Judge: Andrew E. Cooper, Case: 23CHCV00622, Date: 2024-09-11 Tentative Ruling

Case Number: 23CHCV00622    Hearing Date: September 11, 2024    Dept: F51

DEMURRER WITH MOTION TO STRIKE

Demurrer and Motion to Strike Filed: 5/30/24

MOVING PARTY: Defendant/Cross-Defendant/Cross-Complainant Santa Clarita Valley Water Agency (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Rosa Hernandez (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Moving Defendant demurs against Plaintiff’s entire first amended complaint (“FAC”). Moving Defendant also moves to strike the entire FAC.

TENTATIVE RULING: The demurrer is sustained, and the motion to strike is moot. Plaintiff is granted 20 days leave to amend the FAC to correct the location of the subject incident.

BACKGROUND

This is a premises liability action in which Plaintiff alleges that on 9/2/22, “she tripped and fell on a Los Angeles Water and Power cover that had shattered and collapsed in” while walking on a sidewalk located “on Soledad Canyon Road in Santa Clarita, California 91355.” (FAC p. 4.)

On 3/3/23, Plaintiff filed her complaint against defendants Southern California Edison, City of Los Angeles, County of Los Angeles, City of Santa Clarita, and Los Angeles Department of Water and Power, alleging a sole cause of action for Premises Liability. On 3/29/23, Plaintiff dismissed County of Los Angeles from the action. On 6/15/23, Plaintiff filed her FAC, removing County of Los Angeles as a defendant.

On 7/18/23, defendant City of Santa Clarita filed its answer and cross-complaint, alleging against Moving Defendant the following causes of action: (1) Implied Equitable Indemnity; (2) Contribution/Apportionment; and (3) Declaratory Relief.

On 8/2/23, Plaintiff dismissed Southern California Edison from the action. On 8/8/23, Plaintiff dismissed Los Angeles Department of Water and Power from the action. On 8/14/23, Plaintiff dismissed City of Los Angeles from the action.

On 9/20/23, Moving Defendant filed its answer to City of Santa Clarita’s cross-complaint. On 9/25/23, Moving Defendant filed its cross-complaint against City of Santa Clarita, alleging the following causes of action: (1) Implied Equitable Indemnity; (2) Contribution/Apportionment; and (3) Declaratory Relief. On 9/27/23, Moving Defendant filed its first amended cross-complaint, alleging the same causes of action.

On 9/28/23, Plaintiff filed an amendment to her complaint to designate Moving Defendant as previously unnamed Doe defendant 1. On 5/30/24, Moving Defendant filed the instant demurrer, motion to strike, and request for judicial notice. On 8/9/24 and 8/22/24, Plaintiff filed her oppositions thereto. On 8/28/23, Moving Defendant filed its replies.

DEMURRER

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the court has no jurisdiction of the subject of the cause of action alleged in the pleading” and “the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subds. (a) and (e).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Moving Defendant demurs to Plaintiff’s entire FAC on the bases “that the court does not have jurisdiction over the matter as Plaintiff did not file a compliant government claim that was rejected, Plaintiff cannot allege facts sufficient to establish compliance with Section 945.4.” (Dem. 2:28–3:2.)

A.    Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Moving Defendant’s counsel declares that on 5/15/24, he sent Plaintiffs’ counsel a letter in an attempt to resolve the issues raised in the instant demurrer and motion to strike. (Decl. of Steven R. Jensen ¶ 2.) On 5/23/24, counsel for the parties met and conferred telephonically, but were unable to come to a resolution. (Id. at ¶ 3.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Claims Presentation

Actions brought against government entities are subject to the Government Claims Act, which typically requires written claims for damages against the public entity to be timely presented to that entity for resolution prior to filing suit. (Gov. Code § 900 et seq.; Gov. Code § 911.2, subd. (a).) To satisfy the exhaustion of administrative remedies requirement, “the exact issue raised in the lawsuit must have been presented to the administrative agency so that it will have had an opportunity to act and render the litigation unnecessary.” (Harrington v. City of Davis (2017) 16 Cal.App.5th 420, 441.)

Here, Moving Defendant argues that Plaintiff has not satisfied the claims presentation requirement because “Plaintiff failed to present a claim to SCVWA based on the date, location, and time of the Plaintiffs incident alleged in the First Amended Complaint-therefore, no investigation could be had and no rejection could be issued.” (Dem. 3:3–6.) Moving Defendant does not dispute that Plaintiff timely presented a government claim to Moving Defendant prior to the filing of the instant suit, which was rejected, and instead points to a discrepancy between the locations of the subject incident as stated in the claim and in the FAC.

In her FAC, Plaintiff alleges that the subject “incident occurred on Soledad Canyon Road in Santa Clarita, California 91355.” (Compl. p. 4.) In contrast, Plaintiff’s claim presented to Moving Defendant states that the subject incident occurred “on the side walk in front of property of 23242 Valencia Blvd., Santa Clarita, CA.” (Ex. A to Def.’s RJN.) Moving Defendant argues that the demurrer should be sustained on this basis alone. (Dem. 3:14.)

