Judge Deirdre Hill, Case 19STCV26134 2023-03-23 Tentative Ruling

ALERT

Due to Coronavirus, please consider appearing by phone for Department M cases.

Department M strongly encourages the use of LA CourtConnect* for ALL hearings, without need for prior approval, unless live testimony by a witness is required.

The contact information for LA CourtConnect* is:

https://lacourt.portalscloud.com/VCourt/

*Parties with a fee waiver on file may be eligible to appear at no/reduced cost

On July 24, 2019, Ramona Murillo Gamboa filed a complaint against Los Angeles World Airports, City of Los Angeles, S A S Services Group, Concesionaria Vuela Compania de Aviacion S.A.P.I. De C.V., and Controladora Vuela Compania de Aviacion, S.A.B. De C.V. for (1) premises liability, (2) dangerous condition of public property, (3) breach of duty of a common carrier, (4) negligence, (5) negligent hiring, and (6) negligence per se. Plaintiff alleges that she slipped and fell causing her to sustain injuries on June 20, 2018. Plaintiff alleges that defendants City and LAWA owned, maintained, and controlled the subject elevator on which she sustained injuries. Plaintiff further alleges that defendants’ staff failed to provide plaintiff with a wheelchair despite her advance request for it. Instead, defendants’ staff asked plaintiff to start walking to the subject escalator, despite the foreseeable risk that she would trip and fall due to defendants’ staff’s failure to provide a wheelchair to plaintiff.

On October 21, 2021, plaintiff filed an amendment designating Buenos Travel as Doe 1.

“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. A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” Woo v. Superior Court (1999) 75 Cal. App. 4th 169, 176.

“Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” Id. “A further and nonprocedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant Doe’s] identity at the time she filed her original complaint. The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. However, if the plaintiff is actually ignorant of the defendant’s identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff's negligence.” Id. at 177.

“Ignorance of the facts giving rise to a cause of action, like ignorance of the true name, should be real and not feigned.” Scherer v. Mark (1976) 64 Cal. App. 3d 834, 841. “’Ignorance’ has been repeatedly interpreted to mean that plaintiff must be unaware of defendant’s identity or unaware of the defendant’s potential culpability.” Marasco v. Wadsworth (1978) 21 Cal. 3d 82, 88.

“Even a person whose identity was known to the plaintiff when the action was filed may be brought in under section 474 as a ‘Doe’ defendant if the plaintiff was initially unaware of that person’s true relationship to the injuries upon which the action was based.” Miller v. Thomas (1981) 121 Cal. App. 3d 440, 444-45. “’Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.’ ‘The fact that the plaintiff had the means to obtain knowledge is irrelevant.’ ‘In short, section 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.’” McGowen v. Grossman (2007) 153 Cal. App. 4th 937, 943-44.

“The purpose of Code of Civil Procedure section 474 is to enable a plaintiff who is ignorant of the identity of the defendant to file his complaint before his claim is barred by the statute of limitations. There is a strong policy in favor of litigating cases on their merits, and the California courts have been very liberal in permitting the amendment of pleadings to bring in a defendant previously sued by fictitious name. So long as the amended pleading relates to the same general set of facts as the original complaint, a defendant sued by fictitious name and later brought in by amendment substituting his true name is considered a party to the action from its commencement for purposes of the statute of limitations.” Barrows v. Am. Motors Corp. (1983) 144 Cal. App. 3d 1, 7 (citations omitted).

“In our view, three lessons may be drawn from Barrows: First, section 474 includes an implicit requirement that a plaintiff may not ‘unreasonably delay’ his or her filing of a Doe amendment after learning a defendant’s identity. Second, a defendant named in an action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that the plaintiff ‘unreasonable delayed’ his or her filing of the challenged amendment. Third, ‘unreasonable delay’ within the meaning of Barrows includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice from plaintiff’s delay in filing the Doe amendment.” A.N. v. County of Los Angeles (2009) 171 Cal. App. 4th 1058, 1066-1067. A defendant who was named through a Doe amendment under section 474 may move to dismiss the claims pursuant to a “Barrows motion.” Id. at 1067. See also CCP §581(m) (“The provisions of this section shall not be deemed to be an exclusive enumeration of the court’s power to dismiss an action or dismiss a complaint as to a defendant.”).

