Judge: Christian R. Gullon, Case: 21STCV10352, Date: 2024-06-24 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

Case Number: 21STCV10352    Hearing Date: June 24, 2024    Dept: O

Tentative Ruling

(1)   Vons’ Demurrer to the SAC is SUSTAINED without leave to amend.

(2)   Vons’ Motion to Strike Portions of the SAC is GRANTED without leave to amend.

(3)   SLX’s Demurrer to the SAC is SUSTAINED without leave to amend.

(4)   SLX’s Motion to Strike Portions of the SAC is GRANTED without leave to amend.

The Unruh Civil Rights Act and Disabled Persons Act are time-barred and thus may not be asserted. That said, the court will permit Plaintiff to amend his complaint to re-allege his previous causes of action for negligence and premises liability as set forth in his original complaint and FAC.[1] KCAL’s Joinder is also granted.

Background

This case arises from a slip and fall case.

On March 17, 2021, Plaintiff Joseph Manuel Macias filed suit against Defendants Albertsons Companies, Inc.; KCAL P&C Insurance (“KCAL”); and Services SLX Property, LLC (“SLX”) for negligence and premises liability from injuries arising from an August 22, 2019 accident.

On April 21, 2021, Plaintiff filed his first amended complaint (FAC) for (1) general negligence and (2) premises liability (wherein he slipped water that was draining from the building pipes located/near the store).[2]

On April 23, 2021, Plaintiff filed an amendment to complaint naming the Vons Companies, Inc. as Doe 1.

On May 6, 2021, Plaintiff dismissed Albertsons Companies, Inc.

On May 17, 2021, Defendant KCAL filed its answer and that same day filed a cross-complaint (CC) against SLX for EXPRESS INDEMNITY; EQUITABLE INDEMNITY; CONTRIBUTION; BREACH OF IMPLIED WARRANTY AND DECLARATORY RELIEF.

On June 7, 2021, Vons filed its answer to the FAC and that same day filed a CC against KCAL, SLX, Jose Percy Sam; and Yuet Ngan Yuen De Sam for equitable indemnity.

On July 29, 2021, KCAL filed its answer to Vons’ CC.

On August 30, 2021, SLX filed its answer to Plaintiffs’ FAC.

On October 29, 2021, SLX filed its answer to Vons’ CC and that same day filed a CC against KCAL for (1) CONTRIBUTION (2) EQUITABLE INDEMNITY (3) IMPLIED INDEMNITY (4) EXPRESS INDEMITY.

On February 3, 2022, SLX filed its answer to KCAL’s CC.

On December 6, 2023, SLX filed an MSJ (ISSUE 1 – KCAL has a duty to defend SLX against the claims of Plaintiff as alleged in the 2^nd COA for Express Indemnity against KCAL in SLX's Cross-Complaint; MSJ p. 2). (The hearing is set for 12/10/2024.)

On January 2, 2024,[3] Plaintiff filed a second amended complaint (SAC)[4] wherein, seemingly dismissing his negligence based COAs, asserts the following two COAs:[5]

1.     Unruh Civil Rights Act

2.     Violations of the Disabled Persons Act (Civ. Code, § 54.1 et seq).[6]

On March 27, 2024, Vons filed the instant DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT x MTS. That same day, SLX filed a demurrer x MTS to the SAC.

On April 12, 2024, Plaintiffs filed a consolidated opposition ‘PLAINTIFF’S NOTICE OF OPPOSITION AND OPPOSITION TO DEMURRERS OF DEFENDANTS SLX PROPERTY, LLC AND THE VONS COMPANIES, INC.’

On April 15, 2024, KCAL filed a ‘NOTICE OF JOINDER IN DEFENDANT THE VONS COMPANIES, INC.’ AND SLX PROPERTY, LLC ’S NOTICES OF DEMURRER AND DEMURRERS AND MOTIONS TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT.’  

On April 17, 2024, SLX and Vons filed their respective replies to each of their respective demurrers and motions to strike.

On April 23, 2024, KCAL filed its opposition to the SLX’s MSA.

Discussion[7]

Both Vons and SLX argue that the SAC is time barred namely because the COAs alleged in the SAC—Unruh Civil Rights Act (Civ. Code, §51 et seq.) and (2) a Violation of the Disabled Person Act (Civ. Code, § 54.1)—do not relate back to the original complaint.

