Judge: Mark A. Young, Case: 19STCV25769, Date: 2023-02-28 Tentative Ruling
Case Number: 19STCV25769 Hearing Date: February 28, 2023 Dept: M
CASE NAME: Fattorni, et
al., v. Merriman, et al.
CASE NO.: 19STCV25769
MOTION: Motion
for Summary Judgment
HEARING DATE: 2/28/2023
BACKGROUND
This action arises out of the death
of Kimberly Fattorini on July 21, 2017, in West Hollywood, California.
Decedent’s parents, Plaintiffs Deann and Ferdinand Fattorini, bring this
wrongful death action against Defendants Shawne Merriman, Monica Maass, Elias
Wehbe, Warwick LA, the Highlight Room, and J.P. Castro. The operative second
amended complaint (SAC) states two operative causes of action for battery and
negligence against Wehbe. Plaintiffs dismissed the second cause of action for drug
dealer liability act claim against Wehbe.
Legal
Standard
A party may move for summary
judgment in any action or proceeding if it is contended the action has no merit
or that there is no defense to the action or proceeding. (CCP, § 437c(a).) “The
purpose of the law of summary judgment is to provide courts with 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.)
“A party may move for summary adjudication as
to one or more causes of action within an action, one or more affirmative
defenses, one or more claims for damages, or one or more issues of duty, if the
party contends that the cause of action has no merit, that there is no affirmative
defense to the cause of action, that there is no merit to an affirmative
defense as to any cause of action, that there is no merit to a claim for
damages, as specified in Section 3294 of the Civil Code, or that one or
more defendants either owed or did not owe a duty to the plaintiff or
plaintiffs.” (CCP, § 437c(f)(1).) If a party seeks summary
adjudication as an alternative to a request for summary judgment, the request
must be clearly made in the notice of the motion. (Gonzales v. Superior
Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for
summary adjudication of a legal issue or a claim for damages other than
punitive damages that does not completely dispose of a cause of action,
affirmative defense, or issue of duty pursuant to” subdivision (t).
(CCP, § 437c(t).)
To
prevail, the evidence submitted must show there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law. (CCP, § 437c(c).) The motion cannot succeed unless the
evidence leaves no room for conflicting inferences as to material facts; the
court has no power to weigh one inference against another or against other
evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th
833, 841.) In determining whether the facts give rise to a triable issue of
material fact, “[a]ll doubts as to whether any material, triable, issues of
fact exist are to be resolved in favor of the party opposing summary judgment…”
(Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other
words, the facts alleged in the evidence of the party opposing summary judgment
and the reasonable inferences there from must be accepted as true.” (Jackson
v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if
adjudication is otherwise proper the motion “may not be denied on grounds of
credibility,” except when a material fact is the witness’s state of
mind and “that fact is sought to be established solely by the [witness’s]
affirmation thereof.” (CCP, § 437c(e).)
Once
the moving party has met their burden, the burden shifts to the opposing party
“to show that a triable issue of one or more material facts exists as to that
cause of action or a defense thereto.” (CCP § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish
anything by affidavit unless and until the moving party has by affidavit stated
facts establishing every element... necessary to sustain a judgment in his
favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 468.)
“The pleadings play a key role in a summary
judgment motion. The function of the pleadings in a motion for summary judgment
is to delimit the scope of the issues and to frame the outer measure
of materiality in a summary judgment proceeding.” (Hutton v. Fidelity
National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations
and citations omitted.) “Accordingly, the burden of a defendant moving for
summary judgment only requires that he or she negate plaintiff's theories of
liability as alleged in the complaint; that is, a moving party need
not refute liability on some theoretical possibility not included in the
pleadings.” (Ibid.)
Analysis
Defendant Wehbe moves for summary
judgment against the SAC, which includes battery and negligence claims.
