CONSUELO MARTINEZ VS CITY OF COVINA

Tentative Rulings

Case Number: *******0282 Hearing Date: April 11, 2023 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I. BACKGROUND

On August 11, 2020, plaintiff Consuelo Martinez (“Plaintiff”) filed this action against defendants City of Covina and Does 1 through 20 for injuries Plaintiff sustained on April 10, 2020 when she fell into a large hole where a tree had been removed by the City of Covina. The Complaint does not state specific causes of action but appears to assert causes of action for premises liability and negligence.

On October 20, 2020, Plaintiff named Robert Raab (erroneously sued as “Robert Robb”) as Doe 1 and Sally Raab[1] as Doe 2. October 26, 2022, Plaintiff named defendant Albert Castro as Doe 3.

On February 22, 2023, defendant Albert Castro (hereinafter, “Defendant”) filed the instant demurrer to Plaintiff’s complaint. On March 27, 23, Plaintiff’s counsel submitted a declaration opposing the demurrer.[2]

II. LEGAL STANDARDS

A. Demurrer

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.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Judicial Council form complaints are not invulnerable to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1482.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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.)

1. Relation Back

“Unless an amended complaint relates back to a timely filed original complaint, it will be barred by the statute of limitations. [Citation.] Under the relation-back doctrine, in order to avoid the statute of limitations, the amended complaint must: rest on the same general set of facts as the general complaint, refer to the same accident and same injuries as the original complaint, and refer to the same instrumentality as the original complaint. [Citation.]” (Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 597-598.)

“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 requirement obligates the plaintiff to allege ultimate facts that, taken as a whole, apprise the defendant of the factual basis of the claim. [Citation.] 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 of whether an amended complaint should be deemed filed as of the date of the original pleading. [Citation.]” (Id. at p. 598.)

When an amended complaint adds a new defendant, “the general rule is that [the] amended complaint … does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “A recognized exception to the general rule is the substitution under [Code of Civil Procedure] section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint.” (Id.) “Section 474 allows a plaintiff who is ignorant of a defendant’s identity to designate the defendant in a complaint by a fictitious name (typically, as a “Doe”), and to amend the pleading to state the defendant’s true name when the plaintiff subsequently discovers it. When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint. [Citation.]” (McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371, fn. omitted.)

III. DISCUSSION

A. Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., 430.41, subd. (a).) Defense counsel has satisfied this requirement. (Declaration of Bradley R. Matthews, 4.)

B. Factual Allegations

The Complaint alleges as follows: “[O]n or about April 10, 2020, plaintiff was walking on North Viceroy when she fell into a large hole where a tree had been removed by the City of Covina. The City of Covina created a dangerous condition and failed to repair, maintain, or warn about this hole.” (Complaint, 6.) “[D]efendant and DOES 1 through 20, Inclusive, and each of them, were in possession of, and owned, operated, maintained and controlled certain business premises at 741 North Viceroy Avenue, Covina, California” and were “responsible for the maintenance of said premises and/or its adjacent areas.” (Complaint, 4-5.) Further, “defendants, and each of them, so negligently and carelessly owned, operated, maintained and controlled said premises in a dangerous, defective, hazardous and unsafe condition. Defendants and each of them, failed to warn plaintiff of the said dangerous, and unsafe condition, although defendants and each of them knew, or in the exercise of ordinary care should have known, of said danger.” (Complaint, 7.)

C. The Demurrer

Defendant argues the demurrer should be sustained without leave to amend because no charging allegations are made against fictitiously named defendants triggering the relation back doctrine. “[A]n amended pleading will not relate back unless the original complaint set forth or attempted to set forth some cause of action against fictitiously named defendants.” (Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 941.)

A review of the Complaint does not support Defendant’s position. The Complaint alleges that each defendant, including the doe defendants, “were in possession of, and owned, operated, maintained and controlled” the subject premises, and were “responsible for the maintenance of said premises and/or its adjacent areas” (Complaint, 4-5); each defendant “negligently and carelessly owned, operated, maintained and controlled said premises in a dangerous, defective, hazardous and unsafe condition … and failed to warn plaintiff of the said dangerous, and unsafe condition” (Complaint, 7). The Complaint plainly sets forth allegations that include Defendant.

