Judge: Frank M. Tavelman, Case: 19STCV17639, Date: 2023-02-24 Tentative Ruling

Case Number: 19STCV17639    Hearing Date: February 24, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER

MP:    Susanna Cablayan, Erwin Cablayan, and Tri-Care Center, Inc. (Defendants)

RP:     Veronica Famighetti (Plaintiff)

ALLEGATIONS/HISTORY:

Virginia Keating (“Keating”), in and through her successor Veronica Famighetti, (“Plaintiff”) filed the instant action against 3Gencare, Inc dba San Marino Manor, San Marino Manor, and Does 1 through 50 (“Defendants”) on May 21, 2019. On March 10, 2022, Plaintiff amended her complaint to name Susanna Cablayan, Erwin Cablayan, and Tri-Care Center, Inc. (“collectively Doe Defendants”) as Doe defendants 18, 19, and 20.  Plaintiff alleges in her First Amended Complaint (“FAC”) causes of action for: (1) Elder Abuse, (2) Negligence, (3) Violation of Health and Safety Code § 1430(b), (4) Willful Misconduct, and (5) Wrongful Death.

Doe Defendants filed a demurrer as to the FAC on August 2, 2022. Plaintiff filed opposition on August 11, 2022. Reply was filed on August 17, 2022. Hearing was initially set for August 24, 2022 but was continued to February 24, 2023 as result of the case’s transfer to this court.

RELIEF REQUESTED:

Doe Defendants demur to the first, second and fifth cause of action on grounds that they are barred by statute of limitations and do not allege facts sufficient to constitute these causes of action.

Additionally, Doe Defendants demur to the fourth on grounds that Plaintiff does not allege facts sufficient to constitute this causes of action.

PROCEDURAL CONCERNS:

Plaintiff argues that Doe Defendant’s demurrer should be overruled in its entirety as it was rendered with insufficient notice. The initial hearing date for this motion was August 24, 2022 and Doe Defendants served notice of the motion on August 2, 2022, two days after the 16 court day deadline (plus two days for electronic service). The Court finds that the subsequent continuance of the hearing to the current date renders this argument moot. As such, the Court will consider the demurrer on its merits.

REQUEST FOR JUDICIAL NOTICE

Doe Defendants request the court take judicial notice of three statements issued by the Secretary of State pertaining to the corporate entity known as Coordinated Care Center Inc. Doe Defendants make this request pursuant to Evid. Code § 452(c). Evid. Code § 452(c) provides that courts may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. Presumably, Doe Defendants request the court take judicial notice of these documents for purposes of their argument as to Plaintiff’s actual knowledge of Doe Defendants identities, however their brief does not explicitly state as much. The Court finds, for reasons stated below, that these documents are irrelevant to Plaintiff’s knowledge at the time of filing its complaint. As such, the Court declines to take judicial notice of these documents.

ANALYSIS:

I.                LEGAL STANDARDS

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.              MEET & CONFER

C.C.P. § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. The demurring party must file and serve a declaration detailing their meet and confer efforts.

Upon review of the record the Court finds that meet and confer requirements have been satisfied to code. (Stone Decl., ¶¶ 2-3.)

III.            MERITS

Statute of Limitations (Plaintiff’s First, Second, and Fifth COA)

The applicable statute of limitations (“SOL”) for a cause of action for elder abuse is two years from the date of the injury under C.C.P. §335.1. Doe Defendants argue that Plaintiff would have been on notice of the injury from which their claim arises, the pressure sores Keating developed, on April 4, 2018.  Doe Defendants concede that Plaintiff filed her complaint before the SOL expired but contend that Doe Defendants addition in March of 2022 renders them outside of the SOL regardless.

Doe Defendants also argues the wrongful death claim is outside the statute of limitations of two years. The Court notes that the SOL runs on a wrongful death action on the date of decedents passing, not on occurrence of the underlying injury, as only then are all necessary elements of the claim present. (Kincaid v. Kincaid (2011) 197 Cal.App.4th 75 as modified on denial of reh'g (July 26, 2011.) Keating died on October 28, 2018, meaning the SOL would have expired on a wrongful death cause of action on October 28, 2020. The Court finds this has no bearing on Doe Defendants’ argument that their addition in March of 2022 renders them outside the statute of limitations.

Lastly, Doe Defendants argue that the SOL for a cause of action for Willful misconduct is one year under Labor Code §5407.5 which reads:

The period within which may be commenced proceedings for the reduction of compensation on the ground of serious and willful misconduct of the employee, under provisions of Section 4551, is as follows:

Twelve months from the date of injury. However, this limitation shall not apply in any case where the employee has commenced proceedings for the increase of compensation on the ground of serious and willful misconduct of the employer.