“Battery is an offensive and
intentional touching without the victim’s consent.” (Kaplan v. Mamelak
(2008) 162 Cal.App.4th 637, 645.) “The essential elements of a cause of action
for battery are: (1) defendant touched plaintiff, or caused plaintiff to be
touched, with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by defendant’s
conduct; and (4) a reasonable person in plaintiff’s position would have been
offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669)
Intent is satisfied if the defendant acted with willful disregard of the
plaintiff’s rights. (Ashcraft v. King (1991) 228 Cal.App.3d 604,
613.)
The elements for negligence are:
(1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3)
causation; and (4) damage to the plaintiff. (County of Santa Clara v.
Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.
The SAC alleges that Wehbe is a
club promoter and a partner at The Warwick, which is a nightclub in Los Angeles.
(SAC ¶ 16.) The SAC further alleges that as a club promoter and partner of The
Warwick, Wehbe oversaw VIP relations and facilitated regular appearances from
his personal network of talent. Decedent Fattorini met Wehbe a few months
before her death on July 17, 2017. Wehbe began inviting her and her friends to
the Warwick providing "bottle service" to them, and introducing them
to his network. (¶ 17.) As a part of his business, he would offer and urge everyone,
including Decedent, to consume cocaine and party with him around his VIP network.
During the week of July 17, 2017,
Wehbe invited Decedent to a new nightclub project he was promoting in
Hollywood, the Highlight Room. (SAC ¶ 18.) Plaintiff was pressured by her
friend Maass to join herself and Wehbe. Decedent was shown into the club to
join Wehbe at his exclusive promoter's table, where they imbibed and danced until
2:00-2:30 a.m. the following day. Merriman was also an invited guest at The
Highlight Room that night, along with other members of Wehbe’s VIP network.
Afterwards, Wehbe went to his house and asked some of his network to bring
cocaine over to his house to keep the party going. He also invited Decedent and
Maass to come over to his house. (¶ 19.) Decedent and Maass went over to
Wehbe’s house. (¶ 20.) Wehbe texted his friends, Castro and Merriman, to come
over to his place
Wehbe “assigned” Decedent to Merriman
and Maass to Castro. (SAC ¶21.) Merriman arrived at Wehbe’s house between 8:30
and 9:00 a.m., and was carrying “some kind of bottle with him filled with a
liquid.” (¶ 22.) After Merriman arrived, Decedent texted Wehbe that his “friend
just poor’d half G in my drink [¶] And I have never [¶] Don’t go to sleep come
Check on mr llllllllllllqlqllqllll [¶] Me when you can.” (¶ 23.) “G” is an abbreviation
for gamma hydroxybutyrate (hereafter referred to as "GHB"). It is a
central nervous system (CNS) depressant, sometimes used as a date rape drug. (¶
24.) Eventually, Merriman ordered an Uber to take Decedent, Maass, Castro, and
Merriman to Maass’s apartment. (¶¶ 25-26.)
At approximately 3:16 p.m., Maass
called 911 to report that she had been trying to wake Decedent, but Decedent
was unresponsive. (SAC ¶ 27.) Maass gave contradictory accounts of whether
Merriman was at her apartment at the time she discovered Decedent laying on the
floor and unresponsive. (¶¶ 28-29.) An autopsy was performed by a coroner
approximately 41 hours later. (¶ 30.) Because the coroner had already been
given a preliminary investigator's case report which indicated that no foul
play was suspected, the autopsy did not include a variety of tests or other
evidence gathering. (¶ 30.) For example, the coroner did not take any
photographs of any of the bruises on Decedent’s body, and a sexual assault test
was not conducted. Since the autopsy was already performed, a sexual assault
exam could not longer be done. The autopsy showed that Decedent had alcohol,
cocaine, and GHB in her blood. (¶ 31.) The elevated levels of GHB led to her
death.
