DEYSI ALVAREZ VS GLENDALE I MALL ASSOCIATES LP ET AL

UPDATED TENTATIVE RULING

Demurrer without a Motion to Strike

Having considered the demurring papers, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On March 29, 2018, Plaintiff Deysi Alvarez (“Plaintiff”) filed a complaint against Defendants Glendale I Mall Associates, LP and Target Corporation.  Plaintiff alleges negligence and premises liability in the complaint for a slip-and-fall incident that occurred on January 9, 2018.

On November 13, 2018, Plaintiff filed an amendment to the complaint renaming Doe 1 as Defendant Millard Mall Services, Inc.

On July 18, 2019, the Court dismissed Defendant Target Corporation without prejudice.

On November 20, 2019, Plaintiff’s counsel, David Azizi and Arthur Djougourian, filed a notice to reinstate Defendant Target Corporation.

On January 21, 2020, Plaintiff filed an amendment to the complaint renaming Doe 2 as Defendant Target Corporation.

On February 21, 2020, Defendant Target Corporation filed a demurrer to Plaintiff’s complaint pursuant to California Code of Civil Procedure 430.10.

On March 10, 2020, the Court continued the hearing on Defendant Target Corporation’s demurrer to March 24, 2020.

On March 17, 2020, the Court continued the hearing on Defendant Target Corporation’s demurrer to May 11, 2020.

On April 17, 2020, the Court continued the hearing on Defendant Target Corporation’s demurrer to August 6, 2020.

Trial is set for October 29, 2020.

PARTY’S REQUESTS

Defendant Target Corporation (“Demurring Defendant”) asks the Court sustain its demurrer because the two-year statute of limitation bars Plaintiff’s causes of action.

JUDICIAL NOTICE

Demurring Defendant asks the Court to take judicial notice of: (1) Plaintiff’s complaint filed on March 29, 2018, (2) Plaintiff’s request for dismissal filed on July 11, 2019, (3) Plaintiff’s amendment to the complaint filed on January 21, 2020, and (4) Plaintiff’s reinstatement of Defendant as a party to the action filed on “November 20, 2020 (sic).”

Demurring Defendant’s request for judicial notice is GRANTED pursuant to California Evidence Code section 452, subdivision (e)(1).  However, the Court does not take judicial notice of the truth of the matters asserted in Plaintiff’s complaint.

OBJECTIONS

Demurring Defendant objects and moves to strike portions of David Azizi’s Declarations.  Demurring Defendant’s objections 1 and 2 are OVERRULED.

The first objection is based on hearsay.  However, the objected to statement does not contain an out-of-court statement.  Rather, it consists of Mr. Azizi’s understanding of whether or not Mr. Djougorian had authority to file a request for dismissal.

The second objection is also based on hearsay.  Similar to the first statement objected to, the second statement does not contain an out-of-court statement.  Instead, it consists of Mr. Azizi’s lack of understanding as to why Mr. Djougorian exceeded his authority in filing a request for dismissal.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading sought to be demurred to, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.  (See Code Civ. Proc., § 430.41, subd. (a).)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at p. 747.)

“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [citation omitted].)

DISCUSSION

Meet and Confer

On January 31, 2020, Demurring Defendant’s counsel, David G. Halm, sent an electronic correspondence and called and left a voicemail message for Plaintiff’s counsel regarding the statute of limitation issue in Plaintiff’s amendment adding Demurring Defendant as a defendant.  (Halm Decl., ¶¶ 6-7; Exh. A.)  Having not heard from Plaintiff’s counsel, on February 4, 2020, Demurring Defendant’s counsel sent Plaintiff’s counsel another email correspondence and also faxed a letter reiterating the grounds for Demurring Defendant’s demurrer.  (Halm Decl., ¶ 8; Exh. B-C.)  On February 5, 2020, Demurring Defendant’s counsel spoke with Jason Smith, an attorney at Plaintiff’s counsel’s law firm, and thoroughly discussed the statute of limitation issue and Demurring Defendant’s intent to file the instant motion.  (Halm Decl., ¶ 9.)  Mr. Smith replied that he would research the issue and get back to Demurring Defendant’s counsel.  (Halm Decl., ¶ 9.)

Demurring Defendant’s counsel on multiple occasions attempted to resolve the issues in the instant motion with Plaintiff’s counsel.  Accordingly, the Court finds Demurring Defendant has sufficiently attempted to meet and confer with Plaintiff regarding the issues in the complaint that give rise to this demurrer.

