This case was last updated from Los Angeles County Superior Courts on 06/17/2019 at 13:07:56 (UTC).

AGRIPINA MORA ET AL VS FREDY A HERNANDEZ MONTEROSSA ET AL

Case Summary

On 03/03/2016 AGRIPINA MORA filed a Personal Injury - Other Personal Injury lawsuit against FREDY A HERNANDEZ MONTEROSSA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH C. HOFER and MICHELLE WILLIAMS COURT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2696

  • Filing Date:

    03/03/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RALPH C. HOFER

MICHELLE WILLIAMS COURT

 

Party Details

Plaintiffs, Petitioners and Guardian Ad Litems

MORA AGRIPINA

VARZHAPETYAN SIRAPPI

HEIN ANTHONY JERRY

Defendants, Respondents, Cross Defendants and Cross Plaintiffs

DOES 1 THROUGH 20

INGENIOUS ASSET GROUP INC.

GARCIA FABIOLA

MONTEROSSA FREDY A. HERNANDEZ

7-ELEVEN INC.

7-ELEVEN INC. A TEXAS CORPORATION

GARCIA AN INDIVIDUAL FABIOLA

PORTER RANCH PROPERTIES LLC

INGENIOUS ASSET GROUP INC. A CALIFORNIA CORPORATION

Minor

VALDEZ YOLANDA

Others

THE DOMINGUEZ FIRM INC.

MAXIMUM LEGAL (CALIFORNIA) LLP

14 More Parties Available

Attorney/Law Firm Details

Minor, Plaintiff and Petitioner Attorneys

LAYFIELD & BARRETT APC

TAILLIEU OLIVIER ALAIN

OLIVER A. TAILLIEU

MAXIMUM LEGAL CALIFORNIA LLP

TAILLIEU OLIVER A.

MITCHELL TIMOTHY PAUL

VRASTIL TIMOTHY RICHARD

LAVINE AARON M. ESQ.

Defendant and Respondent Attorneys

DEGRAVE DOUGLAS M.

GIBBS MATTHEW S ESQ.

MALLORY GEORGE L. JR. ESQ.

THARPE & HOWELL THE LAW OFFICES OF

GEORGE L. MALLORY JR. & ASSOCIATES

PEARL NORMAN L.

THARPE & HOWELL LLP

DEGRAVE DOUGLAS MICHAEL

POLIQUIN & DEGRAVE LLP

NIEMEYER TREVIS JOSEPH

GEORGE L MALLORY JR & ASSOCIATES

Defendant and Cross Defendant Attorney

GEORGE L MALLORY JR & ASSOCIATES

Other Attorneys

PACHULSKI STANG ZIEHL & JONES LLP

8 More Attorneys Available

 

Court Documents

Proof of Service (not Summons and Complaint)

6/21/2016: Proof of Service (not Summons and Complaint)

Unknown

7/25/2016: Unknown

Unknown

8/17/2016: Unknown

Unknown

5/9/2017: Unknown

Unknown

8/9/2017: Unknown

Unknown

9/6/2017: Unknown

Notice of Related Case

3/19/2018: Notice of Related Case

Motion for Summary Judgment

3/23/2018: Motion for Summary Judgment

Motion for Summary Judgment

3/23/2018: Motion for Summary Judgment

Unknown

5/4/2018: Unknown

Unknown

5/25/2018: Unknown

Ex Parte Application

11/2/2018: Ex Parte Application

Minute Order

2/22/2019: Minute Order

Response

5/17/2019: Response

Unknown

5/5/2016: Unknown

ANSWER OF FABIOLA GARCIA TO CROSS-COMPLAINT OF INGENIOUS ASSET GROUP, INC

7/20/2016: ANSWER OF FABIOLA GARCIA TO CROSS-COMPLAINT OF INGENIOUS ASSET GROUP, INC

ANSWER TO CROSS COMPLAINT FOR INDEMNITY, EQUITABLE APPORTIONMENT AND DECLARATORY RELIEF

9/21/2016: ANSWER TO CROSS COMPLAINT FOR INDEMNITY, EQUITABLE APPORTIONMENT AND DECLARATORY RELIEF

ANSWER OF 7-ELEVEN, INC. AND FABIOLA GARCIA TO CROSSCOMPLAINT OF PORTER RANCH PROPERTIES, LLC

10/7/2016: ANSWER OF 7-ELEVEN, INC. AND FABIOLA GARCIA TO CROSSCOMPLAINT OF PORTER RANCH PROPERTIES, LLC

322 More Documents Available

 

