civil Procedure § 428.50(c), which provides, “A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b).  Leave may be granted in the interest of justice at any time during the course of the action.”  The decision to grant permission to file a permissive cross-complaint rests within the sound discretion of the trial court.  (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 701.)

The proposed cross-claims seem to be compulsory in nature because they arise out of the same fall on the same property.  Therefore, the inquiry is whether Defendants acted in good faith.

Discovery Communications, LLC (“Discovery”) argues the Motion should be denied because “Co-Defendants Hibbs previously filed an Answer to Plaintiffs' Complaint on February 2, 2021 and Co-Defendants Hibbs’ Motion for Leave to file a Cross-Complaint was filed October 13, 2022”; further, Discovery contends it has been preparing for three years in this case and has a pending summary judgment motion.

The Court cannot find bad faith or sufficient prejudice because there is no trial date currently set and Discovery’s summary judgment motion was denied.  Therefore, the Motion is granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.