Judge Kerry Bensinger, Case Number: 20STCV45872, Date: 2024-11-18 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. 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 motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On December 1, 2020, Plaintiff Elizabeth Reyes (Reyes or Plaintiff) commenced this employment action against Defendants Valley Entertainment, Inc., dba Bliss Showgirls (Bliss) and Eddy (last name unknown). Plaintiff alleged, among other things, that her manager, a person name “Eddy”, created a hostile work environment and sexually assaulted her while working at Bliss.

On June 8, 2021, Plaintiff filed an amendment to the Complaint identifying Chawkat Jajieh as the true name for Eddy.

On October 10, 2021, Plaintiff dismissed Eddy (last name unknown) from the Complaint.

On January 12, 2022, Reyes filed the First Amended Complaint (FAC) against Bliss and Chawkat Jajieh, alleging causes of action for (1) hostile work environment harassment, (2) discrimination in violation of FEHA, (3) retaliation in violation of FEHA, (4) violation of Labor Code § 226.8 (misclassification); (5) violation of Labor Code §§ 510-515 (unpaid overtime); (6) violation of Labor Code § 226.7 & 512 (meal and rest periods); (7) violation of Labor Code § 351 (unlawful tip-pooling); (8) violation of Labor Code §§ 200-204 (waiting time penalties); (9) violation of Labor Code §§ 226 & 226.3 (inaccurate wage statements); and (10) violation of Labor Code §§ 2698 et seq. (“PAGA”).

At the Final Status Conference on October 8, 2024, the court, having found good cause, granted Reyes leave to file an amended complaint, in part, because Reyes recently identified Raed Chawkat Jajieh (Raed) as the “Eddy” who created the hostile work environment and sexually assaulted her.[1] Moreover, as part of the Defendant’s Motions In Limine, which were heard at the October 8, 2024, FSC, Defendants raised for the first time that Hacienda Leasing may be the employer, not Bliss. The case was not ready for trial. Defendant indicated it would challenge Plaintiff’s Second Amended Complaint (SAC). To avoid further delays, the court specially set a hearing date for November 18, 2024, to hear Defendant’s challenge to the SAC. The court set the following briefing schedule: Plaintiff to file second amended complaint by 10/16/2024; Bliss to file an opposition to the second amended company by 10/25/2024; Plaintiff’s reply brief due by 11/08/2024.

On October 16, 2024, Plaintiff filed a document called: Notice of Plaintiff’s Second Amended Complaint For Damages With Red Line Edits. The SAC adds Raed Chawkat Jajieh and Hacienda Leasing LLC as defendants and includes two new causes of action; one for failure to prevent and remedy sexual harassment (the Second Cause of Action) and the other for sexual assault (the Fifth Cause of Action).

On October 28, 2024, Bliss filed this demurrer and motion to strike portions of the SAC.

Because the demurrer and motion to strike are nearly identical, the court addresses them together.

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, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)¿¿¿

Defendant requests judicial notice of twenty-two (22) documents and facts pursuant to Evidence Code section 452(d). Plaintiff objects to the request.

1. Valley Entertainment’s verified response to plaintiffs Special Interrogatories, Set One, dated March 7, 2022;

2. Plaintiff Elizabeth Reyes' verified Objections and Response to Defendant Valley Entertainment's Special Interrogatories, Set One, dated March 20, 2023;

3. Plaintiff Elizabeth Reyes' verified Responses to Valley Entertainment's Response to Form Interrogatories -Employment Law, dated Mach 20, 2023;

5. Pages from the Deposition of Chawkat Jajieh, PMK for Valley Entertainment, Inc., taken August 23, 2024.

17. On March 7, 2022, Valley Entertainment served its verified discovery response
providing plaintiff with its requested proper service address for Chawkat Jajieh (See
Exhibit “l” to Request for Judicial Notice (“RJN”) filed concurrently herewith);

The requests are GRANTED. The court takes judicial notice of the existence of these documents, but not of the truth of the statements asserted therein. (See Williams v. Southern California Gas Co. (2009) 176 Cal.App.4th 591, 600 [“While the court could take judicial notice of the discovery responses, it was not authorized to draw from those responses the inference that respondent was unaware of defects in the wall furnace, nor was it correct to find, based on this inference, that the operative complaint was not truthful.”]; see also Garcia v. Sterling (1985) 176 Cal.App.3d 17, 33 [taking judicial notice of deposition transcripts, but not of the truth of the statements made therein].)

