Judge: Robert B. Broadbelt, Case: 19STCV44140, Date: 2022-08-02 Tentative Ruling

Case Number: 19STCV44140    Hearing Date: August 2, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Plaintiff and Cross-Defendant Haroutioun Aivazian

RESPONDING PARTY:       Unopposed

Demurrer to First Amended Cross-Complaint

The court considered the moving papers filed in connection with the demurrer.  No opposition was filed.

BACKGROUND

Plaintiff David Dallakian (“Dallakian”) filed this action against Simple Bar, Inc. (“Simple Bar”) and Doe defendants on December 6, 2019.  Plaintiff filed the operative First Amended Complaint on April 9, 2020 against Simple Bar and additional defendant Adroit Private Security, Inc. (“Adroit”) based on the alleged assault of Dallakian at A Simple Bar on November 15, 2019. 

Plaintiff Haroutioun Aivazian (“Aivazian”) filed a complaint against Simple Bar on November 12, 2021, based on the alleged assault of Aivazian during the same November 15, 2019 altercation.

The parties stipulated, and the court ordered on May 31, 2022, that the actions filed by Dallakian and Aivazian be consolidated.

Simple Bar filed its Cross-Complaint against Adroit on February 3, 2020.  On July 16, 2020, Simple Bar filed its operative First Amended Cross-Complaint against Adroit and Aivazian, alleging eight causes of action for (1) implied contractual indemnity; (2) express contractual indemnity; (3) breach of written contract; (4) contribution; (5) declaratory relief (duty to defend); (6) declaratory relief (duty to indemnify); (7) third party tort of another; and (8) implied indemnity.

Cross-Defendant Aivazian demurs to the fourth through eighth causes of action asserted by Simple Bar in its First Amended Cross-Complaint. 

The court notes that Simple Bar attempted to file a Second Amended Cross-Complaint on July 19, 2022, which was rejected as improperly filed without leave of court.  The court therefore considers the merits of Aivazian’s unopposed demurrer.

DEMURRER

            The court overrules Aivazian’s demurrer to Simple Bar’s fourth cause of action for contribution because it states facts sufficient to constitute a cause of action since Simple Bar alleges that Aivazian (1) was at fault and negligent because he acted as the instigator of the physical altercation (FACC ¶¶ 2, 4, 17) and (2) caused Plaintiff’s injuries by “encourag[ing] the participation of [Dallakian] in the verbal and physical altercations, which led to all of the injuries suffered and claimed by” Dallakian (FACC ¶ 17).  (Code Civ. Proc., § 430.10, subd. (e).)

            The court sustains Aivazian’s demurrer to Simple Bar’s fifth cause of action for declaratory relief (duty to defend) because it fails to state facts sufficient to constitute a cause of action since Simple Bar alleges that the Cross-Defendants’ duties to defend are based on a written agreement, but (1) Simple Bar does not allege that Aivazian was a party to the referenced contract and (2) the contract attached to the First Amended Cross-Complaint confirms that the agreement was entered into by Adroit and Simple Bar (FACC ¶ 8; FACC, Ex. B).  (Code Civ. Proc., § 430.10, subd. (e).)

            The court sustains Aivazian’s demurrer to Simple Bar’s sixth cause of action for declaratory relief (duty to indemnify) because it fails to state facts sufficient to constitute a cause of action since Simple Bar alleges it is entitled to a declaration as to Cross-Defendants’ obligation to indemnify Simple Bar pursuant to a written agreement, but (1) Simple Bar does not allege that Aivazian was a party to the referenced contract and (2) the contract attached to the First Amended Cross-Complaint confirms that the agreement was entered into by Adroit and Simple Bar (FACC ¶¶ 8, 42; FACC, Ex. B). (Code Civ. Proc., § 430.10, subd. (e).)

Simple Bar has not filed an opposition stating how the defects in the fifth and sixth causes of action for declaratory relief may be cured and therefore has not met its burden of proving that there is a reasonable possibility that the fifth and sixth causes of action may be sufficiently alleged upon amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  Accordingly, the court sustains Aivazian’s demurrer to the fifth and sixth causes of action without leave to amend.

            The court overrules Aivazian’s demurrer to Simple Bar’s seventh cause of action for third party tort of another because it states facts sufficient to constitute a cause of action since Simple Bar alleges that (1) Aivazian is at fault for Dallakian’s injuries and (2) therefore has forced Simple Bar to incur expenses to defend against this action.  (Code Civ. Proc., § 430.10, subd. (e).)

            The court overrules Aivazian’s demurrer to Simple Bar’s eighth cause of action for implied indemnity because it states facts sufficient to constitute a cause of action since Simple Bar alleges a joint legal obligation between Aivazian and Simple Bar for the damages of Dallakian based on Aivazian’s alleged negligence.  (Code Civ. Proc., § 430.10, subd. (e); Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158.)

ORDER

            The court overrules cross-defendant Haroutioun Aivazian’s demurrer to the fourth, seventh, and eighth causes of action.  (Code Civ. Proc., § 430.10, subd. (e).)

 The court sustains cross-defendant Haroutioun Aivazian’s demurrer to the fifth and sixth causes of action alleged in Simple Bar, Inc.’s First Amended Cross-Complaint without leave to amend.   (Code Civ. Proc., § 430.10, subd. (e).)  

The court orders cross-defendant Haroutioun Aivazian to file an Answer to Simple Bar’s First Amended Cross-Complaint within 20 days of the date of this order. 

            The court orders plaintiff and cross-defendant Haroutioun Aivazian to give notice of this order. 

IT IS SO ORDERED.

DATED:  August 2, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court