Judge: Cherol J. Nellon, Case: 22STCV20612, Date: 2023-04-20 Tentative Ruling

Case Number: 22STCV20612    Hearing Date: April 20, 2023    Dept: 28

Defendant Edison Power Constructors, Inc.’s Demurrer

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On June 24, 2022, Plaintiff Mark Anthony Johnson Jr. (“Plaintiff”) filed this action against Defendants Bruce Campbell (“Campbell”) and Southern California Edison Company (“SCEC”) for motor vehicle and general negligence. Plaintiff amended the complaint to include Defendants Los Angeles Department of Water and Power (“LADWP”), Edison Power Constructors, Inc. (“EPC”) and PLH Group (“PLH”).

On March 8, 2023, Campbell filed an answer.

On February 17, 2023, EPC filed a Demurrer to be heard on March 29, 2023. The Court continued the hearing on the motion to April 20, 2023. On March 16, 2023, Plaintiff filed an opposition. On March 22, 2023, EPC filed a reply.

Trial is currently scheduled for December 22, 2023.

PARTY’S REQUESTS

EPC requests the Court sustain the demurrer as it is barred by the statute of limitations.

Plaintiff requests the Court overrule the demurrer.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the

legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

If a plaintiff is ignorant of the name of a defendant, that fact must be stated in the complaint; the pleading must later be amended accordingly, once plaintiff has discovered defendant’s true name. CCP § 474. When served, there should be notice that the defendant has been sued under a fictious name.

DISCUSSION

Plaintiff alleges that, on January 4, 2020, Campbell negligently merged his vehicle into Plaintiff’s lane of travel, colliding with Plaintiff. DOES 1 to 50 were listed as the parties who entrusted, managed, maintained, operated, controlled and drove said vehicle. Plaintiff filed this complaint on June 24, 2022. On January 6, 2023, Plaintiff amended the complaint, replacing DOE 2 with EPC.

Plaintiff’s initial complaint was filed within the statutory timeframe. Under CCP § 335.1, the statute of limitations for personal injury is 2 years from the date of injury, which would have placed the last date to file as January 4, 2022. However, Emergency Rule 9 granted a tolling period of 180 days, making the date to file on July 5, 2022.

When a plaintiff is genuinely ignorant of the name of a defendant, they must state that fact in the complaint; upon learning that name of that defendant, the Plaintiff must be amended accordingly. EPC argues that Plaintiff was not genuinely ignorant of EPC’s name. However, the entirety of EPC’s argument is based on an alleged TCR report. In evaluating a complaint on demurrer, the Court only evaluates the four corners of the complaint or judicially noticeable documents/information. EPC did not submit any requests for judicial notice. In fact, EPC did not even submit the TCR report as an exhibit. The argument is entirely unfounded. Thus, the Court only evaluates the complaint as written.

The Court overrules the demurrer.

CONCLUSION

Defendant Edison Power Constructors, Inc.’s Demurrer is OVERRULED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.