Judge: Jon R. Takasugi, Case: 21STCV26285, Date: 2023-07-11 Tentative Ruling

Case Number: 21STCV26285    Hearing Date: October 11, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer is OVERRULED.  

On 7/16/2023, Plaintiff Subrigo Communications Corporation and Subrigo Networks Corporation (collectively, Plaintiffs) filed suit against Turner Construction Company and Silverado Contractors, alleging negligence.

            On 7/11/2023, Plaintiff was granted leave to amend to file a Second Amended Complaint (SAC).

            Now, Defendant Turner Construction Company and Silverado Contractors, Inc. (Defendants) demur to Plaintiff’s negligence cause of action.

Discussion

            Defendants argue that the new allegations against them in the SAC do not relate back to the original Complaint’s allegations, and thus are barred by the applicable three-year statute of limitations. 

The statute of limitations for claims asserting damage to property is three years. (Code of Civ. Proc. § 338.)

            Here, Plaintiffs allege that on or about July 17, 2018, Defendants began performing construction on the parking lot between One Wilshire and Quinby. (SAC ¶14.) On 7/19/2018, Defendants used a backhoe to remove a slab of concrete that was wrapped around the conduits, and in doing so fractured the conduits that the concrete was wrapped around (hereinafter the Incident.) (SAC ¶ 15.) Plaintiffs allege that while the aforementioned damage did not result in any service interruptions, it “jeopardized the stability of the network” and “increased the likelihood that Plaintiffs’ customers would have service interruptions or network speed issues.” (SAC ¶16.) Plaintiffs further allege they have sustained damages in the form of increased costs to sustain their services, lost customers due to damage to Plaintiffs’ business reputation and value. (SAC ¶¶ 17, 18.)

In the SAC, Subrigo International asserts a cause of action for negligence against Defendants for the first time arising out of the Incident.

In order for the relation-back doctrine to apply, “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, 408-409.) In addition, “a new plaintiff cannot be joined after the statute of limitations has run where he or she seeks to enforce an independent right or to impose greater liability upon the defendant. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1279.)

In Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 534 [124 Cal.Rptr. 370], the court held that an amendment to add a new plaintiff who had been injured in the same car accident as the original plaintiff would not benefit from the relation back doctrine because it was a wholly distinct legal obligation. The claim of the new plaintiff was time-barred, as a result. The Bartalo court applied the rule that each truly separate plaintiff has his own independent “cause of action” and that each such claim therefore carries its own statute of limitations. (Id. at p. 533.)

After review, the Court finds that Plaintiffs’ allegations are sufficient at the pleading stage to show the relation-back doctrine applies.

In Pasadena Hospital, the Court permitted an individual plaintiff to add a corporation that was the professional corporation for his medical practice because the same claims and basic facts governed both plaintiffs. (Pasadena Hospital Assoc. v. Superior Court, 204 Cal.App.3d 1033, 036.) Moreover, the additional plaintiff existed pre-filing. (Ibid.)

 Similarly, here, the injuries that Subrigo International has articulated are the same as those discussed in the previous iterations of the complaint. Namely, Plaintiffs have alleged that they have incurred damages as a result of Defendants’ conduct, including damages arising from replacement and migration costs, loss of use of Conduit 2571, and loss of use of the 864-count cable beginning July 19, 2018. (See Original Complaint ¶15, FAC ¶18, SAC ¶18.) The damage is defined and limited in scope to the damages resulting from the Incident. As such, Plaintiffs’ claims against all Defendants rely on the same facts, injury, and recovery sought in the original Complaint.

As a final note, Plaintiffs contend in opposition that Defendant’s argument is in bad faith because Defendant already raised the time-barred objection in opposition to Plaintiffs’ motion for leave to amend. However, that issue was never taken up by the Court. Rather, the Court granted the motion on the basis that the California public policy strongly favors amendment, this case is still at an early stage, and the sufficiency of the pleadings could be tested on demurrer. As such, the Court declines to find this motion frivolous or to set an OSC for sanctions as requested by Plaintiffs.

Based on the foregoing, Defendant’s demurrer is overruled.  

It is so ordered.

Dated:  October    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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