Relation Back Doctrine

An action for negligence and premises liability must be brought within two years of the date of the negligently caused injury.  (Code Civ. Proc. § 335.1; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109.)

California Code of Civil Procedure section 474 allows Plaintiff to designate a defendant by any names, i.e., “Does,” “[w]hen the plaintiff is ignorant of the name of a defendant.”  (Code Civ. Proc,. § 474.)  However, “when [defendant’s] true name is discovered, the pleading or proceeding must be amended accordingly.”  A plaintiff is deemed to be “ignorant of the name” both when the plaintiff does not know the identity of the defendant and when the plaintiff knows the identity of the defendant but is ignorant of facts giving the plaintiff a cause of action against the defendant.  (Dover v. Sadowinsk ¿(1983) 147 Cal. App. 3d 113, 116.)

Here, on March 29, 2018, Plaintiff filed her complaint against Demurring Defendant.  Thereafter, on July 18, 2019, Plaintiff dismissed Demurring Defendant without prejudice.  On November 20, 2019, Plaintiff filed a notice to reinstate Demurring Defendant.  The Court first notes that the notice to reinstate Demurring Defendant has no effect to the instant case.  Plaintiff offers no authority suggesting otherwise.

Subsequently, on January 21, 2020, Plaintiff filed an amendment to her complaint, renaming Doe 2 as Demurring Defendant.  Demurring Defendant argues that Plaintiff’s amendment to renaming Doe 2 as Demurring Defendant – after Plaintiff had already dismissed Demurring Defendant – does not relate the complaint back to the original filing date as it pertains to Demurring Defendant.  As such, Demurring Defendant contends, Plaintiff’s causes of action are barred by the two-year statute of limitations pursuant to California Code of Civil Procedure section 335.1.  Additionally, Demurring Defendant argues that Plaintiff’s amendment to replace Doe 2 as Demurring Defendant violates Code of Civil Procedure section 474 because on the face of the original complaint, Plaintiff clearly knew Demurring Defendant’s identity and the basis for her causes of action.  The Court agrees. 

In the instant case, Plaintiff was not ignorant of Demurring Defendant’s true name.  On the contrary, Plaintiff knew of Demurring Defendant’s true name and sued Demurring Defendant as such.  (See Compl.)  Moreover, Plaintiff's pleadings show that she knew the facts giving rise to her cause of action for premises liability based on negligent management or control of the premises because she knew she was on premises managed or controlled by Target when she slipped and fell. (Ibid.)  Therefore, Plaintiff’s amendment to rename Doe 2 as Demurring Defendant violates California Code of Civil Procedure section 474.

Plaintiff does not address Demurring Defendant’s arguments relating to California Code of Civil Procedure section 474.  Accordingly, the Court cannot find Plaintiff’s January 21, 2020 amendment to the complaint relates back to the filing of the complaint.  There is no argument made in support of tolling of the action.  Plaintiff’s injuries were sustained on January 9, 2018.  Plaintiff named Demurring Defendant as a party over two years later on January 21, 2020.  As such, Plaintiff’s filing of the Doe amendment does not relate back to the filing of the complaint, effectively baring Plaintiff’s action against Demurring Defendant.

Plaintiff’s request to set aside the July 11, 2019 Dismissal

In opposition, Plaintiff argues that Plaintiff’s dismissal of Demurring Defendant on July 11, 2019 was done by Plaintiff’s attorney without Plaintiff’s authority.  Therefore, Plaintiff contends, pursuant to California Code of Civil Procedure section 473, subdivision (d), such dismissal is void and must be set aside. An attorney’s unauthorized dismissal is voidable when the adversely affected party seeks to vacate within a reasonable time of learning of the dismissal.  (See Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal.App.3d 504, 507-509 [hereinafter “Whittier”].)  The time limits in California Code of Civil Procedure section 473 do not affect a party’s ability to void an unauthorized dismissal.  (Ibid.)  Vacating an unauthorized dismissal “. . . requires strong and convincing proof, and the longer the delay in the application for relief the stronger and more convincing the factual proof should be.”  (Id. at p. 509.)  The Court in Whittier impliedly found a four month delay between the plaintiffs’ learning of their counsel’s fraudulent acts and the Plaintiffs’ moving to have a dismissal set aside to be reasonable.  (Id. at pp. 506, 509.)

While there may be a basis to set aside the dismissal, Plaintiff’s current effort fails.  Plaintiff needs to present a notice motion supported by evidence that the dismissal was entered without Plaintiff’s authority.  

CONCLUSION

The demurrer is SUSTAINED with leave to amend.

Demurring Defendant is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.