Pending - Other Pending
Personal Injury - Other Personal Injury
GEORGINA T. RIZK
MONTAGE HOTELS & RESORTS LLC
MONTAGE LAGUNA BEACH
INVITING OCCASION INC.
DOES 1 TO 25
INVITING OCCASION INC.
JORDAN MUSIC ENTERTAINMENT
MALIN GARY S.
ARNALL ALAN C. ESQ.
9/21/2018: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)
4/3/2019: Minute Order
4/3/2019: Ex Parte Application
4/3/2019: Notice of Ruling
10/13/2017: NOTICE OF POSTING JURY FEES ON BEHALF OF DEFENDANT, INTERTWINED, INC.
10/13/2017: DEFENDANT, INTERTWINED, INC.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT
10/17/2017: PROOF OF SERVICE SUMMONS
10/17/2017: PROOF OF SERVICE SUMMONS
11/2/2017: CIVIL DEPOSIT
11/2/2017: ANSWER TO COMPLAINT AND DEMAND FOR TRIAL BY JURY
11/20/2017: ANSWER TO COMPLAINT BY DEFENDANT, DTRS MLB, LLC
11/20/2017: CROSS-COMPLAINT OF DTRS MLB, LLC AND MONTAGE HOTELS & RESORTS, LLC DBA MONTAGE INTERNATIONAL FOR IMPLIED INDEMNITY, EQUITABLE CONTRIBUTION, AND DECLARATORY RELIEF
11/20/2017: ANSWER TO COMPLAINT BY DEFENDANT, MONTAGE HOTELS & RESORTS, LLC DBA MONTAGE INTERNATIONAL
Docketat 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Continued - Party's Motion[+] Read More [-] Read Less
Docketat 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Continued - Party's Motion[+] Read More [-] Read Less
DocketCross-Complaint; Filed by Inviting Occasion, Inc. (Cross-Complainant)[+] Read More [-] Read Less
DocketSummons (Cross-Complaint); Filed by Inviting Occasion, Inc. (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Hearing on Ex Parte Application (for an Order to Continue Final Status Conference and Trial Dates) - Held - Motion Granted[+] Read More [-] Read Less
DocketEx Parte Application (For an Order to Continue FSC and Trial Dates); Filed by Julie Dickens (Plaintiff)[+] Read More [-] Read Less
DocketNotice of Ruling; Filed by Julie Dickens (Plaintiff)[+] Read More [-] Read Less
DocketMinute Order ( (Hearing on Ex Parte Application for an Order to Continue Fina...)); Filed by Clerk[+] Read More [-] Read Less
DocketDeclaration (of Garry S. Malin in Support of Stipulation to Continue FSC and Trial); Filed by Julie Dickens (Plaintiff)[+] Read More [-] Read Less
Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Plaintiff/Petitioner[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketNOTICE OF POSTING JURY FEES ON BEHALF OF DEFENDANT, INTERTWINED, INC.[+] Read More [-] Read Less
DocketDEFENDANT, INTERTWINED, INC.'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT[+] Read More [-] Read Less
DocketCIVIL DEPOSIT[+] Read More [-] Read Less
DocketAnswer; Filed by Intertwined, Inc. (Defendant)[+] Read More [-] Read Less
DocketReceipt; Filed by Intertwined, Inc. (Defendant)[+] Read More [-] Read Less
DocketNotice; Filed by Intertwined, Inc. (Defendant)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by Julie Dickens (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT FOR DAMAGES FOR PERSONAL INJURIES[+] Read More [-] Read Less
Case Number: ****0088 Hearing Date: July 28, 2020 Dept: 29
Dickens v. Montage International, dba Montage Hotels & Resorts, LLC, et al.
The Motion to Quash Service of Summons filed by Cross Defendant Jordan Music Entertainment (Roe 4) is DENIED. Cross-Defendant is ordered to respond to the cross-complaint within 15 days. On the Court’s own motion, the final status conference and jury trial dates are advanced to this date and vacated. The Court sets a trial setting conference is set for September 25, 2020 at 8:30 a.m.
This action was filed on July 26, 2017. Plaintiff Julie Dickens alleges that while she was performing as a singer at a wedding at the Montage hotel in Laguna Beach, she fell from the stage and was injured. Plaintiff sued various defendants, including various Montage entities; Inviting Occasion, Inc.; and Intertwined, Inc. Plaintiff subsequently settled with and dismissed Intertwined, Inc.
On November 20, 2017, DTRS MLB, LLC and Montage Hotels & Resorts, LLC dba Montage International (collectively, “Montage”) filed a cross-complaint against Inviting Occasions, Inc. and Roes 1-10 for implied indemnity, equitable contribution and declaratory relief.
On April 5, 2019, Inviting Occasion, Inc. filed a cross-complaint for indemnity and declaratory relief against Jordan Music Entertainment and Roes 1-20. Inviting Occasion dismissed Jordan Music Entertainment in October 2019.
On January 24, 2020, Montage filed amendments to the cross-complaint, naming Presentation Solutions, Inc., Ed Grasso, Shane Jordan and Jordan Music Entertainment as Roes 1-4.
