Judge: Gail Killefer, Case: 21STCV32638, Date: 2023-08-07 Tentative Ruling

Case Number: 21STCV32638    Hearing Date: February 29, 2024    Dept: 37

HEARING DATE:                 Thursday, February 29, 2024

CASE NUMBER:                   21STCV32638

CASE NAME:                        Patricia Galvez v. Franklin Burns

MOVING PARTY:                 Kimberly Rachel Anton, Successor Co-Trustee of Franklyn Burns Living Trust Dated September 30, 1995; Michele Dorene Johnsen, Successor Co-Trustee of Franklyn Burns Living Trust Dated September 30, 1995

OPPOSING PARTY:             Plaintiff Patricia Galvez

TRIAL DATE:                        15 October 2024

PROOF OF SERVICE:           OK

PROCEEDING:                      Demurrer to Second Amended Complaint

OPPOSITION:                        15 February 2024

REPLY:                                  22 February 2024

TENTATIVE:                         Defendant Trustees’ demurrer is granted without leave to amend

Background

On September 2, 2021, Plaintiff filed a Complaint against Defendant Franklin Burns and Does 1 to 50 for Negligence.

On December 14, 2022, the parties stipulated to allow Plaintiff to file a First Amended Complaint to correct the Complaint by naming the true Defendant Franklin Burns to “Franklyn Burns Living Trust Dated September 30, 1995” (hereinafter “Defendant Trust”). 

On May 24, 2023, Defendant Trust filed a motion for judgment on the pleadings (“MJOP”). On August 7, 2023, the court granted Defendant’s MJOP and granted Plaintiff leave to amend.

On  September 6, 2023, Plaintiff filed the operative Second Amended Complaint (“SAC”) alleging the same single cause of action for negligence against Kimberly Rachel Anton, Successor Co-Trustee of Franklyn Burns Living Trust Dated September 30, 1995; Michele Dorene Johnsen, Successor Co-Trustee of Franklyn Burns Living Trust Dated September 30, 1995 (collectively “Defendant Trustees”) and Does 1 to 50.

On December 4, 2023, Defendant Trustees filed a demurrer to the SAC. The Plaintiff opposes the demurrer. The matter is now before the court.

request for JUDICIAL notice

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) 

Defendant Trustees seek judicial notice of the following:

1)     Exhibit A: Plaintiffs initial Complaint filed September 2, 2021;

2)     Exhibit B: Plaintiffs First Amended Complaint filed December 23, 2022;

3)     Exhibit C: Notice of Ruling re: Motion for Judgment on the Pleadings; and

4)     Exhibit D: Plaintiffs Second Amended Complaint filed September 6, 2023.

Defendant Trustees’ request for judicial notice is granted.

Plaintiff requests judicial notice of the following:

1)     Exhibit 1: Plaintiff Patricia Galvez's Complaint for Negligence.

2)     Exhibit 2: Answer of Franklin Burns to Complaint.

3)     Exhibit 3: Stipulation and Order Granting Leave to File First Amended Complaint.

4)     Exhibit 4: Plaintiff Patricia Galvez's First Amended Complaint for Negligence.

5)     Exhibit 5: Answer of Franklyn Burns Living Trust Dated September 30, 1995 to Plaintiff's First Amended Complaint.

6)     Exhibit 6: Defendant Franklyn Burns Living Trust Dated September 30 1995's Motion for Judgment on the Pleading as to Plaintiff's First Amended Complaint.

7)     Exhibit 7: Plaintiff Patricia Galvez's Opposition to Defendant's Motion for Judgment on the Pleadings.

8)     Exhibit 8: Defendant Franklyn Burns Living Trust Dated September 30, 1995's Reply to Plaintiff's Opposition to Defendant's Motion for Judgment on the Pleading.

9)     Exhibit 9: Court Ruling on Defendant's Motion for Judgment on the Pleading.

10) Exhibit 10: Plaintiff Patricia Galvez's Second Amended Complaint for Negligence.

Plaintiff’s request for judicial notice is granted.  