6. The complaint was filed, i.e. action was “commenced,” on December 1, 2020;

7. The complaint listed as defendants “VALLEY ENTERTAINMENT, INC. DBA “BLISS SHOWGIRLS”, a California business organization; EDDY (LAST NAME UNKNOWN), as an Individual; and DOES 1 through 10, inclusive,” filed December 1, 2020;

8. The complaint listed as defendants “VALLEY ENTERTAINMENT, INC. DBA “BLISS SHOWGIRLS”, a California business organization; EDDY (LAST NAME UNKNOWN), as an Individual; and DOES 1 through 10, inclusive,” filed December 1, 2020;

9. The complaint in 2020 alleged (¶ l4) that “Defendant EDDY has hit Plaintiff on her head and face several times. Further, Defendant EDDY dragged Plaintiff outside, forced her (sic) perform oral sex on him, and threatened termination if she failed to do so.”

10. This court file establishes that there has never been service of summons and complaint upon EDDY;

22. At the October 7, 2024 FSC hearing, plaintiffs counsel, Ashley Garay, admitted to the
      court that plaintiff did not allege a DFEH claim for Failure to Prevent Discrimination
      or Harassment. Plaintiff was therefore withdrawing that claim. (However, the SAC
      adds it).

The request for judicial notice of Nos. 6-9 and 22 is GRANTED. The request as to Nos. 10 and 18 is DENIED.

11. On February 26, 2021 plaintiff filed it Proof of Service of Summons, Complaint etc. on Valley Entertainment, Inc. It effected this service by sub-service upon Chawkat Jajieh, Agent for Service of Process;

12. On June 8, 2021 the court signed an Amendment that replaced Chawkat Jajieh as EDDY;

13. On September 9, 2021 plaintiff filed her Declaration, stating that Defendant (who on June 8, 2021 she had identified at Chawkat Jajieh was her perpetrator;

15. On January 12, 2022 plaintiff filed her FAC, naming Valley Entertainment and Chawkat Jajieh, only;

19. On September 5, 2023, the court issued a Minute Order to Show Cause why counsel should not be sanctioned for failure to appear at Post-Mediation Status Conference. The court vacated the trial date which had been set for November 13, 2023;

20. On November 3, 2023, pursuant to Ronal Zambrano Declaration, Judge Murillo issued a Minute Order discharging the OSC, and set trial for September 9, 2024;

21. In its Motion in Limine No. 3 (filed Sept. 11, 2024) Valley Entertainment challenged plaintiffs proffered jury instructions for trial that included CACI is about its ‘failure to prevent discrimination or harassment’ of the plaintiff, because plaintiffs DFEH alleged only that “Complainant was harassed . . . Complainant was discriminated against . . . Complainant experienced retaliation.” The DFEH complaint did not claim that plaintiffs “employer” failed to take all reasonable steps necessary to prevent or remedy discrimination or harassment in the workplace.

The requests are GRANTED. The court takes judicial notice of the existence of these records. However, the court does not take judicial notice of the truth of the statements asserted therein. (See Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754.)

Plaintiff did not file a Second Amended Complaint. Plaintiff filed a document entitled Notice of Plaintiff’s Second Amended Complaint For Damages With Red Line Edits. In this context, this is a procedural platypus, an anomaly. Defendant picks up on Plaintiff’s description as a “notice”, and remarks in passing that Plaintiff should have filed a motion for leave to amend instead of been given leave to amend at the October 8, 2024, Final Status Conference. Because Plaintiff did not to file a SAC, the court will hear from the parties whether Plaintiff should file a motion for leave to file a SAC or whether Plaintiff should consider amending the FAC. To assist counsel with its analysis, the court provides the parties its tentative ruling on Defendant’s demurrer. Depending on the outcome of the discussion with counsel at the hearing, the court may hold its tentative in abeyance while the parties consider their positions.

Defendant’s demurrer is scattershot. As best the court can tell, Defendant advances three challenges to the SAC: (1) Chawkat Jajieh, Raed Jajieh (Eddy), and Hacienda Leasing, LLC, must be dismissed because of procedural deficiencies and/or violations of the statute of limitations, (2) the Second Cause of Action must be dismissed because it was not included in Plaintiff’s DFEH complaint, and (3) the new allegations must be dismissed because they materially contradict the FAC. The court addresses each argument in turn.

To put it mildly, Reyes’s confusion over “Eddy’s” true identity complicates this case.

