Judge Kerry Bensinger, Case 20STCV30282 2023-04-11 Tentative Ruling

On August 11, 2020, plaintiff Consuelo Martinez (“Plaintiff”) filed this action against defendants City of Covina and Does 1 through 20 for injuries Plaintiff sustained on April 10, 2020 when she fell into a large hole where a tree had been removed by the City of Covina. The Complaint does not state specific causes of action but appears to assert causes of action for premises liability and negligence.

On October 20, 2020, Plaintiff named Robert Raab (erroneously sued as “Robert Robb”) as Doe 1 and Sally Raab[1] as Doe 2. October 26, 2022, Plaintiff named defendant Albert Castro as Doe 3.

On February 22, 2023, defendant Albert Castro (hereinafter, “Defendant”) filed the instant demurrer to Plaintiff’s complaint. On March 27, 23, Plaintiff’s counsel submitted a declaration opposing the demurrer.[2]

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 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).) Defense counsel has satisfied this requirement. (Declaration of Bradley R. Matthews, ¶ 4.)

The Complaint alleges as follows: “[O]n or about April 10, 2020, plaintiff was walking on North Viceroy when she fell into a large hole where a tree had been removed by the City of Covina. The City of Covina created a dangerous condition and failed to repair, maintain, or warn about this hole.” (Complaint, ¶ 6.) “[D]efendant and DOES 1 through 20, Inclusive, and each of them, were in possession of, and owned, operated, maintained and controlled certain business premises at 741 North Viceroy Avenue, Covina, California” and were “responsible for the maintenance of said premises and/or its adjacent areas.” (Complaint, ¶¶ 4-5.) Further, “defendants, and each of them, so negligently and carelessly owned, operated, maintained and controlled said premises in a dangerous, defective, hazardous and unsafe condition. Defendants and each of them, failed to warn plaintiff of the said dangerous, and unsafe condition, although defendants and each of them knew, or in the exercise of ordinary care should have known, of said danger.” (Complaint, ¶ 7.)

Defendant argues the demurrer should be sustained without leave to amend because no charging allegations are made against fictitiously named defendants triggering the relation back doctrine. “[A]n amended pleading will not relate back unless the original complaint set forth or attempted to set forth some cause of action against fictitiously named defendants.” (Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 941.)

A review of the Complaint does not support Defendant’s position. The Complaint alleges that each defendant, including the doe defendants, “were in possession of, and owned, operated, maintained and controlled” the subject premises, and were “responsible for the maintenance of said premises and/or its adjacent areas” (Complaint, ¶¶ 4-5); each defendant “negligently and carelessly owned, operated, maintained and controlled said premises in a dangerous, defective, hazardous and unsafe condition … and failed to warn plaintiff of the said dangerous, and unsafe condition” (Complaint, ¶ 7). The Complaint plainly sets forth allegations that include Defendant.

Defendant argues that the specific allegation that the City of Covina created a dangerous condition by removing the tree controls the general allegations concerning the fictitious defendants. (Compare Complaint, ¶ 6 with Complaint ¶¶ 4, 5, 7.) In support, Defendant cites Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-36 for the proposition that where a conflict or inconsistency arises in a pleading between a general allegation, such as an allegation of an ultimate fact, and a specific allegation that adds detail or explanatory facts, specific allegations control over an inconsistent general allegation.

“The California Legislature explicitly repudiated the common law view that a pleading must be taken most strongly against the pleader and adopted a rule of liberal construction. Code of Civil Procedure section 452 provides in full: ‘In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.’ This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez, at p. 1238.)

Here, Defendant overlooks the allegation that “each of the defendants designated herein as a DOE is responsible in some manner for the events and happenings herein referred to.” (Complaint, ¶ 3.) The Court draws the inference that “events and happenings” include the allegations set forth in paragraph six. Effectively, Defendant asks the Court to interpret the allegations of the Complaint against the pleader, which is contrary to California law. Further, because Plaintiff amended the complaint to add Defendant as Doe 3 pursuant to Code of Civil Procedure section 474, the amendment relates back to the original filing of the complaint. (See McClatchy, supra, 247 Cal.App.4th at p. 371, fn. omitted [“When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint. [Citation.]”.)

Defendant Albert Castro’s demurrer to Plaintiff Consuelo Martinez’s Complaint is OVERRULED.

Defendant is ordered to file a responsive pleading to the Complaint within 10 days of this Order.

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] Dismissed with prejudice on March 15, 2021.

[2] The declaration sets forth arguments based on facts not pleaded in the Complaint. Accordingly, the Court does not consider Plaintiff’s counsel’s declaration in deciding the instant demurrer.