Docket Entries

  • 06/14/2019
  • at 09:00 AM in Department D; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 06/13/2019
  • at 09:00 AM in Department D; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 05/29/2019
  • at 08:30 AM in Department D; Order to Show Cause Re: (Mandatory Settlement Conference) - Not Held - Vacated by Court

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  • 05/29/2019
  • at 08:30 AM in Department D; Order to Show Cause Re: (Mandatory Settlement Conference) - Not Held - Advanced and Continued - by Court

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  • 05/28/2019
  • Return Mail As To: Aaron M. Lavine, Esq. Layfield & Barrett, APC 633 W. 5th Street, Suite 3300 Los Angeles, CA 90071; Filed by Clerk

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  • 05/28/2019
  • Demurrer - without Motion to Strike; Filed by PORTER RANCH PROPERTIES, LLC (Cross-Defendant); INGENIOUS ASSET GROUP, INC., a California Corporation (Defendant)

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  • 05/28/2019
  • Return Mail As To: Layfield & Barrett, APC Lavine, Aaron 633 West 5th Street, Suite 3300 Los Angeles, CA 90071; Filed by Clerk

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  • 05/28/2019
  • RETURNED MAIL; Filed by Clerk

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  • 05/28/2019
  • Demurrer - without Motion to Strike; Filed by 7-ELEVEN, INC. (Defendant); FABIOLA GARCIA (Defendant)

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  • 05/28/2019
  • Motion to Continue Trial Date; Filed by PORTER RANCH PROPERTIES, LLC (Cross-Defendant); INGENIOUS ASSET GROUP, INC., a California Corporation (Defendant)

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560 More Docket Entries
  • 03/14/2016
  • Summons Issued; Filed by Clerk

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  • 03/11/2016
  • Ord Apptng Guardian Ad Litem; Filed by Plaintiff/Petitioner

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  • 03/11/2016
  • Ord Apptng Guardian Ad Litem (FOR YOLANDA VALDEZ ); Filed by Attorney for Pltf/Petnr

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  • 03/03/2016
  • COMPLAINT FOR DAMAGES 1. NEGLIGENCE; ETC

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  • 03/03/2016
  • Civil Case Cover Sheet

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  • 03/03/2016
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 03/03/2016
  • Complaint; Filed by ANTHONY JERRY HEIN (Plaintiff); AGRIPINA MORA (Plaintiff)

    Read MoreRead Less
  • 03/03/2016
  • Complaint

    Read MoreRead Less
  • 03/03/2016
  • Application-Miscellaneous (FOR YOLANDA VALDEZ GUARDIAN AD LITEM(COPY) ); Filed by Attorney for Pltf/Petnr

    Read MoreRead Less
  • 03/03/2016
  • Application ; Filed by Plaintiff/Petitioner

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Tentative Rulings

Case Number: BC612696    Hearing Date: January 03, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 4

Date: 1/3/19

Case No: BC 612696 Trial Date: March 16, 2020

Case Name: Mora v. Monterossa, et al.

DEMURRERS (2)

MOTION TO STRIKE

[CCP §430.10 et. seq.]

Moving Party: Defendants 7-Eleven, Inc. and Fabiola Garcia

Defendants Ingenious Asset Group, Inc.

Responding Party: Plaintiff Sirarpi Varzhapetyan

RELIEF REQUESTED:

Sustain demurrer to second cause of action of First Amended Complaint

Strike second cause of action, relation back allegations

CAUSES OF ACTION: from First Amended Complaint

1) Negligence v. Monterossa

2) Premises Liability v. Ingenious Asset Group, 7-Eleven, Inc.

SUMMARY OF FACTS:

Plaintiff Sirarpi Varzhapetyan originally filed a form complaint, alleging that on February 13, 2015, at an intersection in Glendale, defendant Fredy A. Hernandez Monterossa operated a motor vehicle negligently and was the legal cause of injuries and damages to plaintiff.

The pleading alleged that Doe defendants operated the vehicle, employed the person who operated the vehicle, owned or entrusted the vehicle, or are liable to plaintiff for other reasons.

Moving defendants 7-Eleven, Inc. and Fabiola Garcia were added to this matter as Doe 46 and Doe 48. Moving defendant Ingenious Asset Group, Inc. was added as Doe 47.

Moving defendants filed demurrers to the original complaint, which were heard on June 28, 2019. The demurrers were sustained with leave to amend, the minute order stating in connection with each demurrer, a version of: “The pleading fails to sufficiently allege facts stating a cause of action against the moving defendant, which is alleged to be liable ‘for other reasons,’ with no reasons being stated.”

