Judge: Steven A. Ellis, Case: 22STCV29696, Date: 2024-12-16 Tentative Ruling
Case Number: 22STCV29696 Hearing Date: December 16, 2024 Dept: 29
Tovar v. Brookfield Properties Retail Inc.
22STCV29696
Defendant’s Motion to Strike
Tentative
The motion to strike is denied.
Background
On September 12, 2022, Jose Tovar (“Plaintiff”) filed a
complaint against Brookfield Properties Retail Inc.; Glendale II Mall
Associates, LLC; John Doe; and Does 1 through 25, asserting causes of action
for negligence and premises liability arising out of an alleged trip and fall on
retail premises in Glendale on September 26, 2020.
On April 20, 2023, Glendale II Mall Associates, LLC (for
itself and as erroneously named as Brookfield Properties Retail Inc.) (“Glendale
Mall”) filed an answer.
On May 28, 2024, Plaintiff named The Mitchell Gold Co. as
Doe 1; Allied Universal Executive Protection and Intelligence Service, Inc. as
Doe 2; and G.I. Services, LLC as Doe 3.
On August 1, 2024, G.I. Services, LLC (“GIS”) filed an
answer and cross-complaint against Glendale Mall, Allied Universal Executive
Protection and Intelligence Services, Inc., The Mitchell Gold Co., and Roes 1
through 25.
On August 13, 2024, Plaintiff filed a request to dismiss
the causes of action in the complaint against Allied Universal Executive
Protection and Intelligence Services, Inc. (Doe 2).
On September 9, 2024, GIS filed a request to dismiss the
causes of action in the cross-complaint against Allied Universal Executive
Protection and Intelligence Services, Inc.
On September 18, 2024, Glendale Mall filed a
cross-complaint against GIS, The Mitchell Gold Co., and Roes 51 through 100.
On September 18, 2024, Plaintiff named Universal
Protection Service, L.P. as Doe 4.
On October 16, 2024, GIS filed an answer to Glendale Mall’s
cross-complaint.
On November 12, 2024, Universal
Protection Service, LP dba Allied Universal Security Services (“Universal”) filed
this motion to strike the entirety of Plaintiff’s complaint. Plaintiff filed an
opposition on December 3, and Universal filed a reply on December 9.
Legal
Standard
Under Code of Civil Procedure section 435, “Any party,
within the time allowed to respond to a pleading may serve and file a notice of
motion to strike the whole or any part thereof.” (Code Civ. Proc. § 435, subd.
(b)(1).)
Code of Civil Procedure section 436 provides as follows:
“The court may, upon a motion made pursuant to Section
435, or at any time in its discretion, and upon terms it deems proper:
(a) Strike out any irrelevant, false, or
improper matter inserted in any pleading.
(b) Strike out all or any part of any
pleading not drawn or filed in conformity with the laws of this state, a court
rule, or an order of the court.”
(Code Civ. Proc., § 436.) In ruling on a motion to
strike, the court must assume the truth of the properly pleaded facts in the
complaint or other pleading. (Turman v. Turning Point of Central California,
Inc. (2010) 191 Cal.App.4th 53, 63.)
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 …, 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.)
As the Court of Appeal has explained, in determining whether a
plaintiff is “ignorant of the name of a defendant” under section 474:
“The
test is whether, at the time the complaint was filed, the plaintiff was
ignorant of the facts giving [her] a cause of against the person. The focus is
on the fact that the plaintiff knew, not on whether the plaintiff subjectively
knew she had a cause of action based on those facts. While the plaintiff’s
ignorance must be genuine, and the plaintiff cannot claim ignorance simply
because she did not know all the details of the person’s involvement, the
plaintiff is not barred from invoking section 474 merely because she suspected
the person of wrongdoing based on an incomplete set of facts.”
(Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th
895, 899-900 [citations omitted]; see also, e.g., McClatchy v. Coblentz,
Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 374 [plaintiff
must have “knowledge of sufficient facts to cause a reasonable person to
believe liability is probable”]; General Motors Corp. v. Super. Ct.
(1996) 48 Cal.App.4th 580, 585 [plaintiff may rely on section 474 even if he
has a “suspicion of wrongdoing” by defendant].)
The test is actual ignorance. For purposes of section 474, a
plaintiff has no “duty to exercise reasonable diligence to obtain facts she
‘should have known.’” (Hahn, supra, 77 Cal.App.5th at p. 900; accord
General Motors, 48 Cal.App.4th at pp. 594-596.)
Section 474 is to be “liberally construed” in favor of the
pleader. (General Motors, 48 Cal.App.4th at p. 593 [collecting cases].)
In California, the statute of limitations for a
personal injury action is two years. (Code Civ. Proc., § 335.1.)
Request
for Judicial Notice
Universal requests
judicial notice of certain documents in the court file. The request is granted.
Discussion
As a preliminary matter, the Court finds that
the requirements of Code of Civil Procedure section 435.5 are satisfied. (Frimpong Decl., ¶ 9.)
Universal moves to strike the entirety of
Plaintiff’s complaint (as against Universal) based on essentially three
arguments.
First, Universal argues that Plaintiff improperly
amended the complaint without leave of Court.
(Mem., at pp. 6-7.) But the standard practice for Doe amendments in Los
Angeles County Superior Court is to use Form LASC LACIV 105, for which no court
order is required. (See 1 Weil & Brown,
California Practice Guide: Civil Procedure Before Trial [2024] ¶ 6:613.)
Second, Universal argues that that statute of
limitations has run on the causes of action asserted against it. (Mem., at p. 8.) But Doe amendments relate back to the date the original pleading
was filed, which here was before the statute of limitations expired. (See Bernson,
supra, 7 Cal.4th at p. 932.) Universal
argues that Plaintiff did not properly or timely amend the complaint to name it
as Doe 4, but Code of Civil Procedure section 474 allows the use of a Doe
designation when a plaintiff is actually “ignorant” of the true name of a
defendant when the complaint is filed.
(Code Civ. Proc., § 474; see also Woo, supra, 75 Cal.App.4th at
p. 177.) On a motion to strike, the
Court accepts the allegations in the complaint as true, and here Plaintiff
included in the complaint proper allegations to support the designation of Doe
defendants. (Complaint, ¶ 4.)
The ruling on this motion to strike is without prejudice as to
any motion by Universal for summary judgment based on the statute of
limitations (or other applicable grounds).
Third, Universal argues that it would be unfairly prejudiced
by being added to the case at this stage of the proceedings. (Mem. at pp. 8-10.) But here, trial is scheduled for July 8,
2025, providing Universal with adequate time to conduct discovery and prepare
for trial (or to seek a continuance of the trial date if it can show good cause). This is not similar to A.N. v. County of
Los Angeles (2009) 171 Cal.App.4th 1058, in which the plaintiff’s delay in
naming Doe defendants would have resulted in new defendants being prejudiced by
being added to “this spinning vortex shortly before trial.” (Id. at 1069.)
Accordingly, the motion to strike is denied.
Conclusion
The Court DENIES the motion to strike filed by Defendant Universal
Protection Service, LP.