Judge Peter A. Hernandez, Case Number: 23PSCV02834, Date: 2023-12-13 Tentative Ruling

Plaintiff Oscar Rideau, a minor, by and through his Guardian Ad Litem Javen Frausto (“Plaintiff”) alleges as follows:

On August 9, 2013, Plaintiff sustained injuries after a baked goods cabinet fell on him.

On April 5, 2018, Plaintiff filed a complaint, asserting causes of action against Defendants Smart & Final, LLC, Smart & Final Stores, LLC, Smart & Final Properties I, LLC, The Bread Factory Artisans, Inc. (“BFA”) and Does 1-100 for:

On July 12, 2019, Smart & Final, Inc. and Smart & Final Stores, LLC (erroneously sued as Smart & Final, LLC and Smart & Final Properties I, LLC) (collectively, “Smart & Final”) filed two “Amendment[s] to [Cross-]Complaint,” wherein BFA was named in lieu of Roe 1 and The Bread Factory, Inc. was named in lieu of Roe 2.

On September 26, 2019, this case was transferred from Department 5 of the Personal Injury Courts to this instant department.

On November 25, 2019, Smart & Final filed a First Amended Cross-Complaint, asserting causes of action against Roes 1-50 for:

On December 17, 2019, BFA filed a cross-complaint, asserting causes of action against Smart & Final and Roes 1-20 for:

On September 27, 2023, the court related Case Nos. BC700926 and 23PSCV02834 and deemed Case No. BC700926 to be the lead case.

A Status Conference Re: Related Cases is set for January 31, 2024. A Motion to Consolidate is also scheduled for January 31, 2024.

On September 14, 2023, Plaintiff filed a complaint, asserting a cause of action against Smart & Final LLC, Smart & Final Stores, LLC, The Bread Factory Artisans, Inc. (“Bread Factory”) and Does 1-100 for:

On November 13, 2023, Smart & Final Stores, LLC (erroneously sued as Smart & Final, LLC) filed a cross-complaint, asserting causes of action against Bread Factory and Roes 1-50 for:

On September 27, 2023, the court related Case Nos. BC700926 and 23PSCV02834 and deemed Case No. BC700926 to be the lead case.

A Case Management Conference and a Status Conference Re: Related Cases are set for January 31, 2024.

A demurrer may be made on the grounds that there is another action pending between the same parties on the same cause of action and/or that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subds. (c) and (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

BFA demurs, per Code of Civil Procedure § 430.10, to the entirety of Plaintiff’s complaint.

1. Grant as to Exhibit A (i.e., complaint filed April 5, 2018 in case styled Rideau v. Smart & Final LLC, et al., Case No. BC700926 [“Action I”]);

2. Granted as to Exhibit B (i.e., “Plaintiff Oscar Rideau’s Notice of Motion and Motion for Leave to File his First Amended Complaint” filed June 27, 2023 in Action I);

3. Granted as to Exhibit C (i.e., August 9, 2023 minute order in Action I); and,

4. Granted as to request to take judicial notice of the court’s entire docket in Action I.

At the outset, the court declines Plaintiff’s request to stay this action pending the outcome of Plaintiff’s writ filed in Case No. BC700926.

BFA first asserts that Plaintiff’s complaint should be sustained in its entirety, on the basis that it is a sham pleading designed to circumvent the court’s prior order in BC700926.

The sham pleading doctrine is not applicable here. “Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425; see also Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151 [“If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations”]. )

BFA cites to Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336 in support of its statement that the sham pleading doctrine “applies not only to an amended pleading filed in the same action, but also to the first pleading filed in a separate action.” In Larson the plaintiff filed an initial complaint for medical negligence, professional negligence, battery and intentional infliction of emotional distress. (Id. at 340). Plaintiff thereafter filed a First Amended Complaint (“FAC”) which dropped the claims for medical negligence and professional negligence, but alleged claims for assault, battery, and intentional infliction of emotional distress. (Id. at 341). Defendants demurred to the FAC, which the trial court sustained with leave to amend on the bass that plaintiff failed to allege sufficient facts to show he did not consent to the anesthesiologist’s conduct because his alleged injuries occurred when the anesthesiologist provided medical care. (Id.)