Plaintiff has filed a First Amended Complaint, alleging that on February 13, 2015, plaintiff was waiting at a bus stop adjacent to a parking lot and premises owned, operated, controlled, and maintained by defendants 7-Eleven, Inc., Ingenious Asset Group, Inc. and Fabiola Garcia, when defendant Fredy A. Hernandez Monterrosa began backing his vehicle out of a parking spot, reversed into another vehicle attempting to enter the parking lot, and panicked, putting his vehicle into gear and driving forward into the parking spot he was previously trying to exit. The FAC alleges that Monterrosa was then unable to stop the vehicle and drove it over the parking lot’s barely raised curb, which had been negligently designed, constructed and maintained, and directly into the area where plaintiff was waiting for the bus.

Plaintiff alleges that plaintiff and four other individuals were struck by the vehicle, sustaining significant injuries, including, for plaintiff, severe injuries to her left knee, requiring knee replacement surgery, and lumbar and thoracic injuries as well.

The FAC alleges that at the time of the incident, the parking lot did not have any stanchions or bollards or any other barricade to prevent vehicles from jumping the parking lot’s curb and striking nearby pedestrians who defendants knew or should have known would be located in the zone of danger created by the dangerous condition of the premises around the parking lot.

The case has been consolidated with three other cases brought by other pedestrians allegedly injured in the incident.

Procedural

Untimely

Under CCP §436, the court may “upon motion made pursuant to Section 435, or at any time in its discretion” 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.”

Under CCP §435, a party may serve and file a notice of motion to strike “within the time allowed to respond to a pleading…”

Under CCP §430.40, the time permitted to demur to a complaint is “within 30 days after service of the complaint…”

CRC Rule 3.110(d) provides:

“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”

Here, the First Amended Complaint was served by mail on defendants on July 12, 2019. Thirty days from this date, allowing an additional five calendar days for service by mail, would have been August 16, 2019. The demurrers and motion to strike were filed and served on August 28, 2019, twelve days late. While the declarations of counsel indicate that an extension of time to plead was granted by plaintiff, this is not the initial complaint, so the parties were not permitted to stipulate to extend the time to plead; a court order was required. The court could overrule the demurrers and deny the motion to strike as untimely, but the court elects not to do so.

Substantive

Statute of Limitations

The demurrers and motion to strike are all based on the argument that the only cause of action alleged against the moving defendants, the second cause of action for premises liability, is barred by the applicable statute of limitations because the addition of the moving defendants to this action on a premises liability theory in the FAC does not relate back to the filing of the original complaint.

There appears to be no dispute that the premises liability cause of action would be subject the two-year time period permitted under CCP § 335.1 for the filing of actions for “injury to… an individual caused by the wrongful act or neglect of another.”

In general, the statute of limitations is mandatory, based on the language of CCP §312, which provides;

“Civil actions, without exception, can only be commenced within the periods prescribed in this title...unless, where, in special cases, a different limitation is prescribed by statute.”

There is also no dispute that the original complaint in this action was filed by plaintiff on February 6, 2017, and that the incident in question occurred on February 13, 2015. The Amendments were filed May 6, 2019, and the FAC was filed on July 12, 2019.

The moving defendants were added to this action pursuant to Amendments to the Complaint substituting their names as the true names for fictitiously named defendants Doe 46-48, pursuant to CCP § 474:

“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…”

This statutory procedure effectively extends the statute of limitations until expiration of the time for service of summon, in effect, to three years after the filing of the complaint. CCP § 583.210(a); Sobeck & Associates, Inc. v. B & R Investments No. 24 (1989) 215 Cal.App.3d 861, 869-870.

Ordinarily, “a defendant sued by a fictitious name and later brought into the case by an amendment substituting his true name is considered a party to the action from its commencement for purposes of the statute of limitations.” Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 602.

In general, a Doe amendment will be held appropriate and relation back effect will be given even where a person’s identity was known to plaintiff when the action was filed, if plaintiff was unaware of that person’s true relationship to the injuries upon which the action is based. Miller v. Thomas (1981, 2nd Dist.) 121 Cal.App.3d 440, 445-446. The test is actual knowledge, and the relation back effect will apply regardless of whether plaintiff should have known of the identity or facts, even where plaintiff’s lack of actual knowledge is attributable to his own negligence. Grinnell Fire Protection Systems Co., Inc. v. American Savings & Loan Assn. (1986) 183 Cal.App.3d 352, 359. Plaintiff may be held genuinely ignorant of a defendant’s identity even where plaintiff was at all times aware of the name of the defendant, provided plaintiff lacks knowledge of that person’s connection with the case or with his injuries. General Motors Corp v. Superior Court (1996, 2nd Dist.) 48 Cal.App.4th 580, 593-594. (plaintiff permitted to add auto manufacturer as Doe defendant, although plaintiff was at all times aware of the manufacturer’s identity, where she did not discover until after running of statute of limitations facts showing defect in seatbelt).

