Judge: Michael E. Whitaker, Case: 19STCV26050, Date: 2023-05-25 Tentative Ruling

Case Number: 19STCV26050    Hearing Date: May 25, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

Plaintiff Summer Healy-Chapin (Plaintiff) sued Defendant Standard International, LLC dba The Standard Hollywood (Standard Hotel) based on injuries Plaintiff allegedly sustained in a trip and fall incident which occurred when Plaintiff was walking to her table upon arriving at an event hosted at Standard Hotel’s night club.

On December 9, 2022, Plaintiff filed an amendment to the Complaint naming Bryan Rabin, Inc. (Rabin) as Doe Defendant 2.

Rabin demurs to Plaintiff’s premises liability cause of action as it pertains to Rabin, arguing Plaintiff’s December 9, 2022, Doe Amendment does not relate back to the original filing date of the complaint, and thus Plaintiff’s claim against Rabin is time barred.  Additionally, Rabin moves to strike Plaintiff’s December 9, 2022, Doe Amendment. 

Plaintiff opposes Rabin’s demurrer and motion to strike.  Rabin replies.   

JUDICIAL NOTICE

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: . . . (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States . . . (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (d), (h).)

            Here, pursuant to Evidence Code section 452, the Court grants Defendants’ unopposed request for judicial notice of Exhibits A-E.  In regard to the deposition transcript of Plaintiff Summer Healy-Chapin, Exhibit A, the Court notes that it grants judicial notice of the occurrence of the deposition itself, but not the contents of the deposition transcript.

ANALYSIS

1. Demurrer

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Rabin argues that Plaintiff fails to state facts sufficient to constitute a cause of action against it based on Plaintiff’s untimely substitution of Rabin as a Doe defendant after the statute of limitations had expired.  In the complaint, Plaintiff alleges the accident at issue occurred on February 24, 2018. (Complaint, p. 4.)  Hence, under Code of Civil Procedure section 335.1, Plaintiff’s cause of action for premises liability accrued on February 24, 2018 and the applicable statute of limitations lapsed on August 20, 2020.  (See Code Civ. Proc., § 335.1 [statute of limitations on a cause of action for negligence is two years]; see also Judicial Council Emergency Rules of Court, rule 9 (hereafter Rule 9).  Rule 9 provides: “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020 until October 1, 2020. Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020.”  

The Court notes Plaintiff filed the Amendment to Complaint naming Rabin as Doe 2 (hereinafter Doe Amendment), after the statute of limitations lapsed, on December 9, 2022.  

“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 . . . .”  (Code Civ. Proc., § 474.) 

Code of Civil Procedure section 474 permits a plaintiff to amend complaints by adding parties as Doe defendants when the plaintiff is ignorant of the name of a defendant at the time the complaint is filed. The purpose of section 474 is to enable a plaintiff to avoid the bar of the statute of limitations when he or she is ignorant of the identity of the defendant. The cases discussing section 474 deal with whether the plaintiff was truly ignorant of the identity of the person brought into the case as a Doe defendant because if that requirement is met, the amendment to the complaint relates back to the date the complaint was filed and the statute of limitations is preserved.

(Davis v. Marin (2000) 80 Cal.App.4th 380, 386–387 [cleaned up].)  And as stated in Weil & Brown:

Where a complaint is amended after the statute of limitations has run to identify a fictitiously-named defendant, and to assert a cause of action against that defendant not included in the original complaint, the amended complaint will be given relation back effect, so as to avoid the statute of limitations, provided:

·        the original complaint stated a valid cause of action against the now-identified “Doe” defendant; and

·        plaintiff was “genuinely ignorant” of the defendant's identity or the facts rendering defendant liable when the original complaint was filed; and

·        the amended complaint, identifying the defendant, is based on the “same general set of facts” as the original and refers to the “same accident and same injuries.” (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600-601; San Diego Navy Broadway Complex Coalition v. California Coastal Comm'n (2019) 40 Cal.App.5th 563, 579; Eghtesad v. State Farm Gen. Ins. Co. (2020) 51 Cal.App.5th 406, 415.)

(Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022), ¶ 6:740, emphasis added (hereafter Relation Back Doctrine).)  A Doe defendant bears the burden to prove that the plaintiff was aware of the identity of the Doe defendant at the time the plaintiff filed the initial complaint. (See Breceda v. Gamsby (1968) 267 Cal.App.2d 167, 179.)

            Yet, “Even a person whose identity was known to the plaintiff when the action was filed may be brough in under section 474 as a ‘Doe’ defendant if the plaintiff was initially unaware of that person’s true relationship to the injuries upon which the action was based; or if a change in law has indicated that persons not originally joined might also be held liable.  But in each of the cases allowing late joinder of known persons under section 474, there has been some showing that at the time the original complaint was filed the plaintiff was ignorant of something having a bearing upon the liability of the newly-summoned party.”  (Miller v. Thomas (1981) 121 Cal.App.3d 440, 445.) 

            Here, Rabin argues that Plaintiff’s Doe Amendment is defective because Plaintiff was at all times aware, or should have been aware, of Rabin’s identity.  However, Rabin fails to point to any allegations within the Complaint which would indicate Plaintiff knew or should have known of Rabin’s identity and the facts giving rise to Rabin’s purported liability at the time of filing.

