Preview
1 Alison M. Crane, SBN. 197359
Jordan E. Scott, SBN 299147
2 BLEDSOE, DIESTEL, TREPPA & CRANE LLP
601 California Street, 16th Floor ELECTRONICALLY
3 San Francisco, California 94108-2805
Telephone: (415) 981-5411
F I L E D
Superior Court of California,
4 Facsimile: (415) 981-0352 County of San Francisco
acrane@bledsoelaw.com 07/12/2019
5 jscott@bledsoelaw.com Clerk of the Court
BY: DAVID YUEN
Deputy Clerk
6 Attorneys for Defendant, Cross-Defendant and Cross-
Complainant BEYOND GROUP LLC as DOE FIFTY-ONE
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SAN FRANCISCO
10
11 BENJAMIN PESSAH, No. CGC-14-541870
12 Plaintiff, REPLY IN SUPPORT OF CROSS-
DEFENDANT BEYOND GROUP
13 v. LLC’S MOTION AND MOTION FOR
SUMMARY JUDGMENT TO CROSS-
14 CHRISTIAN PINEIRO, an individual and COMPLAINTS OF CROSS-
dba CHRISTIAN PRESENTS; VADIM DEFENDANTS CHRISTIAN
15 ANANYEV, an individual and dba TREND PINEIRO, AN INDIVIDUAL AND DBA
VIP GROUP and RHYTHM ETHICS CHRISTIAN PRESENTS, VADIM
16 PRODUCTIONS; ARASH GHANADAN, an ANANYEV, AN INDIVIDUAL AND
individual and dba TREND VIP GROUP and DBA TREND VIP GROUP AND
17 MIRZA PARTY; ENRIQUE MONTERO, an RHYTHM ETHICS PRODUCTIONS,
individual and dba SURREAL SF AND ARASH GHANADAN, AN
18 ENTERTAINMENT and ENRIQUE OF INDIVIDUAL AND DBA TREND VIP
SURREAL SF; HOODIN HAMIDI, an GROUP AND MIRZA PARTY, OR, IN
19 individual and dba SOL Y LUNA SF; THE ALTERNATIVE, FOR
CHRISTOPHER DOUKAKIS, an individual SUMMARY ADJUDICATION
20 and dba SELECT ENTERTAINMENT;
PETER DOUKAKIS, an individual and dba Date: July 17, 2019
21 SELECT ENTERTAINMENT; GEORGE Time: 9:30 a.m.
STAVROPOULOS; an individual and dba Dept.: 302
22 SELECT ENTERTAINMENT; HUN CHU
SAELEE; JUDIANA MEI LAU; FORT Reservation No.: 04160717-09
23 MASON CENTER (a corporation);
BEYOND GROUP LLC; and DOES ONE
24 through ONE HUNDRED, inclusive,
25 Defendants.
26
AND RELATED CROSS-ACTIONS.
27
28
REPLY ISO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS
CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, FOR MSA
1 I. INTRODUCTION
2 An unfavorable fact cannot be changed so that it becomes favorable and new and
3 previously unpled legal theories cannot save the Marketing Team from a Motion for Summary
4 Judgment. Yet that is precisely what the Marketing Team attempts to do in its Opposition to
5 Defendant and Cross-Defendant Beyond Group LLC’s (hereafter, “Beyond Group”) Motion for
6 Summary Judgment (“Motion”).1 The Opposition is light on the law, light on the facts, and heavy
7 with desperation to create new theories as to why their claims against Beyond G roup are still
8 viable (e.g. the breach of contract claim can be amended a year later to reflect the parties actual
9 intent! And, the breach of contract claim is actually now based on entirely new allegations!).
10 Beyond Group made its Motion on the basis that no disputed material facts exist to support the
11 Marketing Team’s claims that they are entitled to express indemnification or any form of implied
12 or equitable indemnification as alleged in their cross-complaints filed in this action to date. As
13 discussed below, the Marketing Team’s Opposition fails to produce any admissible evidence
14 controverting the Beyond Group’s evidence or demonstrating that there are any triable issues of
15 fact. Accordingly, the Marketing Team’s failure make the requisite showing of the existence of a
16 triable issue of material fact entitles the Beyond Group to judgment as a matter of law.
17 II. LEGAL ARGUMENT
A. IT IS UNDISPUTED THAT BEYOND GROUP DOES NOT OWE THE
18 MARKETING TEAM A DEFENSE UNDER THE ACTUAL LANGUAGE OF THE
AGREEMENT’S INDEMNITY PROVISION
19
20 The Marketing Team claims that the “sole issue” presented by the Motion is “whether the
21 evidence is so undisputed that as a matter of law [the Beyond Group] does not owe indemnity to
22 cross-complaints [sic], who comprise the ‘Marketing Team’ in the True Blood Halloween 2012
23 Marketing Agreement & Contract.” 2 (Opp. at 1:24-27.) Despite this claim, the Marketing Team
24 fails to refer to the relevant language of the Agreement. Instead, the Opposition only provides as
25 follows: the Agreement “refers to all demands, claims, damages to persons or property (whether
26 1
As defined in the Motion, “the Marketing Team” collectively refers to defendants Christian Pineiro, an individual
and dba Christian Presents, Vadim Ananyev, an individual and dba Trend VIP Group and Rhythm Ethics
27 Productions, and Arash Ghanadan, an individual dba Trend VIP Group and Mirza.
2
The True Blood Halloween 2012 Marketing Agreement & Contract (hereafter, “Agreement”) “outlines the financial
28 arrangement Beyond Group and Marketing Team for the True Blood Halloween event that occurred at the Herbst
Pavilion of Fort Mason Center in San Francisco on October 27, 2012 (hereafter, “Event”). (UMF No. 1.)
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REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS
CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA
1 direct, indirect, incidental, consequential or otherwise)…” (Opp. at 4:25-28.) Given that the
2 Marketing Team characterized the Motion as having a “sole issue” to be determined, that sole
3 issue should be accurate. But it was not. the Marketing Team chose to omit the most important
4 language from the indemnity provision of the Agreement, which completes the sentence that the
5 Marketing Team truncated. In relevant part, Provision 2 of the Agreement provides as follows:
[Beyond Group] shall indemnify, defend and hold harmless the Marketing Team
6 and its officers, directors, partners, agents, members and employees from and
against any and all demands, claims, damages to persons or property (whether direct,
7 indirect, incidental, consequential or otherwise), suit, proceeding (whether before
an arbitrator, court, mediator or otherwise) or investigation made by any third party,
8 losses and liabilities, including reasonable attorney’s fees (collectively “Claims”)
arising out of or caused at the Event, “True Blood Halloween”. (Emphasis added).
9 (UMF No. 3.)
10 The emphasized language was discussed throughout the Motion because it forms the basis of
11 to the Beyond Group’s position that there are no triable issues of fact related to the Beyond
12 Group’s express indemnity or equitable indemnity obligations. Yet, tellingly, the Marketing Team
13 ignores that language. Otherwise, to acknowledge that language is to acknowledge that the
14 Motion has merit because Plaintiff’s injuries did not arise out of nor were caused at the True
15 Blood Halloween 2012 Event (hereafter, the “Event”).
16 Furthermore, in addition to ignoring the language of the Agreement, the Marketing Team also
17 alters it. The Marketing Team asserts that “all parties to the [Agreement] intended that if
18 someone was injured or claimed to have been injured at the [Event], then the Beyond Group
19 would indemnify and defend the Marketing Team and its members as to those claims. That fact is
20 not in dispute.” (Opp. at 3:7-10. Emphasis added.) That is not a fact. The Agreement’s indemnity
21 provision expressly provides that the Beyond Group shall indemnify, defend, and hold harmless
22 the Marketing Team for injuries “arising out of or caused at the event.” (Emphasis added.) In an
23 action based upon contract claims, as is the case here, a proper and precise reading of the contract
24 language is necessary, and the contract is construed strictly against the indemnitee. (Morlin Asset
25 Management LP v. Murachanian (2016) 2 Cal.App.5th 184, 189.) As is the case here where the
26 Beyond Group’s undisputed evidence established that no obligation to defend, indemnify, or hold
27 the Marketing Team harmless exists because Plaintiff’s injuries neither arose out of or were
28 caused at the event.
