Judge Martha K. Gooding, Case 20-01127437 2023-07-31 Tentative Ruling

Judge: Martha K. Gooding, Case: 20-01127437, Date: 2023-07-31 Tentative Ruling

1) Demurrer to Amended Complaint -- CONTINUED

2) Case Management Conference -- CONTINUED

Defendant Rohrer Corporation’s Demurrer to plaintiff St. Joseph Hospital of Orange’s First Amended Complaint (“FAC”) is continued to August 28, 2023, at 1:30 p.m. in this Department for further briefing on the issues set forth below, including whether Rohrer is not a new defendant because it is the successor corporation to Transparent Container Company (“TCC”).

Defendant shall file and serve its supplemental brief of no more than 10 pages no later than August 9, 2023. Plaintiff shall file and serve its responsive supplemental brief of no more than 10 pages no later than August 16, 2023.

The Case Management Conference is also continued to August 28, 2023, at 1:30 p.m. in this Department.

Discussion

The parties agree that the applicable statute of limitations for Plaintiff’s claims is two years. [See Demurrer MPA (ROA #135) at 13:4-11; Opp. (ROA #150) at 7:7-16.]

At least for purposes of argument, Defendant accepts Plaintiff’s accrual date of 6/25/18. [Demurrer MPA 13:2-4.]

This action was commenced on 1/28/20 (within the two-year limitations period), but Rohrer was not added until the FAC was filed on 2/6/23. In its moving papers, Defendant argues there is no relation back because Plaintiff knew of Rohrer’s existence when it filed the original complaint, so a CCP 474 amendment would not be proper. Scherer v. Mark (1976) 64 Cal.App.3d 834, 840-841; Organizacion Comunidad De Alviso v. City of San Jose (2021) 60 Cal.App.5th 783, 794–795. [Demurrer MPA at 13.] In reply, Rohrer contends that adding Rohrer as a Doe defendant in the FAC filed on 2/6/23 could not relate back to the original complaint because the Does in the original complaint were dismissed on 6/17/21.

In short, Defendant argues that Rohrer was a new defendant added after the statute of limitations had run and that, as a result, Plaintiffs claims against Rohrer are barred.

Plaintiff contends it added Rohrer within the “three year statute of limitations set out by Code Civ. Proc. § 582.210.” [Opp. at 7:25.] This statute sets three years as the limit for when the complaint and summons must be served. Plaintiff describes it as the “statute of limitations for amending the complaint with Doe Defendants.” [Id. 7:25-28.] Plaintiff further asserts that because “the complaint was filed on January 28, 2020, the statute of limitations for this action to amend the pleading with a Doe Defendant would have run until January 28, 2023.” [Id. 8:1-2.]

But the question is not whether Plaintiff added a Doe defendant within the time required for service of the summons and complaint, the question is whether Plaintiff named Rohrer as a defendant within the two-year statute of limitations.

If naming Rohrer as Doe 1 related back to the filing of the original complaint, as is often the case with Doe amendments, then the answer to that question would be yes. But by the time Rohrer was named as Doe 1 (as part of the FAC that included Does 1-10), the Does named in the original complaint had been dismissed for a year and a half.

In short, the Doe amendment on 2/6/23 could not relate back to the original complaint when Does in the complaint had been dismissed on 6/17/21.

But the remaining question is whether Rohrer is indeed a new party or is simply the correct name for the Defendant already sued.

Plaintiff alleges, and Defendant acknowledges, that TCC merged into Rohrer, with Rohrer being the surviving corporation. [FAC ¶ 5; Demurrer MPA at 13:22-23, 15:1-7.] The two corporations became one, under the name of Rohrer Corporation.

Thus, when Plaintiff sued TCC, it sued the right entity but by the wrong name. See Most Worshipful Sons of Light Grand Lodge Ancient Free and Accepted Masons v. Sons of Light Lodge No. 9 (1958) 160 Cal.App.2d 560 (where plaintiffs moved to amend complaint, after statute of limitations had run, to include action against corporation to which new lodge had transferred property, amendment permitted because new lodge had assets, and was alter ego of, the original defendant).

In Mirabito v. San Francisco Dairy Co. (1935) 8 Cal.App.2d 54, the judgment was amended to add a successor corporation, which is essentially what Rohrer is here:

It appears without contradiction that San Francisco Dairy Company is a California corporation [the named defendant]. In July, 1927, said corporation conveyed all of its assets and property to Dairy Dale Company, a corporation, which in turn, for a consideration, in May, 1929, conveyed all of the said assets and property to Dairy Delivery Company, Inc., a Delaware corporation. The purpose of adding the name of Dairy Delivery Company, Inc., to the judgment herein was to enable respondent to collect his judgment, as there are no assets of San Francisco Dairy Company.

Mirabito v. San Francisco Dairy Co. (1935) 8 Cal.App.2d 54, 57.

Indeed, under the circumstances alleged here, plaintiffs have been permitted to amend a judgment to add the successor corporation. See McClellan v. Northridge Park Townhome Owners Ass'n, Inc. (2001) 89 Cal.App.4th 746, 753–754.

It Plaintiff could add ultimately add Rohrer to a judgment against TCC as a successor corporation, it seems it should be able to add Rohrer to the FAC on the same basis.

In addition to briefing this issue, the parties’ supplemental briefing shall also address whether the Court should have granted the Amendment to Complaint filed by Plaintiff on 1/18/2023 as ROA #116 – and whether the Court can and should now grant the Amendment to Complaint nunc pro tunc.