Neither party dispute that a two-year SOL applies.[8] (Opp. p. 8:18-20.) In turn, with an injury date of August 22, 2019 and the additional six months provided by the Emergency Rule for tolling due to Covid-19, Plaintiff must have asserted his Un resulting in a February 22, 2022 deadline for Plaintiff to pursue the Unruh and Violation of the Disabled Persons Act COAs by February 22, 2022. Instead, Plaintiff waited nearly two additional years until January 2, 2024 to file his SAC.

For reasons to be discussed below, namely that the SAC refers to an entirely different instrumentality—the court SUSTAINS the demurrers.

Relation Back Doctrine

“An amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, only if it rests on the same general set of facts and refers to the same ‘offending instrumentalities,’ accident and injuries as the original complaint. (Vons Demurrer p. 7, citing Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415, emphasis and underline added; see also Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409.) The instrumentality refers to, quite literally, the physical instrument that caused the injury or harm. (See Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 151 [original complaint alleged that plaintiffs' daughter was electrocuted while using a dangerous instrumentality—a defective hair dryer—whereas the amended complaint alleged that the instrumentality was a lamp socket and switch].) The inquiry heavily hinges on whether the original complaint acquaints the defendant with the “nature, source, and extent” of plaintiff’s claims against it. (Davaloo, supra, 135 Cal.App.4th at p. 419, emphasis added.) Citing approval of the federal rules’ formula, another way to look at the relation back doctrine is whether the claim asserted in the amended pleading arose out of the same conduct set forth in the original pleading. (Lamont v. Wolfe (1983) 142 Cal.App.3d 375, 378-379, citing Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 601-602, fn. 2.) Ultimately, “the most important consideration is whether the original pleading gave the defendant adequate notice of the claim. [Citation omitted.]" (Hutcheson v. Superior Court (2022) 74 Cal.App.5th 932, 940.)

As there is no bright line for determining whether allegations of an amended complaint are so dissimilar from the original (Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 599), the relation-back doctrine requires courts to compare the factual allegations in the original and amended complaints. (Davaloo, supra, 135 Cal.App.4th at p. 416.) Thus, the court turns to the original complaint/FAC (identical allegations) and the SAC.[9]

The FAC alleges as follows:  

Plaintiff was walking from his vehicle to grab a grocery cart and as he was walking he slipped and fell. Plaintiff slipped and fell from the water that was draining from the building pipes located/near Vons Grocery Store and the KCAL Insurance that were negligently INSTALLED without a proper placement of a mechanism to PREVENT WATER from FLOWING onto the parking lot and paint striping. (See FAC p. 5, emphasis and capitalization added.)

Plainly put, “giv[ing] the complaint a reasonable interpretation, reading it as a whole and its parts in their context,”[10] the FAC is predicated upon the purported negligent installation of a pipe (i.e., the INSTRUMENTALITY) that caused a leak that in turn created a (presumably) SLIPPERY SURFACE that consequently caused Plaintiff to slip that ultimately caused Plaintiff’s injuries to his left shoulder, left elbow, left knee and lower back. (FAC p. 5.)

The SAC alleges, in pertinent part, the following:

Plaintiff walked from his vehicle to obtain a grocery cart. As he walked towards the grocery cart, which was located on the sidewalk immediately parallel to the subject handicap stalls, Plaintiff slipped and fell. He slipped BECAUSE OF: (1) the water draining from the building pipes located at or near Vons Grocery Store and the KCAL Insurance Agency, and (2) BECAUSE OF the uneven, inclined SLOPE LOCATED AT the point where the handicapped-blue-stripped lines end and the abovementioned sidewalk begins. Plaintiff fell and was injured while traversing the converted handicap PARKING STALLS, which were NOT BUILT pursuant to the pertinent disability and commercial building codes. DEFENDANTS failed to alter, convert, remodel, and renovate the former PATIO AREA in compliance with Federal and California disabled access standards, and THAT THIS FAILURE was the direct and proximate cause of Plaintiff’s injuries. Specifically, section 11B-502.4 of the California Building Code, 2016 Edition. This Code section states that parking spaces and access aisles serving them shall comply with Section 11B-302. Access aisles shall be at the same level as the parking spaces they serve. Changes in the level are not permitted. At the time of Plaintiff’s visit to DEFENDANTS’ establishment, the subject PARKING LOT failed to comport with the above-mentioned code section and any pertinent exceptions. Specifically, the ACCESS AISLES were not the same level as the parking spaces it served. (SAC pp. 7-8, emphasis and capitalization added.)