Discussion

I.         Legal Standard

Where pleadings are defective, a party may raise the defect by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.¿ (CCP, § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a demurrer, the court accepts the complainant’s properly pled facts as true and ignores contentions, deductions, and conclusory statements. (Daar v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff will be able to prove the allegations or the possible difficulty in making such proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.) 

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.)

II.        Demurrer[1]

Defendant Trustees demurrer to the single cause of action for negligence alleged in the SAC for two reasons.  First, they argue the negligence claim fails to state sufficient facts to constitute a cause of action against Defendants.  (CCP § 430.10(e).)  Second, and primarily, they argue the negligence claim is barred by the statute of limitations. (CCP § 335.1.)

Defendant Trustees contend that the claim is barred because, at the time that Plaintiff filed the Complaint on September 2, 2021, she was aware of the identity of trustee of the trust that owned the subject property. They argue that Plaintiff’s attempt to now name the successor trustees of the trust is barred because the statute of limitations has expired, and Plaintiff cannot rely on the relation-back doctrine and amend the name of the defendant pursuant to CCP § 474. (See Woo v. Superior Court (1999) 75 Cal.App.4th 169, 179 [“[W]hen the plaintiff had actual knowledge of the defendant's identity prior to filing a complaint, but has forgotten the defendant's identity at the time of filing the complaint, the plaintiff must review readily available information that discloses the defendant's identity to invoke the section 474 relation-back doctrine; otherwise, the plaintiff is not in good faith using section 474”].)

The SAC alleges that on January 26, 2006, Plaintiff “entered into a lease agreement with Franklyn Burns, in his capacity as trustee of the FRANKLYN BURNS LIVING TRUST DATED SEPTEMBER 30, 1995” who is the real owner of the subject property located at 4569 Whittier Boulevard, Los Angeles. (SAC ¶ 9.) Plaintiff was injured on or about September 2, 2019, when she fell ill due to pests and toxic mold to which she was exposed in Defendant’s Property. (SAC ¶ 9.) Defendant Trustees take the allegations in  Paragraph 9 of the SAC as an admission that Plaintiff knew that the owner of the subject property was a trust and not an individual defendant named Franklyn Burns. Accordingly, Plaintiff’s attempt to change the name of the defendant is barred.

Plaintiff’s opposition does not dispute the above assertion. Plaintiff states:

The naming of successor trustees does not fall within the purview of Code of Civil Procedure section 474 as they are not ‘Doe’ defendants but rather they are the successor in interest to the deceased trustee. Nor does the naming of the successor trustees in the second amended complaint raise the issue of misnomer.

(Opp., at p. 10:24-28.)

Plaintiff’s concession that the relation back doctrine does not apply and rejection of the relief to fix a misnomer preclude Plaintiff from obtaining relief under CCP §§ 474 and 473(a). (See Hawkins v. Pacific Coast Bldg. Products, Inc. (2004) 124 Cal.App.4th 1497, 1503 [“But where an amendment does not add a “new” defendant, but simply corrects a misnomer by which an ‘old’ defendant was sued, case law recognizes an exception to the general rule of no relation back”]; Clark v. Superior Court (2021) 62 Cal.App.5th 289, 309 [accord].)

Plaintiff’s original Complaint alleges the following:

“That on or about January 6, 2026 [sic], plaintiff PATRICIA GALVEZ entered into a lease agreement with FRANKLIN BURNS to lease the PROPERTY. Plaintiff remained a tenant of Defendant from said date until November 2019. . . On or about September 2, 2019, Plaintiff fell ill and was hospitalized due to exposure from toxic mold present on Defendant’s Property.

(Compl. ¶ 9.) Accordingly, at the time Plaintiff filed her original Complaint, on September 2, 2021, Plaintiff was not aware or had no recollection that the true owner of the Subject Property was a trust rather than an individual defendant.

The record before the court reflects that on December 6, 2021, Franklin Burns filed an Answer. On December 28, 2022, Defendant Franklin Burns filed a MJOP asserting that the correct entity that owned the Property was the Franklin Burins Living Trust Dated September 30, 1995. Plaintiff subsequently filed the FAC, naming Defendant Trust, rather than the trustee as the Defendant. The court granted Defendants’ second MJOP because Plaintiff failed to name the trustee as the proper Defendant. (Order of 8/07/23.)

