Judge: William A. Crowfoot, Case: 18STCV08209, Date: 2023-02-07 Tentative Ruling

Case Number: 18STCV08209    Hearing Date: February 7, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

I.            INTRODUCTION

Plaintiffs America Fuji Healthware Inc. (“AFH”) and Cui Ping Ji (“Ji”) filed this premises liability action on December 13, 2018. The First Amended Complaint (“FAC”) was filed on March 1, 2019. On October 29, 2021, Plaintiffs filed an amendment to the complaint, naming Robert Chanh Phu Diep as Doe 6.

On May 26, 2022, this Court sustained Defendants L.B.G.D. Investment Inc. and Bing Liu’s demurrer to Plaintiff’s FAC as to the first and third causes of action for negligence and products liability. Plaintiffs filed the operative Second Amended Complaint (“SAC”) on June 16, 2022, alleging two causes of action for (1) general negligence and (2) premises liability.

This action arises out of a fire that occurred on December 15, 2016, at the commercial real property located at Unit #’s 301–327 E. Garvey Ave., Monterey Park, California 91754 (the “Premises”). Plaintiffs were tenants of units 312 & 315 (AFH) and 317 (Ji). The fire allegedly began in a restaurant owned by and managed by Defendants (the “Restaurant”). The fire spread from the Restaurant through the Premises, including Plaintiffs’ units, and destroyed their entire personal/business contents.

On November 14, 2022, Defendant Robert Chanh Phu Diep (“Defendant”) filed the instant demurrer as to both causes of action, alleging that the cause of action is barred by the two-year statute of limitations.

II.          LEGAL STANDARD

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.¿(City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.        DISCUSSION

Defendant argues that the demurrer should be sustained because the SAC is barred by the two-year statute of limitations, and the initial filing does not toll the statute of limitations because Plaintiffs failed to make minimum efforts to identify Defendant, and Defendant will be prejudiced by being forced to join the legal action at this point.

The statute of limitations for negligence and premises liability actions is two years. (Code Civ. Proc. § 335.1.) The fire occurred on December 15, 2016. The original complaint was filed on December 13, 2018. The First Amended Complaint (“FAC”) was filed on March 1, 2019. On October 29, 2021, Plaintiffs filed an amendment to the complaint, naming Robert Chanh Phu Diep as Doe 6. Plaintiffs filed the operative Second Amended Complaint (“SAC”) on June 16, 2022.

“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.” (Code Civ. Pro. § 474.) A section 474 amendment identifying a person or entity as a “Doe” defendant “relates back” to the commencement of the action for statute of limitations purposes, so long as the amended complaint is based on the “same general set of facts.” (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600.)

Defendant argues that the statute of limitations should not be tolled because Plaintiffs knew right after the fire that the fire occurred at the Restaurant, and that they could have figured out the owner or manager of the Restaurant. Bu the fact that there were means by which plaintiff could have determined the identity of a “Doe” defendant is irrelevant for the purposes of relation back. (General Motors v. Superior Court (1996) 48 Cal.App.4th 580, 596.)

Finally, Defendant’s arguments that he will suffer prejudice if he is forced to join this action five years after the fire are not persuasive.  It makes no difference that the person served had no notice of the action before the statute ran, nor that the lapse of time may have prejudiced their ability to defend the action (e.g., it may be more difficult for them to locate witnesses, obtain physical evidence, etc.). The statutory scheme represents “a satisfactory compromise between the harsh effect on a plaintiff of the statute of limitations and the unfairness to a defendant of attempting to litigate a stale claim.” (Sobeck & Assocs., Inc. v. B & R Investments Number 24 (1989) 215 Cal.App.3d 861, 870.)

Thus, Defendant’s demurrer is overruled.

IV.         CONCLUSION

Defendant’s demurrer is overruled.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.