On 01/29/2018 2301 SM, L P filed a Contract - Professional Negligence lawsuit against ADAM WHEELER DESIGN, CORP . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CRAIG D. KARLAN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CRAIG D. KARLAN
2301 SM L.P.
RPM ENGINEERS INC.
INTERACTIVE RESTAURANT CONSULTING INC.
OTTO DESIGN GROUP
ADAM WHEELER DESIGN CORP
FERNALD BRANDON C.
FERNALD BRANDON CLAUS
SCHWARTZ STEVEN H.
LAKE DAVID N.
MACAULAY NOEL EUGENE
COOLEY PAUL STILES
SALISIAN NEAL SAMUEL
10/21/2020: Proof of Service (not Summons and Complaint)
4/16/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/16/2020
6/22/2020: Opposition - OPPOSITION OPPOSITION TO DEMURRER OF ALAN KOCH
6/26/2020: Reply - REPLY REPLY OF DEFENDANT ALAN KOCH IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT
9/16/2020: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))
11/14/2019: Demurrer - without Motion to Strike - DEFENDANT ALAN KOCHS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF 2301 SM, L.P.S SECOND AMENDED COMPLAINT; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES
9/2/2019: Stipulation and Order - STIPULATION AND ORDER STIPULATED PRO
8/6/2019: Proof of Service (not Summons and Complaint)
8/1/2019: Stipulation and Order - STIPULATION AND ORDER RE LEAVE TO FILES SECOND AMENDED COMPLAINT; PROPOSED ORDER
7/9/2019: Proof of Service (not Summons and Complaint)
7/19/2019: Case Management Statement
5/15/2019: Proof of Service (not Summons and Complaint)
1/25/2019: Request for Entry of Default / Judgment
2/7/2019: Notice - Notice Notice of Continued Case Management Conference
10/4/2018: Notice of Intent to Appear by Telephone -
9/25/2018: Case Management Statement -
10/2/2018: Case Management Statement -
Hearing06/10/2021 at 08:30 AM in Department N at 1725 Main Street, Santa Monica, CA 90401; Hearing on Demurrer - without Motion to StrikeRead MoreRead Less
DocketNotice (NOTICE OF HEARING ON DEMURRER TO THIRD AMENDED COMPLAINT); Filed by ALAN KOCH (Defendant)Read MoreRead Less
DocketCase Management Statement; Filed by ADAM WHEELER DESIGN, CORP (Defendant); ADAM WHEELER (Defendant)Read MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by 2301 SM, L.P. (Plaintiff)Read MoreRead Less
DocketCase Management Statement; Filed by 2301 SM, L.P. (Plaintiff)Read MoreRead Less
Docketat 09:30 AM in Department N, Craig D. Karlan, Presiding; Jury Trial (with a 5 day estimate) - Not Held - Vacated by CourtRead MoreRead Less
Docketat 3:48 PM in Department N, Craig D. Karlan, Presiding; Non-Appearance Case ReviewRead MoreRead Less
DocketMinute Order ( (Non-Appearance Case Review Re Demurrer to Third Amended Compl...)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Non-Appearance Case Review Re Demurrer to Third Amended Compl...) of 10/13/2020); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department N, Craig D. Karlan, Presiding; Final Status Conference - Not Held - Vacated by CourtRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by 2301 SM, L.P. (Plaintiff)Read MoreRead Less
DocketDeclaration (DECLARATION OF DILIGENCE FILE BY FAX ); Filed by Attorney for PlaintiffRead MoreRead Less
DocketProof of Service (PROOF FO SERVICE FILE BY FAX ); Filed by Attorney for PlaintiffRead MoreRead Less
DocketProof of Service (PROOF OF SERVICE FILE BY FAX ); Filed by Attorney for PlaintiffRead MoreRead Less
DocketSummons Filed; Filed by Attorney for PlaintiffRead MoreRead Less
DocketComplaint FiledRead MoreRead Less
DocketSummons; Filed by PlaintiffRead MoreRead Less
DocketComplaint; Filed by 2301 SM, L.P. (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by 2301 SM, L.P. (Plaintiff)Read MoreRead Less
DocketOther - (Notice Of Case Assignment); Filed by ClerkRead MoreRead Less
Case Number: SC128758 Hearing Date: July 06, 2020 Dept: N
Defendant Alan Koch’s Demurrer to Plaintiff 2301 SM, L.P.’s Second Amended Complaint is SUSTAINED, with twenty (20) days leave to amend.
Plaintiff may amend his or her complaint only as authorized by the court’s order and may not amend the complaint to add a new cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)
Defendant Alan Koch to give notice.
Request for Judicial Notice
Defendant Alan Koch (“Defendant”) requests judicial notice of Plaintiff 2301 SM, L.P. (“Plaintiff”)’s First Amended Complaint in this action and Defendant’s California Architects Board License Details, obtained from the License Search on the California Architects Board website. Defendant’s requests are GRANTED, pursuant to Evidence Code section 452, subdivisions (d) and (h).
