Judge John J. Kralik, Case Number: 22BBCV00791, Date: 2024-09-06 Tentative Ruling

Plaintiff Edlin Davila (“Plaintiff”) alleges that on November 10, 2020, he was on the premises at 12849 Magnolia Boulevard, Valley Village, CA 91607, which are owned, operated, managed, maintained, inspected, repair, built, were in possession by, planned, entrusted, and supervised by Defendants Gary Herman, Jonathan Pivo, and PivoSmiles (“Defendants”). Plaintiff alleges that due to Defendants’ negligence, Plaintiff tripped and fell, sustaining personal injuries.

The complaint, filed October 19, 2022, alleges causes of action for: (1) premises liability; and (2) general negligence.

On November 30, 2022, Plaintiff dismissed Jonathan Pivo and PvioSmiles only from the complaint without prejudice.

On April 17, 2024, Gary Neil Herman DDS and Plaintiff filed a stipulation to allow Dr. Herman to file a cross-complaint against Cross-Defendants PivoSmiles, Jonathan D. Pivo, Jonathan D. Pivo, DDS, Inc., and Roes 1-50.

On April 22, 2024, the Court signed an Order for Leave to File the Cross-Complaint by Defendant Gary Neil Herman DDS. The Order stated that Dr. Herman “shall be allowed to file a Cross-Complaint in this action, and further that the Cross Complaint will be deemed files[sic] as of the date of this Order approving said Stipulation within ten (10) days of this Order.”

On July 8, 2024, specially appearing Cross-Defendant Jonathan D. Pivo, DDS, Inc. (“Cross-Defendant”) filed a motion to dismiss the cross-complaint based on the prior dismissal and lack of prosecution.

On August 23, 2024, Defendant Gary Neil Herman DDS (“Dr. Herman”) filed an opposition brief.

CCP § 581 provides various instances where the action may or shall be dismissed. Subsection (m) states that “[t]he 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.”

(a) The court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:

(1) Service is not made within two years after the action is commenced against the defendant.

Cross-Defendant moves to dismiss with prejudice all causes of action alleged against it in the cross-complaint filed by Dr. Herman. Cross-Defendant argues that Dr. Herman failed to timely name and serve Cross-Defendant with the cross-complaint though the trial was set for August 26, 2024 at the time the motion was filed. (On July 25, 2024, the Court granted Plaintiff’s ex parte application and continued the trial to February 3, 2025.) Cross-Defendant also argues that Jonathan Pivo (“Dr. Pivo”) was previously dismissed from the action such that there are no grounds for the cross-complaint for indemnity.

First, Cross-Defendant argues that the cross-complaint should be dismissed because Dr. Pivo had already been dismissed from the complaint by Plaintiff. The Court notes that Plaintiff requested the dismissal of PivoSmiles and Jonathan Pivo, which was entered on November 30, 2022. Jonathan D. Pivo, DDS, Inc. (Cross-Defendant and moving party) was not a party-defendant to the complaint, such that Plaintiff’s dismissal did not apply to Jonathan D. Pivo, DDS, Inc.

Second, Cross-Defendant argues that dismissal is proper because naming it a couple months before the August 26, 2024 trial date prevents it from filing a motion for summary judgment. It also argues that it will be prejudiced because it is unable to prepare a defense in this case prior to the August 2024 trial date in a case that is almost 5 years old. (Mot. at p.10.) At the time Cross-Defendant filed this motion, the trial date was scheduled for August 26, 2024; however, since the filing of the motion, the trial date has been continued to February 3, 2025. As such, there is still time for Cross-Defendant to conduct discovery, prepare a defense, and file a motion for summary judgment. In addition, the action is not 5 years old, as the action was filed on October 19, 2022, which is less than 3 years ago. (The Court notes that the subject incident occurred on November 10, 2020, but so long as the complaint was timely filed within the statute of limitations period, there is no issue with the 5-year rule based on when the action was filed.) As such, Cross-Defendant’s concerns regarding prejudice are low and accommodations can be made so that Cross-Defendant’s motion for summary judgment (if it intends to file one) may be scheduled and heard.

Third, Cross-Defendant argues that the Court has the discretion to dismiss the cross-complaint based on Dr. Herman’s unreasonable delay in filing the cross-complaint, naming Cross-Defendant, and serving Cross-Defendant pursuant to CCP § 583.420(a)(1). Cross-Defendant argues that it was available and known since the inception of the case in November 2020 and by the time Dr. Pivo was dismissed in November 2022. (Mot. at 10:24-26.) However, as noted above, Plaintiff filed this action on October 19, 2022 against Defendants Dr. Herman, Dr. Pivo, and PivoSmiles. Jonathan D. Pivo, DDS, Inc. was not a named defendant in the complaint. Cross-Defendant Jonathan D. Pivo, DDS, Inc. was only named in this action on April 22, 2024 when Dr. Herman filed the cross-complaint against PivoSmiles, Dr. Pivo, and Jonathan D. Pivo, DDS, Inc. As such, 2 years have not elapsed since Cross-Defendant was named in the cross-complaint.

Fourth, Cross-Defendant argues that Dr. Herman lacked diligence in timely discovering from other parties the identity and location of Cross-Defendant, as Dr. Herman has known of Cross-Defendant since Dr. Herman was brought into the case. Cross-Defendant provides the declaration of counsel Charlie Schmitt. Mr. Schmitt states that by the time of Dr. Pivo was dismissed from the complaint, everyone (including Dr. Herman) had access to the lease provisions and photos of the leased premises, which was the dental suite of Dr. Pivo. (Schmitt Decl., ¶3.) Mr. Schmitt states that Dr. Herman waited 18 months to file the cross-complaint against Cross-Defendant despite knowing its identity. (Id., ¶4.) Cross-Defendant argues that based on the lease provisions between landlords Gary Herman and Esta Herman and tenant Jonathan D. Pivo, DDS, Inc., Dr. Herman was aware of the identity of Jonathan D. Pivo, DDS, Inc.; that the landlords were responsible for the common areas, while the tenant was responsible for the leased premises only; and there is no indemnity provision in the lease. (Mot. at Ex. E [Herman Cross-Complaint at Ex. A (Commercial Lease Agreement, § 5)].)

