Judge: David A. Hoffer, Case: 30-2022-1279366, Date: 2023-07-24 Tentative Ruling
Defendant CalOptima’s (“Defendant” or “CalOptima”) Demurrer to plaintiff Tracy Hitzeman’s (“Plaintiff”) First Amended Complaint (“FAC”) is SUSTAINED without leave to amend.
A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)
Defendant demurs to causes of action (“COA”) Nos. 1 and 4 on the basis that they fail to state sufficient facts to constitute a COA against Defendant. (Code Civ. Proc. § 430.10(e).) Specifically, Defendant contends COA Nos. 1 and 4 are barred by the applicable statute of limitations.
The statute of limitations period at issue stems from the requirement that any tort action against a government entity must be brought within a certain period of time. If a government agency that has received a claim from a Plaintiff does not respond to said claim within 45-days, then the statute of limitations for a Plaintiff to file its complaint is two-years. (Gov’t Code § 945.6(a)(2).) However, if the agency provides a timely rejection, then Plaintiff has only six-months from the date the rejection is mailed or served to file a complaint. (Gov’t Code § 945.6(a)(1).)
Defendant produced judicially noticeable evidence showing Defendant rejected Plaintiff’s claim on 06/21/22. (RTJN, Ex. G.) Thus, Plaintiff was required to file the Complaint within six-months and no later than 12/21/22. (Gov’t Code § 945.6(a)(1).) The original Complaint against County of Orange was filed on 09/06/22, however the Complaint was not amended to add CalOptima as Defendant until 01/03/23 -- after the limitations period had run. (ROA #14.) Plaintiff then filed the FAC on 01/12/23, and personally served it on Defendant on 01/13/23 -- again, after the limitations period had run. (ROA ##20, 32.)
“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Ct. (1999) 75 Cal. App. 4th 169, 176.)
A plaintiff can file a Civ. Proc. Code § 473 amendment to add the correct defendant at any time prior to the limitations period running. After the limitations period has run, the relation back doctrine applies only in certain limited circumstances. The relation back doctrine would not apply in the present case to permit Plaintiff to add Defendant after the statute of limitations had passed. (Kerr-Mcgee Chem. Corp. v. Superior Ct. (1984) 160 Cal. App. 3d 594, 601 (“Kerr-Mcgee”).) “[T]he net result of such a procedure would be the addition of a party to the action who was not a party before. To permit the attainment of this end by the process of amending the summons pursuant to section 473 would be a circumvention of the well established principles hereinabove enunciated prohibiting the addition of a new party under the authority of that section.” (Id., at 601.) “Cases interpreting this section clearly hold that section 473 does not authorize the addition of a party for the first time whom the plaintiff failed to name in the first instance.” (Id., at 598-99.) Under the allegations of the Complaint, Plaintiff should have been well aware CalOptima should have been named as a defendant in this action, yet CalOptima was not timely added.
Plaintiff argues that it should be obvious that CalOptima was the intended defendant in this matter based upon the body of the Complaint and that the failure to include the CalOptima name in the caption should not bar the Complaint. However, in order for such a procedure to be permitted, Defendant must have provided CalOptima full notice of the complaint being filed and the issues being alleged against CalOptima, which did not occur here.
“It has been uniformly held in our state that in order to determine the identity of a party courts are entitled to take into consideration the allegations of the complaint as well as the title. [Citations.] As stated by the court in Nelson v. East Side Grocery Co. (1915) 26 Cal.App.344, 347, “[i]t should require no argument to sustain the view that in determining who the parties to an action are the whole body of the complaint is to be taken into account, and not the caption merely.” The language of the court in Hume v. Lacey (1952) 112 Cal.App.2d 147 is particularly appropriate at bench: “While it has been frequently held that the use of the word administrator, alone, is merely descriptio personae, it has also been held that the body of the complaint ... may and should be examined for the purpose of determining whether the action involves a party individually, or in a representative capacity.” (Plumlee v. Poag (1984) 150 Cal. App. 3d 541, 547 (“Plumlee”.) “Where full notice is given and a reasonably prudent person would realize that he is the party intended to be named as the defendant, the court should treat the mistake as harmless misnomer in order to promote substantive rights.” [Emphasis added.] (Id.)
Defendant was not timely put on notice of the Complaint or allegations therein. The Complaint was served only upon County of Orange on 09/29/22. (ROA #12.) There is no properly admissible evidence to the contrary. The post-limitation period Civ. Proc. Code § 473 amendments do not appear to have ever been served on Defendant. The post-limitation period FAC was served on Defendant on 1/13/23, but, again, that was 23-days after the 12/21/22 limitation period had run.
Plaintiff contends that it attempted to timely serve CalOptima, but that the service was rejected. (Hahn Decl. ¶ 3, Ex. B.) This is extrinsic evidence. A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Extrinsic evidence cannot be considered. (Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal. App. 3d 859, 862.) Even if the court were to consider the email from the process server, that email does show a copy of the Complaint was actually given to anyone at CalOptima for them to be able to physically review the pleadings and ascertain CalOptima was potentially a defendant. Thus, notice was not provided.
As there is no evidence, judicially noticeable or otherwise, that CalOptima was given full notice of the Complaint prior to the running of the statute of limitations period, Plaintiff cannot use a Civ. Proc. Code § 423 amendment or FAC to relate back to the time the original Complaint was filed in order to add a new defendant as a party to this action. (Plumlee, supra, 150 Cal. App. 3d at 547.)
The Demurrer is sustained without leave to amend as the statute of limitations period has run on COA Nos. 1 and 4.
Defendant is ordered to give notice of this ruling, file a proposed order with the court, and serve a responsive pleading as to the remaining COA within 30-days of this hearing.