Bliss argues dismissal of Defendants Chawkat Jajieh, Raed Jajieh, and Hacienda Leasing, LLC, is mandated by Code of Civil Procedure sections 583.210 and 583.250.[3] Section 583.210(a) provides, “the summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” Section 583.250 further provides, “[i]f service is not made in an action within the time prescribed in this article: (1) The action shall not be further prosecuted and no further proceedings shall be held in the action. (2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties. (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” Alternatively, Bliss argues these Defendants must be dismissed because the statute of limitations has run. Because these defendants are not similarly situated, the court considers the argument separately as to each defendant.

Raed is the son of Chawkat Jajieh, the owner of Bliss. Chawkat Jajieh is also known as a “Chucky”. As can be seen, Raed and Chawkat share the last name, and Raed’s middle name is the same as his father’s first name.

Reyes now clearly identifies her assailant and harasser as Raed Chawkat Jajieh (Raed). When Reyes commenced this action in 2020, she asserted her claims against Bliss and Eddy (last name unknown). Eddy LNU was her assailant and harasser. Plaintiff later came to believe Eddy was Chawkat Jajieh. Based on this belief, Reyes did two things: (1) she filed an amendment to the Complaint identifying Eddy’s true name as Chawkat Jajieh, and (2) filed the FAC which named Bliss and Chawkat Jajieh as defendants. Consequently, the allegations against “Chawkat Jajieh” in Plaintiff’s previous pleadings were directed at, intended for, and asserted against Raed Chawkat Jajieh, not the father.

Plaintiff later learned she was mistaken about Eddy’s true identity. Eddy is Raed, not Chawkat Jajieh.[4] Now, in the Second Amended Complaint (SAC), Plaintiff names Raed Chawkat Jajieh and Chawkat Jajieh as separate defendants. The allegations against Chawkat Jajieh in the SAC refer to Chawkat as the owner of Bliss. As such, Chawkat Jajieh is a new defendant. In the SAC, Plaintiff alleges the first, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action against Chawkat Jajieh.

Bliss argues dismissal of Chawkat Jajieh is mandatory under Sections 583.210 and 583.250 because this action was commenced more than three years ago yet Plaintiff has not served him with the summons and complaint. Bliss misreads Section 583.210. Section 583.210(a) provides, “the summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” (Emphasis added.) As the highlighted language indicates, Plaintiff commenced her action against Chawkat Jajieh (owner of Bliss) with the filing of the SAC a month ago. Section 583.210 does not provide a basis to dismiss Chawkat Jajieh from this action.

Bliss, however, raises a meritorious challenge to the addition of Chawkat Jajieh based on the statute of limitations. “Although a “mistake” in defendant's name may be corrected by amendment, due process forbids “relation back” where the amended complaint is against a defendant not named in the original complaint or served as a “Doe” defendant: “[A]n amended complaint that adds a new defendant 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.” (Weil & Brown, Cal. Prac. Guide Civ. Proc. Before Trial, Statute of Limitations (The Rutter Group 2024) ¶ 8:112, quoting Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “The straightforward rule is that amendment after the statute of limitations has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Id., quoting Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 492.)

Here, Chawkat Jajieh (owner of Bliss) is a new defendant. Chawkat Jajieh (owner of Bliss) was not named in the original complaint nor was he served as a “Doe” defendant in this case. Further, the last alleged wrongful act occurred in 2019. The statute of limitations has run on Plaintiff’s claims against Chawkat Jajieh (owner of Bliss). Plaintiff cannot rely on the relation back doctrine to save her claims against Chawkat Jajieh (owner of Bliss).

Accordingly, the demurrer as to Chawkat Jajieh is SUSTAINED.[5] Leave to amend is DENIED.[6]

Bliss argues dismissal of Raed is mandatory because Eddy (now identified as Raed) was named in the original complaint in 2020, yet Plaintiff has not made any attempts to serve Raed with the summons and complaint. Bliss is incorrect. Plaintiff filed a Proof of Service of Summons which indicates Eddy (last name unknown) was served on February 19, 2021, by substituted service.[7] (See Proof of Service, 2/26/21.) The parties agree Raed Jajieh is known as Eddy. Given the parties’ concession that Raed is Eddy, the court construes this as a further concession that Raed was properly served. Sections 583.210 and 583.250 do not require dismissal.

