Judge Bruce G. Iwasaki, Case Number: 20STCV37273, Date: 2024-08-22 Tentative Ruling

Tentative Ruling: The Demurrer is SUSTAINED without leave to amend.

In this employment action, Plaintiff Estela Mendez (“Plaintiff”) filed a complaint on September 29, 2020, a First Amended Complaint on April 9, 2021, and a Second Amended Complaint on February 22, 2022. Plaintiff filed a Third Amended Complaint (TAC) on April 19, 2022, against defendants Ygrene Energy Fund Inc. (dba Ygrene, Ygrene Energy Fund California, Ygreneworks, and Ygrene Fund California), Western Design Builders Inc., Eduardo Rivera; County of Los Angeles, FirstKey Mortgage, LLC, First American Loanstar Trustee, LLC; Select Portfolio Servicing, Inc.; Matt Skolnik; and Renew Financial Group LLC, alleging causes of action for (1) Actual Fraud; (2) Conspiracy to Defraud; (3) Cancellation of Written Instrument; (4) Breach of Fiduciary Duty; (5) Violations of Code of Civil Procedure sections 2923-2924.5; and (6) Slander of Title.

The TAC alleges that in June 2018, Plaintiff contacted defendant Ygrene Energy Fund Inc., through its certified solicitor, defendants Western Design Builders Inc. and Eduardo Rivera. (TAC, ¶ 19.) Rivera went to Plaintiff’s home to assess the services, make updates to her property, and repairs that she would be entitled to through the PACE program. (Id. at ¶ 20.) After Rivera left Plaintiff’s home, Plaintiff had no contact with Rivera or any other representatives for Western Design Builders for over a year and three months. (Id. at ¶ 22.) Plaintiff did not enter into any agreements, sign any documents, or authorize any repairs or work to be done by Western Design Builders. (Id. at ¶ 23.) Plaintiff attempted to contact Rivera and Western Design Builders several times during this period but was unsuccessful. (Id. at ¶ 24.)

In July 2020, Plaintiff received her tax assessment from the Los Angeles County Tax Assessor. (TAC, ¶ 25, Exh. A.) Plaintiff became aware of fraudulent activity concerning her property when she saw that her tax assessment showed that her property tax rate had more than doubled due to an assessment against her home by Western Design Builders and Ygrene Energy Fund. (Id. at ¶ 26.) Plaintiff was subsequently charged and assessed a bill for payment for services that were never rendered or agreed to by Plaintiff. (Id. at ¶ 29.) Plaintiff was assessed for payment for replacing her home roof, but Defendants never repaired or replaced the roof. (Id. at ¶ 31.) Plaintiff contacted the Los Angeles Department of Building and Safety, who sent an inspector to check the roof. (Id. at ¶ 32.) The inspector confirmed that the work on the roof was never completed. (Id. at ¶ 32.) Western Design Builders and Rivera, as solicitors for Ygrene Energy Fund, fraudulently applied Plaintiff’s name and electronic signature to a contract that Plaintiff never signed and only saw when a lien was applied to her home. (Id. at ¶ 34.) Plaintiff was assessed a $122,775 bill by defendants Western Design Builders, Rivera, Ygrene Energy Fund, and Los Angeles County for work that Plaintiff never agreed to, and Defendants never performed. (Id. at ¶ 38, Exh. B.)

On November 14, 2022, Plaintiff Estela Mendez filed a fictitious/ incorrect name amendment to the TAC, naming the Estate of Eduardo Rivera, as a defendant.

On September 27, 2023, the Court granted Ramona Rivera’s motion to quash service of summons on the estate of Defendant Eduardo Rivera and granted leave to amend the pleadings to add Ramona Rivera as a defendant. (9/27/23 Minute Order)

On March 11, 2024, Plaintiff Estela Mendez filed a fictitious/ incorrect name amendment to the TAC, naming Ramona Rivera, as surviving spouse of Eduardo Rivera, as a defendant.

On May 6, 2024, Defendant Ramona Rivera (Defendant or Ramona) filed a Demurrer to all six causes of action raised in the TAC concurrently with a supporting declaration, and request for judicial notice. Plaintiff failed to file any opposition to the demurrer.

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1247.) A demurrer is treated as “admitting all material facts properly pleaded,” but not the truth of “contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)

The general rule on demurrer is that the pleadings are “deemed to be true, however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.4th 593, 604.) Questions of plaintiff’s ability to prove unlikely allegations are of no concern. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A plaintiff’s allegations must be accepted as true for purposes of demurrer, no matter how “improbable” they are. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Allegations need not be accepted as true if they are contradicted by judicially noticeable facts. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474.)

Pleadings are to be broadly construed (Code Civ. Proc., §452) and demurrers are to be overruled where the facts are sufficient to state any cause of action. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Defendant requests judicial notice of the death certificate of Eduardo Rivera (Request for Judicial Notice (RJN) 2, Exhibit 1). The request is GRANTED. (Evid. Code, § 452, subd. (c), (h).) Mr. Rivera died on January 21, 2021.[1]

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to 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(a).) Counsel for Defendant, H. Mark Madnick, Esq., met and conferred with counsel for Plaintiff on May 1, 2024, and was unable to resolve the objections raised in the Demurrer to the TAC. (Declaration of H. Mark Madnick, ¶¶ 3-4.)

The Court finds Defendant’s attempts to meet and confer are sufficient for purposes of the instant motion.

Ramona Rivera, the spouse of Defendant Eduardo Rivera (“Mr. Rivera”), demurs to Plaintiff Estela Mendez’s Third Amended Complaint on the grounds that Plaintiff’s attempt to name Mr. Rivera’s estate in the claim by DOE amendment is improper, and that in any case, the claims are barred by statute of limitations.