Cross-Defendant Jordan Music Entertainment moves to quash service of Montage’s summons and cross-complaint on the grounds that Montage was not truly ignorant of the identity of Jordan Music Entertainment at the time the cross-complaint was filed and thus amendment pursuant to section 474 of the Code of Civil Procedure was improper. “[I]mproper service of a defendant under section 474 may be attacked by a motion to quash” pursuant to Code of Civil Procedure section 418.10(a)(1). (McClatchy v. Coblentz, Patch, Duffy & Bass LLP (2016) 247 Cal. App. 4th 368, 375
Section 474 provides in relevant part: “When the plaintiff is ignorant or the name of a defendant, [she] must state that fact in the complaint . . . and when [the] true name is discovered, the pleading or proceeding must be amended accordingly.” “Section 474 allows a plaintiff who is ignorant of a defendant's identity to designate the defendant in a complaint by a fictitious name (typically, as a ‘Doe’ [or Roe in a cross-complaint]), and to amend the pleading to state the defendant's true name when the plaintiff subsequently discovers it.” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal. App. 4th 368, 372). “Section 474 provides a method for adding defendants after the statute of limitations has expired, but this procedure is available only when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant.” (Id.) “The question is whether [the plaintiff] knew or reasonably should have known that he had a cause of action against the [defendant].” (Id.)
The Court of Appeal has recognized an exception to this rule when the statute of limitations has not yet run at the time of the Doe amendment is made. (Davis v. Marin (2000) 80 Cal. App. 4th 380, 387). In Davis, the plaintiff filed an amendment to the complaint to substitute the defendant as a Doe under section 474, but plaintiff had not been ignorant of that Doe defendant’s identity at the time the complaint was filed. The trial court granted summary judgment in favor of the defendant on the ground that he had not been properly added pursuant to section 474 because the plaintiff had not been genuinely ignorant of the identity of the Doe at the time the complaint was filed.
The Court of Appeal reversed, concluding that the “same analytical approach” does not apply under section 474 when the statute of limitations has not expired. The Court noted that the defendant had been “added to the lawsuit as a defendant prior to the expiration of the statute of limitations.” (Id.) Thus, “[t]he question of whether or not the amendment ‘related back’ to the date the complaint was filed was irrelevant.” (Id.) Under such circumstances, the Court held that whether or not the defendant’s identity was known to the plaintiff at the time of filing was not dispositive. Instead, the Court suggested that the relevant inquiry was whether the plaintiff would have been permitted to amend the complaint to add the new defendant at the time the substitution was made. The Court found that to do otherwise would “elevate form over substance and would ignore common sense.” (Id.)
Here, the statute of limitations has not yet run on the indemnity claims. “[A] cause of action for equitable indemnity arises only when the indemnitee actually incurs a loss by payment of the underlying claim or judgment.” (U.S. Cold Storage v. Matson Navigation Co. (1984) 162 Cal. App. 3d 1228, 1231). Thus, under the reasoning of Davis v. Marin, it would be error for the Court to quash service of the summons on the ground that Jordan Music Entertainment’s identity was known at the time the complaint was filed.
Instead, the Court considers whether amendment should be stricken (and service of the summons quashed) because Montage failed to obtain leave to amend to add Jordan Music Entertainment as a defendant pursuant to Code of Civil Procedure section 473(a)(1). As Jordan correctly notes in the reply, Montage should have sought such leave before filing the amendment. However, there is a strong public policy in favor of having cross-claims for equitable indemnity among alleged joint tortfeasors heard in the same action. Thus, leave to amend to add such claims is liberally granted.
The Court further considers whether allowing the amendment at this point would result in prejudice to Jordan Music Entertainment. Under Barrows v. American Motors Corp. (1983), a motion to quash may be granted when an unreasonable delay in amending the complaint to add the new defendant has resulted in prejudice to the defendant. A motion on this ground must be supported by evidence of prejudice. (A.N. v. County of Los Angeles (2009) 171 Cal. App. 4th 1058, 1066-67.)
Here, Jordan has not presented evidence of prejudice. Jordan claims that it has not participated in discovery, but it has not identified any particular discovery that it will be precluded from obtaining. Jordan further argued that Intertwined, Inc.’s application for a good faith settlement was granted before Montage added Jordan as a defendant, but that application was granted during the period that Jordan was a cross-defendant in the case. Further, the effect of the good faith settlement determination will be the same regardless whether Montage’s indemnity claims against Jordan are determined in this action or in a separate action; any claims for equitable indemnity or contribution that Jordan has against Intertwined will be precluded by the good faith settlement determination regardless of when Montage’s claims against Jordan proceed.
Finally, Jordan cannot claim prejudice from an impending trial date. As noted above, although the final status conference and trial are currently set for September 25, 2020 and October 9, 2020, respectively, the Court advances and vacates those dates and sets a trial setting conference for September 25, 2020 at 8:30 a.m.
Moving party is ordered to give notice.
Motion by Ohio Security Insurance Company for Leave to Intervene is GRANTED.
Intervention is proper where the intervenor shows an interest relating to the property or transaction which is the subject of the action and disposition of that action may as a practical matter impair or impede that person’s ability to protect the interest. Cal Code Civil Procedure ; 387(b). Intervenor has an interest in this litigation in that it provides commercial liability insurance to Defendant Inviting Occasion, Inc., who cannot defend itself while it is suspended by the Franchise Tax Board. Declaration of Irving Feng, paragraph 3.
Intervention is permitted to allow the insurer to protect its interests in the litigation and to litigate fault or damage issues that its insured is procedurally barred from pursuing. Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal. App. 4th 1196, 1207-1208; Reliance Ins. Co. v. Superior Court (2000) 84 Cal. App. 4th 383, 385; Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 222.
Intervenor is ordered to file Its Complaint-In-Intervention forthwith.
Moving party is ordered to give notice.
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