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CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA
1 Whether the Plaintiff’s injuries – which were the result of a shooting that occurred outside of
2 the Event, in the Gashouse Cove Parking lot, a parking lot away from the confines of the Event
3 venue and a parking lot not under the Beyond Group’s control – did not arise out of nor were they
4 caused by the event is the sole issue presented by the Beyond Group’s Motion. In its Opposition,
5 the Marketing Team did not present any admissible evidence contradicting the Beyond Group’s
6 evidence regarding the location of Plaintiff’s injuries, nor does the Marketing Team’s proffered
7 evidence create a triable issue of fact as to whether Plaintiff’s injuries – the result of a shooting in
8 parking lot away from the event – arose out of or were caused at the Event. Consequently, the
9 Beyond Group’s Motion should be granted.
B. THE MARKETING TEAM’S RELIANCE ON CODE CIV. PROC §473(A) IS
10 UNTIMELY AND MOOT
11 Faced with a provision that does not entitle them to indemnity, the Marketing Team proceeds
12 to look for a way out of the clear and unequivocal language of the agreement. The Marketing
13 Team’s reliance on Code Civ. Proc §473(a)(1) in an opposition to a motion for summary
14 judgment is misplaced. Simply put, Code Civ. Proc §473 authorizes amending any pleading and
15 allows for extending the time to for filing a responsive pleading, such as an answer or demurrer.3
16 Nevertheless, Code Civ. Proc §473(a) is the only statute the Marketing Team cites to in its
17 opposition to the Marketing Team’s to the Beyond Group’s motion for summary judgment. To be
18 clear: on June 15, 2018 – more than one year ago – the Marketing Team filed its cross-complaint
19 against Beyond Group LLC (hereafter, “Cross-Complaint”).4 (UMF No. 29.)
20 The time has long passed for the Marketing Team to amend its Cross-Complaint against the
21 Beyond Group pursuant to Code Civ. Proc §473(a)(1). Thus, the Marketing Team’s reliance on
22 Code Civ. Proc §473(a)(1) is nothing more than a last-ditch, thinly-veiled, Hail Mary pass attempt
23 to change the language of the Agreement that forms the basis of their indemnity and breach of
24
3
Code Civ. Proc §473(a)(1) provides: “The court may, in furtherance of justice, and on any terms as may be proper,
25 allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting
a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for
26 answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any
terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms
27 allow an answer to be made after the time limited by this code.” (Emphasis added.)
4
The Cross-Complaint alleges causes of action for total equitable indemnity, apportionment of fault, declaratory
28 relief, implied indemnity, express contractual indemnity, and breach of contract. (hereafter, “Cross-Complaint”).
(UMF No. 29.)
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CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA
1 contract claims. Through its Opposition the Marketing Team seeks to change the Agreement so
2 that it does not say what the parties actually agreed to at the time they entered into it, but, instead,
3 that the Agreement provides exactly what it needs to in order for the Beyond Group to indemnify,
4 defend and hold the Marketing Team harmless for Plaintiff’s injuries. Such a change is rather
5 convenient a month away from trial. Tellingly, the Marketing Team doesn’t even offer a
6 proposed amendment of change(s).
7 Unsurprisingly, not only does the language of Code Civ. Proc §473(a)(1), itself, clearly
8 demonstrate its inappropriateness and untimeliness in this context, so, too, do the three cases the
9 Marketing Team cites – the only caselaw included in the Opposition - discussing Code Civ. Proc
10 §473.5 The Marketing Team relies on Landis v. Superior Court (1965) 232 Cal.App.2d 548 to
11 show that Code Civ. Proc §473 authorizes the court in its discretion to allow amendments to
12 pleadings. (Opp. at 3:24-4:11.) Importantly, the Landis opinion cited to grants a petition for writ
13 of mandate to compel the superior court to grant leave to file an amended complaint. Here, not
14 now or previously, has the Marketing Team sought leave to file an amended complaint.
15 Furthermore, Landis found that a complaint for reformation of a written agreement must allege:
16 (1) a real agreement; (2) that the agreement was reduced to writing; (3) a mistake; and
17 (4) generally how the mistake was made. In support of its Opposition, the Marketing Team
18 proffered no evidence of the four requirements set forth in Landis. Importantly, in the
19 declarations of the individual members of the Marketing Team, none claim that there was any
20 mistake or defect in the writing of the agreement and, thus, nor do they offer any evidence as to
21 generally how the mistake came about. (See Exhibits J – M to the Marketing Team’s Statement
22 of Evidence.)
1. Even if the Marketing Team’s Reliance on Code Civ. Proc. §473(a) were
23 timely, it still leaves the Beyond Group speculating as to Marketing Team’s
Purported Intent for the Agreement’s Indemnity Provision
24
Assuming, arguendo, that this instant action were not at the summary judgment phase of the
25
litigation and just over a month away from trial, the purpose of the Marketing Team’s reliance on
26
5
The Marketing Team relies on Union Bank v. Wendland (1976) 54 Cal.App.3d 393 for the proposition that “a
27 reformation of contract to comply with the intent of the parties can be made to conform to proof at trial. (the
Marketing Team Opp. At 4:12-13.) However, because Union Bank has been overturned due to legislative action, it is
28 not reliable authority and thus, Beyond Group does not address it here. (See Union Bank v. Wendland (1976) 54
Cal.App.3d 393, overturned due to legislative action (May 1, 2012).)
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CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA
1 Code Civ. Proc §473 remains perplexing. The Marketing Team’s discussion of Code Civ. Proc
2 §473 follows its claim that all parties to the Agreement (e.g. the Marketing Team and the Beyond
3 Group) “intended that if someone was injured or claimed to have been injured at the [Event], then
4 the Beyond Group would indemnify and defend the Marketing Team and its members as to those
5 claims.” (Opp. at 3:7-8.) Nevertheless, the Marketing Team does not demonstrate how the Cross-
6 Complaint would be modified to comply with the purported intent of the parties. For example, is
7 the Marketing Team proposing to amend its Cross-Complaint to show the parties’ intent for the
8 Agreement’s indemnity provision was cover any person who was injured or claimed to have been
9 injured arising out of or caused at the Event, including the unforeseeable criminal acts of third
10 parties, including but not limited to gun violence? Or, most effective for the Marketing Team’s
11 position in this matter, perhaps Code Civ. Proc §473 could be used to alleges the parties intended
12 the indemnity provision would cover someone who departed the Event was shot by a stranger in a
13 parking lot located away from the Event and not controlled by the Beyond Group?
14 Moreover, the Marketing Team failed to provide any evidence that that the parties’ intent was
15 not reflecting in the agreement other than declarations of its members made after-the-fact and in
16 hindsight of Plaintiffs’ injuries. As such, Marketing Team did not present a triable issue of fact
17 relating to the Marketing Team’s express or equitable indemnity claims.6
18 Regardless of the Marketing Team’s unspecified amendment(s) to the Agreement, the
19 Marketing Team offered no evidence showing that at the time the Marketing Team entered into
20 the Agreement, that they intended the Beyond Group to defend, indemnify, and hold the
21 Marketing Team harmless for the injuries sustained by Plaintiff as a result of unpredictable gun
22 violence. Any attempt by the Marketing Team to show evidence to the contrary does not
23 demonstrate a triable issue of fact as to the Marketing Team indemnity claims against the Beyond
24 6
Notably, despite the Motion devoting six pages to its legal argument that there are no triable issues of fact related to
Beyond Group’s express indemnity obligations and the Marketing Team equitable indemnity claims (See Motion,
25 Sections IV.A and IV.B), the Opposition does not address any of Beyond Group’s arguments on those issues, does
not provide contrary authority, and at no point does it distinguish between “express indemnity” nor “equitable
26 indemnity.” Instead, the Opposition attempts to change the narrative of the Agreement so that it’s about the parties’
purported intent in entering the Agreement – only after the fact of Plaintiff’s injuries and when facing this Motion.