Defendant argues that the specific allegation that the City of Covina created a dangerous condition by removing the tree controls the general allegations concerning the fictitious defendants. (Compare Complaint, 6 with Complaint 4, 5, 7.) In support, Defendant cites Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235-36 for the proposition that where a conflict or inconsistency arises in a pleading between a general allegation, such as an allegation of an ultimate fact, and a specific allegation that adds detail or explanatory facts, specific allegations control over an inconsistent general allegation.

“The California Legislature explicitly repudiated the common law view that a pleading must be taken most strongly against the pleader and adopted a rule of liberal construction. Code of Civil Procedure section 452 provides in full: ‘In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.’ This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez, at p. 1238.)

Here, Defendant overlooks the allegation that “each of the defendants designated herein as a DOE is responsible in some manner for the events and happenings herein referred to.” (Complaint, 3.) The Court draws the inference that “events and happenings” include the allegations set forth in paragraph six. Effectively, Defendant asks the Court to interpret the allegations of the Complaint against the pleader, which is contrary to California law. Further, because Plaintiff amended the complaint to add Defendant as Doe 3 pursuant to Code of Civil Procedure section 474, the amendment relates back to the original filing of the complaint. (See McClatchy, supra, 247 Cal.App.4th at p. 371, fn. omitted [“When a defendant is properly named under section 474, the amendment relates back to the filing date of the original complaint. [Citation.]”.)

Based on the foregoing, the demurrer is OVERRULED.

V. CONCLUSION

Defendant Albert Castro’s demurrer to Plaintiff Consuelo Martinez’s Complaint is OVERRULED.

Defendant is ordered to file a responsive pleading to the Complaint within 10 days of this Order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.

Dated this 11th day of April 2023

Case Number: *******0282 Hearing Date: March 1, 2023 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I. INTRODUCTION

On August 11, 2020, Consuelo Martinez (“Plaintiff”) commenced the present action by filing a Complaint against City of Covina and Does 1 through 20. On October 20, 2020 and October 26, 2022, respectively, Plaintiff filed an “Amendment to Complaint (Fictitious/Incorrect Name)”, substituting Defendant Robert Raab (“Defendant Raab”) as Doe 1 and Defendant Alberto Castro (“Defendant Castro”) as Doe 3. Plaintiff’s Complaint alleges a single cause of action for “Negligence”. Plaintiff’s Complaint arises from a fall suffered by Plaintiff when walking upon the business property located at approximately 741 North Viceroy Avenue, in Covina, California (“Subject Property”). Plaintiff maintains she was walking upon the Subject Property when she fell into a large hole where a tree had been previously removed by Defendant City of Covina, and over which grass had grown, obscuring the hole. Plaintiff alleges Does 1 through 20 were the owners or operators of the Subject Property and responsible for the maintenance of the Subject Property.

On September 21, 2022, Defendant Raab (Defendant/Cross-Complainant Raab”) filed a Cross-Complaint against Defendant Alberto Castro (“Defendant/Cross-Defendant Castro”). Defendant/Cross-Complainant Raab’s Cross-Complaint alleges the following causes of action: (1) Contribution; (2) Indemnity; and (3) Declaratory Relief.

On January 27, 2023, Defendant/Cross-Defendant Castro file two Demurrers, challenging both the Complaint filed against him by Plaintiff, as well as the Cross-Complaint filed against him by Defendant/Cross-Complainant Raab. Defendant/Cross-Defendant Castro’s dual Demurrers are now presently before the Court for consideration.

II. LEGAL STANDARD

The moving party against whom a complaint or cross-complaint is directed may object by demurrer to the pleading on one of several grounds outlined by section 430.10. (Code Civ. Proc., 430.10, subd. (a)-(h).) These grounds include lack of jurisdiction, lack of legal capacity to sue, uncertain pleadings, or pleadings that do not state facts sufficient to constitute a cause of action, among others. (Ibid.)

A demurrer advanced on the ground the pleading does not state facts sufficient to constitute a cause of action “tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725; Code Civ. Proc., 430.10, subd. (e).) The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and matters of which judicial notice has been taken.” (Fremont Indemnity Co v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Code of Civil Procedure section 430.41 requires, “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., 430.41, subd. (a)(3).)

