Judge Kerry Bensinger, Case 20STCV10904 2023-03-28 Tentative Ruling

On March 17, 2020, Plaintiff Jerome Christopher Hamilton (“Plaintiff”) filed this action against defendant Venice Breeze Suites, LLC and Does 1 to 25 for injuries Plaintiff sustained, when a defective soap dish collapsed and created jagged edges while Plaintiff was using the bathtub. The Complaint asserts causes of action for (1) general negligence, (2) premises liability, and (3) products liability.

On December 14, 2019, Plaintiff stayed at Venice Suites and allegedly suffered injuries from the defective soap dish.

On March 17, 2020, Plaintiff filed the original form complaint against Venice Breeze Suites and Does 1 to 25. The original complaint identifies “Venice Breeze Suites at 2 Breeze Avenue, Venice, CA 90291” as the location where Plaintiff allegedly sustained injuries.

On or about March 7, 2022, Venice Beach Suites responded to Plaintiff’s discovery and notified Plaintiff that Venice Breeze Suites was not the owner of Venice Suites.

On June 1, 2022, Plaintiff filed a request to dismiss Venice Breeze Suites from this action without prejudice.

On June 3, 2022, Plaintiff filed a motion for leave to file a first amended complaint (“FAC”) to identify the correct address of the accident and the correct name of the defendant, Venice Suites.

On August 9, 2022, the Court granted Plaintiff leave to file the FAC, which was filed that same day. The FAC is the operative form complaint. The FAC names Venice Breeze Suites, Venice Suites, and Does 1 to 25 as defendants and alleges that Plaintiff sustained his injuries at or near Venice Suites at 417 Ocean Front Walk, Venice, CA 90291.

On February 21, 2023, defendant Venice Suites (hereinafter, “Defendant”) filed the instant demurrer to Plaintiff’s FAC, arguing that each cause of action is time-barred and does not relate back to the original complaint. Plaintiff filed an opposition and Defendant filed a reply.

On March 1, 2023, Plaintiff filed a request to dismiss Venice Breeze Suites from this action without prejudice.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Judicial Council form complaints are not invulnerable to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1482.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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.)

“Unless an amended complaint relates back to a timely filed original complaint, it will be barred by the statute of limitations. [Citation.] Under the relation-back doctrine, in order to avoid the statute of limitations, the amended complaint must: rest on the same general set of facts as the general complaint, refer to the same accident and same injuries as the original complaint, and refer to the same instrumentality as the original complaint. [Citation.]” (Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 597-598.)

“A complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language. (§ 425.10, subd. (a)(1).) This requirement obligates the plaintiff to allege ultimate facts that, taken as a whole, apprise the defendant of the factual basis of the claim. [Citation.] The requirement that the complaint allege ultimate facts forming the basis for the plaintiff’s cause of action is central to the relation-back doctrine and the determination of whether an amended complaint should be deemed filed as of the date of the original pleading. [Citation.]” (Id. at p. 598.)

When an amended complaint adds a new defendant, “the general rule is that [the] amended complaint … does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “A recognized exception to the general rule is the substitution under [Code of Civil Procedure] section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint.” (Id.) “Section 474 allows a plaintiff who is ignorant of a defendant’s identity to designate the defendant in a complaint by a fictitious name (typically, as a “Doe”), and to amend the pleading to state the defendant’s true name when the plaintiff subsequently discovers it. When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint. [Citation.]” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371, fn. omitted.)

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) Defendant’s counsel has not satisfied this requirement. (See Declaration of Charles Ferreira, ¶¶ 6-7.) However, a failure to comply with the requirement shall not be grounds to overrule or sustain a demurrer.¿ (Code Civ. Proc., § 430.41, subd. (a)(4).)¿ Therefore, the Court considers the merits of Defendant’s demurrer.[1]

Defendant argues that the FAC is time-barred because (1) Plaintiff amended his complaint to add Venice Suites as a defendant after the statute of limitations expired and (2) the FAC does not relate back to the original complaint because Plaintiff did not amend pursuant to Code of Civil Procedure section 474.

Plaintiff contends that the FAC relates back to the timely-filed original complaint because the FAC rests upon the same general facts. Alternatively, Plaintiff requests leave to amend to cure the defects in the FAC.

Without question, Plaintiff amended his original complaint to add Venice Suites as a defendant well past the two-year statute of limitations. (See Code Civ. Proc., § 335.1 (providing that an action for injury caused by the wrongful act or neglect of another must be commenced within two years).) And the FAC does not relate back to the original complaint. “[T]he general rule is that [the] amended complaint … does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo, supra, 75 Cal.App.4th at p. 176.) “A recognized exception to the general rule is the substitution under [Code of Civil Procedure] section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint.” (Id.) Here, however, Plaintiff did not add Venice Suites as a defendant pursuant to Code of Civil Procedure section 474. The FAC does not receive the benefit of the exception. Accordingly, the demurrer is SUSTAINED.

Defendant argues leave to amend should be denied because Venice Breeze Suites and Venice Suites are distinct entities and Plaintiff failed to correctly identify the proper defendant and Defendant was well aware (or should have been) that Venice Suites was the appropriate defendant. Defendant’s argument is predicated on extraneous facts that require evidence-based allegations, including what information was known to Plaintiff and when. Because a demurrer accepts as true all well-pleaded allegations, a demurrer may not be the proper litigation tool to challenge the complaint. Because Plaintiff may be able to substitute Venice Suites as a Doe Defendant, at least at this juncture, the Court GRANTS Plaintiff leave to amend the FAC.

The Court further notes that Defendant’s evidence-based argument may be better suited for a motion to quash (see, e.g., Balon v. Drost (1993) 20 Cal.App.4th 483; A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058) or motion for summary judgment (see Woo, supra, 75 Cal.App.4th 169). Regardless of which challenge is used, should Plaintiff file a Second Amended Complaint, and should Defendant pursue its statute of limitations challenge, the Parties must be prepared to address three issues: 1) whether Plaintiff was ignorant of the correct entity to sue (See discussion in Woo and Balon); 2) whether Plaintiff unreasonably delayed in substituting Venice Suites as a Doe defendant; and 3) whether Defendant suffered actual prejudice because of the delay.

Plaintiff is ordered to file and serve a Second Amended Complaint within 30 days of this ruling.

Defendant Venice Suites is ordered to file and serve their responsive pleading within 30 days of service of the Second Amended Complaint.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] Failure to meet and confer may result in the continuance of the hearing.