Annmarie Rizzo v. Botanical Hospitality Group, LLC, et al.

the case here, the party " shall obtain leave of court to file any cross-complaint " (id., subd. (c)); and " [l]eave may be granted in the interest of justice at any time during the course of the action " (Id.). " Permission to file a permissive cross-complaint is solely within the trial court ' s discretion. " (Crocker Nat. Bank. v. Emerald ¿(1990) 221 Cal.App.3d 852, 864; see¿ Orient Handel v. United States Fid. & Guar. Co. ¿(1987) 192 Cal.App.3d 684, 701.) ¿Factors¿considered are judicial efficiency, fairness to the parties, the interests of justice, and delay in seeking court's permission to file the cross-complaint.¿(Crocker, 221 Cal.App.3d at 86 4.)

Here, judicial efficiency support s trying the proposed cross-claim s against Dart with the main action. Plaintiff alleges that the cup, lid, and/or carrier supplied with her hot beverages was defective or inadequate and contributed to the spill. The Berg Defendants allege that Dart supplied the cups and lids distributed for use at 7-Eleven stores and agreed to accept responsibility for third-party claims alleging product defects or injuries resulting from those products. If Plaintiff establishes that a cup or lid defect, inadequate warning, or other product condition caused or contributed to her injuries, Dart's conduct and contractual obligations will be directly relevant to the allocation of responsibility.

The Berg Defendants argue that there was no delay because they tendered their defense and indemnity to Dart on January 27, 2026 and attempted to obtain Dart's performance without motion practice. After Dart did not accept the tender, they sought authority to assert the claims and prepared the proposed Cross-Complaint. However, it is not clear why the Berg Defendants did not tender the defense sooner. They do not say when they first obtained knowledge of the agreement that purportedly indemnifies them. 7-Eleven sued Dart on June 20, 2025 for indemnity, and that action should presumably have put the Berg Defendants on notice of the existence of the indemnity agreement.

Notwithstanding, there appears to be no prejudice to Dart. Dart has known of the allegations and indemnity issues since at least June 20, 2025, when 7-Eleven sued Dart based on this incident. Dart answered, participated in the consolidated proceeding, and later undertook 7-Eleven's defense. The proposed Cross-Complaint presents no new accident, product, plaintiff, or damages claim; it asserts the Berg Defendants' corresponding rights under the same Agreement as the one raised in 7-Eleven's separate action against Dart. Notably, Dart has not filed an opposition and so concedes that it will suffer no prejudice from the filing of the cross-complaint.

CONCLUSION AND ORDER

For the foregoing reasons, the Court GRANTS the Berg Defendants' motion for leave to file a cross-complaint against Dart. IT IS SO ORDERED. DATED: August 24, 2026 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Superior Court of California County of Los Angeles - West District Beverly Hills Courthouse / Department 20 5 ANNMARIE RIZZO, Plaintiff, v. BOTANICAL HOSPITALITY GROPU, LLC, et al., Defendant s. |

Case No.: 2 5 SMCV0 0554 Hearing Date: August 24, 2026 [TENTATIVE] order RE: plaintiff's motion to enforce settlement and request for attorneys' fees and costs |

BACKGROUND

This is a premises liability case. Plaintiff Annmarie Rizzo was a patron at Defendant E.P. & L.P. Rooftop Restaurant ("E.P.") for a going away party. She was thrown off a mechanical bull and injured. She alleges that employees of E.P. encouraged her to ride the mechanical bull and drastically increased the speed of the bull while Plaintiff was on it. Plaintiff began screaming, but Defendants' employee did not stop or slow down the bull. As a result, Plaintiff was thrown from the bull, and because it was spinning so aggressively, the body of the bull smacked Plaintiff in the face as she fell.

Plaintiff sued E.P., Botanical Hospitality Group LLC (" Botanical ") (a dba of E.P.) and David Combes (the President of Botanical) . The operative complaint alleges claims for negligence and premises liability. The parties entered into a Settlement Agreement on August 26, 2025. The Agreement was signed by David Combes on behalf of himself as well as the corporate defendants. Under the terms of the Agreement, Defendants agreed to pay $100,000, in $8,000 monthly sums beginning on September 14, 2025 for 12 consecutive months with the final payment due on August 14, 2026 in the amount of $12,000. Defendants paid $32,000 but have not paid the remaining amounts. Several of the checks issued by Defendants bounced.

Pursuant to the Settlement Agreement, "[i] n the event that any of the SETTLING PARTIES should bring an action or other proceeding against the other for the enforcement of, or seek a declaration as to, or assert by way of defense, any term or provision of this AGREEMENT, there shall be an award of reasonable attorney fees and costs to the prevailing party or parties as the case may be." This hearing is on Plaintiff's motion to enforce the S ettlement Agreement. Plaintiff requests that the Court issue a judgment against Defendants in the principal amount of $68,000 plus an award of attorneys' fees and costs in the amount of $1,500 for a total judgment of $69,500. There was no opposition filed as of the posting of this tentative ruling.

LEGAL STANDARD

¿ C ode C iv. P roc. Sec.664.6 provides, in pertinent part, as follows: "If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement."¿ ¿ In hearing a C ode C iv. P roc. Sec.664.6 motion, the trial court may receive evidence, determine disputed facts, and enter terms of a settlement agreement as a judgment.¿ (Bowers v.

Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4 th 724, 732.) The Court may also receive oral testimony in addition to declarations. (Kohn v. Jaymar-Ruby, Inc. (1994) 23 Cal.App.4 th 1530, 1533.) The Court may interpret the terms and conditions of the settlement (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566), but the Court may not create material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon. (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810). ¿ Strict compliance with the statutory requirements is necessary before a court can enforce a settlement agreement under this statute.¿ (Sully-Miller Contracting Co. v.

Gledson /Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 37.)¿ The party seeking to enforce a settlement "must first establish the agreement at issue was set forth 'in a writing signed by the parties' (Sec. 664.6) or was made orally before the court.¿ [Citation.]"¿ (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4 th 299, 304.)¿ ¿

The settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought.¿ (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.)¿ "Parties" under C ode C iv. P roc. Sec. 664.6 means the litigants themselves, and not their attorneys, must expressly consent to settlement.¿ (Levy v. Superior Court (1995) 10 Cal.4th 578, 586 ("we conclude that the term 'parties' as used in section 664.6...means the litigants themselves, and does not include their attorneys of record") .)¿¿ ¿

DISCUSSION

Plaintiff 's motion has two problems. First, Plaintiff has not authenticated the Settlement Agreement. It is simply attached to her motion. Second, while Plaintiff seeks attorneys' fees and costs, there is no declaration by counsel as to his hourly rate, the hours expended, or the tasks he performed.

CONCLUSION

Based on the foregoing, the Court DENIES Plaintiff's motion to enforce settlement without prejudice. IT IS SO ORDERED. DATED: August 24, 2026 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court | Home -->)" -->