Motion-Secondary: POWELL VS WASCO RECREATION AND PARK DISTRICT ET AL

On February 08, 2022 a Motion-Secondary was filed involving a dispute between Powell, Tyna, Wasco Recreation And Park District, and City Of Wasco, County Of Kern, Wasco Recreation And Park District, Wasco Tigersharks Swim Club, for 23-CV Other PI/PD/WD - Civil Unlimited in the District Court of Kern County.

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2 A PROFESSIONAL CORPORATION
William E. Camy, SBN 291397
3 Nicholas A. Pancharian, SBN 335329
350 University Avenue, Suite 200
4 Sacramento, California 95825
5 TEL: 916.929.1481
FAX: 916.927.3706
6 EMAIL: wcamy@porterscott.com
npancharian@porterscott.com
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Attorneys for Defendant/Cross-Complainant, WASCO RECREATION AND PARK DISTRICT
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Exempt from filing fee pursuant to Government Code section 6103
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF KERN
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13 TYNA POWELL, Case No.: BCV-22-100328
14 Plaintiff, DEFENDANT/CROSS-COMPLAINANT WASCO
RECREATION AND PARK DISTRICT’S
15 vs. OPPOSITION TO CROSS-DEFENDANT HDI
GLOBAL SPECIALTY SE’S DEMURRER TO
16 WASCO RECREATION AND PARK CROSS-COMPLAINT
DISTRICT, CITY OF WASCO and DOES 1
17 through 50, inclusive, Date: January 9, 2023
Time: 8:30 a.m.
18 Defendants. Dept.: H
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20 / Complaint filed: February 10, 2022