Meet and Confer
As an initial matter, the Court notes that Defendant’s meet-and-confer efforts were insufficient, as Code of Civil Procedure section 430.41, subdivision (a), requires meeting and conferring “in person or by telephone.” Defense counsel simply sent Plaintiff’s counsel a letter, thereby frustrating the purpose of the meet-and-confer requirement, which is to determine whether the parties can reach an agreement as to the issues raised in the demurrer. Nonetheless, in the interest of judicial efficiency, the Court exercises its discretion to consider the merits of Defendant’s demurrer, but it notes that subsequent failures to comply with statutory obligations may result in a continuance of the hearing on the subject motion.
“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency(2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Sixth Cause of Action: Professional Negligence
“The elements of a cause of action for professional negligence are (1) the existence of the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
In the Second Amended Complaint (“SAC”), Plaintiff alleges Defendant is an employee and agent of Otto Design Group, and as such, he had a duty to ensure the accuracy of the plans submitted to the City of Santa Monica, (SAC ¶¶ 71.) Elsewhere in the SAC, Plaintiff alleges Defendant submitted architectural plans to the City of Santa Monica which failed to accurately depict the project’s parking plan or placement of required recycling bins and reduced the seating capacity from 85 to 65 seats. (SAC ¶¶ 34-36.) Plaintiff alleges Defendant breached his duty to insure the accuracy of the plans by failing to consult with Plaintiff, failing to properly prepare the plans, failing to timely submit the plans for approval by the requisite agencies, failing to timely correct and resubmit rejected architectural plans and by failing to verify the architectural plans in the field. (SAC ¶ 73.) Plaintiff alleges these breaches resulted in delayed completion of the restaurant by nine to twelve months. (SAC ¶ 41.)
Defendant argues Plaintiff failed to timely file a Certificate of Merit in support of its claim, as required by Code of Civil Procedure section 411.35. Defendant argues the late Certificate of Merit was filed after the expiration of the two-year statute of limitations for professional negligence.
Code of Civil Procedure section 411.35, subdivision (a), states “[i]n every action, including a cross-complaint for damages or indemnity, arising out of the professional negligence of a person holding a valid architect’s certificate … on or before the date of service of the complaint or cross-complaint on any defendant or cross-defendant, the attorney for the plaintiff or cross-complainant shall file and serve the certificate specified by subdivision (b).” Subdivision (b) of Code of Civil Procedure section 411.35 provides that the “certificate shall be executed by the attorney for the plaintiff” and shall declare either (1) “[t]hat the attorney has reviewed the facts of the case” and “consulted with ... at least one architect” or similar individual and “has concluded on the basis of this review and consultation that there is reasonable and meritorious cause for the filing of this action,” (2) “[t]hat the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action,” or (3) “[t]hat the attorney was unable to obtain the consultation required by paragraph (1) because the attorney had made three separate good faith attempts ... to obtain this consultation and none of those contacted would agree to the consultation.”
Here, no Certificate of Merit was filed with the SAC, or with the initial complaint on January 29, 2018, but a Certificate of Review and Consultation was filed on October 28, 2019, and Plaintiff’s counsel states therein that he consulted with an expert (architect) who opined that the Defendant architects were negligent, thus giving him a basis to conclude that this action is meritorious. (Fernald Decl. ¶¶ 2-5.) While the required certificate has been filed, it was required to be filed before the complaint was served. (Code Civ. Proc., § 411.5, subd. (a).) Indeed, Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360, stands for the proposition that “failure to file a certificate is a ground for demurrer,” and “by granting leave to file an amended complaint the court can give the plaintiff an opportunity to fully comply with the statutory requirements for filing a certificate of merit.” Thus, the demurrer is SUSTAINED, on this basis, and Plaintiff must file a Third Amended Complaint and allege compliance with Code of Civil Procedure section 411.35.
Insofar as Defendant argues the action against him must be dismissed because the Certificate of Merit was filed after the expiration of the two-year statute of limitations for professional negligence (see Code Civ. Proc., § 339, subd. (1)), this contention is not supported by the allegations. Plaintiff states that the original architectural plans were submitted in May 2017; the SAC is otherwise devoid of dates which would allow the trier of fact to determine when Plaintiff suffered its alleged injury. (See SAC ¶ 29.) Nevertheless, Plaintiff may not simply decline to allege when its injury accrued to avoid the statute of limitations and if Plaintiff intends to invoke the delayed discovery doctrine, it “must specifically plead facts which show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence, as mere conclusory assertions that delay in discovery was reasonable are insufficient and will not enable the complaint to withstand general demurrer.” (Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1536-1537, quotations marks and citations omitted.)
Accordingly, Defendant Alan Koch’s Demurrer to Plaintiff 2301 SM, L.P.’s Second Amended Complaint is SUSTAINED, with twenty (20) days leave to amend. Upon amending the complaint, Plaintiff must sufficiently allege compliance with Code of Civil Procedure section 411.35 and must allege facts which would allow the trier of fact to determine whether its claim is within the two-year statute of limitations.
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