I. Background 

On October 9, 2023, Case No. 21STCV12326 was consolidated with Case Nos. 21STCV22180, 21STCV23203, 21STCV23173, 21STCV25523 and 21STCV24684. On February 5, 2023, Case No. 21STCV24684 settled.  

In brief, the consolidated actions are described as follows: (1) Reginald Dyer v. Flynt Management Group, LLC dba Larry Flynt’s Lucky Lady Casino, Case No. 21STCV12326 (the “Dyer Action”), (2) Karen Luu v. Larry Flynt’s Lucky Lady Casino and Flynt Management Group, LLC, Case No. 21STCV22180 (the “Luu Action”), (3) Tejuan Dunn v. Larry Flynt’s Lucky Lady Casino dba Flynt Management Group, LLC, Case No. 21STCV23203 (the “Dunn Action”), (4) Jasmine Richardson, et al. v. Flynt Management Group, LLC dba Larry Flynt’s Lucky Lady Casino, Case No. 21STCV23173 (the “Richardson Action”), and (5) Tiffni Denise Phillips v. Flynt Management Group, LLC and Larry Flynt’s Lucky Lady Casino, Case No. 21STCV25523 (the “Phillips Action”).  

Roessler Design Group (“RDG”) now demurs to the entirety of Apex Mechanical Services, Inc.’s (“Apex”) First Amended Cross-Complaints (FACC) on the grounds that the causes of actions are barred by failure to comply with CCP § 411.35, laches, and the statute of limitations. The FACC sets forth six causes of action for (1) negligence, (2) implied indemnity, (3) equitable indemnity, (4) apportionment, (5) contribution, and (6) declaratory relief premises on a roof collapse that occurred on July 15, 2019.  

Apex opposes the motion, and RDG filed a reply.  

First, RDG argues Apex failed to serve it with the certificate of merit prior to filing its cross-complaint, because the certificate of merit was filed a year later. RDG contends the failure to attach a certificate of merit with its original cross-complaint in 2022 is suggestive that Apex did not consult with a professional prior to filing and service. Second, RDG contends Apex is barred by the doctrine of laches because Apex delayed in the service of its cross-complaints without good cause, and that RDG is therefore prejudiced. Third, RDG argues Apex is barred by the statute of limitations because Apex has failed to bring a claim against RDG within two years of discovery.  

RDG also contends it is a dissolved corporation, in which decedent Jeffrey Roessler (“Roessler”) was the sole employee, officer, and shareholder. Roessler is survived by his wife, Jenniffer Roessler, who is the only agent for service of process, and is assisting in the wind-up and dissolution of the corporation. 

Apex contends it cured the certificate of merit defect by way of filing an amended cross-complaint, and that it also filed a certificate of merit against RDG in December 2020, which demonstrates that Apex had consulted a professional long before the Dunn and Luu cross-complaints. Additionally, Apex argues it did not unreasonably delay, because any delays in serving RDG occurred because RDG’s counsel did not accept service of the cross-complaint, forcing Apex to attempt service by complication. Apex avers that the death of Roessler and RDG’s service agent moving from the state has complicated service of its cross-complaint, and that RDG’s changed position eventually agreeing to accept service contributed to the delay in service. Further, Apex argues RDG has suffered no prejudice, because RDG has been defending claims arising from the incident since September 2020. Lastly, Apex contends the statute of limitation argument fails because the FACC raises equitable claims that do not fall within the cited statute of limitations for personal injuries or oral contracts.  

RDG contends it was not authorized to accept service of the cross-complaints in April 2022, and reiterates the same arguments.  