            Instead, Rabin relies on Plaintiff’s statements made in her deposition taken on September 20, 2020.  Rabin contends that Plaintiff’s deposition testimony is “replete with references to Bryan Rabin of Bryan Rabin, Inc.” and is further “filled with references to knowledge of facts which would allegedly create liability on RABIN’s part.”  (See Memorandum of Points and Authorities in Support of Demurrer, p. 8.)  However, while a court can take judicial notice of the existence of the statements contained in a deposition, it typically cannot take judicial notice of the truth of those statements.  (See Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) 

            Notwithstanding, Rabin contends that the truth of Plaintiff’s statements made in her deposition are subject to judicial notice because they were made by a party to the action.  (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605 (hereafter, Del E. Webb.)  However, even if the Court were to take judicial notice of the truth of the matter stated in Plaintiff’s deposition statements pursuant to Del E. Webb, the Court would still find that said statements do not conclusively establish that Plaintiff knew of Rabin’s identity and the facts giving rise to Rabin’s liability at the time of filing of the complaint.   

            The following are a portion of the excerpts of Plaintiff’s deposition which Rabin advances in support of its contention that these statements indisputably establish Plaintiff’s knowledge of Rabin’s identity and the facts which would give rise to its liability at the time of filing of the Complaint:

A.  So I had actually been in touch with the guy that runs Georgios, Bryan, beforehand and said, "Hey, can we come and check it out?"· He said, "Yes, we'll put you guys on the list. We'd love to have you as our guests."

. . .

A.  So Tom owned an event company, which I actually - - although I was paid, it was basic scale, the head of his business development. For four years, I was the person that would create connections and introduce and get future jobs for us. He owns a company that does nightlife. That was the purpose of meeting Bryan, which they work together still.

. . .

A.    I didn’t know much about Georgios. I guess it’s a nightclub that they have at the

Standard. I didn’t know much about it, that’s the reason why we went to go check it out because we’ve never been to a Georgios event.

. . .

A.  No. We -- when we arrived inside the club Bryan then greeted us while we were inside

and had said, "I have a table for you two." And we said, "Okay. Great." Then he had pointed and he said, "It's going to be right in this back corner here across from the D.J. booth. When you guys are ready, have a seat in there."

Q.  So Bryan is the one that pointed in the location where you guys were going to sit? A Yes, that's correct.

. . .

Q.  Where were those events taking place?

A.    In different venues like -- I don’t remember if the night we went was an actual Georgios

- I think it was a different event Bryan was putting on, but Bryan, like Tom, is an event promoter so that’s the reason why they would meet in the first place. So that they could align and do events either at the standard or at other venues in Los Angeles. (Depo: 18:7-14)

Q.  Okay. Just let me ask you real quick do you - - is your understanding that Georgios is completely unaffiliated with the hotel, correct?

A.  Correct. It’s an event that is hosted at the Standard.

. . .

Q.  Okay. Have you -- do you have any understanding that Bryan would host an event at the Standard Hotel that wasn't a Georgios event?

A.  Not that I know of. I just know he's affiliated with the Standard.

Q.  Okay. He has some type of relationship with them?

A.  My understanding, yes.

. . .

. . .

Q.  Okay. Do you recall any of the conversation you had with Mary?

A.  Yes. That's why -- that's why I went back in, what I told you, because I remember specifically when she came out to meet me there was already that kind of she knew me, like she knew we were there to meet with Bryan. So she said -- I'm trying to remember if she, at that time, had the security guy that took my notes because I don't know if she had to have him with her, but I remember her rushing to the table and she said -- she was concerned.· She said, "Are you okay?· What happened?" I said, "No, I'm not."· I said, "I've fallen and fell into the back room and I hit my temple and my neck.” And she said, "What room?" And I said, "The room next to the D.J. booth."· She said, "What? Why? Who put you back there?"· I said, "Bryan." She said, "Nobody is supposed to go back there."

(Plaintiff’s Deposition, pp. 16:22-17:1, 17:15-21, 17:24-18:5, 23:23-24:6, 41:15-19, 42:10-17.)

After examination of Plaintiff’s deposition testimony in question, the Court concludes that it does not indisputably establish Plaintiff’s knowledge of the identity of Bryan Rabin, Inc., or further facts which would give rise to the liability of Bryan Rabin, Inc. 

            Next Rabin demurs to Plaintiff’s claim against it on the ground that the Court lacks jurisdiction over it based on Plaintiff’s purported defective service of the Doe Amendment, Summons, and Complaint.   The Court however notes that Rabin has previously filed a demurrer and motion to strike against North American Capacity Insurance Company’s First Amended Complaint-in-Intervention, on March 13, 2023, and further has filed the instant demurrer and motion to strike against Plaintiff.  The Court therefore concludes that Rabin has consented to the Court’s jurisdiction by making a general appearance. 

“A general appearance by a party is equivalent to personal service of summons on such party.”  (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)  “A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.”  (Ibid.)  “An appearance is general if the party contests the merits of the case or raises other than jurisdictional objections.”  (Ibid.)  In other words, “[i]f the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one.”  (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.)   

2.     Motion to Strike

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)  “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Code Civ. Proc., § 437, subd. (a).) 

            The Court notes that Rabin advances identical arguments in the motion to strike Plaintiff’s Doe Amendment to those it relied upon in its demurrer.  Accordingly, the Court denies Rabin’s request to strike Plaintiff’s Doe Amendment based on the Court’s previous discussion of Rabin’s demurrer to Plaintiff’s Doe Amendment. 

CONCLUSION AND ORDER 

Therefore, the Court overrules Rabin’s demurrer to Plaintiff’s Doe Amendment, and denies Rabin’s motion to strike the same.  

Further, the Court orders Rabin to file and serve an answer to the complaint on or before June 15, 2023. 

Rabin shall provide notice of the Court’s ruling and file a proof of service of such.