Judge Lee S. Arian, Case Number: 20STCV03364, Date: 2023-11-14 Tentative Ruling

The complaint arises from an alleged slip and fall that occurred at 5103 Marvale Drive, Windsor Hills, Los Angeles, 90043 (the “Subject Property”). On January 27, 2020, Plaintiff Jaime Ibarra (“Plaintiff”) filed a complaint against Defendants Diakite Mohamed and Diallo B. Mariama (collectively “Defendants”) and Does 1 to 100 alleging causes of action for: (1) negligence; and (2) premises liability.

On July 10, 2023, after hearing oral argument, the Court granted Defendants’ motion for summary judgment. On August 1, 2023, the Court entered judgment in favor of Defendants and against Plaintiff.

On August 31, 2023, at the Final Status Conference, Plaintiff’s counsel stated that a request for dismissal would be filed as to the remaining defendants. (See August 31, 2023 Minute Order.)

On September 9, 2023, Plaintiff filed an Amendment to Complaint substituting Defendant Wesco Insurance Company (“Wesco”) for Doe 5. On September 15, 2023, Plaintiff filed a Proof of Service of Summons indicating that Defendant Wesco was served with the summons, complaint, and amendment to complaint on September 13, 2023.

On October 11, 2023, Defendant Wesco filed and served a demurrer to the complaint. The demurrer is brought on the grounds that Plaintiff added Defendant Wesco as a Doe defendant to the action more than three years after filing the complaint in violation of Code Civ. Proc. § 583.210. Additionally, Defendant Wesco contends that the first and second causes of action fail to state facts sufficient to constitute a cause of action.

The demurer is unopposed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc. § 1005(b).)

Before filing a demurrer, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the demurrer for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41.)

Defendant Wesco’s counsel attests to having telephone correspondence and e-mail exchanges with Plaintiff’s counsel and having not resolved the matters at issue in the demurrer. (Welde Decl., ¶¶ 2-4.) The requirement is met.

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Ibid.) A demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc. § 430.10(e).) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Ibid.) If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

Defendant Wesco contends that it was added as a Doe defendant more than three years after the complaint was filed and, therefore, must be dismissed from this action. Additionally, Defendant Wesco contends that the first and second causes of action fail to state a claim against Defendant Wesco.

“The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant . . . [and] an action is commenced at the time the complaint is filed.” (Code Civ. Proc., § 583.210, subd. (a).) “Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.” (Code Civ. Proc., § 583.210, subd. (b).)

If service of a complaint is not made within the time articulated in Code Civ. Proc., § 583.210 then “(1) [t]he action shall not be further prosecuted and no further proceedings shall be held in the action [and] (2) [t]he 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.” (Code Civ. Proc., § 583.250, subd. (a)(1)-(2).) “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ. Proc., § 583.250, subd. (b).)

Here, the complaint was filed on January 27, 2020. Defendant Wesco—who was initially identified as Doe 5 in the complaint—was not served with the complaint until September 13, 2023. Defendant Wesco should have been served with the complaint no later than January 27, 2023.

Therefore, the Cout finds that based on the plain language of Code Civ. Proc. §§ 583.210 and 583.250, this action must be dismissed against Defendant Wesco.

While the Court can sustain the demurrer solely on the untimely service of the complaint as to Defendant Wesco, the Court will assess the sufficiency of the first and second causes of action.

“The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the plaintiff’s injury.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) A cause of action for premises liability requires the same elements necessary to state a cause of action for negligence. (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 517.)

Here, the Court finds that the first and second causes of action are insufficient. The complaint fails to plead the existence of any duty or the breach of any duty. (Complaint, ¶¶ 8-22.) Moreover, the complaint does not allege any specific facts as to any defendant and only sets forth conclusions of fact and law. Thus, Defendant Wesco cannot ascertain what duty was owed and how such duty was breached.

The demurrer of Defendant Wesco is sustained as there is an inference it has merit due to the lack of opposition. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

The Court therefore SUSTAINS the demurer of Defendant Wesco to the first and second causes of action in the complaint WITHOUT LEAVE TO AMEND.

Plaintiff has not met his burden in showing a reasonable possibility that the complaint can be amended to state a valid cause of action against Defendant Wesco under Goodman v. Kennedy, supra, 18 Cal.3d 335, 348. Moreover, the complaint was not timely served on Defendant Wesco as indicated above.

The Court SUSTAINS the demurrer of Defendant Wesco to the first and second causes of action in the complaint WITHOUT LEAVE TO AMEND.

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. Lee S. Arian

Judge of the Superior Court