Judge: Lynne M. Hobbs, Case: 22STCV14974, Date: 2023-10-17 Tentative Ruling

Case Number: 22STCV14974    Hearing Date: April 16, 2024    Dept: 30

DANA GANT vs RICHARD J. FRANKEL, TTE OF FRANKEL FAMILY TRUST

TENTATIVE

Defendant Steve Patterson’s demurrer is SUSTAINED without leave to amend. Moving party is ordered to give notice.

Legal Standard

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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Request for Judicial Notice

Defendant requests judicial notice of (1) Plaintiff’s complaint in this matter; (2) this Court’s tentative ruling granting Plaintiff’s motion for leave to amend the complaint; and (3) Plaintiff’s Notice of Motion and Motion for Leave of Court to file LASC LACIV 105 forms to substitute the fictitious names DOE 3 and DOE 4 with Contractor “Steve Patterson” and “Patterson Builders.”

Plaintiff requests judicial notice of the (1) Stipulation and Order Striking Mistakes in the Complaint; (2) Motion for Leave of Court to file LASC LACIV 105 forms to substitute the fictitious names DOE 3 and DOE 4 with Contractor “Steve Patterson” and “Patterson Builders”; (3) The Application for Building Permit and Certificate of Occupancy, issued by the City of Los Angeles, Department of Building and Safety; (4) The Certificate Occupancy, issued by the City of Los Angeles, Department of Building and Safety; and (5) Order Approving Application for Determination of Good Faith Settlement on January 2, 2024.

The requests for judicial notice are GRANTED, but not the truth of the matters contained within the documents.

Meet and Confer

The demurrer and motion to strike are accompanied by the declaration of William K. Crowe which satisfies the meet and confer requirement. (Code Civ. Proc. § 430.41.)

Discussion

Defendant demurs to the only cause of action against him in the complaint for negligence, arguing that it fails to state facts sufficient to constitute a cause of action on the grounds that it is barred by the two-year statute of limitations. Defendant argues he was named as a Doe after the statute of limitations had run, and the amendment does not relate back to the filing of the complaint because Plaintiff knew of Defendant’s identity at the time of the filing of the original complaint.

CCP section 335.1 provides that an action for injury to, or for the death of, an individual caused by the neglect of another must be brought within two years. (See Code Civ. Proc. § 335.1.) The negligence claim accrues on the date of injury. (See Rodibaugh v. Caterpillar Tractor Co. (1964) 225 Cal.App.2d 570, 573.) Here, the date of the alleged injury May 20, 2020. (Complaint ¶ 26.) Plaintiff substituted Doe 3 for Defendant on December 4, 2023, more than two years after the cause of action accrued on May 20, 2020, i.e., the date the injury occurred. However, Plaintiff argues in opposition that the amendment relates back to the filing of the complaint.

“When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly . . . .” (CCP § 474.)

Where a complaint is amended after the statute of limitations has run to identify a fictitiously-named defendant, the amended complaint will “relate back” to and be deemed filed as of the date of the original complaint, if: (1) the original complaint stated a valid cause of action against the now-identified Doe defendant; (2) plaintiff was “genuinely ignorant” of the defendant’s identity; and (3) the amended complaint is based on the same general set of facts as the original. (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600-601.)

Relation back effect will be given only when plaintiff was genuinely ignorant of that person’s identity or liability when the action was commenced. (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371-372.) The requirement of good faith ignorance of the true name of a fictitiously designated defendant, as a prerequisite for amending the complaint to supply a name, after the running of statute of limitations, is designed to promote the policies supporting the statute of limitations. (McGee Street Productions v. Workers’ Comp. Appeals Bd. (App. 2 Dist. 2003) 108 Cal.App.4th 717.) Ignorance of the name of a defendant has not been interpreted literally. (Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 783.) “Ignorance” may include situations where the plaintiff knew the identity of the person but was ignorant of the facts giving him a cause of action or knew the name and all the facts but was unaware that the law gave him a cause of action. (Ibid.) Ignorance of the facts is the critical issue. (Ibid.) The question of the plaintiff's good faith in this regard is for the determination of the trial court. (Ibid.)

Here, the complaint alleges that remodeling work was being done on Defendant’s single-family residence, where Plaintiff was a tenant, to convert the garage into an Additional Dwelling Unit. On May 20, 2020, at approximately 10:30 p.m., Plaintiff was on Defendants’ property, cleaning up the mess the construction workers left, when she fell into a trench, injuring her right knee. Before this time, on May 18, 2020, Plaintiff asked contractor Steve Patterson to place boards over the trenches in the backyard of the Subject Premises for the safety and protection of her and her dogs. Plaintiff alleges Defendant failed to board up or cover the trenches their construction workers created that created an unreasonable risk of harm to the tenants.

The complaint further alleges that Defendants, and each of them, owed a duty of care to Plaintiff because they owned, leased, rented, occupied, possessed, designed, constructed, developed, landscaped, operated, inspected, repaired, maintained, modified, managed, controlled and/or supervised, the Subject Premises and permitted or created the dangerous condition.

Plaintiff's pleadings show that she knew the facts giving rise to her cause of action for negligence based on negligent management, construction, or control of the premises because she named Defendant and the basis for his liability (she informed him of the trenches). Therefore, Plaintiff’s amendment to rename Doe 3 as Defendant violates California Code of Civil Procedure section 474.

Accordingly, the Court cannot find Plaintiff’s December 4, 2023 amendment to the complaint relates back to the filing of the complaint. There is no argument made in support of tolling of the action. Plaintiff’s injuries were sustained on May 20, 2020. Plaintiff named Defendant as a party over three years later. As such, Plaintiff’s filing of the Doe amendment does not relate back to the filing of the complaint, effectively barring Plaintiff’s action against Defendant.

In opposition, Plaintiff makes much of the fact that she had stricken parts of the complaint that alleged she fell in a trench in the backyard. Plaintiff argues she fell on a trench on the driveway. However, this distinction does not change the fact that she identified Defendant in the original complaint by his name, and the facts giving rise to his liability (negligent management/supervision/construction/control of the premises by the contractor due to failing to cover trenches).

Leave to Amend

“Plaintiff must show in what manner [s]he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [citation omitted].)

Plaintiff has not requested leave to amend nor has shown how the complaint can be successfully amended. Therefore, the demurrer is sustained without leave to amend.

Conclusion

Based on the foregoing, Defendant Steve Patterson’s demurrer is SUSTAINED without leave to amend.