Judge: Lee W. Tsao, Case: BC707783, Date: 2023-11-09 Tentative Ruling

Case Number: BC707783    Hearing Date: November 9, 2023    Dept: C

BELTRAN v. DOWNEYS BILLIARD LLC

CASE NO.:  BC707783

HEARING:  11/09/23

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     I.        Cross-Defendant DIVERSIFIED PROTECTIVE SERVICES’ Demurrer to Cross-Complainant DOWNEY’S BILLIARD, LLC and HAYK GEVORKYAN’s Cross-Complaint is OVERRULED. Answer to be filed and served in 20 days.

    II.        Defendant DIVERSIFIED PROTECTIVE SERVICES’ Demurrer to Plaintiffs’ Complaint is SUSTAINED with 15 days leave to amend.

  III.        Defendant DIVERSIFIED PROTECTIVE SERVICES’ Motion to Strike Portions of Plaintiff’s Complaint is MOOT.

Prevailing Party to give notice.

This action for premises liability was filed by Plaintiffs ARTURO BELTRAN and CLARISSA BELTRAN (“Plaintiffs”) on May 25, 2018. Plaintiffs allege that “[o]n or about May 28, 2016 at around 12:00 AM, Plaintiff ARTURO BELTRAN, along with his daughter CLARISSA BELTRAN were paying patrons at the SUBJECT PREMISES at Club DB Lounge which was owned, operated, managed and or controlled by Defendant DOWNEY’S BILLIARD, LLC… and/or HAYK GEVORKYAN. The SUBJECT PREMISES is marketed as ‘LA’s and OC’s hottest 21 + Nightclub for 5 years running.” (Complaint ¶12.) “Not too long after being inside the SUBJECT PREMISES, and as Plaintiff ARTURO BELTRAN, knelt down to fix his leg-fast brace, he was viciously kicked in the head and savagely beaten without any warning or provocation by ‘security personnel’ or DOE BOUNCERS acting within the course and scope of their employment…. Plaintiff was dragged about 50 feet to the exit.” (Complaint ¶15.) “Plaintiff CLARISSA BELTRAN sustained significant emotional injuries after witnessing her father being attacked by DOE BOUNCERS.” (Complaint ¶17.)

Plaintiffs’ Complaint asserts the following causes of action:

(1) General Negligence;

(2) Premises Liability;

(3) Assault/Battery;

(4) Intentional Infliction of Emotional Distress;

(5) Negligent Infliction of Emotional Distress;

(6) Negligent Hiring, Training, Supervision, and Retention of Employees

On March 10, 2023, Defendants/Cross-Complainants DOWNEY’S BILLIARD LLC and HAYK GEVORKYAN (“Defendants” or “Cross-Complainants”) filed a Cross-Complaint for Indemnity against Cross-Defendant DIVERSIFIED PROTECTIVE SERVICES (“Cross-Defendant”). Cross-Complainants allege Cross-Complainants and Cross-Defendant entered into a written contract whereby Cross-Defendant agreed to furnish security guards for Cross-Complainants’ business and hold Cross-Complainants harmless from any liability resulting from the acts or omissions of its security guards. Cross-Complainants allege that Cross-Defendant agreed to indemnify and hold Cross-Complainants harmless from any liability Cross-Complainants might sustain as a consequence of the acts or omissions of Cross-Defendant’s security guards. (XC ¶ 5.)

Cross-Defendant DIVERSIFIED PROTECTIVE SERVICES’ Demurrer to the Cross-Complaint

Cross-Defendant PROTECTIVE SERVICES Demurs to the entire Cross-Complaint on the basis that the entire Cross-Complaint is barred by the statute of limitations.

On May 9, 2023, Cross-Complainants filed a limited Opposition arguing that this Court lacks jurisdiction to issue a ruling on the merits because Cross-Defendants’ Demurrer is untimely for failure to comply with CCP §1010.6 “by short serving and short filing the Demurrer by one day. Cross-Defendants should have been served on Defendants by email on April 23, 2023.” (Opp. 2:5-7.)

No substantive Opposition or Reply have been filed as of November 6, 2023.

The Subject Demurrer was filed on April 25, 2023. This matter was originally scheduled for hearing on May 17, 2023 at the Spring Street Courthouse. However, this action was reassigned to the Norwalk Courthouse on May 16, 2023, and all pending motions and hearings were ordered to be reset. This Demurrer was reset for hearing November 9, 2023. Thus, the Demurrer was timely filed and served prior to October 18, 2023 (16 court days prior to the new hearing date). (CCP §1005(b).) The Court will issue a ruling on the merits.

The Cross-Complainant asserts one sole cause of action for Indemnity based on the breach of a written agreement. The statute of limitations for breach of a written contract is four years. (CCP §337(a).) Indemnity claims accrue when the indemnitee sustains an actual loss through payment of a covered cost, not when the underlying accident occurred. (See, e.g., Adler v. Sawyer (1919) 40 Cal.App.778, 782.) “The indemnity action, unlike the plaintiff’s claim, does not accrue for statute of limitations purposes when the original accident occurs, but instead accrues at the time the tort defendant pays a judgment or settlement as to which he is entitled to indemnity.” (Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 481.)

“The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1316.) 

The face of the Cross-Complaint does not establish that Cross-Complainant’s claim for indemnity is necessarily barred by any statute of limitations. A determination of such would require factual determinations inappropriately decided at the demurrer stage. At this point in the litigation, no judgment has issued entitling Defendant(s) to indemnification.

The Demurrer is OVERRULED.

Defendant DIVERSIFIED PROTECTIVE SERVICES’ Demurrer to Plaintiffs’ Complaint

This action was filed on May 25, 2018. On July 27, 2022, Plaintiffs filed a Doe Amendment naming Defendant DIVERSIFIED PROTECTIVE SERVICES (“Defendant” or “DPS”) as a defendant to this action, which is over six years after the date of the alleged incident.

Defendant demurs to the entire Complaint, arguing that all six claims are barred by the statute of limitations, arguing specifically that the Cross-Complaint is untimely under CCP §483.210 due to Plaintiffs’ failure to serve DPS within three years of the filing of the Complaint.

In Opposition, Plaintiffs contend that their claims are timely filed and not barred by the statute of limitations.

As alleged, DPS was substituted as a Doe defendant more than three years after the filing of the Complaint.

CCP §583.210 states that “[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” (Id.).

Since Plaintiffs clearly failed to serve DPS within three years of filing this action on May 25, 2018 and because Plaintiffs do not allege the existence of some valid exception to the mandatory provisions of CCP §583.210(a), this Court finds that Plaintiffs have failed to allege a valid cause of action against DPS.

Given Plaintiff’s arguments in Opposition, the Demurrer is SUSTAINED with 15 days leave to amend.

The Motion to Strike is rendered MOOT.