II. Request for Judicial Notice 

Apex requests the Court take judicial notice of (1) RDG’s Answer to Apex’s cross-complaint in the Dyer matter filed on January 4, 2022, (2) RDG’s Answer to Apex’s cross-complaint in the Richardson matter, filed on December 29, 2023, (3) Apex’s cross-complaint filed in the Richardson matter filed on December 4, 2023, (4) Apex’s FACC (for the Luu and Dunn Actions) filed on November 28, 2023, (5) Declaration of Matthew J. Yarling In Support of Apex’s Motion for Order to Serve the Secretary of State on Behalf of Cross-Defendant Roessler, filed in the Dunn Action on January 11, 2023, (6) this Court’s Register of Actions, and all dated filings included therein, (7) Complaint in Jamilah McDowell et al vs. Flynt Management Group, Apex Mechanical, Roessler Design Group, Los Angeles Superior Court Case No. 208TLC08031 (“McDowell Action”), (8) Apex’s cross-complaint against Roessler and the Casino filed on November 12, 2020 in the McDowell Action, (9) Apex’s certificate of Merit filed against Roessler on December 14, 2020, in the McDowell Action, and (10) Roessler’s answer to Apex’s cross complaint filed in the McDowell Action on January 19, 2021. 

The requests are granted to the extent as to the existence of the documents, but not to the contents or the truth of the matters therein. (Johnson & Johnson v. Sup. Ct. (2011) 192 Cal.App.4th 757, 768 [Judges can take judicial notice of the existence of such documents, but cannot take judicial notice of hearsay statements asserted in court filings].)  

III. Demurrer 

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).)   

The Court finds RDG has fulfilled this requirement prior to filing the demurrer.   

A demurrer is concerned with only the four corners of the pleading (and any exhibits and attached by reference) and matters judicially noticeable. Any factual arguments about Roessler’s death and his wife’s lack of connection to RDG, as being the agent of process and the person assisting in the corporation’s wind-up, is outside the scope of a demurrer. A dissolved corporation continues to exist for the purpose of defending actions against it and to discharge its obligations. (Cal. Corp. Code, § 2010.) It is sufficient for the FACC to allege that RDG was a corporation duly organized and qualified to do business in the State of California and that each cross-defendant was the agent, servant, and/or employee of each of the other cross-defendant. (FACC. at ¶¶ 3, 6.).  

CCP § 411.35 states: 

(b) A certificate shall be executed by the attorney for the plaintiff or cross-complainant declaring one of the following: 

In ruling upon demurrers, judges “consider matters shown in exhibits attached to the complaint and incorporated by reference.” Here, the certificate of merit was incorporated as part of Apex’s FACC as Exhibit “1.” In terms of timing, CCP § 411.35(a) states the attorney for the cross-complainant shall file and serve the certificate either on or before the date of service of the cross-complaint. Because the certificate of merit is incorporated as part of the FACC, and Apex made attempts to serve RDG notwithstanding the difficulties presented, the Court cannot say that service of the certificate of merit is untimely.  

The Court is not persuaded by RDG’s contention that Apex failed to make a bona fide attempt to consult with a professional before filing its cross-complaint, because Apex filed the certificate of merit over a year after it filed its initial cross-complaint against RDG in 2022. An amended pleading supersedes the prior one, and the original ceases any function as a pleading. (State Comp. Ins. Fund v. Superior Ct. (2010) 184 Cal. App. 4th 1124, 1130.) Thus, in reviewing the FACC on its face, there is no apparent delay in creating the certificate of merit or its service on the notion that Apex cured this deficiency in its amended cross-complaint. RDG casts doubt on Apex’s contention that it could not have possibly consulted with a professional in 2020, because the Dunn and Luu Actions did not exist until 2021. However, the roof collapse occurred in 2019, and it is not “impossible” for a professional to investigate and be knowledgeable about the incident prior to any party filing suit, especially when the factual basis for any potential lawsuit is apparent here. Additionally, there is no evidence that Apex’s underlying consultant lacked knowledge of the action, especially when the applicable code section expressly provides that the attorney submitting the certificate under (b)(1) or (b)(2) has the privilege to refuse disclosure of the identity or the contents of the professional consulted. (CCP § 411.35(e).)  