Critically, the SAC alleges that Defendants
conspired with each other to commit battery. (SAC ¶ 35.) Defendants knew that
Decedent did not consent to be drugged, bruised, touched, dragged, or otherwise
physically contacted by the Defendants. (¶ 36.) Decedent lost control of her
ability to give knowing and voluntary consent to any such contact. (¶¶ 37-39.) Decedent
did not consent to having certain drugs put in her drink or otherwise consumed
by her, either due to her inability to consent or due to such drugs being
administered to her over her objection. Defendants intentionally engaged in the
foregoing conduct. (¶ 41.) As a proximate result of this non-consensual contact
by the Defendants, Decedent suffered harm that contributed to, and caused her
death. (¶ 42.)
Wehbe asserts that 1) he did not
have the requisite intent required to cause harm or offend decedent; 2) did not
offensively touch Decedent; 3) he did not act collectively with other
defendants in some conspiracy to commit the tort of battery; 4) he did not
breach any duty to Decedent; 5) none of his acts or omissions were a
substantial factor in causing Decedent’s death; and 6) the negligence claim is
barred by primary assumption of the risk doctrine.
Wehbe submits UMFs that are
generally consistent with the above allegations. Wehbe highlights that Decedent
voluntarily drank various types of alcohol and consumed cocaine. (UMF 24-26.) Wehbe
also highlights that he checked on Decedent multiple times while she was at her
house, and that she appeared to be “fine” and was just hanging out in the
kitchen with Maass, Castro and Merriman. (UMF 34.) Decedent appeared coherent
and lucid at the time she left Wehbe’s house with Maass, Castro and Merriman
around approximately 10:00 a.m.. (UMF 35.)
The autopsy conducted later
revealed that the cause of Decedent’s death was “[a]cute ethanol-cocaine gamma
hydroxybutyrate toxicity.” (UMF 39.) Lab testing revealed the following
substances in her blood: 0.172 g% ethanol (alcohol), 0.79 ug/mL of
benzoylecgonine (cocaine), 0.28 ug/mL of cocaethylene (cocaine), 1.2 ug/mL of
cocaine, and 150 mcg/mL of gamma-hydroxybutyrate (GHB). (UMF 40.)
In his motion, Wehbe states that he
did not pressure Decedent to go out to Tao, The Highlight Room, to his home, or
to any other location at any time throughout the Incident. (UMF 41; see Wehbe
Decl., ¶18.) He did not purchase alcoholic beverages for Decedent, or provide
her with cocaine, GHB or other drugs/intoxicating substances. (UMF 42.) He further
states that he did not “assist” Decedent in obtaining any cocaine, GHB, or
other drugs or intoxicating substances. (UMF 43.) Wehbe did not either “conspicuously
or surreptitiously place” any GHB or other substances into any drink or
anything consumed by Decedent. (UMF 44.) He did not “force, coerce, or pressure”
Decedent to ingest alcohol, cocaine, GHB, or any other substances. (UMF 45.)
Wehbe did not “assist” anyone else in “procuring, obtaining, using, or
ingesting” GHB. (UMF 46.)
Strictly construed, Wehbe’s
evidence does not shift his initial burden to show that he is entitled to
judgment as a matter of law. Plaintiffs’ claims against Wehbe are premised on a
conspiracy theory, which Wehbe fails to negate.
“Conspiracy
is not a cause of action, but a legal doctrine that imposes liability on
persons who, although not actually committing a tort themselves, share with the
immediate tortfeasors a common plan or design in its perpetration.” (Applied
Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511.) By
participating, a co-conspirator effectively adopts as their own the torts of
other co-conspirators within the ambit of the conspiracy. In this way, a
co-conspirator incurs tort liability co-equal with the immediate tortfeasors. (Wyatt
v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784.) Conspiratorial agreements may be circumstantially inferred
from circumstances including the nature of the acts, the relations of the
parties (e.g., family business, or corporate officers or directors), and the
interests of the alleged conspirators. (Wyatt v. Union Mortgage Co.
(1979) 24 Cal. 3d 773, 784-786.)
