Judge: Michael E. Whitaker, Case: 19STCV26050, Date: 2023-04-10 Tentative Ruling

Case Number: 19STCV26050    Hearing Date: April 10, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Summer Healy-Chapin (Plaintiff) sued Defendant Standard International, LLC dba The Standard Hollywood (Standard Hotel) based on injuries Plaintiff allegedly sustained in a trip and fall incident which occurred when Plaintiff was walking to her table upon arriving at an event hosted at Standard Hotel’s night club.

On September 4, 2019, Plaintiff filed an amendment to the Complaint naming Service Concierge, Inc. dba The Standard, Hollywood (SCI) in its capacity as the managing and operating entity for Standard Hotel, as Doe Defendant 1.  On September 16, 2022, Complainant in Intervention North American Capacity Insurance Company (NACI) intervened in the underlying matter as the insurer for SCI, and on SCI’s behalf, by filing a complaint in intervention against Bryan Rabin, Inc. (Rabin).  On January 12, 2023 NACI filed the operative First Amended Complaint-in-intervention (FACII) which alleges causes of action for express indemnity, breach of contract, negligence, contribution, and apportionment against Rabin.

NACI alleges that Rabin entered into a formal “Promoter Agreement” with SCI, and was using Standard Hotel’s night club pursuant to this agreement to host the event Plaintiff was attending at the night club when her trip and fall incident occurred.  NACI further alleges that based on Rabin’s obligations and duties under the Promoter Agreement and, thus over the event where Plaintiff’s incident occurred, Rabin is partially or totally liable for Plaintiff’s injuries.

            Rabin demurs to NACI’s FACII.  Rabin further moves to strike portions of NACI’s FACII.  NACI has not filed an opposition to either the demurrer or motion to strike.

JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).) Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

Here, the Court grants Rabin’s request for judicial notice of Plaintiff’s Complaint pursuant to Evidence Code section 452, subdivision (d)(1).

ANALYSIS

1. Demurrer

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

a.      Express Indemnity and Breach of Contract

            Rabin argues that the FACII fails to state facts sufficient to constitute viable causes of action for express indemnity and breach of contract.

Express indemnity refers to an obligation that arises “by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1120.) Express indemnity is generally “enforced in accordance with the terms of the contracting parties’ agreement. In the context of noninsurance indemnity agreements, if a party seeks to be indemnified for its own active negligence, or regardless of the indemnitor’s fault, the contractual language on the point must be particularly clear and explicit, and will be construed strictly against the indemnitee.” (Ibid., emphasis in original, [cleaned up].)

To prevail on a cause of action for breach of contract, “the plaintiff must prove (1) the contract, (2) plaintiff’s performance of the contract or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) “If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) “As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

NACI’s claims for express indemnity and breach of contract are premised upon a contract which NACI refers to as the “Promoter Agreement.”  (FACII, ¶¶ 11, 28, 29, 38, Exhibit 1.)  NACI alleges that SCI took over management of the subject Promoter Agreement, and Rabin took over the obligations and duties under the Promoter Agreement.  (FACII, ¶ 16.)  NACI points to the following portion of the Promoter Agreement in support of its contention that Rabin must expressly indemnify and hold harmless SCI from any claims incurred related to the event which Plaintiff attended, and further that Rabin has breached this agreement by failing to defend, indemnify, and hold SCI harmless against Plaintiff’s underlying claims (FACII, ¶¶ 29, 32, 33, 36, 39-41):

The Promoter shall indemnify, defend, and hold harmless the Hotel and the Hotel’s parents, owners, subsidiaries, affiliates, employees, agents, successors, and assigns from and against any and all claims, including, but not limited to, claims of libel and copyright infringement, actions, damages, and losses, liabilities and expenses, including reasonable outside attorneys' fees, arising out of or caused by the Promoter's obligations under this Agreement but only in proportion to and to the extent such claim, actions, damages, and losses, liabilities and expenses arise out of or are caused by the negligent or intentional acts or omissions of the Promoter . . . .

(FACII, ¶ 29, Exhibit 1, ¶ 12.) 

            In its demurrer, Rabin argues the Promoter Agreement explicitly assigns duties and obligations related to the floor plan and lighting in the subject night club to SCI rather than Rabin.  Further, Rabin contends that Plaintiff alleges in her underlying cause of action that her injuries were a result of the poor lighting and lay out of the club.  Rabin thus concludes, because under the Promoter Agreement, SCI is responsible for lighting and lay out of the club rather than Rabin.  In turn, the Promoter Agreement does not require Rabin to indemnify SCI for Plaintiff’s injuries, and further indicates Rabin has not breached the Promoter Agreement by refusing to indemnify SCI.  Rabin points to the following portions of the Promoter Agreement in support of the foregoing contentions:

Promoter acknowledges that the floor plan, lighting and special effects will be approved and designed by the Hotel. The Hotel’s written approval, which may be granted in its sole, but reasonable discretion, is required for any additional sound, lighting, staging or special effects proposed by Promoter. Promoter will pay the costs of all such additional expenses approved by the Hotel.