Bliss next argues Plaintiff cannot rejoin Raed Jajieh to this action because the statute of limitations has run. “An amended complaint may add or omit parties (¶ 6:640). If it omits a defendant named in the original complaint, it serves as a dismissal without prejudice as to that defendant.” (Weil & Brown, Cal. Prac. Guide Civ. Proc. Before Trial (The Rutter Group 2024) ¶
6.713, italics in original.) “Since the dismissal is without prejudice, plaintiff may, by subsequent amended pleading, rejoin as a party the defendant dropped in the earlier amended pleading. (A new service of summons would be required.)” (Id. at ¶ 6.714, italics in original.) A plaintiff “cannot rejoin dropped defendants if statute of limitations has run.” (Id. citing Fireman's Fund Ins. Co. v. Sparks Constr., Inc. (2004) 114 Cal.App.4th 1135, 1143.)

Here, Bliss points to Plaintiff’s dismissal of Eddy on October 15, 2021, to demonstrate Raed Jajieh is a “rejoined” defendant. However, as explained in the discussion above concerning Chawkat Jajieh, “Eddy” in the original complaint and “Chawkat Jajieh” in the FAC are Raed Jajieh. They are one in the same. The effect, then, of naming Raed Jajieh in the SAC is to correct a misnomer. “Code of Civil Procedure section 473, subdivision (a)(1) allows the trial court to permit a party “to amend any pleading ... by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect....”
(Hawkins v. Pac. Coast Bldg. Prod., Inc. (2004) 124 Cal.App.4th 1497, 1503 (Hawkins).)

“Whether plaintiff may amend the complaint after the statute of limitations has run to change a party's description or characterization ‘depends on whether the misdescription or mischaracterization is merely a misnomer or defect in the description or characterization, or whether it is a substitution or entire change of parties. In the former case an amendment will be allowed; in the latter, it will not be allowed.’ ” (Weil & Brown, Cal. Prac. Guide Civ. Proc. Before Trial (The Rutter Group 2024) ¶ 8:120, citing Hawkins, 124 Cal.App.4th at p. 1503.) Raed Jajieh is not a “rejoined” defendant.

Bliss argues dismissal of Hacienda Leasing, LLC (Hacienda) is mandatory because Plaintiff did not name or serve Hacienda within three years of the action’s commencement. This argument fails for the same reasons regarding Chawkat Jajieh. It is based on a misreading of Section 583.210 which requires service of summons on a defendant within three years after the action is commenced against that defendant. Plaintiff commenced this action against Hacienda with the filing of the SAC. Three years has not yet run.

Bliss next argues the allegations against Hacienda are time barred. “The straightforward rule is that amendment after the statute of limitations has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Weil & Brown, Cal. Prac. Guide Civ. Proc. Before Trial, Statute of Limitations (The Rutter Group 2024) ¶ 8:112, quoting Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 492.)

Here, Hacienda is a new defendant. Hacienda was not named in the original Complaint or the FAC, nor was it served as a “Doe” defendant. The last alleged wrongful act occurred in 2019. The statute of limitations has run on Plaintiff’s claims against Hacienda.

In response, Plaintiff explains she learned of Hacienda and its potential liability in September of 2024 when Bliss filed its Motion in Limine No. 3 and claimed that all employees who worked at Bliss were leased through Hacienda. (See Opp. to Demurrer, pp. 5-6.) In essence, Plaintiff argues for application of the discovery rule.[10] “The discovery rule, as described in Bernson, allows accrual of the cause of action even if the plaintiff does not have reason to suspect the defendant's identity. [Citation.] The discovery rule does not delay accrual in that situation because the identity of the defendant is not an element of a cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) “However, where the facts are such that even discovery cannot pierce a defendant's intentional efforts to conceal his identity, the plaintiff should not be penalized.” (Bernson v. Browning-Ferris Indus. (1994) 7 Cal.4th 926, 937.)

Here, the SAC does not set forth any allegations concerning Bliss’s or Hacienda’s intentional efforts to conceal its identity. Accordingly, the demurrer as to Hacienda is SUSTAINED. Leave to amend is GRANTED.

The SAC asserts a new cause of action for failure to prevent and remedy sexual harassment. Bliss argues Plaintiff did not preserve her right to bring this cause of action because Plaintiff’s counsel admitted in open court that this claim was omitted from Plaintiff’s DFEH complaint. Plaintiff’s counsel disputes any such admission was made.

The court agrees with Bliss. As best the court recalls, Plaintiff conceded the point at the prior hearing. Moreover, Plaintiff now argues she could amend the DFEH complaint to include the failure to prevent claim, which similarly appears to confirm counsel’s prior admission that the DFEH complaint did not include the second cause of action. Having so conceded, the second cause of action is subject to demurrer.