Thus, having not refuted Beyond Group’s position concerning that there are no triable issues of fact concerning
27 Beyond Group’s express indemnity obligations under the Agreement as a matter of law (because Plaintiff’s injuries
were not caused by or occurred outside the Event) and because there are no triable issues of fact related to the
28 Marketing Team’s equitable indemnity claims as a matter law (the existence of a contractual indemnity provision, as
in the Agreement, bars equitable and implied indemnity claims), the Court should grant the Motion.
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REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS
CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA
1 Group; all it shows is the Marketing Team’s after-the-fact attempts to avoid summary judgment,
2 and those are not triable issues of fact.
C. THE MARKETING TEAM FAILS TO CITE TO AUTHORITY SUPPORTING
3 ITS PROPOSITION REGARDING THE DETERMINATION OF THE
“INDEMNITY AND DEFENSE ISSUE.”
4
5 In section II of the Opposition, it appears that the Marketing Team is attempting to support
6 their claim that there is a dispute as to whether the Agreement requires the Beyond Group to
7 indemnity and defend the Marketing Team for Plaintiff’s injuries. What’s also apparent is that the
8 Marketing Team relies on no authority to do so. As claimed in Section II, the Marketing Team
9 writes, “the indemnity and defense issue is not determined by where the injury occurred or if the
10 injury was in the event building or not; the indemnity and defense issues arises by the claim of
11 the plaintiff.” (Emphasis original.) [Opp. at 4:23-25].
12 In addition to failing to define “the indemnity and defense issue,” the Marketing Team also
13 fails to provide any authority whatsoever (e.g. binding, persuasive, state, federal) to support the
14 proposition that the determination of whether the Beyond Group is obligated to defend and
15 indemnify it for Plaintiff’s injuries.7 Without providing authority for this proposition on which the
16 Marketing Team relies, it can only be characterized as an unreliable, self-serving and convenient
17 proclamation, neither based in law nor fact. Perhaps worse, however, is that the Marketing Team
18 then uses that self-serving unsupported proposition to claim that, “[c]ertainly, there is a material
19 question of fact as to the indemnity issue that prevents the Beyond Group from obtaining
20 summary judgment on this issue.” (Opp. at 5:1-2). Beyond Group disagrees. All that is certain is
21 that the Marketing Team’s reliance on an unsupported and unfounded statement does not
22 establish that there is a material question of fact and it cannot be considered by the Court.
23 D. THE MARKETING TEAM INTRODUCED A NEW THEORY FOR THE
BREACH OF CONTRACT CLAIM RATHER THAN PRODUCE ADMISSIBLE
24 EVIDENCE FOR THE THEORY ALLEGED IN ITS COMPLAINT
25 Inexplicably, the Marketing Team uses its Opposition as the opportunity to assert a new
26 theory for its breach of contract claim against the Beyond Group. Instead of proffering evidence
27 in support of its breach of contract claim as alleged in its Complaint, the Marketing Team
28
7
This phrasing represents Beyond Group’s attempt to define what the Marketing Team call “the indemnity and
defense issue.”
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CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA
1 introduces completely new allegations. The pleadings play a key role in a summary judgment
2 motion and “‘“set the boundaries of the issues to be resolved at summary judgment.”’” (Nativi v.
3 Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 289.) “[T]he scope of the issues
4 to be properly addressed in [a] summary judgment motion” is generally “limited to the claims
5 framed by the pleadings. [Citation.] A moving party seeking summary judgment or adjudication
6 is not required to go beyond the allegations of the pleading, with respect to new theories that
7 could have been pled, but for which no motion to amend or supplement the pleading was brought,
8 prior to the hearing on the dispositive motion. [Citation.]” (Howard v. Omni Hotels Management
9 Corp. (2012) 203 Cal.App.4th 403, 421; see California Bank & Trust v. Lawlor (2013) 222
10 Cal.App.4th 625, 637, fn. 3 [“[a] party may not oppose a summary judgment motion based on a
11 claim, theory, or defense that is not alleged in the pleadings,” and “[e]vidence offered on an
12 unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the
13 pleadings”].) As such, the first place to begin to determine the scope of the claim for breach of
14 contract is the Cross-Complaint.
15 In the Cross-Complaint, the breach of contract claim is based upon Beyond Group’s
16 alleged failure to indemnify the Marketing Team. The Marketing Team alleged that Beyond
17 Group breached the Agreement by failing to accept Hamidi’s or the remaining Marketing Team
18 member’s tender of defense, dated September 26, 2017 for the remaining Marketing Team and
19 November 17, 2017 for Hamidi. As explained in the Motion, because the Marketing Team’s
20 breach of contract claim was based on the Beyond Group’s alleged failure to accept the
21 Marketing Team’s tender of defense, and because Beyond Group was not obligated to defend the
22 Marketing Term pursuant to the Agreement, there could be no breach of contract.
23 In its Opposition, however, the Marketing Team now alleges the following in support of
24 its breach of contract cause of action: on behalf of Beyond Group, Claudia Yu requested the
25 Marketing Team pay its share of the liability insurance premium for the Event; Arash Ghanadan,
26 on behalf of the Marketing Team, paid the amount requested; and that the Beyond Group did not
27 place any liability coverage for the Marketing Team for the event. (Opp. At 5:24-6:2). Without
28 providing any admissible evidence of the foregoing allegations, the Marketing Team proclaims
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CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA
1 they amount to “classic breach of contract.” (Opp. at 6:4.)
2 Just in case the Marketing Team’s introduction of a completely new basis for its breach of
3 contract claim wasn’t fatal enough to its Opposition, the Marketing Team also fails to provide any
4 evidence supporting its brand new, too-little-too-late, see-if-it-sticks breach of contract theory.
5 According to the Opposition, “the evidence submitted with these opposing papers shows that on
6 October 10, 2012 Claudia Yu, on behalf of BG, solicited the sum of $287 from Ghanadan for the
7 Marketing Teams [sic] share of the liability insurance premium [hereafter, “insurance coverage’]
8 for the [Event].” (Opp. at 5:24-27). Yet, the Marketing Team fails to produce the very evidence
9 it relies on. The Opposition does not identify where the submitted evidence can be found in the
10 Marketing Team’s papers. Left to guess at what that evidence is and where it can be found, the
11 Beyond Group turns to the only evidence cited to in the Opposition: declarations of all four
12 members of the Marketing Team Members attached to the Marketing Team’s Statement of
13 Evidence as Exhibits “J,” “K,” “L” and “M.” (Opp. at 5:16-17.) Without being direct where to
14 look for the supporting evidence, as best the the Beyond Group can tell, of the four declarations,
15 only the declaration of Ghanadan (“Ghanadan Decl.”) provides the following statement
16 concerning insurance coverage:
The person who handled the contractual agreement between BEYOND GROUP,
17 LLC. and the "Marketing Team" as to the October 2012 Halloween event was
Claudia Yu; however, I knew that Jay Chen, the sole owner of BEYOND
18 GROUP, LLC., was the person who was taking responsibility for placing liability
insurance for the event. On October 10, 2012 I received an email from Claudia Yu
19 in which she advised me that "u guys owe me 287 for the insurance." This was for
liability insurance for the 2012 Halloween event. I responded to Jay Chen on
20 October 11, 2012 with the following, "That sounds good. Tell us the total please
and we will pay you." In fact, on behalf of the "Marketing Team" I did pay the
21 $287 to Mr. Chen for the liability insurance coverage prior to the event. (A true
and correct copy of the October 10-11, 2012 email correspondence is attached
22 here as Exhibit "B.") (Emphasis added.)
23 (Ghandan Decl. at ¶6, Exhibit J to the Marketing Team’s Statement of Evidence.)
