Judge Michael E. Whitaker, Case 20STCV22340 2023-05-01 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV22340, Date: 2023-05-01 Tentative Ruling

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.

DEPARTMENT	32
HEARING DATE	May 1, 2023
CASE NUMBER	20STCV22340
MOTIONS	Demurrer to Complaint
MOVING PARTIES	Defendant Ames Construction, Inc.
OPPOSING PARTY	Plaintiffs Paul Herrera and Chrissy Romo-Herrera

On June 12, 2020, Plaintiffs Paul Herrera (“Herrera”) and Chrissy Romo-Herrera (“Romo-Herrera”) (together, “Plaintiffs”) sued Vanguard Construction and Does 1-50 for 1) negligence and 2) loss of consortium. On March 16, 2023, Plaintiffs filed an amendment to the complaint substituting Ames Construction, Inc. (“AMI”) for Doe 1. This action concerns worksite injuries Herrera suffered on June 15, 2018. Defendants were designing and building a roadway construction project in West Covina, California. Plaintiffs allege Defendants did not follow proper protocols or provide adequate supervision of employees.

On April 4, 2023, AMI demurred to Plaintiffs’ complaint. Plaintiffs filed an opposition on April 17, 2023. Defendant filed a reply on April 21, 2023.

AMI demurs pursuant to Code of Civil Procedure section 430.10 for the following reasons:

• The applicable statute of limitations is two years under Code of Civil Procedure section 335.1.

• The two-year statute of limitations bars the addition of naming new Defendants.

• The incident giving rise to the Complaint occurred on June 15, 2018, therefore the two year limitations period lapsed on June 15, 2020.

• Plaintiffs filed an Amendment naming AMI on March 16, 2023, after the SOL had expired.

• The amendment does not relate back as Plaintiffs knew or should have known of the identity of AMI and should have included it in the Complaint or sought to amend the complaint earlier.

“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.)

A demurrer lies where the dates alleged in the complaint show the cause of action is barred by the statute of limitations. (Saltier v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) The running of the statute must appear “clearly and affirmatively” from the face of the complaint. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42.) The statute of limitations on causes of action pertaining to personal injuries (negligence and loss of consortium) is two years. (Code Civ. Proc., § 335.1.) And such causes of action accrue upon occurrence of the last act necessary to complete the cause of action. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 [“Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements”] (hereafter Fox).) [1]

Here, AMI claims Plaintiffs improperly named AMI via the Doe amendment. The Court notes Plaintiffs filed the Amendment to Complaint naming AMI as Doe 1 (hereinafter “Doe Amendment”), after the statute of limitations lapsed, on March 16, 2023.

“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 brought 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.)

AMI argues the following in support of its contention that Plaintiffs knew or should have known of AMI at the time the Complaint was filed and therefore, that Plaintiffs cannot claim genuine ignorance of AMI’s identity. The Complaint alleges that Herrera was working at a construction site when he was injured and that defendants, and each of them, negligently managed and supervised Herrera. The Complaint further alleges that defendants negligently performed duties that could potentially be within the scope of a general contractor at a construction site, such as maintaining the construction site, placing temporary or permanent ramps, owning construction equipment, and supervising employees and contractors. Had Plaintiffs conducted minimum research, they could have obtained the identity of any relevant parties to the construction project. Or, if they had conducted written discovery or depositions sooner, they could have easily and quickly discovered the other relevant parties that worked at the site where and when the injury occurred, such as AMI. Instead, two years and nine months after the two-year statute of limitation expired, and four years and nine months after the alleged incident itself, Plaintiffs have substituted AMI for Doe 1.

In opposition, Plaintiffs argue 1) that Plaintiffs had no duty to discover AMI’s identity at the time they filed the Complaint, 2) that Plaintiffs’ knowledge is determined at the time of filing the Complaint, so any information that could have been obtained during discovery would be irrelevant to this motion, and 3) that AMI puts forth no evidence that Plaintiffs unreasonably delayed filing the doe amendment or that AMI suffered specific prejudice as a result of the delay.

Here, AMI has failed to meet its burden to show Plaintiffs were not genuinely ignorant of AMI’s identity at the time they filed the Complaint. AMI puts forth no evidence that Plaintiffs actually knew of AMI’s identity at the time the action commenced on June 12, 2020. AMI only suggests that because it performs the type of work described in the Complaint, Plaintiffs could learned of its identity when they filed their Complaint. Whether there were means by which a plaintiff could have determined, or discovered, the identity of a “Doe” defendant is irrelevant for the purposes of relation back doctrine. (General Motors v. Superior Court (1996) 48 Cal.App.4th 580, 596.)

Additionally, AMI’s reply misstates the burden. AMI argues that “Plaintiffs’ opposition provides no additional relevant facts that support their argument that Plaintiffs were genuinely ignorant of Defendant Ames’ identity” and “Absent a plausible explanation as to why Plaintiffs failed to provide relevant facts as to their alleged ignorance of the identify of [AMI], Plaintiffs merely shift the responsibility to Defendant [AMI] to prove otherwise.” (Reply, p. 2, lines 4-11.) AMI is incorrect – it bears the burden of demonstrating Plaintiffs were not genuinely ignorant of AMI’s identity which it has failed to do so.

The Court finds Defendant has not met its burden to establish that Plaintiffs were not truly ignorant of the identity of AMI at the time Plaintiffs filed the Complaint on June 12, 2020 and further finds that the relation back doctrine applies to the Doe Amendment. Accordingly, the Court overrules AMI’s demurrer to the Complaint and orders AMI to answer the Complaint on or before May 19, 2023.

AMI shall provide notice of the Court’s ruling and file a proof of service regarding the same.

[1] “An important exception to the general rule of accrual is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements. Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. . . . The discovery rule does not delay accrual in that situation because the identity of the defendant is not an element of a cause of action. As the court reasoned in Norgart, it follows that failure to discover, or have reason to discover, the identity of the defendant does not postpone the accrual of a cause of action, whereas a like failure concerning the cause of action itself does. In Norgart, we distinguished between ignorance of the identity of the defendant and ignorance of the cause of action based on the commonsense assumption that once the plaintiff is aware of’ the latter, he normally has sufficient opportunity, within the applicable limitations period, to discover the identity of the former. The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have information of circumstances to put them on inquiry or if they have the opportunity to obtain knowledge from sources open to [their] investigation. In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Fox, supra, 35 Cal.4th at pp. 807–808, emphasis added [cleaned up].)