The court found that the “misnomer” of the Defendant permitted Plaintiff to amend the complaint to add the correct defendant, in this case, the name of the current trustee(s). (See Mayberry v. Coca Cola Bottling Co. of Sacramento (1966) 244 Cal.App.2d 350, 352.) “[A]n ‘exception to the general rule’ has been formulated, which permits correction where the plaintiff has committed an excusable mistake attributable to dual entities with strikingly similar business names or to the use of fictitious names.” (Id. at 353; see also Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 57 [“It is well settled that a mere misnomer sought to be corrected after the statute of limitations has run will not bar the action.”].) Specifically, the court held:

The court finds that Plaintiff’s misnaming Defendant Trust rather than its trustee was a misnomer and Plaintiff should be granted leave to amend the pleading to name the correct defendant. The court notes that the trustee, Franklyn Burns, is now deceased and that Plaintiff is currently engaged in discovery to ascertain the identity of the current trustee. Moreover, it is also undisputed that Defendant Franklin Burns filed an Answer on December 06, 2021, and had knowledge of this action and Plaintiff’s allegations.

(Order of 8/7/23.)

However, Plaintiff now takes the position that amendment due to misnomer of the Defendant does not apply in this case. (Opp. at p. 10:27-28.) Instead, she argues that the “law of the case doctrine” applies and bars Defendant Trustees from re-litigating the issue of statute of limitations and that amendment is permitted under CCP § 377.31. Neither claim has merit.

Defendant Trustees correctly point out that “the law of the case doctrine” does not apply to trial court orders. “‘As its name suggests, the doctrine applies only to an appellate court's decision on a question of law; it does not apply to questions of fact.’ [Citations.] Nor does the doctrine apply to rulings of the trial court. [Citations.]” (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 248, fn. 23; see also Golden Door Properties, LLC v. Superior Court of San Diego County (2020) 53 Cal.App.5th 733, 788 [“First, the law-of-the-case doctrine does not apply to trial court rulings”]; Lawrence v. Ballou (1869) 37 Cal. 518, 521 [“The doctrine that a previous ruling has become the law of the case has no application except as to the decisions of appellate [c]ourts”].)

Therefore, the case of the law doctrine does not apply, and Defendant Trustees may raise the issue of Plaintiff’s claims being barred by the statute of limitations. (See Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 877 [If demurrer is erroneously overruled, the demurring party may raise the point again at the next opportunity].)

Secondly, Plaintiff fails to show that CCP § 377.31 applies. Section 377.31 states:

On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.

Plaintiff is the person who commenced the action, and she is not the decedent, thus section 377.31 does not apply. Furthermore, if Plaintiff intended to invoke the provisions of CCP § 377.41, it would also not apply to Plaintiff’s case. Section 377.41 states:

On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made.

Here, there is no decedent, as the facts show that the defendant entity is a trust. Moreover, to assert a claim against a decedent’s personal representative or successor in interest, “the plaintiff must first file a claim against the decedent's estate. The claim must be rejected in whole or in part before the plaintiff may commence the action. [Prob. Code, § 9351; for procedure for filing claim with the decedent's estate[.]” (§ 9:6. Instituting or continuing action when defendant dies, Cal. Civ. Prac. Torts § 9:6.)

Additionally, when a party against whom an action or proceeding was commenced dies, the court, on motion after that party's death, must allow the pending action or proceeding against the decedent that does not abate to be continued against the decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest. The court may not, however, permit an action or proceeding to be continued against the personal representative unless proof of compliance with Prob. Code, §§ 9000 et seq. governing creditor's claims is first made.

(§ 3:103. Substitution required, Cal. Civ. Prac. Procedure § 3:103.)

Here, Plaintiff has failed to show that she complied with Probate Code § 9000 et seq. prior to pursuing a claim against a decedent.

As Plaintiff has rejected leave to amend under the basis of misnomer of Defendant and has failed to articulate a valid basis for relief to amend the pleading to correctly name the true Defendants, the Defendant Trustees’ demurrer is granted without leave to amend as Plaintiff has failed to show that the pleading is capable of successful amendment.

Conclusion

Defendant Trustees’ demurrer is granted without leave to amend.