Judge Elizabeth Scully, Case Number: 18SCTV01564, Date: 2024-01-11 Tentative Ruling

On October 19, 2018, Plaintiff Stephen Harris (“Plaintiff”) filed his Complaint against Defendant Jack Swank (“Decedent”), in his individual capacity, for damages arising from an automobile accident. On October 20, 2022, Plaintiff filed a Creditor’s Claim, and, after rejection, Plaintiff brought a motion to substitute Judith Lorraine Swank (“Swank” or “Defendant”) as the personal representative of Decedent. On August 29, 2023, the Court granted Plaintiff’s motion to substitute. Accordingly, it was ordered that Swank be substituted as a party defendant in place of Decedent; Plaintiff was ordered to serve Swank with an amended complaint within 20 days of the ruling. (Min. Order Aug. 29, 2023.)

On September 25, 2023, Plaintiff filed an “Amended Complaint” asserting a single cause of action for Negligence. The “Amended Complaint” is deemed “Received” in the Court’s electronic case file. The proof of service attached to the filing shows Plaintiff was personally served with the “Amended Complaint” on September 18, 2023.

On October 5, 2023, Plaintiff filed an “Amended Complaint (1st)” which appears as “Filed” and “Granted” in the Court’s electronic case file.

On October 31, 2023, Defendants’ demurrers were heard, and the Court indicated in its tentative ruling that the demurrer would be sustained with leave to amend on the ground that Defendant was named in her individual capacity rather than as the representative of Decedent. (Min. Order Oct. 31, 2023 at pg. 3.) However, because of the lack of clarity with the pleadings at issue, the Court heard oral argument from the parties. (Id. at pg. 4.) The hearing for Defendant’s demurrers was also continued to November 27, 2023. (Ibid.)

On November 13, 2023, Defendant filed a brief regarding her demurrer, indicating that Plaintiff’s counsel mispresented that Defendant was represented at prior hearings.

On December 4, 2023, the Court sustained Defendant’s demurrer on the ground that in the amended pleading Defendant was sued in her individual capacity, not representative capacity, which did not comply with the Court’s prior leave to amend.

On December 5, 2023, Plaintiff filed a Second Amended Complaint (“SAC”) against Defendant, as the personal representative of Decedent, alleging a claim for negligence.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

As a preliminary matter, because Defendant has failed to submit a declaration along with her demurrer, the Court finds that Defendant has failed to abide by the meet and confer requirements set forth under Code of Civil Procedure § 430.41. Nonetheless, the Court will proceed to address the merits of the demurrer despite this deficiency. (Code Civ. Proc. §§ 430.41(a)(4).)

Defendant raises four separate arguments as to why the Court should not have granted Plaintiff’s motion for substitution. (Demurrer at pp. 1-3.) Defendant contends that the Court lacked jurisdiction to grant the motion based on lack of service, no summons had been issued for her, the Court lacked authority to add a defendant three years after the case was filed, and the motion was untimely. (Ibid.) Confusingly, Defendant has chosen to rehash these arguments even though the Court has rejected these same arguments in prior rulings. For instance, the Court initially rejected the lack of service argument in its order granting Plaintiff’s motion for leave to substitute defendant because Defendant failed to point to any legal authority in support. (August 29, 2023 Minute Order at pg. 2.) In a prior demurrer, the Court then found that Defendant’s decision to reassert this argument was an improper attempt to seek reconsideration of the August 29, 2023 ruling. (Oct. 31, 2023 Minute Order at pg. 3.) The same results here; the Court is not persuaded to reconsider its prior ruling.[1]

Similarly, as to the arguments that Defendant was improperly added as a party beyond the three-year period established by Code of Civil Procedure § 583.210 or that the motion was untimely, the Court rejected these arguments as well. The Court found that the substitution of a party is not the equivalent of adding a Doe defendant and that the Plaintiff’s motion to substitute was timely. (August 29, 2023 Minute Order at pp. 2, 3.) Defendant fails to present any legal authority that would suggest the Court erred in its reasoning and, again, that is the law of the case. See footnote 1. Therefore, these arguments lack merit.

Defendant has also previously argued that the Court lacks jurisdiction due to lack of proper service. Because that issue may not have been ruled on previously, the Court rules on it now and finds that Defendant has generally appeared in this case, thereby waiving any jurisdictional objection. (Code Civ.Proc. §§ 410.50(a), 418.10(e)(3); In re Vanessa Q. (2010) 187 Cal.App.4th128, 135.) Defendant appeared and argued two motions to compel filed by decedent Jack Swank. Defendant also served discovery related to the merits of this case (See Declaration of Monique Harris; Ex.1), which constitutes a general appearance. Factor Health Management v. Superior Court (2005) 132 Cal. App. 4^th 246.

Next, Defendant argues that the SAC is defective because the caption page has been improperly altered, and the pleadings fail to state what damages are sought. As to the former argument, Defendant fails to present legal authority to support the contention that a caption page may not be altered in an amended pleading, and, as Plaintiff correctly notes, the Court specifically requested that the Plaintiff make clear that Defendant is being sued in her representative capacity. Thus, the Court rejects this argument. With regard to the latter argument, a personal injury action is not to set forth the specific money damages requested (CCP Section 425.10). The SAC states that Plaintiff’s damages exceed $100,000. (SAC ¶ 8.) When read in conjunction with the prayer for relief, it can be inferred that Plaintiff is seeking over $100,000 in damages or damages according to proof as this is a personal injury action. Without any reference to punitive damages, the SAC shall further be read not to be seeking punitive damages.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court

[1] Further, as the Court already noted at a previous hearing, the ruling on the motion to substitute is now the law of the case. The case is now before a different judicial officer than the one who ruled on the substitution motion, and it would be inappropriate for that judicial officer to effectively “overrule” the prior judicial officer. That is the function of an appellate court.