24 Yet, Exhibit “B” is not actually attached to the Ghandan Decl. Without Exhibit “B,”
25 Beyond Group is forced to rely on the statement of Ghandan, an interested party, rather than the
26 documents (e.g. the emails between Claudia Yu and Ghanadan) on which Ghanadan relies and
27 supports his declaration. By failing to produce Exhibit “B,” the Marketing Team has failed to
28 produce the only evidence it relies on in support of its claim Beyond Group allegedly breached its
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CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA
1 agreement to purchase insurance coverage for the Marketing Team. Consequently, the Marketing
2 Team failed to produce any evidence in support of its breach of contract claim.
3 Beyond Group’s moving papers demonstrate the facts material to the Marketing Team’s
4 breach of contract allegations are undisputed. These undisputed facts set forth affirmative
5 evidence that Beyond Group was not obligated to defend, indemnify, hold the Marketing Team
6 harmless for Plaintiff’s injuries pursuant to the Agreement’s indemnity provision. As such, the
7 burden shifted to the Marketing Team to produce admissible evidence controverting Beyond
8 Group’s evidence and show triable issues of fact exist. (Code Civ. Proc., § 437c(p)(1).) As
9 demonstrated above, the Marketing Team failed to meet its burden because it: 1) alleged an
10 entirely new theory for breach of contract claim (e.g. failure to buy insurance coverage) rather
11 than proffering evidence of any triable issues of fact concerning breach of contract claim actually
12 alleged in the Cross-Complaint (e.g. failure to defend, indemnify, and hold harmless); and 2)
13 failed to produce any admissible evidence (e.g. Exhibit “B” to the Ghandan Decl.) in support of
14 its new breach of contract theory. Because the Marketing Team’s breach of contract allegations
15 are new (i.e. alleged for the first time in its Opposition) and unsupported by admissible evidence,
16 they cannot be considered by this Court. As these arguments are the foundation upon which the
17 Opposition rests, the Opposition must be denied.
18 III. CONCLUSION
19 For the foregoing reasons, Beyond Group respectfully requests that this Court enter
20 judgment in its favor and dismissal as to all claims asserted by the Marketing Team in its Cross-
21 Complaint against Beyond Group. Alternatively, if for any reason the Court declines to enter
22 summary judgment at this time, Beyond Group requests that the court enter an order adjudicating
23 those issues as set forth above.
24 Dated: July 12, 2019 BLEDSOE, DIESTEL, TREPPA & CRANE LLP
25
By:
26 Alison M. Crane
Jordan E. Scott
27 Attorneys for Defendant, Cross-Defendant, Cross-
Complainant BEYOND GROUP LLC as DOE FIFTY-
28 ONE
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CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA
1 Pessah v. Pineiro, et al.
San Francisco Superior Court Case No. CGC-14-541870
2
PROOF OF SERVICE
3
I, the undersigned, hereby declare that I am over the age of eighteen years and not a party
4
to the within action. My business address is 601 California Street, 16th Floor, San Francisco,
5 California 94108-2805. On the date indicated below, I caused to be served the following
document(s):
6
REPLY IN SUPPORT OF CROSS-DEFENDANT BEYOND GROUP LLC’S MOTION
7 AND MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-
DEFENDANTS CHRISTIAN PINEIRO, AN INDIVIDUAL AND DBA CHRISTIAN
8 PRESENTS, VADIM ANANYEV, AN INDIVIDUAL AND DBA TREND VIP GROUP
9 AND RHYTHM ETHICS PRODUCTIONS, AND ARASH GHANADAN, AN
INDIVIDUAL AND DBA TREND VIP GROUP AND MIRZA PARTY, OR, IN THE
10 ALTERNATIVE, FOR SUMMARY ADJUDICATION
11 CROSS-DEFENDANT AND DEFENDANT BEYOND GROUP LLC’S OBJECTIONS TO
EVIDENCE SUBMITTED BY CROSS-DEFENDANTS CHRISTIAN PINEIRO, AN
12 INDIVIDUAL AND DBA CHRISTIAN PRESENTS, VADIM ANANYEV, AN
13 INDIVIDUAL AND DBA TREND VIP GROUP AND RHYTHM ETHICS
PRODUCTIONS, AND ARASH GHANADAN, AN INDIVIDUAL AND DBA TREND VIP
14 GROUP AND MIRZA PARTY, IN OPPOSITION BEYOND GROUP LLC’S MOTION
FOR SUMMARY JUDGMENT TO THE THIRD AMENDED COMPLAINT OF
15 BENJAMIN PESSAH, OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
16 BEYOND GROUP’S REPLY TO CROSS-COMPLAINANTS CHRISTIAN PINEIRO, AN
INDIVIDUAL AND DBA CHRISTIAN PRESENTS; ARASH GHANADAN, AN
17
INDIVIDUAL AND DBA TREND VIP GROUP AND MIZRA PARTY; VADIM
18 ANANYEV, AN INDIVIDUAL AND DBA TREND VIP GROUP AND RHYTHM ETHICS
PRODUCTIONS SEPARATE STATEMENT OF ADDITIONAL UNDISPUTED
19 MATERIAL FACTS IN SUPPORT OF THEIR OPPOSITION TO Motion for Summary
Judgment to Cross-Complaints of Cross-Complainants HOODIN HAMIDI, an individual
20 and dba SOL Y LUNA, and CHRISTIAN PINEIRO, an individual and dba CHRISTIAN
PRESENTS, VADIM ANANYEV, an individual and dba TREND VIP GROUP and
21
RHYTHM ETHICS PRODUCTIONS, and ARASH GHANADAN, an individual and dba
22 TREND VIP GROUP and MIZRA PARTY, OR, IN THE ALTERNATIVE, FOR
SUMMARY ADJUDICATION
23
upon the following at the address(es) stated below:
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25 Robert E. Cartwright, Jr. Attorney for Plaintiff Benjamin Pessah
The Cartwright Law Firm, Inc. Telephone: (415) 433-0444
26 222 Front Street, Fifth Floor Facsimile: (415) 433-0449
San Francisco, CA 94111 rob@cartwrightlaw.com
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PROOF OF SERVICE
1 Stephanie Krmpotic Attorney for Cross-Defendant Shaw Security
Leeh DiBello Management as Does Sixty-Six
2 Low Ball & Lynch Telephone: (415) 394-3621
505 Montgomery Street, 7th Floor Facsimile: (415) 982-1634
3 San Francisco, CA 94111 jskrmpotic@lowball.com
ldibello@lowball.com
4
5 Jeff Wozniak Attorney for Cross-Defendant Judy Lau
Law Offices of Jeff Wozniak Telephone/Facsimile: (415) 423-3413
6 1663 Mission Street, Suite 200 jeff@jeffwozniaklaw.com
San Francisco, CA 94103-2477
7
Kevin Jaime Gray Attorney for Defendants and Cross-
8 Jim Im Defendants Vadim Ananyev, Arash
Henry Wirta Ghanadan, Christian Pineiro
9 Harrington, Foxx Dubrow & Canter, LLP Telephone: (415) 288-6600
601 Montgomery Street, Suite 800 hwirta@hfdclaw.com
10 San Francisco, CA 94111
11
XXX BY ELECTRONIC MAIL by causing said document to be served by transmitting said
12 documents through the court designated e-service provider, File & ServeXpress, to the
person(s) on the electronic service list. This service complies with California Code of
13 Civil Procedure section 1010.
14 Hun Saelee in Pro Per Attorney for Defendant Hun Saelee, In Pro
c/o Law Offices of Hanlon & Rief Per
15 1663 Mission Street, Suite 200
16 San Francisco, CA 94103
17 XXX BY MAIL I enclosed the document(s) in a sealed envelope or package, with
18 postage thereon fully prepaid, addressed to the persons at the addresses as set forth above, and
placed the envelope for collection and mailing, following ordinary business practices. I am
19 readily familiar with this firm’s practice for collecting and processing correspondence for
mailing. Under that practice it would be deposited with the United States Postal Service on that
20 same day.
21 I declare under penalty of perjury under the laws of the State of California that the
22 foregoing is true and correct, and that this declaration was executed on July 12, 2019 at
San Francisco, California.
