Judge: Mark A. Young, Case: 19SMCV00289, Date: 2023-03-16 Tentative Ruling
Case Number: 19SMCV00289 Hearing Date: March 16, 2023 Dept: M
CASE NAME: Saks, et al.,
v. Pink, et al.
CASE NO.: 19SMCV00289
MOTION: Demurrer
to the Second Amended Complaint
HEARING DATE: 3/16/2023
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. 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. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
Analysis
KIG’s request for judicial notice is GRANTED.
In light of the fact that this is a demurrer hearing, the Court will not
consider any extrinsic evidence, such as any evidentiary facts attested in the
Mahoney Declaration.
KIG demurs to each cause of action alleged against it, including the
first cause of action for negligence, the fourth cause for nuisance, the fifth cause
for intentional infliction of emotional distress (IIED), and the sixth cause
for negligent infliction of emotional distress (NIED). KIG asserts that each
cause of action fails because they are barred by the corresponding statute of
limitations.
Code of Civil Procedure section 335.1 provides that any action for
negligence must be commenced within two years. Likewise, the limitations period
for IIED is two years. (Id.) Nuisance has a three-year statute of limitations
period. (CCP § 338(b).) Unless a
complaint affirmatively discloses on its face that the statute of limitations
has run, a demurrer must be overruled. (Lockley v. Law Office of Cantrell,
Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [“It must
appear clearly and affirmatively that, upon the face of the complaint, the
right of action is necessarily barred”]; see also Moseley v. Abrams (1985)
170 Cal.App.3d 355, 359 [“A demurrer on the ground of the bar of the statute of
limitations will not lie where the action may be, but is not necessarily barred”].)
In opposition to the demurrer, Plaintiff
invokes the discovery rule and the relation back doctrine. “Generally, a cause of action accrues and the statute of limitation begins to run when a suit may
be maintained. Ordinarily this is when the wrongful act is done and the
obligation or the liability arises . . .. In other words, a cause of action accrues upon the
occurrence of the last element essential to the cause of action. [Citation.]” (Cobb
v. City of Stockton (2011) 192 Cal.App.4th 65, 72-73, alterations
and internal quotation marks omitted.) Under the
so-called ‘discovery rule,’ the accrual of the statute is tolled until a
plaintiff discovers, or has reason to discover, the cause of action. (Ibid.)
The discovery rule protects those who are ignorant of their cause of action
through no fault of their own. (April Enterprises, Inc. v. KTTV (1983)
147 Cal.App.3d 805, 832.)
The general rule is that an 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. 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. If the requirements of section 474 are
satisfied, the amended complaint substituting a new defendant for a fictitious
Doe defendant filed after the statute of limitations has expired is deemed
filed as of the date the original complaint was filed.” (Woo v. Superior
Court (1999) 75 Cal.App.4th 169, 176.) For an amended complaint to
relate back to the original complaint as to parties named therein by their true
names, it must: (1) rest on the same general set of facts as the original
complaint; and (2) refer to the same accident and same injuries as the original
complaint. (CCP § 474; Barrington v. A. H. Robins Co. (1985) 39
Cal.3d 146, 150; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408-409.)
Furthermore, plaintiff must have been genuinely ignorant of the defendant’s identity
at the time he filed his original complaint. (Ingram v. Superior Court
(1979) 98 Cal.App.3d 483, 491.) “[A] party may only avail himself of the use of
naming Doe defendants as parties when the true facts and identities are
genuinely unknown to the plaintiff.” (Ibid.) “’Ignorance’ has been repeatedly interpreted
to mean that plaintiff must be unaware of defendant’s identity or unaware of
the defendant’s potential culpability.” (Marasco v. Wadsworth (1978) 21
Cal. 3d 82, 88.) The requirement of good faith ignorance of
the true name of a fictitiously designated defendant, as prerequisite for
amending a complaint to supply the name, after running of the statute of
limitations, is designed to promote the policies supporting the statute of
limitations. (McGee Street Productions v. Workers’ Comp. Appeals Bd.
