Judge William A. Crowfoot, Case Number: 24NNCV04221, Date: 2025-04-16 Tentative Ruling

Judge: William A. Crowfoot, Case: 24NNCV04221, Date: 2025-04-16 Tentative Ruling

On September 11, 2024, Sompo America Insurance Company (“Sompo”) filed this subrogation action for damages based upon negligence, breach of oral and implied contract, trespass, and nuisance against defendant Justin Shaak (“Shaak”). Sompo alleges that it was the property insurer for StepStone Hospitality, Inc. and its property, the Hotel Amarano (“Hotel”), and that Shaak caused $454,986.72 in damages to the Hotel by placing an object on a sprinkler head in one of the Hotel’s rooms. (Compl., ¶¶ 11-12.)

On February 10, 2025, Shaak filed the operative First Amended Cross-Complaint (“FACC”) against moving party Warner Bros. Discovery, Inc. (“Warner Bros.”) for equitable, implied, and comparative indemnity, contribution, and declaratory relief.

On March 6, 2025, Warner Bros. filed this demurrer to the FACC and each cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action.

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) However, a demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

The elements of a cause of action for indemnity/contribution are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible. (Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139, citing Gouvis Engineering v. Superior Court (1995) 37 Cal.App.4th 642, 646. There can be no indemnity without liability, meaning that the indemnitor and indemnitee must share liability for the injury to another party. (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 573.)

Warner Bros. argues that Shaak fails to allege any facts establishing any basis for indemnity or contribution because Shaak merely alleges that he had traveled to California “in connection with his employment with [Warner Bros.]” and “was within the course and scope of his employment” and “traveling to a meeting with his employer … at the time that the incident occurred.” (FACC, ¶ 3.) Warner Bros. contends that in order to establish vicarious liability, Shaak must allege facts showing his actions were inherent in, incidental to, or created by Warner Bro.'s business enterprise. (Demurrer, pp. 11-12.)

In opposition, Shaak argues that Warner Bros.’ liability is established pursuant to Labor Code section 2802 by alleging that he was an employee and acting within the course and scope of his employment. Labor Code section 2802 states: “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.” (Lab. Code, § 2802, subd. (a).)

“The statute requires the employer not only to pay any judgment entered against the employee for conduct arising out of his employment but also to defend an employee who is sued for such conduct.” (Jacobus v. Krambo Corp. (2000) 78 Cal.App.4th 1096, 1100.)

In determining whether for purposes of indemnification an employee's acts were performed within the course and scope of employment, the courts have looked to the doctrine of respondeat superior. (Jacobus, 78 Cal.App.4th at p. 1101.) A business trip may be considered a “special errand” that forms the basis for vicarious liability. (Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 438.) In Jeewarat, an employee became involved in an automobile collision on his way home from the airport after attending an out-of-town business conference. (Id., p. 432.) The appellate court held that “[the] special errand continues for the entirety of the trip” and concludes when the employee returns home or deviates from the errand for personal reasons and reversed the trial court’s grant of summary judgment. (Ibid.) The court noted that the employee’s airfare, hotel accommodations, and parking were paid by his employer and it was reasonable to infer from those facts that the employer expected to derive a benefit from the employee’s attendance at the conference. (Ibid.)

Here, Shaak states insufficient facts when he alleges that he was acting within the course and scope of his employment at the time of his tortious activity because he was traveling for a business meeting. Shaak does not allege facts like those present in Jeewarat, such as whether Warner Bros. paid for the hotel or expected to derive a benefit from this “special errand”, nor, most significantly, does Shaak allege how placing an object on the sprinkler head in his hotel room had a “dual purpose” or conferred an incidental benefit onto his employer. (See Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 633, n.6; Yamaguchi v. Harnsmut (2003) 106 Cal.App.4th 472, 481–482 [question is whether the risk of such an act is typical of or broadly incidental to the employer's enterprise]; Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057 [employee’s activities must be inherent in, typical of, or created by the work as to create a foreseeable risk]

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.