Plainly put, the SAC alleges that Plaintiff’s injuries were (largely) caused by ARCHITECTURAL DEFECTS/BARRIERS (i.e., INSTRUMENTALITY) concerning the patio conversion and uneven surface in the parking lot.

Accordingly, while the complaints may all reference a shopping cart and a water leakage, the slope is an entirely NEW INSTRUMENTALITY, unrelated to the water alleged in the FAC. There are no allegations in Plaintiff’s original Complaint/FAC regarding any sloping or defect in the pavement of the disabled parking area or sidewalk where Plaintiff fell which would provide any notice to Defendant of potential violations of the Unruh Civil Rights Act, Disabled Persons Act, or any ADA violations. (See Vons Opp. p. 8, SLX Opp. p. 7.) “‘[D]ifferent acts leading to distinct injuries are not part of the ‘same general set of facts’ even though they may be part of the same ‘story.’” (Vons Reply p. 3, quoting McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.app.4th 1255, 1262).

In opposition, Plaintiff advances some arguments, but all are unpersuasive, and but further support the court’s ruling.

Plaintiff argues that the circumstances here are similar to that in Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch (2011) 195 Cal.App.4th 265.[11]

In Pointe, three entities sued their attorney’s firm, Procopio, for its legal representation of plaintiffs in a complex multi-party real estate litigation that spawned numerous appeals. While the first litigation was ongoing, in April 2004, the plaintiffs filed suit against Procopio for a single cause of action for general negligence alleging that the attorneys failed to use due care in the handling of their case. (Id. at p. 271.) The amended complaint provided “substantially more detail” concerning the firm’s “assert specific claims and seek certain remedies in the Pointe I consolidated litigation.” (Ibid.) While the cross-appeals were pending from the final judgment entered in the Pointe I case, “plaintiffs filed a second amended complaint in the legal malpractice action, reorganizing the causes of action and adding several additional grounds for the malpractice claim arising from Procopio's representation of the plaintiffs in the Pointe I litigation.” (Ibid.) In June 2008, the plaintiffs filed a third amended complaint containing eight causes of action which identified specific acts or omissions alleged to constitute legal malpractice. (Ibid.) Plaintiffs then filed a fourth amended complaint, “essentially alleging the same causes of action, with certain modifications and clarifications.” (Ibid, emphasis added.)

In reversing the trial court’s ruling, the appellate court observed the following comparison between the original complaints and the fourth amended complaint:

The complaint placed Procopio on notice of the identity of the plaintiffs and the nature of their claims. The complaint referred to the specific litigation in which Procopio had represented plaintiffs and alleged that Procopio had failed to use due care in the handling of that litigation. Although the complaint did not detail the specifics of the claim, Procopio had superior knowledge of its conduct and the manner in which it may have breached the standard of care. Procopio had sufficient information to be apprised of the factual basis for the claim—its acts and omissions during its representation of plaintiffs in the Pointe I litigation—and to take steps to preserve the necessary relevant information for defense of this claim and timely notify its malpractice carrier of the claim. (Id. at p. 281.)

Here, however, while the identity of Plaintiff may have stayed the same, the nature, conduct, and instrumentality of the cause of injuries has fundamentally changed. What is more, unlike Pointe wherein the precise nature of the alleged malpractice and injuries was not entirely clear to plaintiffs because “the litigation was ongoing and no final judgment had been entered” and that “Procopio was uniquely and solely aware of, and in possession of the fact that, their conduct in the representation of Plaintiffs had fallen below the standard of care” (id. at p. 273), here, the precise nature of what happened was solely known by Plaintiff. And according to Plaintiff’s original complaint, Plaintiff’s injuries were legally and proximately caused by the water leaking whereas the SAC alleges that Plaintiff’s injuries were legally and proximately caused by the failure to build the stalls pursuant to certain buildings code. Thus, unlike Pointe wherein Procopio was put on notice that the professional negligence claim was based on its representation of plaintiffs in this case and of the need to gather and preserve evidence relating to this representation (id. at p. 278), here, Plaintiff’s original complaint nor FAC ever put Defendants on notice of potential ADA violation(s) to conduct critical investigation of these claims, identify potential witnesses and evidence, and to prepare its defenses has been compromised.