23
24
25
VALERIE STEVENSON
26
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PROOF OF SERVICE
Preview
1 Alison M. Crane, SBN. 197359 Jordan E. Scott, SBN 299147 2 BLEDSOE, DIESTEL, TREPPA & CRANE LLP 601 California Street, 16th Floor ELECTRONICALLY 3 San Francisco, California 94108-2805 Telephone: (415) 981-5411 F I L E D Superior Court of California, 4 Facsimile: (415) 981-0352 County of San Francisco acrane@bledsoelaw.com 07/12/2019 5 jscott@bledsoelaw.com Clerk of the Court BY: DAVID YUEN Deputy Clerk 6 Attorneys for Defendant, Cross-Defendant and Cross- Complainant BEYOND GROUP LLC as DOE FIFTY-ONE 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SAN FRANCISCO 10 11 BENJAMIN PESSAH, No. CGC-14-541870 12 Plaintiff, REPLY IN SUPPORT OF CROSS- DEFENDANT BEYOND GROUP 13 v. LLC’S MOTION AND MOTION FOR SUMMARY JUDGMENT TO CROSS- 14 CHRISTIAN PINEIRO, an individual and COMPLAINTS OF CROSS- dba CHRISTIAN PRESENTS; VADIM DEFENDANTS CHRISTIAN 15 ANANYEV, an individual and dba TREND PINEIRO, AN INDIVIDUAL AND DBA VIP GROUP and RHYTHM ETHICS CHRISTIAN PRESENTS, VADIM 16 PRODUCTIONS; ARASH GHANADAN, an ANANYEV, AN INDIVIDUAL AND individual and dba TREND VIP GROUP and DBA TREND VIP GROUP AND 17 MIRZA PARTY; ENRIQUE MONTERO, an RHYTHM ETHICS PRODUCTIONS, individual and dba SURREAL SF AND ARASH GHANADAN, AN 18 ENTERTAINMENT and ENRIQUE OF INDIVIDUAL AND DBA TREND VIP SURREAL SF; HOODIN HAMIDI, an GROUP AND MIRZA PARTY, OR, IN 19 individual and dba SOL Y LUNA SF; THE ALTERNATIVE, FOR CHRISTOPHER DOUKAKIS, an individual SUMMARY ADJUDICATION 20 and dba SELECT ENTERTAINMENT; PETER DOUKAKIS, an individual and dba Date: July 17, 2019 21 SELECT ENTERTAINMENT; GEORGE Time: 9:30 a.m. STAVROPOULOS; an individual and dba Dept.: 302 22 SELECT ENTERTAINMENT; HUN CHU SAELEE; JUDIANA MEI LAU; FORT Reservation No.: 04160717-09 23 MASON CENTER (a corporation); BEYOND GROUP LLC; and DOES ONE 24 through ONE HUNDRED, inclusive, 25 Defendants. 26 AND RELATED CROSS-ACTIONS. 27 28 REPLY ISO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, FOR MSA 1 I. INTRODUCTION 2 An unfavorable fact cannot be changed so that it becomes favorable and new and 3 previously unpled legal theories cannot save the Marketing Team from a Motion for Summary 4 Judgment. Yet that is precisely what the Marketing Team attempts to do in its Opposition to 5 Defendant and Cross-Defendant Beyond Group LLC’s (hereafter, “Beyond Group”) Motion for 6 Summary Judgment (“Motion”).1 The Opposition is light on the law, light on the facts, and heavy 7 with desperation to create new theories as to why their claims against Beyond G roup are still 8 viable (e.g. the breach of contract claim can be amended a year later to reflect the parties actual 9 intent! And, the breach of contract claim is actually now based on entirely new allegations!). 10 Beyond Group made its Motion on the basis that no disputed material facts exist to support the 11 Marketing Team’s claims that they are entitled to express indemnification or any form of implied 12 or equitable indemnification as alleged in their cross-complaints filed in this action to date. As 13 discussed below, the Marketing Team’s Opposition fails to produce any admissible evidence 14 controverting the Beyond Group’s evidence or demonstrating that there are any triable issues of 15 fact. Accordingly, the Marketing Team’s failure make the requisite showing of the existence of a 16 triable issue of material fact entitles the Beyond Group to judgment as a matter of law. 17 II. LEGAL ARGUMENT A. IT IS UNDISPUTED THAT BEYOND GROUP DOES NOT OWE THE 18 MARKETING TEAM A DEFENSE UNDER THE ACTUAL LANGUAGE OF THE AGREEMENT’S INDEMNITY PROVISION 19 20 The Marketing Team claims that the “sole issue” presented by the Motion is “whether the 21 evidence is so undisputed that as a matter of law [the Beyond Group] does not owe indemnity to 22 cross-complaints [sic], who comprise the ‘Marketing Team’ in the True Blood Halloween 2012 23 Marketing Agreement & Contract.” 2 (Opp. at 1:24-27.) Despite this claim, the Marketing Team 24 fails to refer to the relevant language of the Agreement. Instead, the Opposition only provides as 25 follows: the Agreement “refers to all demands, claims, damages to persons or property (whether 26 1 As defined in the Motion, “the Marketing Team” collectively refers to defendants Christian Pineiro, an individual and dba Christian Presents, Vadim Ananyev, an individual and dba Trend VIP Group and Rhythm Ethics 27 Productions, and Arash Ghanadan, an individual dba Trend VIP Group and Mirza. 2 The True Blood Halloween 2012 Marketing Agreement & Contract (hereafter, “Agreement”) “outlines the financial 28 arrangement Beyond Group and Marketing Team for the True Blood Halloween event that occurred at the Herbst Pavilion of Fort Mason Center in San Francisco on October 27, 2012 (hereafter, “Event”). (UMF No. 1.) -1- REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA 1 direct, indirect, incidental, consequential or otherwise)…” (Opp. at 4:25-28.) Given that the 2 Marketing Team characterized the Motion as having a “sole issue” to be determined, that sole 3 issue should be accurate. But it was not. the Marketing Team chose to omit the most important 4 language from the indemnity provision of the Agreement, which completes the sentence that the 5 Marketing Team truncated. In relevant part, Provision 2 of the Agreement provides as follows: [Beyond Group] shall indemnify, defend and hold harmless the Marketing Team 6 and its officers, directors, partners, agents, members and employees from and against any and all demands, claims, damages to persons or property (whether direct, 7 indirect, incidental, consequential or otherwise), suit, proceeding (whether before an arbitrator, court, mediator or otherwise) or investigation made by any third party, 8 losses and liabilities, including reasonable attorney’s fees (collectively “Claims”) arising out of or caused at the Event, “True Blood Halloween”. (Emphasis added). 9 (UMF No. 3.) 10 The emphasized language was discussed throughout the Motion because it forms the basis of 11 to the Beyond Group’s position that there are no triable issues of fact related to the Beyond 12 Group’s express indemnity or equitable indemnity obligations. Yet, tellingly, the Marketing Team 13 ignores that language. Otherwise, to acknowledge that language is to acknowledge that the 14 Motion has merit because Plaintiff’s injuries did not arise out of nor were caused at the True 15 Blood Halloween 2012 Event (hereafter, the “Event”). 16 Furthermore, in addition to ignoring the language of the Agreement, the Marketing Team also 17 alters it. The Marketing Team asserts that “all parties to the [Agreement] intended that if 18 someone was injured or claimed to have been injured at the [Event], then the Beyond Group 19 would indemnify and defend the Marketing Team and its members as to those claims. That fact is 20 not in dispute.” (Opp. at 3:7-10. Emphasis added.) That is not a fact. The Agreement’s indemnity 21 provision expressly provides that the Beyond Group shall indemnify, defend, and hold harmless 22 the Marketing Team for injuries “arising out of or caused at the event.” (Emphasis added.) In an 23 action based upon contract claims, as is the case here, a proper and precise reading of the contract 24 language is necessary, and the contract is construed strictly against the indemnitee. (Morlin Asset 25 Management LP v. Murachanian (2016) 2 Cal.App.5th 184, 189.) As is the case here where the 26 Beyond Group’s undisputed evidence established that no obligation to defend, indemnify, or hold 27 the Marketing Team harmless exists because Plaintiff’s injuries neither arose out of or were 28 caused at the event. -2- REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA 1 Whether the Plaintiff’s injuries – which were the result of a shooting that occurred outside of 2 the Event, in the Gashouse Cove Parking lot, a parking lot away