Judge Upinder S. Kalra, Case BC709021 2022-12-05 Tentative Ruling

MOVING PARTY: Defendants Greystar California, formerly known as Greystar RS CA, Inc., and ASB Watermarke Owner, LLC

On June 6, 2018, Plaintiffs Lester Singer and Monica Mercado (“Plaintiffs”) filed a complaint against Greystar (“Defendant.”) The complaint alleged six causes of action: (1) Premises Liability, (2) Negligence, (3) Battery, (4) Assault, (5) Assault, and (6) Intentional Infliction of Emotional Distress. The complaint alleges that they were tenants of Watermarke. On February 4, 2018, they visited the 7th Floor, private tenants-only recreational area to meet with some other acquaintances who were also Watermarke tenants. They alleged that on the 7th Floor, unknown individuals aggressively confronted plaintiffs and their acquaintances. Mercado witnessed these unknown individuals beating Singer before fleeing. This physical altercation allegedly caused Singer to suffer major physical injury and both plaintiffs to suffer extreme mental anguish, pain and suffering. Plaintiffs allege on information and belief that the individuals who assaulted Singer were not tenants, but gained access to Watermarke through an Airbnb lodging arrangement.

On July 11, 2022, Plaintiff filed two Amendments to Complaint (Ficititious/Incorrect Name) naming Does 1 and 2 as Greystar RS CA, Inc., and ASB Watermarke Owner, LLC.

On August 18, 2022, Defendants Greystar RS CA, Inc., and ASB Watermarke Owner, LLC, filed the current Motion Quash Service of Summons. Plaintiffs’ Opposition was filed on November 18, 2022. Defendants’ reply was filed on November 28, 2022.

“A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .” (Code Civ. Proc., § 418.10(a).) “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.) “[T]he filing of a proof of service creates a rebuttable presumption that the service was proper” but only if it “complies with the statutory requirements regarding such proofs.” (Id. at 1441-1442.) When a defendant moves to quash service of the summons and complaint, the plaintiff has “the burden of proving the facts that did give the court jurisdiction, that is the facts requisite to an effective service.” (Coulston v. Cooper (1966) 245 Cal.App.2d 866, 868.) “A court lacks jurisdiction over a party if there has not been proper service of process.” (Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.)

Defendants Greystar California, Inc., formerly known as Greystar RS CA, Inc., and ASB Watermarke Owner, LLC., move to quash the service of summons.[1] This is made on the grounds that the newly named Defendants were not served with a copy of the Amendment to the Complaint.

Service on ASB was faulty because it did not contain the Amendment to the Complaint, which brought “Defendant ASB into the case as a party.” (Motion 4: 2-5.) The Declaration of Vanessa C. Whirl indicates that ASB was served on July 18^th, 2022. However, as demonstrated in the Exhibit A, the Amendment to the Complaint was not contained in the document served on Defendant.

The Opposition only discusses the service of Defendant Greystar, and fails to provide any legal argument as to the service of Defendant ASB.

Under CCP § 418.10(a)(1), a defendant may move to quash the service of summons on the grounds that the Court lacks jurisdiction over him or her. Under CCP § 412.20(a), a summons must contain “(2) names of the parties to the action.” Here, because Plaintiffs failed to include the amended complaint, the name of Defendant ASB was not within the summons. Thus, Plaintiffs failed to properly serve the parties. Additionally, under CCP § 418.10(e), “A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.” Thus, the motion was proper.

[1] The Court notes that in reply, Defendants concede that there was confusion regarding Greystar RS CA, Inc.’s name and its former moniker. Thus, “Defendants are not pursuing the Motion to Quash as to those entities.” (Reply 2: 1-2.)

MOVING PARTY: Defendants Greystar California, formerly known as Greystar RS CA, Inc., and ASB Watermarke Owner, LLC

On July 11, 2022, Plaintiff filed two Amendments to Complaint (Ficititious/Incorrect Name) naming Does 1 and 2 as Greystar RS CA, Inc., and ASB Watermarke Owner, LLC.

The Current Motion to Strike was filed on August 17, 2022. The Demurrer was filed on August 18, 2022. Plaintiffs’ Oppositions were filed on November 18, 2022. Defendants’ replies were filed on November 28, 2022.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 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. …. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn 147 Cal.App.4th at 747.)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike 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. (Id., § 436(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Vanessa C. Whirl indicates that counsel attempted to meet and confer with Plaintiffs’ counsel via telephone but “was always answered by an answering service who took information, yet necever received a return call.” (Dec. Whirl, ¶ 5.) Counsel then served Plaintiffs’ counsel with the reasons as to why the amended complaint was insufficient. The parties emailed on August 15^th and 16^th and could not resolve the issues. (Dec. Whirl ¶ 6-7.) This is sufficient for the meet and confer requirements.

Defendant demurs to the Amended Complaint on various grounds. First, Defendant argues that the two Doe Amendments were filed without leave of court. Second, the amended complaint is barred by the statute of limitations. Third, service of summons was insufficient. Fourth, the causes of action for battery, assault, and intentional infliction of emotional distress were insufficiently pleaded.

Defendant argues that under CCP § 472, a party does not need leave of court to amend the pleadings if an answer, demurrer, or motion to strike has not yet been filed, or, if a demurrer has been filed, before the demurrer is heard. If an answer has been filed, the parties may stipulate to an amendment.