Plaintiff voluntarily dismissed the action without prejudice (rather than amend his pleading) and, eight months later, filed a second action, asserting claims for battery and intentional infliction of emotional distress, but omitting many of the specific facts he alleged in the first action (including that defendant Shuman was the anesthesiologist on plaintiff’s kidney stone surgery and that plaintiff’s alleged injuries occurred as defendant Shuman administered anesthesia for the surgery). (Id.)

The trial court in the second action sustained defendants’ subsequent demurrers without leave to amend on statute of limitations grounds. (Id. at 342). The court of appeal determined, inter alia, that the trial court properly considered plaintiff’s complaints from the earlier action in considering whether plaintiff’s claims were based on professional negligence (and thus governed by the one-year statute of limitations espoused in Code of Civil Procedure § 340.5, rather than the two-year limitations in § 335.1 applicable to personal injury claims), stating that “[plaintiff] is bound by the allegations of his complaints in the Earlier Action because he omitted facts the trial court relied on in sustaining [Defendants’] earlier demurrers without providing an explanation for the omissions. The trial court therefore properly considered the allegations from [plaintiff’s] earlier complaints when ruling on the demurrers in this action.”

The issue in Larson, then, was whether plaintiff attempted to circumvent the court’s ruling on defendants’ demurrer to plaintiff’s FAC in the first action by dismissing the first action and subsequently filing a second action which omitted facts previously plead in the first action, without explanation. The instant case does not involve a scenario where Plaintiff, in an attempt to avoid a demurrer, pled facts or positions in the instant complaint that contradict the facts or positions that Plaintiff pled in the first action or suppressed facts that prove the pleaded facts false. The sham pleading doctrine is inapplicable.

Next, BFA contends that the court should sustain its demurrer to Plaintiff’s entire complaint and stay the action on the basis that there is another action pending between the same parties on the same cause of action. “A plea in abatement pursuant to section 430.10, subdivision (c), may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787.) “[W]here the court determines there is another action pending raising substantially the same issues between the same parties, it is to enter the interlocutory judgment specified in Code of Civil Procedure section 597.[1]” (Leadford v. Leadford (1992) 6 Cal.App.4th 571, 574 [emphasis added].) “Abatement of the second action is a matter of right. A trial court has no discretion to allow the second action to proceed if it finds the first involves substantially the same controversy between the same parties.” (Id.)

“In determining whether the causes of action are the same for purposes of pleas in abatement, the rule is that such a plea may be maintained only where a judgment in the first action would be a complete bar to the second action.” (Plant Insulation, supra, 224 Cal.App.3d at 787.) “Causes of action are considered the same if based on the same primary right.” (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 325.) “[U]nder the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.)

Here, a comparison of the complaint in this instant case and the complaint in Case No. BC700926 (RJN, Exh. A) reflects that the cases involve the same issues, parties and injury allegations. Plaintiff concedes that the cases “derive from the same set of fact[s] and the same parties.” (Opp., 3:18-19). The only difference between the two actions is this action includes a claim for products liability whereas Case No. BC700926 involves claims for premises liability and general negligence. However, the same primary right—Plaintiff’s right to freedom from bodily injury—is involved in both actions.

Plaintiff’s contention that abatement is moot since the two actions have been related ignores that fact that the two actions are separate lawsuits.

The court, then, sustains BFA’s demurrer on the basis of Code of Civil Procedure § 430.10, subdivision (c) and will enter an interlocutory judgment pursuant to section 597.

[1] Section 597 provides, in relevant part, that “where. . . a demurrer based upon subdivision (c) of section 430.10 is sustained. . . an interlocutory judgment shall be entered in favor of the defendant pleading the same to the effect that no trial of other issues shall be had until the final determination of that other action. . .”