Promoter acknowledges that it shall report to and take direction from the Hotel Contact. The Hotel shall have the right to admit or deny any person it determines or to remove any guest or employee previously admitted for any reason, and Promoter will defer to all such determinations. Hotel acknowledges that Promoter maintains a strict guest list and admission policy to maintain the integrity of the Giorgio’s brand, and guests of the Hotel will not necessarily be admitted solely on the basis of their patronage of the Hotel.

(FACII, Exhibit 1, ¶¶ 6, 13.)

            First, the Court notes that while both Plaintiff and NACI’s pleadings include allegations that the subject hotel club had poor lighting, said allegations of poor lighting are not specified as the only theory of negligence against the defendants.  For example, Plaintiff’s Complaint also generally alleges that Defendants “negligently owned, maintained, managed, and operated the described premises.”  (Complaint, p. 4.)  Further, NACI generally alleges in the FACII that Rabin breached its duty of care “by performing work or providing services which fell below the applicable standard of care in the industry.”  (FACII, ¶ 44.)  Additionally, NACI alleges the following against Rabin:

it failed to advise SCI that RABIN planned on utilizing the alcove table area for guest of the RABIN event when it was not designated for the event, 2) once it desired to have the alcove area used for the event, RABIN failed to advise SCI so that the area could be properly set up to accept guests, and 3) once it designated the alcove to be used for plaintiff, failed to have hotel security personnel escort plaintiff to the Alcove table area as pe the seating protocol.

(FACII, ¶ 45.)  Accordingly, the Court finds that at this stage of the proceedings, it cannot determine that Plaintiff and NACI are alleging Plaintiff’s injuries arose solely out of the poor lighting in the subject night club.  Thus Rabin’s duty to indemnify under the Promoter Agreement is not so limited by the fact that poor lighting may have been a contributing factor to the incident at issue, and that SCI may have shared responsibility for the poor lighting under the Promoter Agreement. 

Further, the Court notes “a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible.”  (Aragon-Haas v. Family Security Insurance Services, Inc. (1991) 231 Cal.App.3d 232, 239, emphasis added.)  The subject language in this instance provides “The Promoter shall indemnify, defend, and hold harmless the Hotel . . . from and against any and all claims . . . arising out of or caused by the Promoter’s obligations under this Agreement but only in proportion to and to the extent such claim, actions, damages, and losses, liabilities and expenses arise out of or are caused by the negligent or intentional acts or omissions of the Promoter”  (FACII, Exhibit 1, ¶ 12.)  For pleading purposes, the Court finds NACI’s interpretation of this language as establishing Rabin’s duty to defend SCI from Plaintiff’s underlying claims to be reasonable such that NACI alleges facts sufficient to constitute causes of action for express indemnity and breach of contract.  Therefore, the Court overrules in part Rabin’s demurrer to the first and second causes of action in the FACII.

b.      Negligence

Rabin next demurs to NACI’s third cause of action of negligence for failure to state sufficient facts, specifically arguing that NACI’s cause of action for negligence against Rabin is time barred by the statute of limitations.

The statute of limitations on causes of action for personal injuries is two years. (Code Civ. Proc., § 335.1.)  Such causes of action accrue upon the occurrence of the last act necessary to complete the cause of action. (Code Civ. Proc., § 312 [“Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute”]; see generally Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-809 [“Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements”].)  For example, “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834 [cleaned up].) 

Judicial Council Emergency Rules of Court, rule 9 (hereafter Rule 9) provides: “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020 until October 1, 2020. Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020.” (Cal. Rules of Court, Emergency rule 9, subds. (a)-(b).)

In calculating the applicable statute of limitations or repose, the tolling period of 178 days under Rule 9 is tacked onto the end of the limitations period. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370 [“the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of time during which the tolling event previously occurred”].) 

Accordingly, the statute of limitations for the negligence cause of action against Rabin began to accrue on the date of Plaintiff’s accident, February 24, 2018 (FACII, ¶ 17), and thus ran on August 20, 2022.  NACI did not file the original Complaint in Intervention asserting a negligence cause of action against Rabin until October 16, 2022, about two months after the statute of limitations had run. 