Defendants argue here that the FAC in this action does not relate back to the original complaint, because the original complaint included no facts which would implicate the moving defendants but was a form complaint with a single cause of action for Motor Vehicle, brought against only the driver of the vehicle and Does. The allegations against Does specified some Doe defendants as “agents or employees of other named defendants,” Does 1 to 25. Does 26 to 50 are alleged to be “persons whose capacities are unknown to plaintiff.” [Ex. 1, Comp. ¶ 6b]. The cause of action states that, “The defendants who are liable to plaintiffs for other reasons and the reasons for the liability are as follows:

FREDY A. HERNANDEZ MONTERROSA

Does 46 to 50.”

[Ex. 1, Comp. ¶ MV-2f].

Defendants argue that the original pleading pleads nothing against the moving parties, containing no operative facts at all, and that the FAC accordingly does not relate back to the filing of the original complaint. If the FAC or the Doe Amendments do not operate to relate back to the filing of the original complaint, their dates of filing would be outside the statute of limitations, and this action would be barred as to the moving defendants.

Defendants rely on Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, in which the Second District affirmed the trial court’s order sustaining demurers without leave to amend, and dismissing actions, where plaintiffs had filed complaints against their insurers for losses caused by the January 17, 1994 Northridge earthquake, within the revival period permitted by a statute reviving certain time barred claims, filing their complaints on the last day, December 31, 2001.

The original complaints alleged causes of action for breach of contract and bad faith against defendant State Farm for damage to plaintiffs’ properties caused by the Northridge earthquake, but did not mention the revival statute or allege that their claims satisfied the requirements for revival, and did not mention the parties by name other than in the caption, referring to them as plaintiff or plaintiffs and defendants, did not provide the addresses of the properties involved, did not set forth any facts about the policy or attach a copy of the policy, and made general allegations against defendants regarding the failure to pay policy benefits caused by the earthquake, without any specifics being given with respect to any claim for policy benefits made by plaintiffs or any action taken by State Farm in response to such claims. Davaloo, at 412.

State Farm filed demurrers to the complaints, contending they were uncertain and failed to allege facts sufficient to state a cause of action for breach of contract or bad faith. Id.

On June 2, 2003, before the hearing on the demurrers, plaintiffs filed first amended complaints against State Farm, again alleging causes of action for breach of contract and bad faith. The bodies of the pleadings identified the plaintiff or plaintiffs and State Farm as defendant, and provided the addresses of the properties, as well as the insurance policy number, again did not mention the revival statute, but alleged that plaintiffs suffered insured losses as a result of the earthquake and its aftershocks and had made timely claims to or had contact with defendants in regard to their damages within one year immediately following the earthquake. Again, no details regarding claims for policy benefits made by plaintiffs were provided. Davaloo, at 413.

State Farm filed demurrers to FACs, contending they were time barred because they were filed after the revival period, and did not relate back to the filing of the original complaints, characterizing the original complaints as “sham” pleadings, lacking specific factual allegations. State Farm argued that the amended pleadings were accordingly not based on the same set of operative facts as the original complaints, so did not satisfy the requirements for application of the relation-back doctrine. The trial court sustained the demurrers, finding in each case that the original complaint was “a sham pleading not containing specific information. The first amended complaint does not relate back and is time-barred.” Davaloo, at 413.

The Second District reviewed the general pleading requirements and relation-back doctrine, as follows:

“A complaint must contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” (§ 425.10, subd. (a)(1).) This fact-pleading requirement obligates the plaintiff to allege ultimate facts that “as a whole apprise[ ] the adversary of the factual basis of the claim. [Citations.]” (Estate of Archer (1987) 193 Cal.App.3d 238, 245, 239 Cal.Rptr. 137; see also Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 689–690, 121 Cal.Rptr.2d 333.) When a complaint complies with the fact-pleading requirement of section 425.10, subdivision (a)(1), “ ‘ “[t]he existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff's primary right and the defendant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong.” ’ [Citation.]” (Lodi v. Lodi (1985) 173 Cal.App.3d 628, 631, 219 Cal.Rptr. 116.)