Defendant Buenos Travel Agency requests that the court dismiss plaintiff’s action against defendant with prejudice, citing to Barrows, supra, on the grounds that plaintiff unreasonably delayed in filing the Doe amendment and that it has been prejudiced.

Defendant argues that the delay in naming it as a defendant was unreasonable and prejudicial. Defendant contends that plaintiff “has no reasonable excuse for waiting over two years to amend her Complaint to add BTA as a defendant.” Defendant asserts that plaintiff’s claim against it is based on an invoice for purchase of a plane ticket dated June 5, 2018, and that the statute of limitations had expired when it was named as a defendant. Defendant argues that the relation-back doctrine does not apply because plaintiff was aware of Buenos Travel’s identity and connection with the incident when the complaint was filed. Defendant also argues that it will be prejudiced because plaintiff and the other defendants “have been in litigation for years,” the “case docket indicates that the parties have engaged in substantial discovery and law and motion,” “[d]iscovery completed to date will not have been done in consideration of the interests of BTA,” and that other parties “may seek dismissal by way of motions for summary judgment in the near term, precluding or making more difficult BTA’s access to witnesses and certain evidence.”

In opposition, plaintiff argues that she was not dilatory or acted with unreasonable delay in filing the Doe amendment upon discovering the role of Buenos Travel. Plaintiff contends that the fact that the Buenos Travel invoice is dated prior to the date of the initial complaint does not mean that plaintiff herself had actual knowledge of defendant’s involvement. Plaintiff asserts that Buenos Travel is based in California, plaintiff lives in a remote village outside of Mexico City, and it was not until plaintiff’s counsel, in review of the documents aggregated for purposes of making a document production in discovery, happened to come across the subject invoice and had it translated thereafter, that plaintiff become aware of the actual role that Buenos Travel had in the lack of appropriate disability equipment being provided to her upon her arrival at LAX. Plaintiff also argues that defendant has not met its burden of establishing actual prejudice. Plaintiff further contends that the interests of justice favors liberal construction to allow plaintiff to file claims against unnamed parties pursuant to CCP §474.

In reply, defendant argues that plaintiff has not provided evidence in support of her position.

The court finds that it has discretion to deny leave to amend to name a person as a “Doe” defendant where there is evidence of laches—i.e., unreasonable delay by plaintiff in seeking leave to amend causing specific prejudice to the defendant. See Barrows, supra, at 8; CCP §581(m). The court notes that the motion is evidence-based and that plaintiff did not submit any evidence in support of the opposition. As to the element of unreasonable delay, defendant points to a copy of plaintiff’s plane ticket invoice identifying Buenos Travel. Even if this were to show plaintiff’s knowledge of sufficient facts to cause a reasonable person to believe liability is probable, it is defendant’s burden, however, to demonstrate that it suffered specific prejudice, such as the loss of evidence, to warrant dismissal under a Barrows motion. See Barrows, supra, at 9; A.N., supra, at 1066. Defendant presents no evidence of prejudice (defense counsel’s declaration does not mention), much less any specific prejudice it suffered. It only asserts general prejudice (“it will not be afforded the same opportunity as the other defendants to engage in the discovery process and defend itself”), which defendant has not shown cannot be cured. A trial date has not been set, and defendant is not prohibited from engaging in discovery and preparing its defense. The court thus finds that the claimed prejudice resulting from any purported delay is insufficient to warrant dismissal of plaintiff’s claims against defendant.

On October 21, 2021, plaintiff filed an amendment designating Buenos Travel as Doe 1.

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. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

Defendant Buenos Travel Agency (Doe 1) demurs to the FAC on the ground that it fails to state sufficient facts to constitute a cause of action against it.

Defendant contends that in the FAC, there are no specific allegations against it as it is not named, its business is not described, and its role, if any, in the subject incident is not identified. Defendant argues that five of the seven causes of action require the defendant to be a public entity, common carrier, or employee thereof—facts which plaintiff does not plead against BTA; the cause of action for negligence per se fails because plaintiff does not identify the statute, regulation, or ordinance allegedly violated by BTA; and the remaining cause of action for general negligence does not describe the duty to plaintiff owed by BTA and or its breach.

In opposition, plaintiff asserts that it has reserved a hearing date on a motion for leave to amend the FAC. In any event, plaintiff requests an opportunity to amend the FAC and explains “defendant’s contributions to the incident.”

The court finds that the FAC fails to state sufficient facts to constitute a cause of action against defendant Buenos Travel Agency.