When a complaint in intervention asserts a new cause of action, the application for leave to intervene must be filed within the limitations period.  (Basin Constr. Corp. v. Department of Water & Power (1988) 199 CA3d 819, 825.)  However if the cause of action has been timely filed, a subrogee may intervene in the action even after the applicable limitations period has expired.  (Ventura County Employees’ Retirement Assn. v. Pope (1978) 87 Cal.App.3d 938, 955.) 

Here however, SCI never filed a negligence cause of action against Rabin at all.  Thus, NACI’s negligence cause of action is a new cause of action and is subject to the statutory limitations period which ended before NACI’s filing of its Complaint in Intervention.  As such, the Court finds NACI’s negligence claim is time-barred based on the face of the pleadings, and sustains in part Rabin’s demur to NACI’s third cause of action.

c.       Contribution

Rabin additionally demurs to the fourth cause of action for contribution for failure to state a claim. 

“Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided.”  (Code Civ. Proc., § 875, subd. (a).)  “Such right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof. It shall be limited to the excess so paid over the pro rata share of the person so paying and in no event shall any tortfeasor be compelled to make contribution beyond his own pro rata share of the entire judgment.”  (Code Civ. Proc., § 875, subd. (c).)  Under Section 875, a claim for contribution arises after judgment is entered against two or more tortfeasors.  (See General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925 [“It has now been repeatedly held that the condition of this statute—a money judgment rendered jointly against two or more defendants—must exist before either may assert a right to contribution from the other”].)  And when the conditions set forth in Section 875 have not been met, a cross-complaint does not properly assert a claim for contribution.  (Id. at p. 926; see also Buffington v. Ohmert (1967) 253 Cal.App.2d 254, 255.)  

Here, NACI does not allege in the FACII that a judgment has already been rendered jointly against two or more defendants stemming from Plaintiff’s harm.

Accordingly, NACI’s third cause of action for contribution is defective, and the Court will sustain in part Rabin’ demurrer to the fourth cause of action in the FACII.    

d.      Apportionment

Finally, Rabin demurs to NACI’s fifth cause of action for apportionment.  Apportionment of fault “apportions liability in direct proportion to fault.”  (Li v. Yellow Cab Co. (1975) 13 Cal. 3d 804, 827.)  Rabin argues that there has to be a conclusive finding of fault or liability on the part of Rabin, before NACI can state a cause of action for apportionment against it.  However, Rabin has failed to point to any authority indicating an apportionment claim requires allegations that a final judgment establishing joint liability has already been made.  The authorities which Rabin cites to only speak to the burden of proof and persuasion regarding an apportionment claim, rather than requirements for an apportionment claim at the pleading stage.   

Rabin next argues that NACI’s apportionment claim is derivative of NACI’s negligence cause of action against Rabin, and is thus time barred by the statute of limitation.  However, as is demonstrated in the FACII, NACI’s apportionment claim is rather a derivative of Plaintiff’s underlying negligence claim against both SCI and Rabin (FACII, ¶ 55), and is thus is not time-barred based on NACI’s negligence cause of action. 

The Court finds NACI’s allegations of Rabin’s total or partial liability for Plaintiff’s injuries in the underlying case are sufficient to state a claim for apportionment.  Therefore, the Court overrules in part Rabin’s demur to the fifth cause of action.

2.      Motion to Strike

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)  “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Code Civ. Proc., § 437, subd. (a).) 

            First, the Court does not need to reach Rabin’s request to strike any paragraphs within the negligence and contribution causes of action because the Court already sustained Rabin’s demurrer to these causes of action. 

Next, the Court denies Rabin’s request to strike the express indemnity and breach of contract causes of action in the FACII based on the Court’s previous discussion of Rabin’s demurrer to the first and second causes of action in the FACII. 

The Court denies Rabin’s request to strike the apportionment cause of action based on the Court’s previous discussion of Rabin’s demurrer to the fifth cause of action in the FACII.

The Court denies Rabin’s request to strike paragraphs 21 and 23 of the FACII because it finds no basis to do so.

The Court denies Rabin’s request to strike NACI’s prayer for relief as the requested prayer is supported by NACI’s causes of action for express indemnity, breach of contract, and apportionment.

3.      Leave to Amend

A plaintiff has the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.)  Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.”  (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, NACI has not opposed the demurrer or motion to strike. Consequently, NACI has failed to meet the burden as noted. Thus, the Court will deny NACI leave to amend the FACII.

CONCLUSION AND ORDER 

Therefore, the Court sustains in part Rabin’s demurrer to the third and fourth causes of action in the FACII for negligence and contribution without leave to amend.  Further, the Court overrules in part Rabin’s demurrer to the first, second and fifth causes of action in the FACII for express indemnity, breach of contract and apportionment.  The Court denies Rabin’s motion to strike.

Rabin shall provide notice of the Court’s ruling and file proof of service of such.