III. DISCUSSION

A. Defendant/Cross-Defendant Castro’s Demurrer to Plaintiff’s Complaint

Defendant/Cross-Defendant Castro demurs to Plaintiff’s Complaint on the ground Plaintiff’s Complaint fails to state facts sufficient to constitute a cause of action against Defendant/Cross-Defendant Castro. (Code Civ. Proc., 430.10, subd. (e).)

1. Meet and Confer Requirement

The Court concludes Defendant/Cross-Defendant Castro has satisfied the meet and confer requirements enumerated within Code of Civil Procedure section 430.41. (Code Civ. Proc., 430.41.) The Declaration of Bradley R. Mathews declares, counsel of record for Defendant/Cross-Defendant Castro “spoke at length on the phone about the issues raised by this Demurrer” with Plaintiff’s counsel of record, at least five days before the hearing date, however the parties were unable to reach an agreement with respect to the aforementioned issues. (Mathews Decl., 4.) Accordingly, the Court concludes Defendant/Cross-Defendant Castro has satisfied the meet and confer requirements enumerated within Code of Civil Procedure section 430.41. (Code Civ. Proc., 430.41.)

2. Sufficiency of Plaintiff’s Complaint

Defendant/Cross-Defendant Castro’s Demurrer advances two central arguments. First, Defendant/Cross-Defendant Castro argues this Court should sustain the instant Demurrer because Plaintiff’s Complaint fails to allege sufficient facts for the purposes of establishing a cause of action against Defendant/Cross-Defendant Castro as a Doe Defendant. Second, Defendant/Cross-Defendant Castro argues the Court should, furthermore, sustain the present Demurrer without leave to amend as any attempt to allege a cause of action against Defendant/Cross-Defendant Castro would not “relate back” to the original Complaint and, therefore, the statute of limitations would have expired with respect to Defendant/Cross-Defendant Castro.

The Court, first, assesses Defendant/Cross-Defendant Castro’s initial argument concerning whether or not Plaintiff’s Complaint alleges facts sufficient to constitute a cause of action against Defendant/Cross-Defendant Castro. The Complaint is captioned as a “Complaint for Fall.” The Complant does not label a particular cause of action. Rather, the Complaint proceeds by way of a series of numbers paragraphs which include the operative allegations. The Complaint sounds in negligence and premises liability. (Compl., 4-7 [alleging defendants “negligently and carelessly owned, operated, maintained and controlled said premises in a dangerous, defective, hazardous and unsafe condition” and such negligence maintenance caused Plaintiff personal injuries]; New Livable California v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714-715 [“a demurrer ‘tests only whether, as a matter of law, the properly pleaded facts in the complaint state a cause of action under any legal theory.’ ”].)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Here, Plaintiff’s Complaint alleges sufficient facts for the purposes of asserting a cause of action for negligence against Defendant/Cross-Defendant Castro. The Complaint alleges Plaintiff suffered personal injuries when he fell into a large hole where a tree had been previously removed by Defendant City upon the Subject Property. (Compl., 6.) In addition to Defendant City, Defendant/Cross-Defendant Castro (as Doe Defendant 3) owed a duty of care to Plaintiff with respect to the condition of the Subject Property as Defendant/Cross-Defendant Castro “owned, operated, maintained, and controlled” the Subject Property, or was an “employee” or “agent” of the persons who owned, operated, maintained, and controlled the Subject Property. (Compl., 4-5.) Plaintiff’s Complaint alleges Defendant/Cross-Defendant Castro breached the aforementioned duty of care by “fail[ing] to warn Plaintiff of the said dangerous, unsafe condition, although defendants and each of them knew, or in the exercise of ordinary care should have known, of said danger.” (Compl., 7.) Due to Defendant/Cross-Defendant Castro’s failure to warn Plaintiff of the aforementioned hole, Plaintiff alleges he fell into the hole and sustained personal injuries to his person. (Compl., 8.) The above allegations are sufficient to state a cause of action for negligence against Defendant/Cross-Defendant Castro. As a result, the Court finds Plaintiff’s first argument unpersuasive and, additionally, refrains from considering Plaintiff’s second argument, which is conditioned upon a finding of insufficiency with respect to the allegations of Plaintiff’s Complaint.