The requirement that the complaint allege ultimate facts forming the basis for the plaintiff's cause of action is central to the relation-back doctrine and the determination whether an amended complaint should be deemed filed as of the date of the original pleading. (See Bartalo v. Superior Court (1975) 51 Cal.App.3d 526, 533, 124 Cal.Rptr. 370 [explaining essential role of fact-pleading requirement in application of relation-back doctrine].) An amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, only if it rests on the same general set of facts and refers to the same “offending instrumentalities,” accident and injuries as the original complaint. (Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 151, 216 Cal.Rptr. 405, 702 P.2d 563; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681 [“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”].)

Davaloo, at 415.

The Second District then noted that the relation-back doctrine analysis requires a comparison of the original and amended complaints:

“The relation-back doctrine, therefore, requires courts to compare the factual allegations in the original and amended complaints. For example, a third amended complaint alleging a cause of action for age discrimination under the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.) did not relate back to the filing of the original complaint because the wrongful conduct described in the discrimination claim did not arise out of the same set of facts alleged in the original complaint to support claims of breach of contract and Labor Code violations. (Kim v. Regents of the University of California (2000) 80 Cal.App.4th 160, 168–169, 95 Cal.Rptr.2d 10.) And an amended complaint alleging the decedent was electrocuted by a lamp socket and switch manufactured by one entity did not relate back to an original complaint alleging the electrocution was caused by a defective hair dryer with a different manufacturer because, although the pleadings related to a single death at a single location, they alleged different accidents and instrumentalities. (Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342, 347, 153 Cal.Rptr. 366.) On the other hand, an amended complaint substituting a party for a fictitiously named defendant and alleging the same accident and injuries but a different cause of action and legal theory from the original complaint related back to the filing of the original complaint, and thus was not barred by the statute of limitations, because the two complaints referred to the same general set of facts. (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 939–940, 136 Cal.Rptr. 269, 559 P.2d 624.)

Davaloo, at 416.

The Second District went on to explain why an original pleading lacking in facts can fail to support relation-back:

“Just as a plaintiff who changes the essential facts upon which recovery is sought is not entitled to the benefits of the relation-back doctrine, so too a plaintiff who files a complaint containing no operative facts at all cannot subsequently amend the pleading to allege facts and a theory of recovery for the first time and claim the amended complaint should be deemed filed as of the date of the original, wholly defective complaint: Going from nothing to something is as much at odds with the rationale for allowing an amended pleading to relate back to the filing of the original documents as changing from one set of facts to a different set. (See Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d at pp. 601–602 & fn. 2, 15 Cal.Rptr. 817, 364 P.2d 681 [explaining similarity between notice aspect of “modern” rule permitting relation back of an amendment if “recovery is sought on the same general set of facts as those alleged in the original complaint” and Fed. Rules of Civ. Proc., rule 15(c) [now rule 15(c)(2) ], which permits relation back when the claim or defense asserted in the amended pleading “ ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading’ ”]; Lamont v. Wolfe (1983) 142 Cal.App.3d 375, 379, 381, 190 Cal.Rptr. 874 *417 [noting examination of operative facts central to analysis of relation-back doctrine under both California law and Fed. Rules of Civ. Proc., rule 15(c), and holding doctrine properly applied when “ ‘a defendant has had notice from the beginning that the plaintiff sets up and is trying to enforce a claim against it because of specified conduct,’ ” quoting Justice Holmes in N.Y. Cent. R.R. v. Kinney (1922) 260 U.S. 340, 346] [43 S.Ct. 122, 67 L.Ed. 294].)

Davaloo, at 416-417

The Second District then evaluated the facts before it as follows:

“In the instant cases the original complaints are so devoid of factual allegations they fail to meet section 425.10, subdivision (a)'s minimal fact-pleading requirement and are the functional equivalent of no complaint at all. Other than in the caption, the original complaints do not name either of the plaintiffs or the defendant; do not identify the property at issue by address or otherwise, merely averring it is within California (not even Southern California); and do not provide the number of the applicable insurance policy, let alone describe its terms. The complaints contain a number of generic allegations describing the full range of improper actions any insurer theoretically could have taken in response to a claim for policy benefits for damages caused by the Northridge earthquake but give no specifics of any kind as to a dispute between the plaintiff(s) specified in the caption and State Farm. Under the most liberal construction of the pleadings (§ 452), the body of each of the original complaints at bottom alleges nothing more than the Northridge earthquake caused harm to a resident or residents of Los Angeles County. Such an allegation falls far short of apprising State Farm of the factual basis of the claim. (Lim v. The.TV Corp. Internat., supra, 99 Cal.App.4th at pp. 689–690, 121 Cal.Rptr.2d 333; Estate of Archer, supra, 193 Cal.App.3d at p. 245, 239 Cal.Rptr. 137.) Because of the complete lack of factual allegations in the original complaints, it is impossible to conclude the first amended complaints are based on the same general set of facts as the original complaints.