In opposition, Dr. Herman argues that the lease includes an insurance provision at section 8, which states that the tenant and landlords shall each maintain comprehensive general liability insurance with respect to their respective activities in the building. Dr. Herman also relies on the Guaranty of the Lease, wherein Dr. Pivo agreed to guaranty the terms of the lease. (Commercial Lease Agreement, Ex. A.) Dr. Herman argues that the agreements provide a basis for indemnity against Jonathan D. Pivo, DDS, Inc. With respect to whether there is merit to Dr. Herman’s cross-claims for indemnity against Jonathan D. Pivo, DDS, Inc., these arguments are better left for the summary judgment or trial stage where the merits of such arguments can be addressed more fully. However, the parties’ interpretations of the lease agreement and guaranty at least provide a basis and showing for Dr. Herman’s reasoning for bringing Jonathan D. Pivo, DDS, Inc. into the cross-complaint as a Cross-Defendant.

With respect to identifying and naming Jonathan D. Pivo, DDS, Inc., the Court notes that Cross-Defendant relies on CCP § 474, Barrows v. American Motor Corps. (1983) 144 Cal.App.3d 1, and A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058. CCP § 474 is regarding defendants designated by a fictitious name (i.e., Doe defendants),[1] which does not apply to Dr. Herman’s cross-complaint. Dr. Herman filed the cross-complaint naming the Cross-Defendants; he did not substitute Jonathan D. Pivo, DDS, Inc. in place of a Roe cross-defendant.

In the Barrows case, the plaintiffs appealed from a judgment (order of dismissal) in favor of defendants following the sustaining of a demurrer without leave to amend to the plaintiffs’ first amended complaint. The plaintiffs had sued unknown defendants by fictitious names pursuant to CCP § 474 (complaint filed January 16, 1979) and filed the FAC naming the defendants (FAC filed October 27, 1980), but Honda filed an objection showing that the plaintiffs had actual knowledge of Honda’s identity by at least November 10, 1979 such that the plaintiffs should be barred from invoking CCP § 474. The trial court denied the plaintiffs’ motion for leave to amend and sustained the demurrer without leave to amend. The Court of Appeal reversed, finding that the trial court erred in sustaining the demurrer without leave to amend and denying the leave to amend to name the defendants sued by fictitious names. The Court of Appeal found that defendants had not shown that the plaintiffs should be barred from amending under section 474 on grounds of unreasonable delay in filing the amendment because defendants failed to show that (among other reasons) the plaintiff was dilatory and that defendant suffered prejudice from any such delay. (Barrows, supra, 144 Cal.3d at 9.)

The A.N. case also involved the naming and service of 4 Doe defendants less than 1 month before trial. The defendants filed a motion to quash the Doe amendments based on A.N.’s unreasonable delay in filing and serving the amendments, which the trial court granted, and the Court of Appeal affirmed. The Court of Appeal relied on Barrows regarding “Doe” jurisprudence, including: (1) CCP § 474 requires that the plaintiff may not “unreasonably delay” the filing of a Doe amendment after learning a defendant’s identity; (2) the defendant may challenge the amendment by way of an evidence-based motion; and (3) the unreasonable delay includes a prejudice element, where the defendant must show that he would suffer prejudice from the plaintiff’s delay in filing the Doe amendment. (A.N., supra, 171 Cal.App.4th at 1066-67.)

Both Barrows and A.N. are not applicable for the same reasons discussed above – Dr. Herman’s cross-complaint did not involve the naming of Roe Defendants. Even if the Court were to apply these two cases to this instant action, this case is not so egregious as A.N. where the Doe amendments were made less then 2-3 weeks before trial, and service of process was made less than 2 weeks before trial. Here, at the time Dr. Herman was allowed to file his cross-complaint in April 2024, the trial was set for August 2024 (and now trial has been continued to February 2025). Thus, any issues regarding prejudice have been addressed now that the trial has been continued.

In addition, Cross-Defendant has not made any showing that Dr. Herman’s filing and service of the cross-complaint was willfully dilatory. With respect to the delay by Dr. Herman in filing the cross-complaint, Dr. Herman argues that on January 31, 2023, he sent a tender letter to Cross-Defendant requesting that he place his insurance carrier on notice of the claim brought by Plaintiff. (Opp. at Ex. C.) On February 9, 2023, Dr. Pivo responded on behalf of Jonathan D. Pivo, DDS, Inc. and stated that he had previously informed the insurance carrier and that Cross-Defendant had been dismissed from the lawsuit already. (Opp. at Ex. D.) On March 14, 2023, Cross-Complainant’s insurance carrier’s claims representative from Liberty Mutual followed up on the tender request. (Id.) A year later, on May 1, 2024, Cross-Complainant served Cross-Defendant with the cross-complaint. (Opp., Ex. E.) Dr. Herman has not explained the year-long delay following communications with the insurance carriers. However, this alone, will not be a basis to grant the motion to dismiss the action, which is a drastic measure. As stated in CCP § 583.130: “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.” (CCP § 583.130.) The policy favors a resolution of the case on its merits.
For these reasons, the motion to dismiss the cross-complaint is denied.

[1] CCP § 474 states:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof 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).” The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. …

(CCP § 474.)

Superior Court of California

County of Los Angeles

Department B