Defendant argues that the only causes of action that raise Doe allegations are the third through sixth causes of action. Defendant cites to Austin v. Massachusetts Bonding & Ins. Co. There, the Supreme Court stated “where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts.” (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600.) The causes of action for premise liability and Negligence do not contain Doe allegations and thus are barred as they do not relate-back. (Demurrer 4: 18-24.)

Defendant argues that service of summons was improper. However, Defendants have also filed a Motion to Quash Service of Summons. Thus, the Court will not provide an analysis on this ground as the Court will be providing a separate ruling.

Defendant argues that the causes of action for battery, assault, and intentional infliction of emotional distress all fail. While these causes of action have different elements, the same reasoning as to why one fails applies to all. The Doe Defendants added by Plaintiff are corporate entities. Citing to Brown v. Allstate Ins. Co., Defendants argue that “a corporation is a fictitious legal person ... [that] can act only through its duly constituted organs, primarily its board of directors.” (Brown v. Allstate Ins. Co. (S.D. Cal. 1998) 17 F.Supp.2d 1134, 1139.)

In response, Plaintiffs argue what is essentially a motion for leave to amend. Plaintiffs contend, correctly, that a plaintiff can be ignorant of a defendant’s true name when filing the complaint, as stated in CCP § 474. At the time of the filing, Plaintiffs argue that they were unaware of the defendants. Additionally, Plaintiffs argue that the relation back doctrine only requires that the “same general facts” relate back to the original complaint. (Opp. 6: 9-11, citing to Barrows v. American Motors Corp. (1983) 144 Cal.App.3d, 1, 7.) Plaintiffs also argue that Defendants were not prejudiced as Defendant Greystar has participated in litigation, including discovery. Lastly, Plaintiff argues that they should be able to add the doe amendments, specifically under CCP §473, which allows the court to exercise its discretion.

Plaintiffs are correct that doe amendments are allowable. Contrary to Defendants’ arguments, there is no authority indicating that for a Doe Amendment, a party must file a noticed motion. Specifically, the Rutter Guide states that “In some courts, plaintiff's attorney must prepare an application and order to amend the complaint. In other courts (e.g., Los Angeles), printed forms are available for amendments of this type; all the attorney has to do is fill in the name of the defendant who is being served as one of the “Does.”” (E. Amended and Supplemental Pleadings, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 6-E.)

While Plaintiffs’ amendments were procedurally acceptable, Defendants’ arguments concerning the sufficiency of the causes of action are availing. When looking at the initial complaint, the first two causes of action for Premise Liability and Negligence do not contain any Doe allegations. Both cause of action contain the following phrase: “(By Plaintiffs Against Greystar).” However, the remaining causes of action for Battery, Assault, and Intentional Infliction of Emotional Distress do contain Doe allegations. Thus, when the Plaintiffs filed the amendment to correct a fictitious name, the two new Does, Greystar RS CA, Inc., and ASB Watermarke Owner, LLC, these allegations only concerned causes of action 3 through 6.

Based on the elements of these causes of action, Plaintiffs amendments fail. “The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant's conduct; (4) the plaintiff was harmed; and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Here, with the amendment to add Defendants as Doe 1 and 2, the allegations in the complaint indicate that both corporations touched Plaintiffs during the altercation. While the Complaint contains necessary allegations that Doe Defendants 1-10 committed the assault and battery, the allegations are not sufficient to indicate that either Defendant Greystar or Defendant ASB committed the assault or battery.

Similarly, the complaint fails to allege sufficient facts for an intentional infliction of emotional distress cause of action. Intentional infliction of emotional distress requires the plaintiff to show “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160). The conduct alleged to be outrageous does not rise to the kind courts consider outrageous. Conduct is considered outrageous when it “is so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Id.).

The facts as alleged in the complaint do not indicate that either Defendant committed any conduct, especially the type of conduct that would allow for an IIED claim.

Plaintiff was allowed to file an amendment to correct a fictitious name through the judicial council form. However, because the complaint did not include doe allegations in the first two causes of action, these amendments fail for the remaining cause of action as there are no facts to support any of the causes of action against Defendants. While the Court can only speculate, but based on the facts, it seems that the Plaintiffs want to allege the first two causes of action against Defendants, as the complaint alleges that Greystar owns the Watermarke Tower Apartments, where the alleged altercation took place. The proper procedure would have been for Plaintiff to either file a motion for leave to amend the complaint or an ex parte application to amend the complaint.

The Motion to Strike was “filed in an abundance of caution with a Motion to Quash service of Summons and Complaint. Only in the event of an order denying the Motion to Quash, should this Motion to Strike be considered.”

Defendants also move to strike all causes of action in the Amended Complaint, as the first two causes of action are legally insufficient for these Defendants and the remaining causes of action do not allege facts sufficient for a cause of action, specifically against a corporate entity. According to California Rule of Court 3.1320(i), “If an amended pleading is filed after the time allowed, an order striking the amended pleading must be obtained by noticed motion under Code of Civil Procedure section 1010.”

Plaintiffs argue that because the motion to strike seeks to strike all causes of action, it is procedurally improper because they seek to strike the entire complaint, which is the role of a demurrer.

The Motion to Strike is MOOT, as the Demurrer is SUSTAIEND, as to the entire complaint.

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect. (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.) The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). It is clear that the complaint may be amended.