from the confines of the Event 3 venue and a parking lot not under the Beyond Group’s control – did not arise out of nor were they 4 caused by the event is the sole issue presented by the Beyond Group’s Motion. In its Opposition, 5 the Marketing Team did not present any admissible evidence contradicting the Beyond Group’s 6 evidence regarding the location of Plaintiff’s injuries, nor does the Marketing Team’s proffered 7 evidence create a triable issue of fact as to whether Plaintiff’s injuries – the result of a shooting in 8 parking lot away from the event – arose out of or were caused at the Event. Consequently, the 9 Beyond Group’s Motion should be granted. B. THE MARKETING TEAM’S RELIANCE ON CODE CIV. PROC §473(A) IS 10 UNTIMELY AND MOOT 11 Faced with a provision that does not entitle them to indemnity, the Marketing Team proceeds 12 to look for a way out of the clear and unequivocal language of the agreement. The Marketing 13 Team’s reliance on Code Civ. Proc §473(a)(1) in an opposition to a motion for summary 14 judgment is misplaced. Simply put, Code Civ. Proc §473 authorizes amending any pleading and 15 allows for extending the time to for filing a responsive pleading, such as an answer or demurrer.3 16 Nevertheless, Code Civ. Proc §473(a) is the only statute the Marketing Team cites to in its 17 opposition to the Marketing Team’s to the Beyond Group’s motion for summary judgment. To be 18 clear: on June 15, 2018 – more than one year ago – the Marketing Team filed its cross-complaint 19 against Beyond Group LLC (hereafter, “Cross-Complaint”).4 (UMF No. 29.) 20 The time has long passed for the Marketing Team to amend its Cross-Complaint against the 21 Beyond Group pursuant to Code Civ. Proc §473(a)(1). Thus, the Marketing Team’s reliance on 22 Code Civ. Proc §473(a)(1) is nothing more than a last-ditch, thinly-veiled, Hail Mary pass attempt 23 to change the language of the Agreement that forms the basis of their indemnity and breach of 24 3 Code Civ. Proc §473(a)(1) provides: “The court may, in furtherance of justice, and on any terms as may be proper, 25 allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for 26 answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms 27 allow an answer to be made after the time limited by this code.” (Emphasis added.) 4 The Cross-Complaint alleges causes of action for total equitable indemnity, apportionment of fault, declaratory 28 relief, implied indemnity, express contractual indemnity, and breach of contract. (hereafter, “Cross-Complaint”). (UMF No. 29.) -3- REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA 1 contract claims. Through its Opposition the Marketing Team seeks to change the Agreement so 2 that it does not say what the parties actually agreed to at the time they entered into it, but, instead, 3 that the Agreement provides exactly what it needs to in order for the Beyond Group to indemnify, 4 defend and hold the Marketing Team harmless for Plaintiff’s injuries. Such a change is rather 5 convenient a month away from trial. Tellingly, the Marketing Team doesn’t even offer a 6 proposed amendment of change(s). 7 Unsurprisingly, not only does the language of Code Civ. Proc §473(a)(1), itself, clearly 8 demonstrate its inappropriateness and untimeliness in this context, so, too, do the three cases the 9 Marketing Team cites – the only caselaw included in the Opposition - discussing Code Civ. Proc 10 §473.5 The Marketing Team relies on Landis v. Superior Court (1965) 232 Cal.App.2d 548 to 11 show that Code Civ. Proc §473 authorizes the court in its discretion to allow amendments to 12 pleadings. (Opp. at 3:24-4:11.) Importantly, the Landis opinion cited to grants a petition for writ 13 of mandate to compel the superior court to grant leave to file an amended complaint. Here, not 14 now or previously, has the Marketing Team sought leave to file an amended complaint. 15 Furthermore, Landis found that a complaint for reformation of a written agreement must allege: 16 (1) a real agreement; (2) that the agreement was reduced to writing; (3) a mistake; and 17 (4) generally how the mistake was made. In support of its Opposition, the Marketing Team 18 proffered no evidence of the four requirements set forth in Landis. Importantly, in the 19 declarations of the individual members of the Marketing Team, none claim that there was any 20 mistake or defect in the writing of the agreement and, thus, nor do they offer any evidence as to 21 generally how the mistake came about. (See Exhibits J – M to the Marketing Team’s Statement 22 of Evidence.) 1. Even if the Marketing Team’s Reliance on Code Civ. Proc. §473(a) were 23 timely, it still leaves the Beyond Group speculating as to Marketing Team’s Purported Intent for the Agreement’s Indemnity Provision 24 Assuming, arguendo, that this instant action were not at the summary judgment phase of the 25 litigation and just over a month away from trial, the purpose of the Marketing Team’s reliance on 26 5 The Marketing Team relies on Union Bank v. Wendland (1976) 54 Cal.App.3d 393 for the proposition that “a 27 reformation of contract to comply with the intent of the parties can be made to conform to proof at trial. (the Marketing Team Opp. At 4:12-13.) However, because Union Bank has been overturned due to legislative action, it is 28 not reliable authority and thus, Beyond Group does not address it here. (See Union Bank v. Wendland (1976) 54 Cal.App.3d 393, overturned due to legislative action (May 1, 2012).) -4- REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA 1 Code Civ. Proc §473 remains perplexing. The Marketing Team’s discussion of Code Civ. Proc 2 §473 follows its claim that all parties to the Agreement (e.g. the Marketing Team and the Beyond 3 Group) “intended that if someone was injured or claimed to have been injured at the [Event], then 4 the Beyond Group would indemnify and defend the Marketing Team and its members as to those 5 claims.” (Opp. at 3:7-8.) Nevertheless, the Marketing Team does not demonstrate how the Cross- 6 Complaint would be modified to comply with the purported intent of the parties. For example, is 7 the Marketing Team proposing to amend its Cross-Complaint to show the parties’ intent for the 8 Agreement’s indemnity provision was cover any person who was injured or claimed to have been 9 injured arising out of or caused at the Event, including the unforeseeable criminal acts of third 10 parties, including but not limited to gun violence? Or, most effective for the Marketing Team’s 11 position in this matter, perhaps Code Civ. Proc §473 could be used to alleges the parties intended 12 the indemnity provision would cover someone who departed the Event was shot by a stranger in a 13 parking lot located away from the Event and not controlled by the Beyond Group? 