In opposition, Plaintiff argues that “due to mistake, inadvertence, and/or excusable neglect, the Complaint incorrectly stated that the accident occurred on Soledad Canyon Road in Santa Clarita, California 91355.” (Pl.’s Opp. 2:27–3:1.) Accordingly, Plaintiff seeks leave to amend the FAC to this extent. (Id. at 5:9–14.) Based on the foregoing, the demurrer is sustained, and the Court grants Plaintiff’s request for leave to amend the FAC to state the corrected location of the subject incident.

C.    Improper Doe Amendment

Moving Defendant further argues that Plaintiff improperly amended her complaint to name Moving Defendant as Doe defendant 1. “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly.” (Code Civ. Proc. § 474.)

Moving Defendant argues that “use of the fictitious name procedure embodied by Section 474 is only available when the party is TRULY ignorant of the identity of the fictitiously-named party or of the facts giving rise to the cause of action against the party.” (Dem. 3:24–26.) Here, “the FAC did not include as a named Defendant, SCVWA, despite the fact that Plaintiff was aware SCVWA was involved in some manner as she presented a claim to SCVWA related to an injury that occurred on the same date as that alleged in both the original and First Amended Complaints.” (Id. at 4:9–12.) Moving Defendant further argues that “unreasonable delay in filing and serving the DOE Amendment is fatal to Plaintiff’s attempt to name SCVWA through a substitution of the fictitious name. Even if a party is truly ignorant of names/facts, the party must act diligently to ascertain the necessary information and cannot sit back and wait. (Id. at 5:8–12, citing A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1065.)

In A.N., the Court of Appeal affirmed the trial court’s grant of the defendants’ motion to quash service, where the plaintiff unreasonably delayed in designating those defendants by their true names, thereby causing those defendants prejudice. (171 Cal.App.4th at 1067–1070.) The A.N. court found such prejudice because “the Doe Defendants were brought into the case less than one month before the case was sent to begin trial, and it does not require speculation to recognize that a party who is drawn into litigation on the eve of trial will face difficulties in preparing a defense in such short order.” (Id. at 1068.)

Here, Plaintiff argues in opposition that “Defendant SCVWA timely received the government claim. Defendant SCVWA was also timely added to this lawsuit. If PLAINTIFF made a procedural mistake in how Defendant SCVWA was added to this lawsuit, the appropriate remedy would be to grant PLAINTIFF leave to file an Amended Complaint.” (Pl.’s Opp. 5:5–8.) The Court agrees, and finds that here, Plaintiff timely filed her government claim on 2/27/23, within six months of the subject incident. (Ex. A to Def.s RJN; Gov. Code § 911.2.) On 3/28/23, Moving Defendant served its notice of rejection of Plaintiff’s claim. (Ex. B to Def.’s RJN.) Six months later, on 9/28/23, Plaintiff amended her FAC to name Moving Defendant as Doe defendant 1. (Gov. Code § 945.6.) Accordingly, Plaintiff timely and properly named Moving Defendant in the instant action. “Indeed, because presentation of a claim to a public entity is a prerequisite to bringing suit against it … it appears that a plaintiff could never effectively utilize a fictitiously named defendant to bring in a public entity defendant. Either his action would be barred for failure to present a claim, or he would know the identity of the entity to whom he had presented the claim and thus not be ignorant of its name.” (Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1036–1037.) “An amendment to a complaint meeting the requirements of section 474 relates back to the date of filing of the original complaint in an action against a public employee or former public employee under the Tort Claims Act. There is no statutory provision precluding application of section 474 to such an action. Had the Legislature intended that the section not apply in such circumstances, it would have said so. Absent such a provision, the fundamental philosophy that cases should be decided on their merits … dictates application of section 474 here.” (Id. at 1037 [internal quotations and citations omitted].)

Moreover, unlike in A.N., the Court finds that here, Moving Defendant is not unduly prejudiced by Plaintiff’s purported “delay” in naming it as a defendant in the action. Here, unlike in A.N., Moving Defendant is not similarly prejudiced, as no trial date has yet been set in this action. Accordingly, the demurrer is overruled as to this issue.

MOTION TO STRIKE

As Plaintiff observes, “Defendant SCVWA’s Motion [to Strike] is identical to Defendant SCVWA’s Demurrer, filed concurrently.” (MTS Opp. 2:16–17.) Accordingly, based on the Court’s above analysis regarding Moving Defendant’s demurrer, the Court finds that the motion to strike is moot.

LEAVE TO AMEND

Plaintiff specifically seeks leave to amend her FAC to correct the location of the subject incident. Therefore, under the Court’s liberal policy of granting leave to amend, Plaintiff is granted 20 days leave to amend the complaint to cure the defects set forth above. Plaintiff is cautioned that “following an order sustaining a demurrer … with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. … The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

CONCLUSION

The demurrer is sustained, and the motion to strike is moot. Plaintiff is granted 20 days leave to amend the FAC to correct the location of the subject incident.