Judge Jill Feeney, Case 20STCV35010 2022-12-29 Tentative Ruling

This is an action for negligence and premises liability arising from an accident where Plaintiff was struck on the head by a falling brick in the entryway of Defendants’ premises. Plaintiff Maria Matamoros filed her Complaint against David Gomez on September 14, 2020.

Defendants demur to Plaintiff’s Doe Amendment Complaint on the grounds that the Complaint is barred by the statute of limitations. Defendants argue that the statute of limitations under Code Civ. Proc., section 355.1 expired on March 13, 2021 and Plaintiff did not file the Doe Amendment until September 9, 2022. Defendants argue that Plaintiff knew or should have known that Fanny Gomez was a party to this claim before the statute of limitations expired.

Plaintiff argues that the Doe Amendment is not barred because the amendment relates back to when the original Complaint was filed. Plaintiff argues that she did not actually know that Fanny Gonzalez was the owner of the subject property until the deposition of David Gomez, which took place on June 21, 2022. Plaintiff also argues that she is a Spanish-speaking lay-person who would not have known from the previous eviction matter that Fanny Gonzalez was the owner of the premises.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 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.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “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, supra, 147 Cal.App.4th at 747.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc., section 430.41.)

Here, the parties’ counsel met and conferred via email. (Tingen Decl., ¶¶4-5.) Although this is insufficient under the code because the parties must meet and confer in person or via telephone, failure to meet and confer is not a basis for sustaining or overruling a demurrer.

Defendants request that the Court take judicial notice of (1) Fanny Gomez’s Complaint against Plaintiff Matoamoros in the case 18LBUD02866 and (2) Fanny Gomez’s proof of service of summons dated September 24, 2018 for case number 18LBUD02866.

Although a Court may take judicial notice of any record of any court in the United States, judicial notice is limited to the existence of a court’s action and not the truth of the facts found and recited. (Barri v. Workers' Comp. Appeals Bd. (2018) 28 Cal.App.5th 428, 438.)

Here, the Court may take judicial notice of the existence of case number 18LBUD02866, but may not take notice of the truth of the facts in that case. The requests, therefore, are granted in part.

On February 2, 2021 (prior to the expiration of the statute of limitations), Co-Defendant David Gomez provided to Plaintiff a seemingly perjurious response to a request for admission stating that he owned the property in question. (Opposition, Exhibits 1 and 2.)

During David Gomez’s deposition on June 21, 2022, he testified that he did not own the property as originally admitted and that his daughter Fanny Gomez did own the property. (Opposition, Exhibit 3.)

Code of Civil Procedure Section 474 allows a named defendant to be substituted for a fictitious defendant if, at the time of filing the complaint, the plaintiff was genuinely unaware of the named defendant’s identity or of facts giving rise to a cause of action against the named defendant who was otherwise known to the plaintiff. (San Diego Navy Broadway Complex Coalition v California Coastal Com. (2019) 40 CA5th 563, 579.) The plaintiff’s lack of knowledge must be real and not feigned, but whether the plaintiff’s ignorance was due to misinformation or negligence is irrelevant. (Balon v Drost (1993) 20 CA4th 483, 488.)

[I]t is difficult for demurrers based on the statute of limitations to succeed because (1) trial and appellate courts treat the demurrer as admitting all material facts properly pleaded and (2) resolution of the statute of limitations issue can involve questions of fact. Furthermore, when the relevant facts are not clear such that the cause of action might be, but is not necessarily, time-barred, the demurrer will be overruled. [Citation.] Thus, for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed.

Defendants’ argument that Plaintiff had actual knowledge of Fanny Gomez’s identity because a Spanish interpreter was used in a prior eviction case fails because the Court may not take judicial notice of the truth of the facts contained in the records of the eviction matter. The debate here is of a factual nature concerning the knowledge of Plaintiff. This type of matter may not be resolved by demurrer.