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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
1 I. INTRODUCTION
2 Plaintiff TYNA POWELL (“Plaintiff”) alleges in her Complaint that she attended her grandson’s
3 swim meet at Barker Pool Park. The swim meet was hosted by Defendant and Cross-Defendant WASCO
4 TIGERSHARKS SWIM CLUB (“WTSC”). WTSC rented the facilities from Defendant and Cross-
5 Complainant WASCO RECREATION AND PARK DISTRICT (“WRPD”). By way of a Facility Use
6 Agreement (“FUA”), WTSC agreed to defend, indemnify, and hold harmless WRPD against any claims for
7 injuries arising out of WTSC’s use of WRPD’s facilities. The FUA also provided that WTSC was required
8 to obtain insurance and name WRPD as an additional insured on the policy. WTSC complied with that
9 obligation, procuring a policy from Cross-Defendant HDI GLOBAL SPECIALTY SE (“HDI”) and named
10 WRPD as an additional insured.
11 While attending the swim meet - as a guest of WTSC and while using WRPD’s facilities rented by
12 WTSC - Plaintiff tripped and injured herself. She filed the instant action and named WRPD and WTSC as
13 Defendants. WRPD tendered its defense of Plaintiff’s Complaint to WTSC and HDI, but the tender was
14 rejected. As a result, WRPD has been forced to file a Cross-Complaint against WTSC and HDI to pursue
15 its right to a defense against Plaintiff’s Complaint.
16 WTSC answered the Cross-Complaint, but HDI filed this demurrer. HDI’s demurrer is essentially
17 based on the argument that Plaintiff’s injury occurred “off-site” and thus it does not have a duty to defend
18 WRPD, but the argument that the injury occurred “off-site” is in direct conflict with the allegations in
19 Plaintiff’s Complaint and WRPD’s Cross-Complaint. Specifically, Plaintiff alleges WTSC controlled the
20 area where Plaintiff fell. HDI must accept the allegation as true and cannot rely on a counterfactual for its
21 demurrer. Therefore, the Cross-Complaint is sufficiently pled and HDI’s demurrer should be overruled.
22 However, if the Court sustains HDI’s demurrer in whole or in part, WRPD should afforded leave to amend.
23 II. FACTUAL BACKGROUND
24 A. The Complaint
25 Plaintiff alleges that on or about June 19, 2021, she was “at…or near Barker Pool Park” in Wasco.
26 (Ex. A, Complaint, p, 5.) Plaintiff further alleges: “At said time and place, Plaintiff was at the Subject
27 Premises to watch her grandson’s swim meet. As Claimant was walking toward the swimming pool area
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
1 to watch her grandson compete, she stepped into a pothole in a grassy area of the park causing her to trip
2 and fall. At the bottom of the hole was a sprinkler valve box.” (Id., at p. 6.) Plaintiff alleges the District
3 and Does 1 to 50, include DOE 11 Wasco Tigersharks Swim Club: “…created a trap for pedestrians
4 walking on the Subject Premises, by allowing the grass to grow over the sprinkler valve box, which was
5 below grade. Defendants, and each of them, failed to take reasonable or adequate measures to protect
6 pedestrians walking on the Subject Premises, including Plaintiff, against tripping hazards resulting in
7 serious injuries to such pedestrians, including Plaintiff, which were at all times foreseeable to said
8 Defendants. The aforesaid actions and/or omissions of Defendants, and each of them, created and caused
9 said dangerous condition. Said condition created a substantial risk of the type of injury herein alleged
10 when the Subject Premises was used in a foreseeable manner.” (Id.; Ex. B, Amendment to Complaint.)
11 Plaintiff further alleges against WTSC:
12 “At said time and place, and at all relevant times prior to the incident, the sprinkler valve box
13 in the grassy area of the park near the playground and pool was negligently and carelessly
installed, owned, maintained, repaired, managed, constructed, controlled, inspected by
14 Defendants, DOES 1 to 50, inclusive.
15 Plaintiff contends that the sprinkler valve box in the grassy area of the park near the playground
16 and pool was in a condition of disrepair so as to constitute a tripping hazard and danger to
members of the general public, including Plaintiff herein.
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Plaintiff further contends that Defendant, DOES 1 to 50, inclusive, had actual and/or
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constructive notice that such tripping hazard and dangerous condition existed, and failed to
19 warn members of the general public, including Plaintiff herein, of said danger or to remedy the
danger.”
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(Ex. A, Complaint, pp. 6-9.)
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B. The Cross-Complaint
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WTSC signed an FUA on June 17, 2021, regarding its use of WRPD’s facilities located at Barker
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Park in Wasco. (Ex. B, Cross-Complaint, Attachments 9, 10.) The agreement included a “Hold Harmless
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and Indemnification Clause,” which provided:
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“Wasco Tiger Sharks Swim Club assume full responsibility for accidents or damages which
26 may arise out of use of the District Property, including without limitation from maintenance
27 and cleanliness of the facilities or property usage. In that regard; Wasco Tiger Sharks Swim
Club agree(s) to shall indemnify, defend, and hold harmless Wasco Recreation and Park
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
District, its officers, employees, and agents from any and all losses, costs, expenses, claims,
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liabilities, actions, or damages, including liability for injuries to any person or persons or