In holding the amended complaints do not relate back, we are relying on the totality of the deficiencies in the original complaints, rather than any single defect alone, or even a combination of several such defects: It is not simply that the original complaints do not identify the parties (except in the caption), property or insurance policy or that they fail to allege any specifics of Davaloo's or the Abdel–Messihs' dispute with State Farm. Rather, the totality of these material deficiencies leaves nothing to which the first amended complaints can be compared or to which they can relate back. (McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1262, 80 Cal.Rptr.2d 900 [relation-back doctrine cannot be used based on the assumption the defendant is a “bad egg” and “it is irrelevant that the act sued on wasn't mentioned in the earlier complaint because it is the ‘sort of mischief’ the defendant was inclined to get up to anyway”].) Although there can be no bright-line rule as to when a complaint is so deficient to preclude relation back (any more than there is a bright-line rule when an amended set *418 of facts is too dissimilar to the originally pleaded set), the original complaints here—with all their deficiencies—are plainly insufficient.

Davaloo, at 417-418, footnote omitted.

The argument is then that the pleading here, containing substantially fewer facts than those alleged in the Davaloo complaint with respect to the moving defendants, is similarly so devoid of factual allegations it fails to meet section 425.10, subdivision (a)'s minimal fact-pleading requirement and is the functional equivalent of no complaint at all as to the moving defendants, and the court should find that the original pleading contains nothing to relate back to. It would appear that a comparison of the original complaint and the FAC confirms that there was nothing in the original complaint to even remotely suggest that plaintiff was claiming that there was any negligence being alleged here other than the negligent operation of a vehicle, and that the Doe defendants were included in the event there were grounds to charge others with vicarious responsibility for that negligent driving, or responsibility for that conduct on some other theory.

The 7-Eleven defendants also rely on Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590. As an initial matter, a petition for review of the case has been granted by the California Supreme Court. See Scholes v. Lambirth Trucking (June 21, 2017) 395 P.3d 1110.

Under CRC Rule 8.1105(e)(1)(B):

“(B) Grant of review by the Supreme Court of a decision by the Court of Appeal does not affect the appellate court's certification of the opinion for full or partial publication under rule 8.1105(b) or rule 8.1110, but any such Court of Appeal opinion, whether officially published in hard copy or electronically, must be accompanied by a prominent notation advising that review by the Supreme Court has been granted.”

The 7-Eleven defendants have failed to mention the grant of review, and certainly there is no prominent notation. The court will consider the authority, and the court is aware of the grant of review. The court may want to admonish counsel for those parties for failure to comply with the applicable Rule. The California Supreme Court website shows that the current status of the case is that it has been submitted, and an opinion is due. The issue the website indicates will be addressed on appeal is, “Are the double damages provisions of Civil Code section 3346 applicable to negligently caused fire damage to trees?” It is accordingly possible that the Supreme Court will not address the issue defendants are relying on the case for in this matter.

In any case, in Scholes, the court of appeal affirmed the trial court’s entry of judgment after it sustained a demurrer to a third amended complaint without leave to amend, where the original complaint was filed against setting forth the above standards in reliance on Davaloo, and analyzing the pleadings in that case in connection with a fire occurring on the property of defendant Lambirth Trucking Company, on which Lambirth operated a soil amendment and enhancement company grinding wood products, which fire spread to the adjacent property of plaintiff Scholes. The original complaint in that matter named Lambirth and its insurer, Financial Pacific, and stated it was for “a dispute compensation on insurance claim,” and that defendants had accepted liability, “dispute amount of damages from fire.” Scholes, at 593. Successive complaints then added causes of action against Lambirth for claims such as trespass, and strict liability for trespass through unnatural activity. A demurrer to the third amended complaint was sustained without leave to amend, the trial court finding that the TAC did not relate back to the original complaint, so the action was time-barred.

The court of appeal, relying heavily on Davaloo, set forth the standard and requirements on analysis, including the requirement that the court “compare the factual allegations in the original and amended complaints.” Scholes, at 598, citing Davaloo, at 416. The court of appeal conducted the analysis in that case as follows:

“Here, Scholes' original complaint alleges a cause of action for “[d]ispute compensation on insurance claim.” The relief sought is “compensation for property loss.” Finally, the complaint alleges “[d]efendants have accepted liability, dispute amount of damages from fire.” Nothing else is listed in or attached to the original complaint.