A cause of action against a decedent that does not abate may be continued against the decedent’s personal representative successor in interest, “except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.” (Code Civ. Proc., § 377.41.)

Probate Code section 9370 sets forth the conditions that must be satisfied before an action may be continued against the decedent’s personal representative. An action or proceeding pending against the decedent at the time of death may not be continued against the decedent’s personal representative unless (1) a claim is first filed; (2) the claim is rejected in whole or in part; and (3) within three months after the notice of rejection is given, the plaintiff applies to the court for an order to substitute the personal representative in the action or proceeding. (Prob. Code, § 9370, subd. (a).) “No recovery shall be allowed in the action against property in the decedent's estate unless proof is made of compliance with this section.” (Prob. Code, § 9370, subd. (b).)

Plaintiff seeks to substitute Defendant Mr. Rivera’s spouse, Ramona Rivera, as Defendant Mr. Rivera’s successor in interest. On September 27, 2023, the Court granted Plaintiff’s request for leave to amend pleadings to add Ramona Rivera as a defendant and to serve with process. On March 11, 2024, Plaintiff Estela Mendez filed a fictitious/ incorrect name amendment to the TAC, naming Ramona Rivera, as surviving spouse of Eduardo Rivera, as a defendant. However, there is no showing that Plaintiff has complied with the requirements of Probate Code section 9370 so that she may recover against Defendant Eduardo Rivera’s estate because no probate was opened for Mr. Rivera, and Plaintiff never filed a motion under Code of Civil Procedure section 377.41 to substitute Ramona Rivera as Mr. Rivera’s successor-in interest. (Demurrer 3:2-5.)

Because Plaintiff has not moved to substitute Ramona Rivera as the successor in interest to Eduardo Rivera, the demurrer is sustained.

There is a further, more serious obstacle to Plaintiff stating a claim against Ramona Rivera. Defendant demurs to the TAC because the one-year statute of limitations of Code of Civil Procedure section 366.2, subdivision (a), bars the action.

Section 366.2, subdivision (a) provides that if a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. The limitations period shall not be tolled except as provided by section 366.2(b).

Here, the statute of limitations expired on January 21, 2022, one year after the death of Eduardo Rivera. Plaintiff filed her Complaint against Eduardo Rivera in September 2020, and Ramona Rivera was named as a defendant in March 2024, fifteen months after the statute of limitations expired.

This limitations period is strictly enforced, with limited exceptions inapplicable here, even if the result leads to arguable unfairness. In Bradley v. Breen (1999) 73 Cal.App.4^th 798, the Court of Appeal affirmed sustaining a demurrer to a claim for equitable indemnity based on section 366.2 even though the action for equitable indemnity had not yet accrued. The Bradley court acknowledged that in certain circumstances creditors would not be able to bring an actin within one year of death, but that the Legislature recognized this risk. (Id. at p. 805.) The court reiterated that “any action against the personal representatives . . . must be commenced before the statute of limitations under section 366.2 has expired.” (Id. at p. 806.)

One issue in any limitations defense is whether the relation back doctrine applies. Code of Civil Procedure Section 474 allows a named defendant to be substituted for a fictitious defendant if, at the time of filing the complaint, the plaintiff was genuinely unaware of the named defendant’s identity or of facts giving rise to a cause of action against the named defendant who was otherwise known to the plaintiff. (San Diego Navy Broadway Complex Coalition v California Coastal Com. (2019) 40 CA5th 563, 579.) The plaintiff’s lack of knowledge must be real and not feigned, but whether the plaintiff’s ignorance was due to misinformation or negligence is irrelevant. (Balon v Drost (1993) 20 CA4th 483, 488, 25 CR2d 12.) If these requirements are met, the amendment relates back to the filing of the original petition. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 589.) The relation back doctrine does not apply when a plaintiff had constructive notice of the identity of a fictitiously named defendant. (Organization Comunidad de Alviso v City of San Jose (2021) 60 CA5th 783, 795.)

In addition, where a plaintiff is unaware of a defendant’s death, the relation back doctrine applies to relate a subsequent amended pleading back to the filing date of the original complaint. (Burgos v. Tamulonis (1994) 28 Cal.App.4th 757, 763.) However, the relation back doctrine cannot be used to frustrate the intent of the Legislature to require compliance with administrative procedures as a condition to filing an action. (See Esparza v. Safeway, Inc., 36 Cal. App. 5th 42.)

Here, Plaintiff’s counsel was aware by November 14, 2022 that Eduardo Rivera had died. That was when Plaintiff filed a fictitious/ incorrect name amendment to the TAC, naming the Estate of Eduardo Rivera as a defendant. But that was more than fifteen months before Plaintiff sought to add Ramona Rivera as a DOE defendant. Permitting the relation-back doctrine to apply under these circumstances would undermine the strict time limits the Legislature imposed in Code of Civil Procedure section 366.2.

Therefore, the statute of limitations operates to bar claims asserted against Ramona Rivera. Plaintiff has not shown any reasonable probability that it can amend the complaint to avoid the statute of limitations. Accordingly, the Demurrer is sustained without leave to amend.

Defendants’ demurrer to Plaintiff’s Third Amended Complaint is sustained without leave to amend. Plaintiff’s Third Amended Complaint is dismissed with prejudice.

[1] Ramona mistakenly states Mr. Rivera’s date of death as January 1, 2021. (Demurrer 3: 1.) This discrepancy does not affect the Court’s analysis.

Department 58