2 damage to property arising at any time out of or in any way related to the Wasco Tiger Sharks
Swim Club’s use or occupancy of a facility or property controlled by the Wasco Recreation
3 and Park District, unless solely caused by the gross negligence or willful misconduct of Wasco
Recreation and Park District, its officers employees, or agents with this agreement and use of
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Property.
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The Wasco Tiger Sharks Swim Club shall indemnify, defend, and hold harmless Wasco
6 Recreation and Park District, its officers, employees, and agents from any and all losses, costs,
7 expenses, claims, liabilities, actions, or damages, including liability for injuries to any person
or persons or damage to property arising at any time out of or in any way related tn the Wasco
8 Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by the Wasco
Recreation and Park District, unless solely caused by the gross negligence or willful
9 misconduct of Wasco Recreation and Park District, its officers employees, or agents.”
10 (Id.) The FUA also included an “Insurance” clause which required WTSC to “procure and maintain, for
11 the duration of the use period contemplated herein, commercial general liability insurance” and that “Such
12 as insurance shall name the Wasco Recreation and Park District, its officers, employees, agents, and
13 volunteers as additional insureds prior to the use of the facility.” (Id.) WTSC procured an insurance policy
14 with HDI. WRPD was an additional insured under the policy. (Id.)
15 The allegations in Plaintiff’s complaint against WRPD relate to an alleged dangerous condition of
16 the District’s property. (Id.) Plaintiff’s claims against WRPD arose out of WTSC’s event that occurred at
17 WRPD’s facilities pursuant to the terms of the FUA. (Id.) WRPD tendered its defense of Plaintiff’s
18 Complaint to WTSC and HDI pursuant to the terms of the FUA. (Id.) The tender was rejected. (Id.)
19 III. LEGAL STANDARD
20 California Code of Civil Procedure section 430.30, subsection (a), provides: “When any ground for
21 objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of
22 which the court is required to or may take judicial notice, the objection on that ground may be taken by a
23 demurrer to the pleading.” A demurrer tests the legal sufficiency of the allegations in the Complaint as a
24 matter of law, accepting as true all properly pled allegations of fact, but not the contentions, deductions, or
25 conclusions of law. (Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 529; Blank v.
26 Kirwan (1985) 39 Cal.3d 311, 318.) It is not the function of the demurrer to challenge the truthfulness of
27 the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
1 to be true…however improbable they may be. (Aubrey v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-
2 967.) The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action
3 – not whether they are true. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be
4 accepted as true for purposes of ruling on the demurrer. (Del. E. Webb Corp. v. Structural Materials Co.
5 (1981) 123 Cal.App.3d 593, 604.)
6 IV. HDI’S DEMURRER SHOULD BE OVERRULED
7 WRPD’s Cross-Complaint pleads four causes of action against HDI: (1) Indemnification; (2)
8 Apportionment of Fault; (3) Declaratory Relief; and (4) Breach of Contract. As discussed below, the
9 Cross-Complaint adequately pleads facts to support each cause of action.
10 A. Indemnification
11 “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the
12 indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is . . . equitably
13 responsible.” (Bailey v. Safeway, Inc. (2011) 199 Cal.App.4th 206, 217.) Here, Plaintiff alleges WRPD is
14 responsible for a dangerous condition of public property and WTSC is liable for premises liability. (Ex.
15 A, Plaintiff’s Complaint.) In the event that WRPD is found liable for Plaintiff’s injuries, WTSC owes a
16 duty to defend WRPD, who is also insured under HDI’s policy. (Ex. C, Cross-Complaint.) Thus, HDI will
17 be responsible for indemnifying WRPD for the amount WRPD is responsible to pay Plaintiff. Therefore,
18 the elements of an indemnity claim are met.
19 HDI argues it is merely an insurer and not liable for equitable/comparative indemnity/contribution.
20 (Demurrer, 6:7-7:14.) Notably, HDI suggests that not even WTSC is an alleged joint tortfeasor
21 (Opposition, 6:21), but that is patently false. Plaintiff alleges that WTCS - Doe 11 - owed and breached
22 its duty to Plaintiff to provide safe premises. (Ex. A, Complaint, pp. 6-8; Ex. B, Doe Amendment.)
23 Therefore, WTSC is clearly an alleged joint tortfeasor and WRPD’s cause of action against WTSC for
24 indemnity is proper. Regardless of WTSC’s obligation to indemnify WRPD, as explained above, HDI
25 owes a duty to indemnify WRPD given that WRPD is an additional insured under HDI’s policy.
26 Notably, HDI argues that it owes no duty to defend or indemnify WRPD because this was an “off-
27 site” accident. (Opposition, 4:20.) HDI does not cite the Complaint or Cross-Complaint to support its
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
1 claim the accident occurred off-site. That is because nowhere in the Complaint or Cross-Complaint is it
2 alleged that Plaintiff’s accident occurred “off-site” or outside the scope of the area rented by WTSC. In
3 fact, the opposite is true. WRPD alleges the area where Plaintiff fell was rented by WTSC pursuant to the
4 terms of the FUA (Ex. C, Cross-Complaint, Attachments 9, 10.) Similarly, Plaintiff alleges WTSC
5 controlled the area where Plaintiff fell. (Ex. A, Complaint, pp. 6-9.) HDI must accept the allegations of
6 the Complaint and Cross-Complaint pled as true for the purposes of its demurrer. These allegations
7 contradict HDI’s claim that the accident occurred off-site and clearly trigger an obligation for HDI to