14 Moreover, the Marketing Team failed to provide any evidence that that the parties’ intent was 15 not reflecting in the agreement other than declarations of its members made after-the-fact and in 16 hindsight of Plaintiffs’ injuries. As such, Marketing Team did not present a triable issue of fact 17 relating to the Marketing Team’s express or equitable indemnity claims.6 18 Regardless of the Marketing Team’s unspecified amendment(s) to the Agreement, the 19 Marketing Team offered no evidence showing that at the time the Marketing Team entered into 20 the Agreement, that they intended the Beyond Group to defend, indemnify, and hold the 21 Marketing Team harmless for the injuries sustained by Plaintiff as a result of unpredictable gun 22 violence. Any attempt by the Marketing Team to show evidence to the contrary does not 23 demonstrate a triable issue of fact as to the Marketing Team indemnity claims against the Beyond 24 6 Notably, despite the Motion devoting six pages to its legal argument that there are no triable issues of fact related to Beyond Group’s express indemnity obligations and the Marketing Team equitable indemnity claims (See Motion, 25 Sections IV.A and IV.B), the Opposition does not address any of Beyond Group’s arguments on those issues, does not provide contrary authority, and at no point does it distinguish between “express indemnity” nor “equitable 26 indemnity.” Instead, the Opposition attempts to change the narrative of the Agreement so that it’s about the parties’ purported intent in entering the Agreement – only after the fact of Plaintiff’s injuries and when facing this Motion. Thus, having not refuted Beyond Group’s position concerning that there are no triable issues of fact concerning 27 Beyond Group’s express indemnity obligations under the Agreement as a matter of law (because Plaintiff’s injuries were not caused by or occurred outside the Event) and because there are no triable issues of fact related to the 28 Marketing Team’s equitable indemnity claims as a matter law (the existence of a contractual indemnity provision, as in the Agreement, bars equitable and implied indemnity claims), the Court should grant the Motion. -5- REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA 1 Group; all it shows is the Marketing Team’s after-the-fact attempts to avoid summary judgment, 2 and those are not triable issues of fact. C. THE MARKETING TEAM FAILS TO CITE TO AUTHORITY SUPPORTING 3 ITS PROPOSITION REGARDING THE DETERMINATION OF THE “INDEMNITY AND DEFENSE ISSUE.” 4 5 In section II of the Opposition, it appears that the Marketing Team is attempting to support 6 their claim that there is a dispute as to whether the Agreement requires the Beyond Group to 7 indemnity and defend the Marketing Team for Plaintiff’s injuries. What’s also apparent is that the 8 Marketing Team relies on no authority to do so. As claimed in Section II, the Marketing Team 9 writes, “the indemnity and defense issue is not determined by where the injury occurred or if the 10 injury was in the event building or not; the indemnity and defense issues arises by the claim of 11 the plaintiff.” (Emphasis original.) [Opp. at 4:23-25]. 12 In addition to failing to define “the indemnity and defense issue,” the Marketing Team also 13 fails to provide any authority whatsoever (e.g. binding, persuasive, state, federal) to support the 14 proposition that the determination of whether the Beyond Group is obligated to defend and 15 indemnify it for Plaintiff’s injuries.7 Without providing authority for this proposition on which the 16 Marketing Team relies, it can only be characterized as an unreliable, self-serving and convenient 17 proclamation, neither based in law nor fact. Perhaps worse, however, is that the Marketing Team 18 then uses that self-serving unsupported proposition to claim that, “[c]ertainly, there is a material 19 question of fact as to the indemnity issue that prevents the Beyond Group from obtaining 20 summary judgment on this issue.” (Opp. at 5:1-2). Beyond Group disagrees. All that is certain is 21 that the Marketing Team’s reliance on an unsupported and unfounded statement does not 22 establish that there is a material question of fact and it cannot be considered by the Court. 23 D. THE MARKETING TEAM INTRODUCED A NEW THEORY FOR THE BREACH OF CONTRACT CLAIM RATHER THAN PRODUCE ADMISSIBLE 24 EVIDENCE FOR THE THEORY ALLEGED IN ITS COMPLAINT 25 Inexplicably, the Marketing Team uses its Opposition as the opportunity to assert a new 26 theory for its breach of contract claim against the Beyond Group. Instead of proffering evidence 27 in support of its breach of contract claim as alleged in its Complaint, the Marketing Team 28 7 This phrasing represents Beyond Group’s attempt to define what the Marketing Team call “the indemnity and defense issue.” -6- REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA 1 introduces completely new allegations. The pleadings play a key role in a summary judgment 2 motion and “‘“set the boundaries of the issues to be resolved at summary judgment.”’” (Nativi v. 3 Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 289.) “[T]he scope of the issues 4 to be properly addressed in [a] summary judgment motion” is generally “limited to the claims 5 framed by the pleadings. [Citation.] A moving party seeking summary judgment or adjudication 6 is not required to go beyond the allegations of the pleading, with respect to new theories that 7 could have been pled, but for which no motion to amend or supplement the pleading was brought, 8 prior to the hearing on the dispositive motion. [Citation.]” (Howard v. Omni Hotels Management 9 Corp. (2012) 203 Cal.App.4th 403, 421; see California Bank & Trust v. Lawlor (2013) 222 10 Cal.App.4th 625, 637, fn. 3 [“[a] party may not oppose a summary judgment motion based on a 11 claim, theory, or defense that is not alleged in the pleadings,” and “[e]vidence offered on an 12 unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the 13 pleadings”].) As such, the first place to begin to determine the scope of the claim for breach of 14 contract is the Cross-Complaint. 15 In the Cross-Complaint, the breach of contract claim is based upon Beyond Group’s 16 alleged failure to indemnify the Marketing Team. The Marketing Team alleged that Beyond 17 Group breached the Agreement by failing to accept Hamidi’s or the remaining Marketing Team 18 member’s tender of defense, dated September 26, 2017 for the remaining Marketing Team and 19 November 17, 2017 for Hamidi. As explained in the Motion, because the Marketing Team’s 20 breach of contract claim was based on the Beyond Group’s alleged failure to accept the 21 Marketing Team’s tender of defense, and because Beyond Group was not obligated to defend the 22 Marketing Term pursuant to the Agreement, there could be no breach of contract. 23 In its Opposition, however, the Marketing Team now alleges the following in support of 24 its breach of contract cause of action: on behalf of Beyond Group, Claudia Yu requested the 25 Marketing Team pay its share of the liability insurance premium for the Event; Arash Ghanadan, 26 on behalf of the Marketing Team, paid the amount requested; and that the Beyond Group did not 27 place any liability coverage for the Marketing Team for the event. (Opp. At 5:24-6:2). Without 28 providing any admissible evidence of the foregoing allegations, the Marketing Team proclaims -7- REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA 1 they amount to “classic breach of contract.” (Opp. at 6:4.) 2 Just in case the Marketing Team’s introduction of a completely new basis for its breach of 3 contract claim wasn’t fatal enough to its Opposition, the Marketing Team also fails to provide any 4 evidence supporting its brand new, too-little-too-late, see-if-it-sticks breach of contract theory. 5 According to the Opposition, “the evidence submitted with these opposing papers shows that on 6 October 10, 2012 Claudia Yu, on behalf of BG, solicited the sum of $287 from Ghanadan for the 7 Marketing Teams [sic] share of the liability insurance premium [hereafter, “insurance coverage’] 8 for the [Event].” (Opp. at 5:24-27). Yet, the Marketing Team fails to produce the very evidence 9 it relies on. The Opposition does not identify where the submitted evidence can be found in the 10 Marketing Team’s papers. Left to guess at what that evidence is and where it can be found, the 11 Beyond Group turns to the only evidence cited to in the Opposition: declarations of all four 12 members of the Marketing Team Members attached to the Marketing Team’s Statement of 13 Evidence as Exhibits “J,” “K,” “L” and “M.” (Opp. at 5:16-17.) Without being direct where to 14 look for the supporting evidence, as best the the Beyond Group can tell, of the four declarations, 15 only the declaration of Ghanadan (“Ghanadan Decl.”) provides the following statement 16 concerning insurance coverage: The person who handled the contractual agreement between BEYOND GROUP, 17 LLC. and the "Marketing Team" as to the October 2012 Halloween event was Claudia Yu; however, I knew that Jay Chen, the sole owner of BEYOND 18 GROUP, LLC., was the person who was taking responsibility for placing liability insurance for the event. On October 10, 2012 I received an email from Claudia Yu 19 in which she advised me that "u guys owe me 287 for the insurance." This was for liability insurance for the 2012 Halloween event. I responded to Jay Chen on 20 October 11, 2012 with the following, "That sounds good. Tell us the total please and we will pay you." In fact, on behalf of the "Marketing Team" I did pay the 21 $287 to Mr. Chen for the liability insurance coverage prior to the event. (A true and correct copy of the October 10-11, 2012 email correspondence is attached 22 here as Exhibit "B.") (Emphasis added.) 