Judge: Steven A. Ellis, Case: 22STCV29001, Date: 2024-08-16 Tentative Ruling
Case Number: 22STCV29001 Hearing Date: August 16, 2024 Dept: 29
Michael v. Moss & Company
22STCV29001
Motion to Dismiss
Tentative
The motion is denied.
Background
On September 7, 2022, Plaintiff Reda Michael (“Plaintiff”)
filed the complaint in this action against Moss & Company and Does 1
through 10, asserting causes of action for premises liability and negligence
arising out of an incident on August 20, 2021, at the Woodman Apartments on
Woodman Avenue in Arleta in which, Plaintiff alleges, he slipped and fell on
water of the floor on the building.
Plaintiff is a tenant in the building.
On October 24, 2022, Moss Management Services Inc. dba Moss
Management Services (erroneously sued as Moss & Company) (“Moss Management”)
filed an answer to the complaint. On the
same day, Moss Management also filed a cross-complaint against Rightway Apartment
Services, Inc. and Roes 1 through 10.
On November 1, 2022, Plaintiff amended his complaint to name Rightway
Apartment Services, Inc. as Doe 1.
On December 16, 2022, Plaintiff amended his complaint to name
Rightway A Services as Doe 2.
On December 20, 2022, Rightway Apartment Services, Inc. filed
an answer to Moss Management’s cross-complaint.
On January 4, 2023, Rightway Apartment Services, Inc. and
Rightway A Services filed an answer to Plaintiff’s complaint.
On February 14, 2023, Moss Management amended its
cross-complaint to name Rightway A Services as Roe 1.
On May 13, 2024, Plaintiff amended his complaint to name
Woodman Apartments, LLC (“Woodman”) as Doe 3.
On June 3, 2024, Woodman, specially appearing, filed this
motion to dismiss. Plaintiff filed an
opposition on July 3, and Woodman filed a reply on July 11.
The hearing was initially set for July 18 and was continued by
the Court to August 16.
Trial is currently set for September 16, 2024.
Legal Standard
Code of Civil Procedure section 474 provides, in relevant
part:
“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 .…”
In general, an amendment to a pleading to provide the true
name of a Doe defendant relates back to the date the pleading was filed; this
allows a plaintiff, effectively, to extend or enlarge the statute of limitations
period. (Bernson v. Browning-Ferris
Industries (1994) 7 Cal.4th 926, 932.)
For a Doe amendment to relate back to the date of filing of the original
complaint, however, Plaintiff must have been genuinely ignorant of the
defendant’s identity at the time the original complaint was filed. (Woo v. Super. Ct. (1999) 75
Cal.App.4th 169, 177.)
In California, the statute of limitations for a personal
injury action is two years. (Code of Civ. Proc. § 335.1.)
Except in limited circumstances that do not apply here, there
is no statutory authority for a motion to dismiss in California state court. On some occasions, courts have allowed parties
to file non-statutory motions to dismiss.
(E.g.,
Citizens for Parental Rights v. San Mateo Cty. Bd. Of Educ. (1975) 51 Cal.App.3d 1 (affirming grant of a
motion to dismiss); see also 1 Weil & Brown, California Practice Guide:
Civil Procedure Before Trial (2024) ¶¶ 7:370-76 (2000).) Where a non-statutory motion to dismiss is
used as a substitute for a demurrer, the motion is confined to matters
appearing on the face of the complaint, along with judicially noticeable
facts. (1 Weil & Brown, supra,
¶¶ 7:370, 7:376.) But under what moving
party refers to as a Barrows motion, courts have permitted an
evidence-based motion where the motion to dismiss is brought on the ground that
a plaintiff unreasonably delayed in filing a Doe amendment, and the delay is
prejudicial to the defendant. (Barrows
v. American Motors Corp. (1983) 144 Cal.App.3d 1 [considering evidence on
the merits and reversing order of dismissal]; see also A.N. v.
County of Los Angeles (2009) 171 Cal.App.4th 1058, 1069 [affirming
order of dismissal based on evidence of unreasonable delay and prejudice].)
Discussion
Woodman makes essentially two arguments in this motion.
First, Woodman argues that Plaintiff was not in fact genuinely
ignorant of its identity at the time that Plaintiff filed the complaint in
September 2022. This argument, however, is
not the subject of a Barrows motion.
Woodman is not arguing here that there was unreasonable delay causing prejudice;
rather, Woodman is arguing that the causes of action are barred by the statute
of limitations. A statute of limitations
defense may be adjudicated at the pleading stage only when it is based on
allegations appearing on the face of the complaint and judicially noticeable
facts.
Here, Woodman’s statute of limitations argument is not based
on allegations in the complaint and judicially noticeable facts. It is based on evidence. (See Hoffman Decl., ¶¶ 4-7 & Exhs.