Based on the foregoing, Defendant/Cross-Defendant Castro’s Demurrer to Plaintiff’s Complaint is OVERRULED.

B. Defendant/Cross-Defendant Castro’s Demurrer to Defendant/Cross-Complainant Raab’s Cross-Complaint

Defendant/Cross-Defendant Castro demurs to Defendant/Cross-Complainant Raab’s Cross-Complaint on the ground the Cross-Complaint fails to plead facts sufficient to constitute a cause of action against Defendant/Cross-Defendant Castro. (Code Civ. Proc., 430.10, subd. (e).)

1. Meet and Confer Requirement

Defendant/Cross-Complainant Raab argues Defendant/Cross-Defendant Castro has failed to satisfy the meet and confer requirement enumerated within Code of Civil Procedure section 430.41. (Code Civ. Proc., 430.41.) Particularly, Defendant/Cross-Complainant Raab contends the requisite meet and confer obligations have not been fulfilled as Defendant/Cross-Defendant Castro’s counsel failed to meet and confer by telephone or in person, and, instead, sent a meet and confer correspondence by email. (Opp., at p. 3:26-4:3.)

Code of Civil Procedure section 430.41 requires, “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer . . . .” (Code Civ. Proc., 430.41, subd. (a).) Defendant/Cross-Complainant Raab is correct in noting Defendant/Cross-Defendant Castro did not meet and confer by telephone or in person prior to filing the present Demurrer. Instead, Defendant/Cross-Defendant Castro met and conferred by written correspondence. (Mathews Decl., 2, Ex. B [meet and confer correspondence sent by email].) Defendant/Cross-Defendant Castro requests that this Court overlook this procedural error, arguing Defendant/Cross-Defendant Castro attempted to remedy the aforementioned mistake and invited Defendant/Cross-Complainant Raab’s counsel to speak over the telephone with respect to the issues presented within the present Demurrer. (Reply Decl. of Mathews, Ex. D at p. 2.) Despite Defendant/Cross-Defendant Castro’s efforts, Defendant/Cross-Complainant Raab’s counsel did not entertain the request to telephonically meet and confer. (Id., Ex. D at pp. 1-2.)

The Court concludes Defendant/Cross-Defendant Castro’s failure to meet and confer in person or by telephone prior to filing the present Demurrer does not provide a basis to overrule the Demurrer. Code of Civil Procedure section 430.41, subdivision (a)(4) expressly states, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., 430.41, subd. (a)(4).) Defendant/Cross-Defendant Castro attempted to comply with the requisite meet and confer obligations by subsequently requesting a telephonic meet and confer meeting with Defendant/Cross-Complainant Raab, but to no avail. Given the parties have had an opportunity to meet and confer telephonically, and considering Defendant/Cross-Complainant Raab’s representation that he “will not be filing an Amended Cross-Complaint[,]” the Court finds no reason to overrule or continue the present Demurrer in order to require the parties to participate in further meet and confer by telephone.

2. Notice and Service Requirements

Additionally, Defendant/Cross-Complainant Raab objects to the present Demurrer on the ground Defendant/Cross-Defendant Castro failed to timely serve the moving papers, in compliance with Code of Civil Procedure section 1005. (Code Civ. Proc., 1005, subd. (b).) Specifically, Defendant/Cross-Complainant Raab contends, while the moving papers were required to be served no later than sixteen (16) court days prior to the hearing date on February 3, 2023, Defendant/Cross-Defendant Castro did not serve the moving upon Defendant/Cross-Complainant Raab until February 7, 2023. (Opp., at p. 4:5-13.)

Defendant/Cross-Defendant Castro concedes the moving papers were not served by the statutory deadline of February 3, 2023, and attributes the failure to an inadvertent typographical error within the email address of Defendant/Cross-Complainant Raab’s counsel. (Reply Decl. of Mathews, 4 [“[U]pon examining the electronic service of January 27, 2023, it was discovered that the letter “o” in “.com” was inadvertently omitted, resulting in the failed service on Cross-Complainant.”].) The Court, furthermore, concludes such failure to comply with the requirements articulated within Code of Civil Procedure section 1005, subdivision (b) is harmless, as Defendant/Cross-Complainant Raab has not been prejudiced by the timely filing of the instant Demurrer. However, should Defendant/Cross-Complainant Raab request additional time to file an Opposition, the Court will grant Defendant/Cross-Complainant Raab additional time