23 (Ghandan Decl. at ¶6, Exhibit J to the Marketing Team’s Statement of Evidence.) 24 Yet, Exhibit “B” is not actually attached to the Ghandan Decl. Without Exhibit “B,” 25 Beyond Group is forced to rely on the statement of Ghandan, an interested party, rather than the 26 documents (e.g. the emails between Claudia Yu and Ghanadan) on which Ghanadan relies and 27 supports his declaration. By failing to produce Exhibit “B,” the Marketing Team has failed to 28 produce the only evidence it relies on in support of its claim Beyond Group allegedly breached its -8- REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA 1 agreement to purchase insurance coverage for the Marketing Team. Consequently, the Marketing 2 Team failed to produce any evidence in support of its breach of contract claim. 3 Beyond Group’s moving papers demonstrate the facts material to the Marketing Team’s 4 breach of contract allegations are undisputed. These undisputed facts set forth affirmative 5 evidence that Beyond Group was not obligated to defend, indemnify, hold the Marketing Team 6 harmless for Plaintiff’s injuries pursuant to the Agreement’s indemnity provision. As such, the 7 burden shifted to the Marketing Team to produce admissible evidence controverting Beyond 8 Group’s evidence and show triable issues of fact exist. (Code Civ. Proc., § 437c(p)(1).) As 9 demonstrated above, the Marketing Team failed to meet its burden because it: 1) alleged an 10 entirely new theory for breach of contract claim (e.g. failure to buy insurance coverage) rather 11 than proffering evidence of any triable issues of fact concerning breach of contract claim actually 12 alleged in the Cross-Complaint (e.g. failure to defend, indemnify, and hold harmless); and 2) 13 failed to produce any admissible evidence (e.g. Exhibit “B” to the Ghandan Decl.) in support of 14 its new breach of contract theory. Because the Marketing Team’s breach of contract allegations 15 are new (i.e. alleged for the first time in its Opposition) and unsupported by admissible evidence, 16 they cannot be considered by this Court. As these arguments are the foundation upon which the 17 Opposition rests, the Opposition must be denied. 18 III. CONCLUSION 19 For the foregoing reasons, Beyond Group respectfully requests that this Court enter 20 judgment in its favor and dismissal as to all claims asserted by the Marketing Team in its Cross- 21 Complaint against Beyond Group. Alternatively, if for any reason the Court declines to enter 22 summary judgment at this time, Beyond Group requests that the court enter an order adjudicating 23 those issues as set forth above. 24 Dated: July 12, 2019 BLEDSOE, DIESTEL, TREPPA & CRANE LLP 25 By: 26 Alison M. Crane Jordan E. Scott 27 Attorneys for Defendant, Cross-Defendant, Cross- Complainant BEYOND GROUP LLC as DOE FIFTY- 28 ONE -9- REPLY TO BEYOND’S MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS-DEFENDANTS CHRISTIAN PINEIRO, ET AL., OR, IN THE ALTERNATIVE, MSA 1 Pessah v. Pineiro, et al. San Francisco Superior Court Case No. CGC-14-541870 2 PROOF OF SERVICE 3 I, the undersigned, hereby declare that I am over the age of eighteen years and not a party 4 to the within action. My business address is 601 California Street, 16th Floor, San Francisco, 5 California 94108-2805. On the date indicated below, I caused to be served the following document(s): 6 REPLY IN SUPPORT OF CROSS-DEFENDANT BEYOND GROUP LLC’S MOTION 7 AND MOTION FOR SUMMARY JUDGMENT TO CROSS-COMPLAINTS OF CROSS- DEFENDANTS CHRISTIAN PINEIRO, AN INDIVIDUAL AND DBA CHRISTIAN 8 PRESENTS, VADIM ANANYEV, AN INDIVIDUAL AND DBA TREND VIP GROUP 9 AND RHYTHM ETHICS PRODUCTIONS, AND ARASH GHANADAN, AN INDIVIDUAL AND DBA TREND VIP GROUP AND MIRZA PARTY, OR, IN THE 10 ALTERNATIVE, FOR SUMMARY ADJUDICATION 11 CROSS-DEFENDANT AND DEFENDANT BEYOND GROUP LLC’S OBJECTIONS TO EVIDENCE SUBMITTED BY CROSS-DEFENDANTS CHRISTIAN PINEIRO, AN 12 INDIVIDUAL AND DBA CHRISTIAN PRESENTS, VADIM ANANYEV, AN 13 INDIVIDUAL AND DBA TREND VIP GROUP AND RHYTHM ETHICS PRODUCTIONS, AND ARASH GHANADAN, AN INDIVIDUAL AND DBA TREND VIP 14 GROUP AND MIRZA PARTY, IN OPPOSITION BEYOND GROUP LLC’S MOTION FOR SUMMARY JUDGMENT TO THE THIRD AMENDED COMPLAINT OF 15 BENJAMIN PESSAH, OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION 16 BEYOND GROUP’S REPLY TO CROSS-COMPLAINANTS CHRISTIAN PINEIRO, AN INDIVIDUAL AND DBA CHRISTIAN PRESENTS; ARASH GHANADAN, AN 17 INDIVIDUAL AND DBA TREND VIP GROUP AND MIZRA PARTY; VADIM 18 ANANYEV, AN INDIVIDUAL AND DBA TREND VIP GROUP AND RHYTHM ETHICS PRODUCTIONS SEPARATE STATEMENT OF ADDITIONAL UNDISPUTED 19 MATERIAL FACTS IN SUPPORT OF THEIR OPPOSITION TO Motion for Summary Judgment to Cross-Complaints of Cross-Complainants HOODIN HAMIDI, an individual 20 and dba SOL Y LUNA, and CHRISTIAN PINEIRO, an individual and dba CHRISTIAN PRESENTS, VADIM ANANYEV, an individual and dba TREND VIP GROUP and 21 RHYTHM ETHICS PRODUCTIONS, and ARASH GHANADAN, an individual and dba 22 TREND VIP GROUP and MIZRA PARTY, OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION 23 upon the following at the address(es) stated below: 24 25 Robert E. Cartwright, Jr. Attorney for Plaintiff Benjamin Pessah The Cartwright Law Firm, Inc. Telephone: (415) 433-0444 26 222 Front Street, Fifth Floor Facsimile: (415) 433-0449 San Francisco, CA 94111 rob@cartwrightlaw.com 27 28 PROOF OF SERVICE 1 Stephanie Krmpotic Attorney for Cross-Defendant Shaw Security Leeh DiBello Management as Does Sixty-Six 2 Low Ball & Lynch Telephone: (415) 394-3621 505 Montgomery Street, 7th Floor Facsimile: (415) 982-1634 3 San Francisco, CA 94111 jskrmpotic@lowball.com ldibello@lowball.com 4 5 Jeff Wozniak Attorney for Cross-Defendant Judy Lau Law Offices of Jeff Wozniak Telephone/Facsimile: (415) 423-3413 6 1663 Mission Street, Suite 200 jeff@jeffwozniaklaw.com San Francisco, CA 94103-2477 7 Kevin Jaime Gray Attorney for Defendants and Cross- 8 Jim Im Defendants Vadim Ananyev, Arash Henry Wirta Ghanadan, Christian Pineiro 9 Harrington, Foxx Dubrow & Canter, LLP Telephone: (415) 288-6600 601 Montgomery Street, Suite 800 hwirta@hfdclaw.com 10 San Francisco, CA 94111 11 XXX BY ELECTRONIC MAIL by causing said document to be served by transmitting said 12 documents through the court designated e-service provider, File & ServeXpress, to the person(s) on the electronic service list. This service complies with California Code of 13 Civil Procedure section 1010. 14 Hun Saelee in Pro Per Attorney for Defendant Hun Saelee, In Pro c/o Law Offices of Hanlon & Rief Per 15 1663 Mission Street, Suite 200 16 San Francisco, CA 94103 17 XXX BY MAIL I enclosed the document(s) in a sealed envelope or package, with 18 postage thereon fully prepaid, addressed to the persons at the addresses as set forth above, and placed the envelope for collection and mailing, following ordinary business practices. I am 19 readily familiar with this firm’s practice for collecting and processing correspondence for mailing. Under that practice it would be deposited with the United States Postal Service on that 20 same day. 21 I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct, and that this declaration was executed on July 12, 2019 at San Francisco, California. 23 24 25 VALERIE STEVENSON 26 27 28 -2- PROOF OF SERVICE