Doe Defendants again argue that their addition by Doe Defendants falls outside this SOL.

Doe Defendants’ argument invokes the relate back doctrine in two ways. First the Doe Defendants argue that the amended complaint does not relate back because Plaintiff was not genuinely ignorant of their identities at the time they filed the complaint. Second, Doe Defendants argue that the FAC does not relate back because it is not based on the same set of facts such that Doe Defendants were on notice of the claim. For reasons discussed below the Court finds that Plaintiff’s FAC does relate back to the original complaint for statute of limitations purposes.

            Genuine Ignorance

Doe Defendants first argue that Plaintiff’s causes of action are barred by statute of limitations, under the theory that they were not genuinely ignorant of the identities of Doe Defendants for the relevant statutory period.

C.C.P. § 474 permits the designation of a defendant by a fictitious name when the plaintiff is ignorant of the defendant’s name. Section 474 further provides that when the defendant’s true name is discovered, the pleading must be amended accordingly and that the copy of the summons or other process must provide a notice stating in substance: “‘To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).’” (Ibid.) 

“[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593.) The phrase “ignorant of the name of a defendant” is broadly interpreted to mean not only ignorant of the defendant's identity, but also ignorant of the facts giving rise to a cause of action against that defendant. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163.)

Doe Defendants argue that Plaintiff was not truly ignorant of the identities of Susanna Cablayan, Erwin Cablayan, and Tri-Care Center, Inc. In support of this Doe Defendants argue that internet searches and other various documents reveal Doe Defendants’ identities as to the property as early as 2003. Defendant cites to no case law where the mere existence of such documents can be relied upon to show that Plaintiff was not actually ignorant of Doe Defendants’ identities.

Plaintiff argues that she only became aware of Doe Defendants in December of 2019, after their complaint was filed. Plaintiff also argues they were not aware of facts regarding Doe Defendants’ liability until discovery, specifically during the deposition of Kevin Cablayan on March 10, 2022. Plaintiff further argues that they needed additional discovery to develop their theory of joint venture which was added in the FAC.

Doe Defendants in their reply argue that Plaintiff’s line of questioning at the deposition reveals that they had prior knowledge of the existence of Doe Defendants and their ownership interest in the property. The excerpt follows:

"Q. Who is Suzzana Cablayan?

A. That is my mother.

Q. What is her relationship with 3GENCARE?

A. No relation.

Q. She owns the property?

A. Yes.

Q. That is the land that the building sits on?

A. Correct.

Q. Who owns the building?

A. It is the land and the building.

Q. Erwin Cablayan is your father, then?

A. Yes.

Q. He is 50 percent owner of the land and building?

A. I don't know."

(Flint Decl. Exh.4 at Page 80, lines 5 to 18.)

The Court finds that the deposition certainly indicates that Plaintiff was aware of the existence of Susanna and Erwin Cablayan. However, it does not follow that Plaintiff had knowledge that they were the Doe Defendants named in their complaint. Further, Plaintiff’s initial complaint was filed on May 21, 2019, months before the deposition of Kevin Cablayan. Doe Defendants argument does not speak to the knowledge which Plaintiff possessed at the time of filing the complaint. As such, it cannot be said that Plaintiff was not genuinely ignorant of Doe Defendants’ identities at the time of filing her complaint.

Same Set of Facts

The relation-back doctrine requires that the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383.)

When a plaintiff has satisfied all the requirements for filing a complaint containing Doe allegations, the amendment of the complaint is deemed to relate back to filing date of original complaint for purposes of SOL. (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1143. “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.” (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409.) The relation-back doctrine, therefore, requires courts to compare the factual allegations in the original and amended complaints. (Id.)

Doe Defendants argue that in analyzing the factual allegations of the original and amended complaints, the most important consideration is whether the original pleading alleged sufficient facts to give notice of a claim. (Hutcheson v. Superior Court (2022) 74 Cal.App.5th 932.) Doe Defendants appear to interpret Hutcheson to require that the factual allegations in the original complaint were such that Doe Defendants had actual notice of the claim against them. The Court reads Hutcheson differently.

First, the amendment in Hutcheson was to add a cause of action, not to add the identity of a Doe defendant. The court in Hutcheson was concerned with whether the facts, as originally pleaded, were sufficient to give the defendant notice of the existence of the cause of action sought to be added in amendment. Here, Plaintiff is not alleging a new cause of action, rather seeking to amend the names of defendants previously unidentified under the same operative facts.

Second, the Hutcheson decision speaks to legal sufficiency of the original complaint and not whether defendant received actual notice. Here, Doe Defendants argue that they did not receive notice of the causes of action against them, as they were not named in the original suit. Doe Defendants argue that, under Hutcheson, this lack of notice bar the amended complaint from relating back for SOL purposes. If this reading were correct, no amendment under C.C.P. §474 could ever be deemed to relate back.