A-D.) Woodman is essentially arguing,
with evidence that is not subject to judicial notice, that the allegation in
the complaint that, as of the time of filing, Plaintiff was not aware of the
true name of Doe 3 is false. Such
evidence could be considered on a motion for summary judgment (or at trial),
but it cannot be considered on a demurrer or a non-Barrows motion to
dismiss. In this posture, the Court must
accept the allegations in the complaint as true. Accordingly, Woodman’s motion to dismiss on
statute of limitations grounds is denied.
Second, Woodman argues that Plaintiff unreasonably delayed in filing
the Doe amendment and that the delay is prejudicial to Woodman. This is a Barrows motion, and the
Court may consider the evidence cited by Woodman. The Court has carefully reviewed the evidence
in the record and the arguments of counsel.
The Court begins with the lease and its attachments, which Plaintiff
apparently signed in April 2021.
(Hoffman Decl., Exh. D.) These are
the documents that a tenant would reasonably review and rely on in identifying the
landlord, and these documents refer to “Moss & Company” (the property
manager) prominently. It is signed by
Moss & Company, and the attachments all appear on Moss & Company stationery,
with the logo of Moss & Company featured prominent on each face page. (Id., at pp. 22-37.) Moss & Company is referred to as the “landlord,”
the “lessor,” and the “Owner/Agent.”
(Id., at pp. 23, 27, 29, 31, 35.)
The message provided to Plaintiff is: “Welcome to the Moss & Company
family, It’s Personal!” (Id. at
p. 33.) It is also true that “Woodman Apartments”
is identified in one place as the name of the owner. (Id. at p. 1.) But an ordinary tenant reviewing the lease
contract as a whole would reasonably conclude that they are doing business with
Moss & Company, not “Woodman Apartments” (which is not even identified by
its full and correct legal name). The cc:
on the Notice of Change in Rent and HAP subsidy, sent on a date that is obscured,
does not change that, as there is nothing in this notice that identifies Woodman
as the owner of the property (as opposed to some other entity that the sender
included in the notice). (Hoffman Decl.,
Exh. C.) And the heavily redacted insurance
endorsement, produced in discovery, lacks any context to identify Woodman as
the owner of the property. (Hoffman
Decl., Exh. B.)
The other document cited by Woodman, however, is
unambiguous. In December 2022, Moss
Management produced in discovery a copy of the management contract for the
property. (Hoffman Decl., ¶ 4.) That document plainly identifies Moss
Management as the property manager and Woodman as the property owner, at least
as of 2015, when the document was signed.
(Hoffman Decl., Exh. A.) Although
the document was produced in December 2022, Plaintiff’s counsel did not review
it until after a deposition in this case on May 7, 2024, apparently because of
some error in his office. (Mashney
Decl., ¶¶ 7-8.) It was at the deposition
on May 7 that Plaintiff’s counsel first learned that Woodman was the owner of
the apartment building. (Id., ¶¶ 9-10.) Less than a week later, Plaintiff filed the amendment
naming Woodman as Doe 3.
Plaintiff’s delay (from December 2022 to May 2024) in naming
Woodman is long. The error by Plaintiff’s
counsel, although perhaps understandable, is not reasonable. And, as a result of the delay, Woodman was
added to the case just about four months before trial. Depriving Woodman of the opportunity to
conduct reasonable discovery prior to trial would be prejudicial to Woodman,
even if other parties (including Woodman’s management company, with whom
Woodman may well be closely aligned) have conducted their own discovery.
Having said all of that, however, the Court nonetheless denies
Woodman’s motion to dismiss. There is a
strong public policy in favor of resolution of disputes on the merits, rather
than based on procedural defaults or missteps.
This is a relatively straightforward case with one plaintiff and four
defendants (two defendants are represented by one law firm, and the other two are
represented by one other law firm). To
remedy any unfair prejudice to Woodman that would otherwise arise from its late
addition to the case, Woodman may seek to continue the trial and to reset the discovery
deadlines based on the new trial date; the Court is likely to grant such a motion
(or a stipulation from all parties if all parties agree). As a reasonable continuance – if requested by
Woodman – would remedy the issue of unfair prejudice, the Court concludes that
Woodman has not made a sufficient showing of unreasonable delay and unfair
prejudice that is the basis of its Barrows motion to dismiss. Accordingly, the motion is denied.
Conclusion
The Court DENIES the motion to dismiss filed by Defendant Woodman
Apartments, LLC (Doe 3).
The denial is not a ruling on the merits as to any statute of
limitations defense that Woodman may have.
The denial is based, in part, on the availability of an
alternate remedy to Woodman (a motion or stipulation to continue trial and to
reset the discovery deadlines based on the new trial date) that would fully cure
any unfair prejudice to Woodman.
Moving party to give notice.