Judge: Michael E. Whitaker, Case: 21STCV26617, Date: 2023-07-10 Tentative Ruling

Case Number: 21STCV26617    Hearing Date: July 10, 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

MOTION

Plaintiff Marcel Richardson (Plaintiff), individually and as successor-in-interest of decedent Essence Monae Richardson (Decedent), sued Defendants Emigdio Vicente Avalos, Epifanio Peter Avalos, and Does 1 – 50 for wrongful death, negligence, and negligent entrustment in connection with a motor vehicle/pedestrian accident that occurred on July 22, 2019. On January 13, 2023, Plaintiff filed a Doe Amendment to the Complaint, naming Doe 1 as Defendant Yellow Cab.

            On May 22, 2023, Defendant Administrative Services Cooperative, Inc. dba LA Taxi Cooperative, Inc. dba Yellow Cab (Yellow Cab) filed a demurrer to the Complaint. Plaintiff has not filed an opposition to the demurrer.  However, the Court notes that Plaintiff appears to have attempted to dismiss Yellow Cab from this action by filing a request for dismissal on June 26, 2023 which was rejected by the Court. (See Request for Dismissal filed June 26, 2023.)

ANALYSIS

“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 may only challenge defects that appear on the face of the pleading or from matters outside the pleading that are subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

“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…” (CCP § 474.) A Doe amendment that complies with Code of Civil Procedure section 474 relates back to the date the action commenced for statutes of limitation purposes. (Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 897-898.) “[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” (General Motors Corp. v. Sup.Ct. (Jeffrey) (1996) 48 Cal.App.4th 580, 588 [emphasis in original]). “[A] plaintiff will not be refused the right to use a Doe pleading even where the plaintiff's lack of actual knowledge is attributable to plaintiff's own negligence.” (Grinnell Fire System Protection Co. v. American Sav. & Loan Assn. (1986) 183 Cal.App.3d 352, 359.)

“For ‘relation back’ effect to be given to an amended complaint substituting a real person or entity as a defendant for a ‘Doe’ defendant, after the statute of limitations has run on the claim: • The original complaint must:

— name ‘Doe’ defendants in the caption of the complaint;

— allege in the body of the complaint that plaintiff is ignorant to the true name and capacity of each defendant sued by the fictitious name ‘Doe’; and

— allege a valid cause of action against each ‘Doe’ defendant.”

(A. Amendments Identifying “Doe” Defendants After Statute of Limitations Has Run, Cal. Prac. Guide Civ. Pro. Before Tr. Stat. of Limitations Ch. 8-A [italics in original; internal citations omitted].)

Yellow Cab demurs to the Doe Amendment against Yellow Cab on the grounds that it fails to state facts sufficient to constitute a cause of action against Yellow Cab. More specifically, Yellow Cab contends the Complaint fails to allege facts that the subject vehicle which struck Decedent was owned or operated by Yellow Cab or its agents/employees, and that the Doe Amendment against Yellow Cab was filed after the statute of limitations expired. Yellow Cab contends the relation-back doctrine does not apply because Plaintiff was not genuinely ignorant of Yellow Cab’s identity.

More specifically, Yellow Cab contends that it appears Plaintiff did not perform any due diligence to identify all of the defendants required to be named in the Complaint, but that Plaintiff was able to obtain information regarding the correct identities of the drivers/owners of the subject vehicle. Plaintiff purportedly has had access to the Traffic Collision Report prepared by the Los Angeles Police Department which identified the names of the Avalos Defendants, and to photographs taken at the scene by the police depicting the subject vehicle with a Yellow Cab logo prominently displayed on the doors. Yellow Cab attached exhibits to the Declaration of David M. Hillings, one of which purports to be a copy of a photograph of the subject vehicle. (Hillings Decl., Ex. C.)

The Court disagrees with Yellow Cab. First, the Complaint does contain allegations of control regarding the subject vehicle and allegations of the Avalos Defendants acting within the scope of their agency/employment with Yellow Cab. (See, e.g., Compl., ¶¶ 6-9, 26, 30, 33.) Construed in conjunction with the other allegations in the Complaint, the Court finds these allegations sufficient to withstand a demurrer.

Second, the Court finds that the Complaint satisfies the requirements of Code of Civil Procedure section 474 for purposes of relation back. The Complaint mentions Does 1 through 50 on the caption page of the Complaint. (Compl., p. 1.) It also specifically alleges that Plaintiff is unaware of the identities of Does 1 through 50. (Compl., ¶ 6.) The Complaint also alleges a valid cause of action against each Doe Defendant, as it alleges Does 1 through 50 and the Avalos Defendants were in control of the subject vehicle and that Defendants Epifanio Peter Avalos and Does 1 through 50 provided Defendant Emigdio Vicente Avalos with the subject vehicle that led to the accident and the death of Decedent. (Compl., ¶¶ 26, 30-35.)

Moreover, the Court can only consider defects that appear on the face of the Complaint or from matters outside the Complaint that are subject to judicial notice. (Blank, supra, 39 Cal.3d at p. 318.) Yellow Cab’s demurrer is a “speaking demurrer,” i.e., asserting facts and arguments based on evidence outside the scope of the Complaint. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The Traffic Collision Report Yellow Cab is not mentioned in the Complaint and Yellow Cab did not request the Court take judicial notice of it or any other extrinsic evidence presented in support of the demurrer. Therefore, the purported picture of the subject vehicle and Traffic Collision Report are outside the scope of this demurrer and are not properly before the Court.

Furthermore, whether Plaintiff had the ability to access the Traffic Collision Report or photograph of the subject vehicle is irrelevant. The relevant inquiry is whether Plaintiff had actual knowledge, not constructive knowledge, regarding Yellow Cab’s identity or liability. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 943–944 [“The fact that the plaintiff had the means to obtain knowledge is irrelevant.”].) There is nothing on the face of the Complaint that shows Plaintiff lacked actual knowledge and Yellow Cab did not request judicial notice of any other matters for the Court to make such a determination.

CONCLUSION AND ORDER

Therefore, the Court OVERRULES Yellow Cab’s demurrer. Yellow Cab shall file an Answer to the Complaint within 10 days of the hearing on the demurrer.

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