3. Sufficiency of Defendant/Cross-Complainant Raab’s Cross-Complaint

Defendant/Cross-Defendant Castro demurs to Defendant/Cross-Complainant Raab’s First Cause of Action for Contribution on the ground the Cross-Complaint fails to state facts sufficient to constitute a cause of action against Defendant/Cross-Defendant Castro. (Code Civ. Proc., 430.10, subd. (e).) Specifically, Defendant/Cross-Defendant Castro argues Defendant/Cross-Complainant Raab has failed to plead facts sufficient to establish the requisite element of “money judgment”. (Dem., at p. 5:6-18.)

“The right of contribution is a creature of statute (Code Civ. Proc., 875) and comes into existence only after rendition of a judgment declaring more than one defendant jointly liable to the plaintiff. [Citation.] It arises where ‘one of several joint tortfeasor judgment debtors has paid more than a pro rata share of a judgment.’ [Citation.]” (State Ready Mix, Inc. v. Moffatt & Nichol (2015) 232 Cal.App.4th 1227, 1235, fn. 4.) “It has not been repeatedly held that the condition of this statute—a money judgment rendered jointly against two or more defendants—must exist before either may assert a right to contribution from the other.” (General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925.)

Upon review of Defendant/Cross-Complainant Raab’s Cross-Complaint, the Court concludes the First Cause of Action for Contribution is insufficiently pled because Defendant/Cross-Complainant Raab has failed to plead facts demonstrating a money judgment has been rendered against himself and Defendant/Cross-Defendant Castro as two or more joint tortfeasors. Based on the foregoing, Defendant/Cross-Defendant Castro’s Demurrer to the First Cause of Action for Contribution is SUSTAINED, with leave to amend.

IV. CONCLUSION

Defendant/Cross-Defendant Castro’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Defendant/Cross-Defendant Castro’s Demurrer to Defendant/Cross-Complainant Raab’s Cross-Complaint is SUSTAINED, with leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.

Dated this 1 day of March 2023

Case Number: *******0282 Hearing Date: January 31, 2023 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I. INTRODUCTION

On August 11, 2020, plaintiff Consuelo Martinez (“Plaintiff”) filed this dangerous condition action against defendant City of Covina (“Defendant”). On September 29, 2020, Defendant filed a Cross-Complaint against Cross-Defendants Robert Raab and Sally Raab. On October 20, 2020, Plaintiff substituted Does 1 and 2 for Robert Raab and Sally Raab. On September 21, 2022, Cross-Defendant Robert Raab filed a Cross-Complaint against Cross-Defendant Alberto Castro. On October 26, 2022, Plaintiff substituted Doe 3 for Alberto Castro.

Trial is currently scheduled for April 27, 2023.

Defendant/Cross-Defendant Robert Raab seeks an order continuing the trial and related dates. The motion is unopposed.

II. LEGAL STANDARD

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332(a).) Continuances are thus generally disfavored. (See id. rule 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c); Hernandez, supra, 115 Cal.App.4th at 1246.) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (B) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (Id., rule 3.1332(d).)

On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution. (Code Civ. Proc., 2024.050, subd. (a).)

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.” (Code Civ. Proc., 2024.050, subd. (b).)

III. DISCUSSION

Defendant moves to continue trial to August 14, 2023, and all related dates to run with the new trial date. Defendant represents that good cause exists for a continuance because the parties have not had a chance to conduct discovery on newly added party, Alberto Castro. Further, the parties have recently agreed to mediation with John Raleigh, Esq., set for April 24, 2023. The mediation date is beyond the trial date. There is also an Informal Discovery Conference set for February 23, 2023 regarding motions to compel further response set for March 16, 2023. In sum, the parties have not been able to complete discovery and mediation and will not be able to by the current trial date.

Based on the foregoing, the Court finds good cause to continue trial. The motion is GRANTED.

IV. CONCLUSION

Defendant’s motion is GRANTED. Trial is continued from April 27, 2023 to at 8:30 a.m. in Department 27. The final status conference is continued from April 13, 2023 to at 10:00 a.m. in Department 27. All pretrial deadlines including discovery and motion cut-off dates are to be based on the new trial date.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.