8 defend WRPD.
9 B. Apportionment of Fault
10 “A defendant bears the burden of proving affirmative defenses and indemnity cross-claims.
11 Apportionment of noneconomic damages is a form of equitable indemnity in which a defendant may
12 reduce his or her damages by establishing others are also at fault for the plaintiff’s injuries. Placing the
13 burden on defendant to prove fault as to nonparty tortfeasors is not unjustified or unduly onerous.” (Wilson
14 v. Ritto (2003) 105 Cal.App.4th 361, 369.) Here, Plaintiff sued both WTSC and WRPD for her injuries.
15 (Ex. A, Complaint; Ex. B, Doe Amendment). To the extent that a jury finds both WTSC and WRPD
16 responsible for Plaintiff’s injuries, it will apportion liability respectively between the two. As the insurer
17 for both, HDI will be responsible for indemnifying WRPD if any liability is apportioned to it.
18 C. Declaratory Relief
19 A declaratory relief claim is normally used “to obtain a judicial declaration on the rights and duties
20 of the parties under a contract.” (City of Tiburon v. Northwestern Pac. R.R. Co. (1970) 4 Cal.App.3d 160,
21 170.) The fundamental basis for declaratory relief is the existence of an actual, present controversy over
22 a proper subject. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) Declaratory relief has two elements
23 a party must satisfy: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving
24 justiciable questions relating to [the party’s] rights or obligations.” (Jolley v. Chase Home Finance, LLC
25 (2013) 213 Cal.App.4th 872, 909.) Declaratory relief is traditionally used for statutory and contract
26 interpretation. (Von Durjais v. Bd. Of Trustees (1978) 83 Cal.App.3d 687.) Here, WRPD’s declaratory
27 relief action is proper to obtain a determination from the Court regarding whether HDI has a contractual
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
1 obligation to defend and indemnify WRPD as an additional insured under the subject policy. HDI contends
2 that it owes no duty to provide a defense to WRPD against Plaintiff’s Complaint. WRPD is listed as an
3 additional insured under HDI’s policy and WRPD’s declaratory relief action is a proper vehicle to litigate
4 that dispute.
5 D. Breach of Contract
6 “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract,
7 (2) the plaintiff’s (cross-complainant’s) performance of the contract or excuse for nonperformance, (3)
8 the defendant’s (cross-defendant’s) breach, and (4) the resulting damage to the plaintiff (cross-
9 complainant).” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Each of these elements are
10 adequately pled in the Cross-Complaint.
11 For the first element, WRPD is listed as an insured on HDI’s insurance policy. (Ex. C, Cross-
12 Complaint, Attachments 9, 10.) An “additional insured” endorsement creates a contractual obligation that
13 is entirely separate from any indemnification obligation that may exist in an underlying contract.
14 (American Casualty Company of Reading, PA v. General Star Indemnity Co. (2005) 125 Cal.App.4th
15 1510, 1524.) Thus, there is a contractual relationship. For the second element, WRPD was listed as an
16 additional insured on the policy in exchange for renting its property to the WTSC. (Id.) WRPD fulfilled
17 its obligations to rent the property to the WTSC. (Id.) Therefore, WRPD performed its duties under the
18 contract. For the third element, WRPD tendered its defense to WTSC and HDI, but the tender was rejected
19 (Id.) Therefore, WTSC and HDI breached the contract by failing to afford WRPD a defense. For the fourth
20 element, WRPD is now forced to defend, litigate, and potentially indemnify Plaintiff as a result of WTSC
21 and HDI’s breach. (Id.) Therefore, the Cross-Complaint adequately pleads facts to support a breach of
22 contract cause of action.
23 As noted above, WRPD tendered its defense to WTSC and HDI, but the defense has been denied.
24 The duty to defend under an Additional Insured (“AI”) endorsement is triggered by the allegations of
25 Plaintiff, at the outset of the case, regardless of whether liability has been established. (Maryland Casualty
26 Co. v. Nationwide Ins. Co. (1998) 65 Cal.App.4th 21, 28-32; McMillan Homes Construction, Inc. v.
27 National Fire & Marine Insurance Company (2019) 35 Cal.App.5th 1042, 1049-1050.) Where the AI
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
1 endorsement applies to claims arising out of use of the premises, the landlord is covered for sole
2 negligence even if the contractual indemnity clause would not apply. (American Casualty Company of
3 Reading, PA, supra, 125 Cal.App.4th at 1527-1528; Acceptance Ins. Co. v. Syufy Enterprises (1999) 69
4 Cal.App.4th 321, 326-328 - if ambiguous, the potential coverage must be construed liberally against the
5 insurer, but in any event the phrase is meant to be given a broad interpretation.) Here, Plaintiff alleges her
6 injury arose out of her attending her grandson’s swim meet that was hosted by the WTSC. The swim meet
7 was hosted pursuant to the terms of WTSC’s FUA with WRPD. WTSC procured the instant insurance
8 policy with HDI and listed WRPD as an additional insured on the policy. Therefore, WRPD is entitled to
9 a defense against Plaintiff’s Complaint under the policy.
10 Given the breadth of the duty to defend as defined by the above authorities, HDI has breached the
11 implied covenant of good faith and fair dealing. “The covenant of good faith and fair dealing, implied by
12 law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other
13 party’s right to receive the benefits of the agreement actually made. The covenant thus cannot ‘“‘be
14 endowed with an existence independent of its contractual underpinnings.’”’ It cannot impose substantive
15 duties or limits on the contracting parties beyond those incorporated in the specific terms of their