Critically, the SAC alleges a
conspiracy between Wehbe and Merriman to batter Decedent, including that
Merriman placed GHB in Decedent’s drink without consent. Wehbe explicitly
conspired with the other defendants, such as Castro and Merriman, to commit the
battery. (SAC ¶¶ 35, 45, & 52.) In execution of those torts, Defendants
acted within the scope of their agency with each other. (SAC ¶ 10.) Notably, the
SAC alleges facts which suggest that Wehbe was aware of the use of a date rape
drug in relation to Decedent. (SAC ¶¶ 20, 32.) As alleged, Wehbe invited
Merriman and Castro to come over to engage in sexual acts with Decedent. Moreover,
Merriman allegedly has a history of bringing and using date rate drugs. Wehbe
invited Merriman specifically for Merriman to have sex with Decedent and to
take Decedent away from his home. If the Court turns to Plaintiffs’ evidence,
Plaintiffs demonstrate that Wehbe has an express business interest in providing
women for his “VIPs” such as Merriman. Liberally construed, these alleged facts
support Wehbe’s intent, which Wehbe does not contest with specific or
substantial evidence.
In terms of negating the conspiracy
allegations, Wehbe’s declaration is conclusory. Closely examining his
declaration, Wehbe only makes the following specific denials regarding his
intent and participation in plying Decedent with cocaine, GHB, or other drugs:
18. I did not pressure DECEDENT
to go out to Tao, The Highlight Room, to my home, or any other location at
any time throughout the evening before and the morning hours prior to
DECEDENT’s death (the “Incident.”)
19. I did not purchase alcoholic
beverages for DECEDENT at any time throughout the Incident.
20. I did not provide DECEDENT
with any cocaine, GHB, or other drugs or intoxicating substances at
any time throughout the Incident.
21. I did not assist DECDENT in
obtaining any cocaine, GHB, or other drugs or intoxicating substances at
any time throughout the Incident.
22. I did not conspicuously or
surreptitiously place any alcohol, cocaine, GHB, or other drugs or
intoxicating substances, or any substances whatsoever, into any drink or
anything else consumed by DECDENT at any time throughout the Incident.
23. I did not force, coerce, or
pressure DECEDENT to drink alcohol, ingest cocaine, or ingest GHB.
24. I did not possess, or assist
any individual in procuring, obtaining, using, or ingesting GHB at any
time during the Incident.
25. I did not physically touch
DECEDENT, and
26. I did not have the desire or intent
to cause harm to DECEDENT in any manner whatsoever.
(Wehbe Decl., ¶¶ 18-26, emphasis added.) Wehbe’s evidence
and UMFs do not adequately challenge the pled conspiracy so that the burden would
be shifted to Plaintiffs. Specifically, Wehbe does not address the theory that
Wehbe conspired with Merriman and others to drug Decedent with GHB. Wehbe
focuses on the fact that he did not personally provide drugs or touch Decedent
(i.e., place GHB into any drink), assist Decedent or Defendants in “procuring,
obtaining, using, or ingesting” GHB, or intend to “cause harm” to Decedent. The
only portion of this declaration that attempts to address the conspiracy
allegations is paragraph 24. Strictly construed, Wehbe only declares that he
did not “assist” anyone (including Merriman) in “procuring, obtaining, using or
ingesting GHB.” This does not deny that he had a common plan or scheme with the
other defendants that Merriman would drug Decedent with GHB.
In addition, Wehbe also does not
address the agency allegation. (SAC ¶ 10.)
In sum, Wehbe has not identified substantial
evidence defeating the conspiracy allegation. It is Defendant’s burden first to
produce evidence that there is a lacking element in a cause of action before
the burden shifts to Plaintiffs. (McGonnell v. Kaiser Gypsum Co., Inc.
(2002) 98 Cal.App.4th 1098, 1104.) Wehbe focuses on aspects of his own intent
and conduct.
However, Wehbe avoids outright denying his part in the
alleged conspiracy. Since Defendant failed to produce substantial evidence on
the issue, the burden does not shift to Plaintiff and thus this cause of action
remains.
As this cause of action remains,
the Court cannot grant summary judgment.
Accordingly, Defendant’s motion is DENIED.