(2003) 108 Cal. App. 4th 717.)
Plaintiff alleges that his unit
suffered damage and he made demands for the repairs of the subject defects
since October 2018. (SAC ¶ 13.) Specifically, “although demand for repairs have
been made by Saks since October 2018, and although the HOA has advised that it
would make the required repairs, both through their legal counsel and
management company KIG[,] no repairs have been made.” On the face of the complaint,
the causes of action accrued in October 2018. Absent further tolling, the
two-year period would have run in October 2020, and the three-year period would
have run in October 2021. This action
was filed on February 14, 2019. Plaintiff did not name KIG as a doe
defendant until he filed the doe amendment on December 12, 2022, which added
KIG as Doe 2 to the SAC. (RJN, Ex. 12.)
Plaintiff relies on his ignorance
of KIG’s true role in this lawsuit. However, the complaints filed in this
matter have consistently alleged Plaintiff’s awareness of KIG’s connection to
this case. (Compl., ¶ 12 [RJN Ex. 1].) Moreover, on September 17, 2019,
Plaintiff’s neighbor, Mirta Siderman, also filed a lawsuit against the HOA and
Pink for damage to her unit. (RJN Ex. 2.) Siderman’s complaint also named KIG,
Beverly Spalding Court’s current property manager, and Mr. Pink’s gardening
company, Inner Gardens, as defendants to her lawsuit. On October 22, 2020, this
Court deemed Ms. Siderman’s lawsuit related to Mr. Saks’ lawsuit. (RJN Ex. 8.) On November 19, 2020, Plaintiff filed a First
Amended Complaint (FAC). (Id. at ¶ 9; RFJN Ex. 5.) Although Plaintiff added
Inner Gardens as Doe 1, he did not name KIG. On January 13, 2021, Inner Gardens
answered Mr. Saks’ FAC and cross-complained against KIG for Equitable
Indemnity, Contribution and Declaratory Relief. Even liberally construed in
favor of Plaintiff, these judicially noticeable documents strongly suggest that
Plaintiff was aware of KIG’s identity and KIG’s connection to this lawsuit. Despite
this apparent knowledge and their involvement with Beverly Spalding Court, Plaintiff
did not attempt to add KIG as a doe defendant until December 2022.
Plaintiff asserts that there is a
question of fact as to whether there existed sufficient facts that KIG bore
responsibility for Plaintiff’s loss. While this is a question of fact, there
are no such facts present on this pleading. Plaintiff has the burden to allege
such facts supporting their purported discovery to avoid the application of the
statute of limitations. To gain “the benefit of the discovery rule [plaintiff]
must specifically plead facts to show . . . the inability to have made earlier
discovery despite reasonable diligence. The burden is on the plaintiff to show
diligence, and conclusory allegations will not withstand demurrer.” (E-Fab,
Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1319.) Since
it is apparent that Plaintiff was aware of the identity of KIG, and its
connection to the suit, Plaintiff must allege facts regarding the discovery of
the nature of KIG’s liability.
Moreover, the SAC fails to allege any specific facts against the doe
defendants. The allegations specifically allege facts against “Defendant HOA”
or “the Pink Defendants.” (See, e.g., SAC ¶¶ 21-26.) While the SAC does include
Does as a part of “Defendants,” there are no charging allegations against
“Defendants.” Therefore, the SAC states
no facts against KIG supporting any cause of action.
The Court also notes that KIG’s demurrer is not supported by Code of Civil
Procedure section 583.210(a) and it service requirements. At best, this
section could potentially justify a separate motion to dismiss.
Accordingly, KIG’s demurrer is
SUSTAINED with 10 days leave to amend.
The Court does note that (1) the
trial date of May 8, 2023, is probably not sustainable if counsel does amend
the complaint, and (2) the five year statue runs on February 19, 2023.