16 agreement.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349–350, original italics, internal
17 citations omitted.) “Although breach of the implied covenant often is pleaded as a separate count, a breach
18 of the implied covenant is necessarily a breach of contract.” (Digerati Holdings, LLC v. Young Money
19 Entertainment, LLC (2011) 194 Cal.App.4th 873, 885.) Here, HDI has breached the implied covenant of
20 good faith and fair dealing by refusing to provide WRPD with a defense against Plaintiff’s Complaint.
21 The case Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) Cal.App.4th 193 is directly
22 on point. In Royal Surplus, Ocean, the owner of a residential apartment complex, commenced a
23 construction project. (Id. at 196.) Ocean contracted with a contractor and subcontractors. (Id.) One of the
24 subcontractors was Ultimate Construction (“Ultimate”). (Id.) Ocean and Ultimate entered into an
25 agreement whereby Ultimate agreed to defend and indemnify Ocean for claims arising out of Ultimate’s
26 work, and also agreed to list Ocean as an additional insured on Ultimate’s liability policy through Ranger
27 Insurance Company (“Ranger”). (Id.) Thereafter, six tenants filed lawsuits against Ocean arising out of
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
1 Ultimate’s work. (Id. at 196-197.) Ocean tendered its defense to Ultimate and Ranger. (Id. at 197.)
2 Ultimate and Ranger refused to defend Ocean. (Id.) Ocean and its insurer, Royal Insurance Company
3 (“Royal”) settled the underlying lawsuit and then filed an action against Ultimate and Ranger, including
4 causes of action for equitable subrogation, equitable contribution and indemnity, breach of contract,
5 breach of the implied convenient of good faith and fair dealing, and declaratory relief. (Id.) Ranger filed
6 a demurrer arguing that it was misjoined in the action because, it alleged, it was improper to name both
7 the insured and insurer in the same action. (Id. at 198.) The trial court sustained the demurrer without
8 leave to amend, but the ruling was overturned on appeal. (Id. at 198, 204.) The Court held that itwas
9 appropriate for Royal to sue both Ultimate and Ranger in the same action. (Id. at 198-204.) The Court
10 further noted that it was a “distinction without a difference” regarding whether the insured and insurer
11 were named in the same action and then the claims against them bifurcated/severed before trial, or whether
12 they be named in separate actions that be declared related cases. (Id. at 205.)
13 Here, as was the case in Royal Surplus, it is proper for WRPD to sue both WTSC and HDI in the
14 same action. To the extent HDI argues that it cannot be included in the same trial with WTSC, it can move
15 to sever the action at that time.
16 Again, HDI argues the subject incident occurred “off-site” and thus it has not breached its
17 contractual duty to afford a defense of Plaintiff’s Complaint to WRPD even though WRPD is listed as an
18 additional insured under the subject policy. (Opposition, 8:16-17.) As discussed in Section IV(A) above,
19 there is no allegation in the Complaint or Cross-Complaint that Plaintiff’s injury occurred “off-site.” The
20 opposite is true. The Complaint alleges the injury occurred within the area controlled by WTSC.
21 Similarly, HDI’s argument that WRPD failed to identify the provisions of the contract is not
22 persuasive. (Opposition, 8:18-21.) WRPD alleged verbatim the provisions of the FUA that afford it
23 coverage in this case. (Ex. C, Cross-Complaint, Attachments 9 and 10.) WRPD further alleges it is listed
24 as an additional insured under HDI’s policy covering WTSC and WRPD against Plaintiff’s Complaint.
25 (Id.) These allegations satisfy the elements for a breach of contract. To the extent the Court finds that a
26 copy of the policy or additional insured endorsement is required, leave to amend should be afforded to
27 WRPD to attach the document to an amended complaint.
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
1 V. IF CROSS-DEFENDANT’S DEMURRER IS SUSTAINED, IT SHOULD BE WITH
2 LEAVE TO AMEND
3 Subject to the limitations imposed by subdivision (e) of Section 430.41, if a demurrer is sustained,
4 the court may grant leave to amend the pleading upon any terms as may be just and shall fix the time within
5 which the amendment or amended pleading shall be filed. “In the case of either a demurrer or a motion for
6 judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the
7 plaintiff can state a good cause of action.” (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal. App. 4th
8 1848, 1852.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is
9 any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18
10 Cal. 3d 335, 349.” Here, WRPD is undisputedly a named additional insured on a policy provided by HDI.
11 To the extent the Court finds that insufficient facts were alleged to state a claim under the theories alleged,
12 WRPD should be afforded an opportunity to amend its complaint.
13 VI. CONCLUSION
14 For the foregoing reasons, Defendant and Cross-Complainant Wasco Recreation and Park District
15 respectfully requests the Court overrule the instant demurrer. However, if the demurrer is sustained in whole
16 or in part, WRPD should be afforded leave to amend its Cross-Complaint.
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Dated: December 22, 2022 PORTER SCOTT
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A PROFESSIONAL CORPORATION
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By: _____________________________________
22 William E. Camy
Nicholas A. Pancharian
23 Attorneys for Defendant/Cross-Complainant
Wasco Recreation and Park District
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
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Wasco v. Wasco Recreation and Park District
2 Kern County Superior Court Case No. – BCV-22-100328