RDG argues the declaratory relief sought by Apex is barred by the doctrine of laches, because Apex unreasonably delayed in asserting its equitable rights, causing prejudice to RDG. RDG argues it is “unable to outline specific prejudice” because it is ignorant as to the discovery that has occurred in the case, but that “RDG’s very ignorance is itself exemplary of the prejudice that RDG will suffer if it is made a party to this case.” (Dem. At p. 13, lines 5-8.) This argument is unavailing. RDG has been a party to the action, as a cross-defendant, ever since it filed its Answer to Apex’s original cross-complaint on January 4, 2022. Further, in terms of arguments related to delay of filing the cross-complaint and service by publication, Apex’s FACC is premised upon the same factual underpinnings as the various complaints filed by the plaintiffs in the actions, in which RDG has also been named as a defendant. RDG’s prejudice argument is premised on unknown discovery and limited trial preparation. However, any discovery to be sought by Apex doubtlessly shares substantive crossovers with those sought by the plaintiffs. Additionally, this matter has now been consolidated with the other related actions. RDG can make a request for prior pleadings from the current parties to the action in order for it to receive any and all discovery that has already progressed since the inception of the cases. RDG cannot claim ignorance and prejudice when it has failed to diligently utilize the discovery mechanisms available to it.  

Accordingly, the Court finds that the FACC is not barred by the doctrine of laches.  

Here, the FACC alleges the following salient facts. Plaintiffs sued Apex for injuries and damages sustained because of a roof collapse incident that occurred on July 15, 2019 at the Lucky Lady Casino. (FACC at ¶ 11.) Apex proposed to Casino the replacement of certain air handling units at the subject property, which included RDG as the named structural engineer. (Id. at ¶15.) Apex and RDG did not execute a written contract for the project. (Id. at ¶ 16.) RDG undertook structural engineering work required to install the air handling units, in addition to field inspection of the subject proper before performing its structural calculations and drafting structural drawings. (Id. at ¶¶ 17-18.) Apex relied on RDG’s expertise as the structural engineer when Apex installed the air handling units, and upon information and belief, the incident occurred because two air handling units installed fell through the ceiling. (Id. at ¶¶ 20-21.) Apex therefore alleges RDG failed to perform its duties to ensure the property’s roof could handle the weight load of the air handling units, and that RDG breached its duty by failing to perform engineering work within the applicable standards of care. (Id. at ¶¶ 22-23.) 

“‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.’”  (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) 

RDG argues Apex is barred by the two statutes of limitation: (1) CCP § 335.1 (injury or wrongful death caused by the wrongful act or neglect of another must be brought within two years), and (2) CCP § 339 (an action based on a contract not founded upon a writing must be brought within two years). RDG contends the applicable running date must be based on either the incident date of July 15, 2019, or the date Apex was first made aware of liability against it based on the June 22, 2021 complaint in the Dunn Action. RDG argues Apex failed to serve RDG its cross-complaints within two years of either July 15, 2019 or June 22, 2021, and that Apex is therefore barred by either of the two statute of limitations period. 

Here, it is not the date of service that is relevant to the statute of limitations, but rather the date of filing. Apex filed its first cross-complaint against RDG on October 25, 2021 in the lead case. The FACC, also filed in the lead case after consolidation, relates back to the date of the original filing of the cross-complaint. This Court, in consideration of RDG’s argument that Apex must have brought its claim against RDG within two years of June 22, 2021 at latest, finds that Apex has met its obligation in this regard by filing its initial cross-complaint against RDG on October 25, 2021. However, the Court notes the deficiency of this contention that Apex had notice of the Dunn Action by way of the filing of the complaint, yet Plaintiff Dunn did not serve Apex with the complaint until March 2, 2022. Thus, RDG has not demonstrated that Apex is barred by any applicable two-year statutes of limitation period. Additionally, as it relates to the remaining indemnity causes of action, unlike the plaintiff's claim, indemnity claims do not accrue for statute of limitations purposes when the original accident occurs, but instead accrues at the time that the tort defendant pays a judgment or settlement as to which he is entitled to indemnity. (People ex rel. Dep't of Transportation v. Superior Ct. (1980) 26 Cal. 3d 744, 748.)  

IV. Conclusion 

Based on the foregoing, RDG’s demurrer to Apex’s FACC is overruled in its entirety.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 20th day of February 2024