The original complaint, devoid of factual allegations, fails to meet section 425.10, subdivision (a)'s minimal fact pleading requirement. The original complaint does not identify the property at issue or specify the damages suffered; it merely lists “loss of use of property” and “property damage”. The complaint fails to specify the date, origin, or scope of the fire. The original complaint does not set forth the relationship between the parties or any duties owed to Scholes by Lambirth. Nor does the original complaint specify any causes of action except for checking the box for “Property Damage”. Nothing in the original complaint sets forth any factual basis for Scholes' subsequent claims for negligent trespass, intentional trespass, or unnatural activity trespass. It is impossible to even infer the nature of any dispute between Scholes and Lambirth.”

Scholes, at 598.

The court of appeal concluded, “Scholes’ original complaint fails to put Lambirth on notice of any cause of action against it. This void prevents the amended pleading from relating back to the original complaint.” Scholes, at 601.

Under this authority, the pleading here contains much less to indicate that plaintiff has any dispute with the moving defendants, or the nature of that dispute. The court has conducted this analysis, and finds that, as to the moving defendants, the original complaint includes insufficient facts to relate back to, and the demurrer is sustained on this ground.

Plaintiff in opposition does not directly address this case law, but argues that an amended complaint relates back to the date of the filing of the original complaint and thus avoids the bar of the statute of limitations so long as recovery sought in both pleadings is based on the same general set of facts, and that the new cause of action for premises liability here arises out of the same accident and injury, and is based on a negligence theory, as was the original Motor Vehicle cause of action, and that the complaint broadly stated, “Plaintiff alleges the acts of defendants were negligent; the acts were the legal (proximate) cause of injuries and damages to plaintiff, the acts occurred on February 13, 2015,” and that “The defendants who are liable to plaintiff for other reasons,” includes the Does 46 to 50. [Ex. 1, Comp. ¶¶ MV-1, MV-2 (f)].

This is not persuasive, when these allegations are compared to the allegations in Davaloo and Scholes which included greater detail but were still found insufficient. The only concern here is that those cases did not involve an Amendment by Doe amendment adding a new party, but it would appear that the same initial principal would apply, in effect, a pleading cannot be related back to a pleading which essentially alleges nothing, and in Scholes, the argument was that the original complaint alleged nothing against a particular defendant, as is the argument here.

Plaintiff relies on Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, in which the California Supreme Court found the trial court erred in finding a claim did not relate back to the original complaint and was time barred, when the original complaint alleged injuries caused by the employers’ failure to provide plaintiff with a safe place to work, and the amended complaint added a cause of action alleging that his injuries resulted from a defective machine manufactured by defendant Nicholson Manufacturing Company. The trial court sustained a demurrer by Nicholson without leave to amend. Plaintiff relies on the language the Court relied on from its previous decision, Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596:

““The modern rule,” we explained, “is that ... 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.” (56 Cal.2d at p. 600.) (Italics added.)”

Smeltzley, at 936, italics in the original.

The Court further explained:

“The foregoing precedents rest on the fundamental philosophy that “cases should be decided on their merits.” ( Grudt v. City of Los Angeles, supra, 2 Cal.3d 575, 585; Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d 596, 600.) In conformity with that policy, we conclude in the present case that plaintiff's amended complaint relates back to the filing of the original complaint. Both complaints issue from the same injuries and the same accident. The original complaint asserts that the injuries were caused by a dangerous condition of the employers' premises; the amended complaint identifies that condition as a defective machine manufactured by Nicholson. Thus, within the rule of Austin v. Massachusetts Bonding & Insurance Co., supra, 56 Cal.2d 596, the two complaints relate to the “same general set of facts.”

Smeltzley, at 939.

Plaintiff argues that this case is very similar to Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, in which the Second District found that the trial court had improperly sustained a demurrer without leave to amend to a first amended complaint in a wrongful death action brought by the parents and surviving heirs of David Barrows, who was killed while riding as a passenger in a jeep vehicle which overturned while being driven on an off-highway hill climb. The original complaint was for wrongful death brought against the driver of the vehicle and Does. After settling with the named defendant, and after the statute of limitations had expired, plaintiffs filed a first amended complaint against defendants who had allegedly designed, manufactured and distributed the subject vehicle, stating various causes of action for negligence, breach of express and implied warranty, and strict product liability.