3 DECLARATION OF SERVICE
4
I am a resident of the United States and of the County, of Sacramento, California. I am over the
5 age of eighteen years and not a party to the within above-entitled action. My business address is 350
University Avenue, Suite 200, Sacramento, California.
6 I am familiar with this Company's practice whereby the mail, after being placed in a designated
7 area, is given the appropriate postage and is deposited in a U.S. mailbox in the City of Sacramento,
California, after the close of the day's business.
8 That on the date below, I served the following: DEFENDANT/CROSS-COMPLAINANT
WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-DEFENDANT HDI
9 GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT on all parties in the said action
as addressed below by causing a true copy thereof to be served:
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BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices.I
11 am readily familiar with this business’ practice for collecting and processing correspondence for mailing.
On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary
12 course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid.
BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an
13 overnight delivery carrier and addressed to the person(s) listed below. I placed the envelope or package
for collection and overnight delivery at my office or a regularly utilized drop box of the overnight delivery
14 carrier.
XX BY ELECTRONIC SERVICE: Based on a court order or an agreement of the parties to accept service
15 by electronic transmission, I caused the documents to be sent to the persons at the electronic notification
address listed below.
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17 SEE ATTACHED SERVICE LIST

18 I declare under penalty of perjury that the foregoing is true and correct. Executed at Sacramento,
California, on December 22, 2022.
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20 _________________________
Kristena Champlin
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
DEFENDANT HDI GLOBAL SPECIALTY SE’S DEMURRER TO CROSS-COMPLAINT
SERVICE LIST
1
2 Counsel for Plaintiff Counsel for City of Wasco
Matthew Clark Michael C. Keller
3 Doug Fitz-Simmons ROBINSON & KELLER
CHAIN COHN CLARK 3434 Truxtun Avenue, Suite 150
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1731 Chester Avenue Bakersfield, CA 93301
5 Bakersfield, CA 93301 rpllaw@aol.com
mclark@chainlaw.com
6 dfitzsimmons@chainlaw.com
service@chainlaw.com
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Counsel for Wasco Tiger Sharks Swim Club and
8 HDI Global Specialty SE
Steven H. Schwartz
9 Jonathan Moradifar
SCHWARTZ & JANZEN, LLP
10 12100 Wilshire Boulevard, Suite 1125
Los Angeles, California 90025
11 sschwartz@sj-law.com
12 jmoradifar@sj-law.com
whess@sj-law.com
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DEFENDANT/CROSS-COMPLAINANT WASCO RECREATION AND PARK DISTRICT’S OPPOSITION TO CROSS-
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Case Info