Accordingly, the demurrer to the second cause of action is SUSTAINED with leave to amend.[11]

Bliss argues the new allegations identifying Raed Jajieh as the perpetrator are inconsistent with the FAC. In support, Bliss points to the allegations in the FAC which identify Chawkat Jajieh as the harasser and Plaintiff’s responses to discovery which state the same.

Bliss is technically correct, but that only goes so far. As discussed above, Chawkat Jajieh, who is identified in the FAC as the harasser, is in actuality Raed Jajieh. This is confirmed by the initial complaint naming Eddy as the harasser; Plaintiff’s subsequent amendment naming Eddy as Chawkat Jajieh; and Plaintiff’s further clarification that Eddy is Raed. The allegations are not inconsistent. The identification of Chawkat Jajieh was wrong; not inconsistent.

Second, the court took judicial notice only of the existence of Plaintiff’s discovery responses, not the truth of the matters asserted therein. Bliss cannot rely on Plaintiff’s discovery responses in support of its demurrer because they are extrinsic to the SAC.

The court will hear from the parties regarding Plaintiff’s Notice of Plaintiff’s Second Amended Complaint For Damages With Red Line Edits and whether, because Plaintiff did not file a SAC, Plaintiff should be required to file a motion for leave to file a SAC or whether Plaintiff should consider amending the FAC.

If the court were to reach the demurrer, it would be overruled in part and sustained in part. Overruled as to Raed Jajieh and the fifth cause of action. Sustained as to Chawkat Jajieh and the second cause of action. Leave to amend would be granted as to the second cause of action only. The court will hear from the parties regarding Hacienda Leasing, LLC.

The motion to strike would be granted and denied consistent with the court’s ruling on the demurrer.

[1] In the initial Complaint, Reyes identified the perpetrator as Eddy (LNU). In the FAC, she identified “Eddy” as Chawkat Jajieh. Now, in the SAC, she identifies Raed as “Eddy.”

[2] The numbering of the requests mirrors the parties’ pleadings.

[3] All statutory references hereafter are to the Code of Civil Procedure unless otherwise indicated.

[4] Plaintiff did not move pursuant to CCP 473/474 to replace Chawkat Jajieh with Raed.

[5] Alternatively, the motion to strike as to defendant Chawkat Jajieh (owner of Bliss) is GRANTED.

[6] Absent from Plaintiff’s papers are any arguments that might support a basis to grant leave to amend.

[7] Service on Eddy was never challenged. Further, the proof of service demonstrates Plaintiff’s registered process server made four attempts at personal service before serving Eddy with the summons and complaint by substituted service and thereafter mailing the documents to the address at 13217 Valley Blvd., La Puente, CA 91746. The parties agreeing that Raed is Eddy service was effectuated.

[8] Alternatively, the motion to strike as to Raed Jajieh is DENIED.

[9] With respect to the Fifth Cause of Action for Sexual Assault, the Demurrer is OVERRULED because the claim is based upon the same general allegations set forth in previous pleadings.

[10] The discovery rule was recently described in People v. Experian Data Corp. (Cal. Ct. App., Nov. 15, 2024, No. G062674) 2024 WL 4797531, at *3–4.) as follows:

“The limitations period, the period in which a plaintiff must bring suit or be barred, runs from the moment a claim accrues. [Citations.] Traditionally at common law, a ‘cause of action accrues “when [it] is complete with all of its elements”—those elements being wrongdoing, harm, and causation.’ [Citations.] This is the ‘last element’ accrual rule: ordinarily, the statute of limitations runs from ‘the occurrence of the last element essential to the cause of action.’ [Citations.]” (Aryeh, supra, 55 Cal.4th at pp. 1191- 1192.) [ ]

“To align the actual application of the limitations defense more closely with the policy goals animating it, the courts and the Legislature have over time developed a handful of equitable exceptions to and modifications of the usual rules governing limitations periods. These doctrines may alter the rules governing either the initial accrual of a claim, the subsequent running of the limitations period, or both. The “‘most important’” of these doctrines, the discovery rule, where applicable, ‘postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.’ [Citations].” (Aryeh, supra, 55 Cal.4th at p. 1192.)

“The discovery rule provides that the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause. [Citation.] A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her. [Citation.]” (Jolly, supra, 44 Cal.3d at p. 1109, fn. omitted.) The latter is referred to as inquiry notice. A plaintiff is on inquiry notice “when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Id. at p. 1110, fn. omitted.) “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Id. at p. 1111.).”

Neither party sufficiently addressed nor briefed the application of the discovery rule.

[11] Alternatively, the motion to strike the second cause of action is GRANTED.