Doe Defendants Hutcheson argument speaks to the concept of actual notice, which is in fact governed by C.C.P. § 583.210. If service of the summons and complaint has not been served upon a defendant within the three-year statutory period, the court shall dismiss the action.  (Ibid.)  “The three-year rule applies where the defendant seeking dismissal was served as a Doe defendant named in the original complaint, later amended to show his or her true name.”  (Inversiones Papaluchi S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1061, emphasis added.)  Thus, “a plaintiff has three years from the date of filing the complaint to identify and serve a Doe defendant.”  (Ibid.)  Here the FAC was served upon Doe Defendants less than three years from the original complaint filing and is in compliance with C.C.P. § 583.210. 

In comparing the facts of the original Complaint and the FAC the Court looks to see if the original complaint alleged facts sufficient to put the defendants, then identified as “Doe,” on notice that a claim existed as against them. The Court disagrees with the Doe Defendants’ interpretation of Hutcheson because it would preclude an amendment to identify a previously fictious party in any situation. Instead, the court conducts the analysis pursuant to the standard enumerated in Norgart.

First the amended complaint must be based on the same general set of facts. It must be based on the same operative facts—those creating the right to recovery—alleged in the original complaint. (Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146.) The Court does not find that the allegations in the amended complaint here are based on a different set of operative facts. No new cause of action has been pled which would necessitate the addition of new operative facts. Plaintiff’s claim remains the same as it was previously, even if their theory of liability has been altered.

Second, the amended complaint must seek recovery for the “same injuries” as the original complaint. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264.) The Court finds that the injury in the FAC to be unchanged from the original Complaint.

Thirdly, an amended complaint alleging the injury was caused by a different instrumentality from that alleged in the original complaint does not “relate back” to the original. Even if the same injury at the same location is involved, injury caused by a different “offending instrumentality” is not the “same accident.” (Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342.) In Coronet, the court held that a Doe amendment adding the a manufacturer did not relate back to the original complaint because the amended complaint changed the cause of Plaintiff’s electrocution from a hair dryer to a wall outlet. (Id.) Here no such change in instrumentality is present.

As such the Court is satisfied that the FAC relates back to the original complaint for SOL purposes.

Joint Venture

Doe Defendants and Plaintiff disagree as to whether the FAC contains sufficient allegations showing a joint venture’s existence. The elements required for a joint venture are: (1) Two or more persons or business entities combine their property, skill, or knowledge with the intent to carry out a single business undertaking; (2) Each has an ownership interest in the business;(3) They have joint control over the business, even if they agree to delegate control; and (4) They agree to share the profits and losses of the business. (CACI No.3712.)

Doe Defendants argue that Plaintiff fails to allege facts sufficient to show each element of a joint venture. Doe Defendants specifically argue that Plaintiff fails to allege facts that there was a profit-sharing agreement between Doe Defendants and Kevin Cablayan (“Kevin”). In reply, Doe Defendants point to the deposition testimony of Kevin, submitted by Plaintiff, where he denies a profit-sharing agreement. (Flint Decl. Exh. 6.)

Plaintiff argues that the determination of joint venture is ultimately to be made by a jury and that, to survive a  demurrer, they have made sufficient allegations. Plaintiff cites to Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343. Unruh-Haxton concerned a demurrer for failure to allege a joint venture between the Regents of the University of California and a Medical Center operating under them. Plaintiff in that case alleged the existence of a written joint venture agreement between the parties, which included a profit-sharing agreement.  At dispute on appeal was whether the trial court appropriately inferred the existence of control in finding that a joint venture existed. (Id.) The court found that the facts alleged were sufficient to imply the control element of a joint venture in this instance. Specifically, the court relied upon the allegations of a written joint venture agreement and the allegations that the joint venture included the operation and management of the medical building itself.  Additionally, the court stated the determination of the existence of a joint venture is a matter for the jury when evidence is in dispute. The court added that “Whether the wrongful acts of one joint venturer were committed in connection with the joint venture, or can be imputed to the other joint venturers are questions for another day because the scope of review on demurrer is limited.” (Id. at 37.)

Here, it is unclear whether Plaintiff alleged the elements of profit sharing and control by the joint venture. Plaintiff states that the transfer of the San Marino Manor occurred in anticipation of a judgment rendered against Edwin and Susanna Calbayan as owners and operators (FAC ¶ 28.) Plaintiff then states that this transfer constituted a joint venture and that Doe Defendants still maintained control of San Marino Manor. (FAC ¶ 30.) Plaintiff alleges that Doe Defendants maintained ownership of the facility, the beds, the equipment, the fixtures, the computers, the nursing supplies and the food. (FAC ¶ 53.) Plaintiff also points to Section 2.2.3 of the lease agreement between parties, which provides that Doe Defendants may be required to pay the insurance premiums if 3Gencare fails to. The Court finds that these factual allegations are sufficient on demurrer to allege a joint venture.