Judge

Barmann, Bernard C., Jr. Track Judge’s New Case

Case No.

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Document Filed Date

December 22, 2022

Case Filing Date

February 08, 2022

County

Parties

CAMY, WILLIAM E Attorney for the Defendant
CITY OF WASCO Defendant
CLARK, MATTHEW C Attorney for the Plaintiff
COUNTY OF KERN Defendant
HDI GLOBAL SPECIALTY SE Cross Defendant
KELLAR, MICHAEL C Attorney for the Defendant
POWELL, TYNA Plaintiff
WASCO RECREATION AND PARK DISTRICT Cross Complainant
WASCO RECREATION AND PARK DISTRICT Defendant
WASCO TIGER SHARKS SWIM CLUB Cross Defendant
WASCO TIGERSHARKS SWIM CLUB Defendant
Steven Schwartz Attorneys for Defendants
Noel Macaulay Attorney
C Fitz-Simmons Attorneys for Plaintiffs
Nicholas Pancharian Attorneys for Plaintiffs
Alison Southard Attorneys for Defendants
William Cashman Attorneys for Plaintiffs
Matthew Bartek Attorney
Peter Scott Attorney
Jonathan Moradifar Attorneys for Defendants

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Motion-Secondary: POWELL VS WASCO RECREATION AND PARK DISTRICT ET AL

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