Therefore, for the foregoing reasons, Plaintiff’s argument that he is “merely add[ing] detail[s] to the existing legal theory” and that he is not “deviat[ing] from the core allegations of negligence (Opp. p. 2-3), is misplaced. 

To the extent that Plaintiff urges the court that this court to adhere to the principles of justice to rule in Plaintiff’s favor, justice is not one-sided. Just as justice requires that Plaintiff have his day in his, justice is too served when a defendant is timely put on notice of the claims against him.

Overall, perhaps Plaintiff’s opposition concedes the change from the injury’s source, nature, and instrumentality. According to Plaintiff, “the discovery of the ADA and Unruh Act violations was contingent upon specialized expert analysis [in September 2022], which was only undertaken after it became apparent that the case would not settle.”[12] (Opp. p. 8:21-24.) Accordingly, it was only after Plaintiff’s counsel chose to investigate other theories of liability once the initial theories proved unsuccessful.[13] As noted by SLX in reply, “If Plaintiff’s own allegations failed to put him on notice of the slope as an instrumentality of his fall, it is entirely disingenuous for him to argue the FAC’s allegations put Defendants on notice of the new alleged facts.” (SLX Reply p. 3:21-24.) Thus, contrary to Plaintiff’s assertion, if the court were to subscribe to Plaintiff’s theory—providing a “a flexible approach to statutory deadlines” (Opp. p. 9:26-27)—that would create a detrimental precedent (Opp. p. 9:20-21), not the other way around.

To sustain a demurrer based on the statute of limitations, it must "clearly and affirmatively" appear on the face of the complaint that the cause of action is barred, not that it might be barred. (Committee v. Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42; Lee v. Hanley (2015) 61 Cal.4th 1225, 1232 [demurrer based on statute of limitations does not lie when the action may be, but is not necessarily, barred].) Here, it is undisputed that the Unruh Act and Disabled Persons Act are time-barred. Therefore, the demurrers are SUSTAINED. As for leave to amend, plaintiff bears the burden of showing how it can be cured by amendment. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1040-1041.) Here, as only a change in the filing date of the SAC could save the Unruh Act and Disabled Persons Act COAs, no amendment can amend the deficiencies.

Thus, the demurrers are sustained WITHOUT leave to amend.

Conclusion

Based on the foregoing—as the SAC does not relate back such that the newly asserted legal theories are time-barred by the two-year SOL—the demurrers are sustained without leave to amend, rendering the motion to strike allegations referring to Unruh Act and Disabled Persons Act granted.

Notwithstanding the foregoing, the court will permit Plaintiff to amend his complaint to re-allege his previous causes of action for negligence and premises liability as set forth in his original complaint and FAC.

II. Motions to Strike

SLX:

SLK seeks to strike the following:

-        Paragraph 1, which references the negligence and premises liability COAs

-        Paragraphs 30-36 (Unruh Civil Rights Act) and

-        Paragraphs 37-43 (Damages for Violations of the Disabled Persons Act)

As for paragraph 1, it is stricken as Plaintiff cannot allege the Unruh Civil Rights Act and Disabled Persons Act COAs.

As for the 2 COAs, though arguably moot based upon the demurrer, those are also stricken based on the SOL. Based thereon, the court need not strike the COAs because the SAC was not filed with verification (Cal. Code Civ. Proc. § 425.50(b)(1)) [a complaint alleging a construction-related accessibility claim must be verified] and that Plaintiff did not satisfy pre-litigation requirements set forth in Cal. Civil Code § 55.3 (b).

Based on the foregoing, for reasons stated in the demurrer, the MTS is granted without leave to amend.

Vons:

Vons also seeks to strike paragraph 1 for similar reasons. For reasons stated above, namely that the COAs for negligence and premises liability were not pled within the SAC but merely referenced by the above-noted language, the MTS is granted.

Conclusion

Based on the foregoing, both motions are granted without leave to amend.