Defendants filed a demurrer arguing that the amended complaint was time-barred and failed to allege that the newly named defendants were the Doe defendants fictitiously sued in the original complaint. Plaintiffs then filed a motion for leave to amend to add such Doe allegations. The trial court sustained the demurrer without leave to amend and denied the motion for leave to amend. The Second District found this was error, and plaintiff here evidently relies on the language in which it was stated:

“Case law makes clear that where, as here, the standard Doe allegations are contained in the original complaint against the driver of a vehicle, it is proper to amend the complaint to bring in other defendants on warranty and product liability theories; since the amendment involves the same accident and injury, the amendment relates back to satisfy the statute of limitations. ( Garrett v. Crown Coach Corp. (1968) 259 Cal.App.2d 647 [66 Cal.Rptr. 590]; Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932 [136 Cal.Rptr. 269, 559 P.2d 624, 85 A.L.R.3d 121].)

Barrows, at 7.

The analysis in these relation back cases has been refined over the years so that, as recognized by the Second District in the discussion in Davaloo, more current authority from the California Supreme Court, which is actually cited by both sides here, recognizes that an amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, only if it rests on the same general set of facts and refers to the same “offending instrumentalities,” accident and injuries as the original complaint. See Davaloo, at 415, citing Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 151. It would appear that Barrows would fall squarely within such an analysis, as the offending instrumentality was the vehicle in respect to each defendant, which is not the case here, where plaintiff is not now attempting to pursue the manufacturer or other party responsible for the vehicle, or to bring in the new defendants on warranty or product liability theories.

As argued in the replies, it would appear that if the court were to apply the test of evaluating if the claims involve the same offending instrumentalities, accident and injuries, this case would be a case in which it could be found that the new instrumentality, the condition of the parking lot, is not the same, and not in any way suggested in the original complaint, in which the instrumentality was the negligent operation of a vehicle. The court finds that the relation back doctrine does not apply on this ground as well.

RULING:

Demurrer of Defendants 7-Eleven, Inc. and Fabiola Garcia to Second Cause of Action of First Amended Complaint of Plaintiff Sirapi Varzhapetyan:

The court notes that the demurrer is untimely, filed and served twelve days late. Counsel for plaintiff is cautioned that in the future the court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.

The court also notes that the moving papers rely on legal authority, Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, without advising the court or other parties by prominent notation that a petition for review of the case was granted by the California Supreme Court on June 21, 2017, as required under CRC Rule 8.1105(e)(1)(B).

Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. The Court has reviewed the original complaint and compared it to the allegations of the First Amended Complaint and finds that the original complaint as against the moving defendants is so devoid of factual allegations it fails to meet section 425.10, subdivision (a)'s minimal fact-pleading requirement and is the functional equivalent of no complaint at all as to the moving defendants. The original complaint alleged a single cause of action for Motor Vehicle, against the driver of the vehicle and Does. Does 26 to 50 are alleged to be “persons whose capacities are unknown to plaintiff.” [Ex. 1, Comp. ¶ 6b]. The cause of action itself states that, “The defendants who are liable to plaintiffs for other reasons and the reasons for the liability are as follows:

FREDY A. HERNANDEZ MONTERROSA

Does 46 to 50.”

[Ex. 1, Comp. ¶ MV-2f].

There are no other allegations against these Doe defendants, and no factual allegation remotely suggesting that such defendants would be pursued on a theory relating to premises liability or the condition of a parking lot. The court accordingly finds this case comparable to Davaloo v. State Farm Ins. Co. (2005, 2nd Dist.) 135 Cal.App.4th 409. The first amended complaint as to the moving defendants does not relate back to the filing of the original pleading. The Amendments to Complaint, filed on May 6, 2019, and the First Amended Complaint, filed on July 12, 2019, are accordingly time-barred, as filed more than two years after the date of the alleged incident on February 13, 2015. See CCP § 335.1.

The court also finds that even if the court were to apply the operative test for relation back as presented in both the moving and opposition papers, in effect, that the First Amended Complaint rests on the same general set of facts and refers to the same “offending instrumentalities,” accident, and injuries as the original complaint, the new instrumentality here, the condition of the parking lot, is not the same, and not in any way suggested in the original complaint, in which the instrumentality was the negligent operation of a vehicle.

As it does not appear from the pleading or the opposition that this defect can be corrected on amendment, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving defendants to pursue dismissal.

Motion of Defendants 7-Eleven, Inc. and Fabiola Garcia to Strike Portions of First Amended Complaint of Plaintiff Sirapi Varzhapetyan:

The court notes that the motion is untimely, filed and served twelve days late. Counsel for plaintiff is cautioned that in the future the court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.

The court also notes that the moving papers rely on legal authority, Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, without advising the court or other parties by prominent notation that a petition for review of the case was granted by the California Supreme Court on June 21, 2017, as required under CRC Rule 8.1105(e)(1)(B).

Motion is MOOT in light of the sustaining of the demurrer without leave to amend.