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.)





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.