Dated this 31st day of January 2023

Case Number: *******0282 Hearing Date: September 19, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I. INTRODUCTION

On August 11, 2020, Plaintiff Consuelo Martinez filed this action against Defendant City of Covina (“Covina”). Plaintiff alleges that on April 10, 2020, she fell into a hole created by the removal of a tree. Covina filed a cross-complaint for indemnity against the abutting property owner, moving defendant Robert Raab (“Defendant”). Defendant was then added to the main action as a Doe defendant.

Defendant filed an answer to Covina’s Cross-Complaint on October 26, 2020 and to Plaintiff’s Complaint on December 31, 2020. On July 1, 2022, Defendant filed this motion seeking leave to file a cross-complaint against Alberto Castro (“Castro”), who was allegedly retained by Defendant to perform the tree removal and improperly filled the ground where the tree was removed.

On August 8, 2022, the Court continued the hearing so that Plaintiff could file an opposition brief and Defendant would have an opportunity to file a reply brief.

II. LEGAL STANDARD

A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (Cal. Civ. Proc. Code 428.50 (a).) Any other cross-complaint may be filed at any time before the court has set a date for trial. (Cal. Civ. Proc. Code 428.50 (b).) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. (Cal. Civ. Proc. Code 428.50 (c).) Where the proposed cross-complaint arises out of the same transaction as a plaintiff’s claim, the court must grant leave to file the cross-complaint so long as the defendant is acting in good faith. (Cal. Civ. Proc. Code 426.50.)

III. DISCUSSION

On August 24, 2022, Plaintiff filed an opposition brief arguing that Defendant’s motion was inexcusably delayed and that allowing a new party would be prejudicial because it would require that Plaintiff submit to a second deposition session as well as additional discovery. Plaintiff points out that the tree stump was removed in 2014 – six years before Plaintiff fell – and that Defendant was well-aware that Castro performed the removal. Plaintiff claims Defendant is trying to delay a mediation that the parties were scheduled to attend.

In his reply brief, Defendant argues that there is no intention to delay mediation and that it was made clear to Plaintiff’s counsel on two occasions in June 2022 that mediation would not go forward until Defendant looked into bringing Castro as a party. Defendant further states that he identified Castro as well as his address and phone number in discovery responses served on December 28, 2020.

The proposed cross-complaint arises from the same transaction as Plaintiff’s claim and, in spite of Plaintiff’s claims made in her opposition brief, the Court finds no indication that Defendant is acting in bad faith. Accordingly, Defendant’s Motion is GRANTED and Defendant is ordered to file the proposed cross-complaint within 5 days of the date of this Order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.

Case Number: *******0282 Hearing Date: August 8, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 11, 2020, Plaintiff Consuelo Martinez filed this action against Defendant City of Covina (“Covina”). Plaintiff alleges she fell into a hole created by the removal of a tree. Covina filed a cross-complaint for indemnity against the abutting property owner, moving defendant Robert Raab (“Raab”). Raab was then added to the main action as a Doe defendant.

Raab filed an answer to Covina’s Cross-Complaint on October 26, 2020 and to Plaintiff’s Complaint on December 31, 2020. On July 1, 2022, Raab filed this motion seeking leave to file a cross-complaint against Alberto Castro (“Castro”), who was allegedly retained by Raab to perform the tree removal and improperly filled the ground where the tree was removed. The motion is unopposed.

A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (Cal. Civ. Proc. Code 428.50 (a).) Any other cross-complaint may be filed at any time before the court has set a date for trial. (Cal. Civ. Proc. Code 428.50 (b).) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. (Cal. Civ. Proc. Code 428.50 (c).) Where the proposed cross-complaint arises out of the same transaction as a plaintiff’s claim, the court must grant leave to file the cross-complaint so long as the defendant is acting in good faith. (Cal. Civ. Proc. Code 426.50.)

The proposed cross-complaint arises from the same transaction as Plaintiff’s claim and there is no evidence that Raab is not acting in good faith. Accordingly, Raab’s unopposed Motion is GRANTED and Raab is ordered to file the proposed cross-complaint within 5 days of the date of this Order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.