With respect to profit sharing the FAC contains the following allegations: 

“Defendants, 3GENCARE, INC. dba SAN MARINO MANOR, KEVIN CABLAYAN (DOE 1), TRI-CARE CENTER, INC. (DOE 18), ERWIN CABLAYAN (DOE 19), and SUSANNA CABLAYAN (DOE 19); and DOES 1 through 20, share in the profits.”

“3GENCARE, INC. dba SAN MARINO MANOR, and KEVIN CABLAYAN (DOE 1) received the profits from the residents, Medicare, and Medi-Cal…”

“TRI-CARE CENTER, INC. (DOE 18), received from 3GENCARE, INC. $312,873.48 per year for allowing 3GENCARE, INC. use of the property, equipment, and nursing supplies”

 (FAC ¶54.)

Doe Defendants contend that the money they receive is considered rent under their lease agreement with 3Gencare. The FAC does reference a lease agreement between Doe Defendants and 3Gencare. However, when read in connection with statement that the parties share profits, the allegation that Doe Defendants received money is sufficient to infer an allegation of profit-sharing.

Whether or not the terms in the lease agreement and the ownership of San Marino’s resources constitute control revolves around determinations of evidence inappropriate for review on demurrer. The same can be said as to whether the money received in connection with the lease agreement was an agreement to share profits. As such, the Court finds that Plaintiff has alleged facts sufficient to sustain their causes of action against Doe Defendants on the theory of joint venture liability.

Plaintiff’s Individual Causes of Action  

Doe Defendants demur to the individual causes of action in the complaint for failure to allege sufficient facts as follows:

·       Doe Defendants argue that Plaintiff failed to allege sufficient facts to sustain a cause of action against them for Elder Abuse. Doe Defendants cite to Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, which held that a cause of action for Elder Abuse requires a custodial relationship exist between the parties. Doe Defendants specifically argue that Plaintiff has not alleged a custodial relationship between Doe Defendants and Plaintiff.  

·       Doe Defendants also argue that Plaintiff has failed to allege facts sufficient for a negligence cause of action because Plaintiff has not pled facts as to a duty owed by Doe Defendants to Plaintiff.

·       Doe Defendants argue that that Plaintiff failed to allege facts against the Doe Defendants as to willful misconduct.

·       Doe Defendants finally argue that Plaintiff failed to alleged any facts as to a legally cognizable duty of care, breach, causation, or damages as to Doe Defendants to sustain a cause of action for wrongful death.

All members of a joint venture are jointly liable for injuries resulting from the negligent conduct of one of the parties thereto because the negligence of one joint venturer or his employee acting in connection with the joint venture is imputed to the other joint venturers. (Cahill Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367.) Torts committed by one joint venturer in the course of the enterprise are imputable to all members of the venture. (County of Mariposa v. Yosemite West Associates, (1988) 202 Cal. App. 3d 791.)

Doe Defendants do not dispute that Plaintiff’s allegations as to 3Gencare are sufficient to establish any of the above causes of action. Plaintiff alleges liability of Doe Defendants on the basis of joint venture, as previously discussed. Plaintiff’s complaint does not allege facts specific to Doe Defendants negligence or duty because those elements are imputed to Doe Defendants by virtue of their relationship with 3Gencare.

The Court finds that Plaintiff has alleged sufficient facts in their FAC as to joint venture. Assuming the allegations to be true on demurrer, Plaintiff has properly pled her causes of action as against 3Gencare. Given that Plaintiff has adequately pled joint liability theory, the liability for the individual torts pled would then impute onto Doe Defendants.

As such, the demurrer with respect to each cause of action is OVERRULED.

IV.           CONCLUSION

The Court finds that Plaintiff’s FAC relates back to its original complaint for statute of limitations purposes. The Court also finds that Plaintiff has sufficiently pled facts as to the existence of a joint venture between Doe Defendants and 3Gencare. As such, tort liability for each cause of action against 3Gencare is alleged to be imputed to Doe Defendants. Doe Defendants’ demurrer is OVERRULED in its entirety.

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Susanna Cablayan, Erwin Cablayan, and Tri-Care Center, Inc.’s Demurrer came on regularly for hearing on February 24, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS OVERRULED.

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF SHALL GIVE NOTICE.

IT IS SO ORDERED.

DATE:  February 24, 2023                              

_______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles