This case was last updated from Los Angeles County Superior Courts on 07/27/2022 at 02:02:59 (UTC).

PATRICK GABB VS DMC MANAGEMENT COMPANY ET AL

Case Summary

On 03/27/2017 PATRICK GABB filed a Property - Other Property lawsuit against DMC MANAGEMENT COMPANY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are DANIEL M. CROWLEY, WILLIAM A. CROWFOOT, KRISTIN S. ESCALANTE, GEORGINA T. RIZK and SERENA R. MURILLO. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5368

  • Filing Date:

    03/27/2017

  • Case Status:

    Other

  • Case Type:

    Property - Other Property

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DANIEL M. CROWLEY

WILLIAM A. CROWFOOT

KRISTIN S. ESCALANTE

GEORGINA T. RIZK

SERENA R. MURILLO

 

Party Details

Plaintiff

GABB PATRICK

Defendants and Cross Plaintiffs

F FRAME COMPANY

LARRABURE FRAMING INC. DOE 1

CALIFORNIA TRUSFRAME LLC DOE 3

MOTIF APARTMENTS

BLF INC. DOE 2 DBA LARRABURE FRAMING INC. A CALIFORNIA CORPORATION

ABER FENCE AND SUPPLY COMPANY INC. [DOE 4]

RAVEN CONSTRUCTION INC. DBA AS DMC RAVEN CONSTRUCTION INC. DBA

DMC MANAGEMENT SERVICES INC.

Cross Defendant

ROES 1 THROUGH 50

Attorney/Law Firm Details

Plaintiff Attorneys

JORGENSEN RICHARD A.

MITCHELL JOHN

MITCHELL JOHN HODGSON ESQ.

Defendant Attorneys

LARIN MICHAEL JAY ESQ.

LOUREIRO KARL ROBERT ESQ.

PETERSON RICK L. ESQ.

TAYLOR KENNETH ORVILLE III ESQ.

 

Court Documents

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

3/27/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

Request for Dismissal

7/14/2022: Request for Dismissal

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

2/14/2022: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

4/6/2022: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

4/18/2022: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Notice of Settlement

4/18/2022: Notice of Settlement

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

12/30/2021: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Association of Attorney

10/22/2021: Association of Attorney

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

9/8/2021: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Witness List

9/2/2021: Witness List

Witness List

9/2/2021: Witness List

Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT ...)

7/16/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT ...)

Proof of Service by Mail

7/19/2021: Proof of Service by Mail

Proof of Service by Mail

7/19/2021: Proof of Service by Mail

Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT ...)

7/27/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT ...)

Notice of Ruling - NOTICE OF RULING ON DEFENDANT'S MOTION TO QUASH

7/28/2021: Notice of Ruling - NOTICE OF RULING ON DEFENDANT'S MOTION TO QUASH

Amendment to Complaint (Fictitious/Incorrect Name)

8/4/2021: Amendment to Complaint (Fictitious/Incorrect Name)

Reply - REPLY DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO QUASH SERVICE OF SUMMONS: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF: DECLARATION OF JUDY STEFFY, ESQ.

5/25/2021: Reply - REPLY DEFENDANTS REPLY TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO QUASH SERVICE OF SUMMONS: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF: DECLARATION OF JUDY STEFFY, ESQ.

56 More Documents Available

 

Docket Entries

  • 07/14/2022
  • DocketRequest for Dismissal; Filed by Patrick Gabb (Plaintiff)

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  • 04/20/2022
  • Docketat 08:30 AM in Department 29; Jury Trial - Not Held - Advanced and Vacated

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  • 04/18/2022
  • Docketat 10:00 AM in Department 29, Daniel M. Crowley, Presiding; Final Status Conference - Held

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  • 04/18/2022
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 04/18/2022
  • DocketNotice of Settlement; Filed by Patrick Gabb (Plaintiff)

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  • 04/06/2022
  • Docketat 10:00 AM in Department 29, William A. Crowfoot, Presiding; Final Status Conference - Not Held - Continued - Court's Motion

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  • 04/06/2022
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 02/28/2022
  • Docketat 08:30 AM in Department 29; Jury Trial - Not Held - Continued - Court's Motion

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  • 02/14/2022
  • Docketat 10:00 AM in Department 29, Serena R. Murillo, Presiding; Final Status Conference - Not Held - Continued - Court's Motion

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  • 02/14/2022
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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106 More Docket Entries
  • 09/05/2018
  • DocketAnswer; Filed by LARRABURE FRAMING, INC. (DOE 1) (Defendant)

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  • 07/19/2018
  • DocketAmendment to Complaint (Fictitious Name)

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  • 07/19/2018
  • DocketAmendment to Complaint; Filed by Patrick Gabb (Plaintiff)

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  • 07/18/2018
  • DocketREQUEST FOR ENTRY OF DEFAULT

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  • 07/18/2018
  • DocketRequest for Entry of Default / Judgment; Filed by Plaintiff/Petitioner

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  • 07/16/2018
  • DocketProof of Service of Summons and Complaint

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  • 07/16/2018
  • DocketProof-Service/Summons; Filed by Patrick Gabb (Plaintiff)

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  • 03/27/2017
  • DocketSUMMONS

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  • 03/27/2017
  • DocketComplaint; Filed by Patrick Gabb (Plaintiff)

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  • 03/27/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

b"

Case Number: ****5368 Hearing Date: July 27, 2021 Dept: 29

TENTATIVE

Raven’s motion is GRANTED.

Legal Standard

“The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, ;an action is commenced at the time the complaint is filed.” (CCP ; 583.210(a).)

“If service is not made in an action within the time prescribed in this article: (1) The action shall not be further prosecuted and no further proceedings shall be held in the action. (2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.” (CCP ; 583.250(a).) “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (CCP ; 583.250(b).)

“In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: (a) The defendant was not amenable to the process of the court. (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. (c) The validity of service was the subject of litigation by the parties. (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.” (CCP ; 583.240(a)-(d).)

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her…(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with ;Section 583.110) of Title 8.” (CCP ; 418.10(a)(1) and (3).)

Discussion

Here, the action was commenced on March 27, 2017 when Plaintiff filed the Complaint against Does 1 to 100. Thus, absent tolling or some other excuse permitted by statute, the Summons and Complaint needed to be served no later than March 27, 2020.

On January 21, 2021, Plaintiff filed an “Amendment to Complaint” and named Raven as Doe 5. Plaintiff served Raven with the Summons and Complaint on February 4, 2021, well past the three-year mark.

Plaintiff argues he is excused from the three-year statute because (1) Raven concealed its identity from Plaintiff, making it impossible, impracticable, or futile to serve Raven, and (2) Plaintiff exercised reasonable diligence. (Mitchell Decl., ¶¶ 4-18, 25-32.)

A. Amendment to Correct a Misnomer

The Court notes that on May 19, 2021, Plaintiff filed an “Amendment to Complaint,” indicating that the true name of DMC is Raven. (Mitchell Decl., ¶ 32, Exh. H.) On July 21, 2021, Plaintiff again filed an “Amendment to Complaint,” indicating that the true name of DMC is DMC Management Services, Inc.

The parties do not dedicate much time to this, but the Court finds it important to analyze.

Section 473 of the Code of Civil Procedure provides that the court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading by adding the name of any party, or by correcting a mistake in the name of a party. Whether an amendment of a pleading will be allowed to change the description or characterization from an individual, a partnership or other association, after the statute of limitations has run depends on whether the misdescription or mischaracterization is merely a misnomer or defect in the description or characterization, or whether it is a substitution or entire charge of parties. In the former case an amendment will be allowed; in the latter, it will not be allowed.” (Thompson v. Palmer Corp. (1956) 138 Cal.App.2d 387, 390.)

If the true name of DMC is Raven, then Plaintiff may amend the FAC and proceed with litigation. In contrast, if Raven is being joined in the litigation for the first time, then Plaintiff may not proceed with litigation against Raven, for the reasons discussed in Section B, “Amendment to Add a New Party.”

Here, it appears that DMC and Raven are different parties. (Compare Mitchell Decl., Exh. A with Exh. B [difference in addresses]; Compare Mitchell Decl., Exh. E with F [difference in name of entities]; but see Mitchell Decl., Exh. G [Plaintiff testified that supervisor on job site was for general contractor]; Compare also May 19, 2021 amendment with July 21, 2021 amendment.)

B. Amendment to Add Raven as a New Party

Given that DMC and Raven are different parties, the following analysis is applicable.

“The tolling provision for impossibility, impracticability or futility does not exist in a vacuum. ‘ “What is impossible, impracticable, or futile is determined in light of all the circumstances of a particular case, including the conduct of the parties and the nature of the proceedings. The critical factor is whether the plaintiff exercised reasonable diligence in prosecuting its case. [Citation.] The statute must be liberally construed, consistent with the policy favoring trial on the merits.” [Citation.] ...’ [Citation.]” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270.)

Here, a review of the evidence shows that the delay in discovering Raven’s identity stems from a delay in discovery. (Mitchell Decl., ¶¶ 5-17, 25-26.) Plaintiff has not provided evidence that Raven attempted to conceal its identity. (Mitchell Decl., ¶¶ 30-31; Perez v. Smith (1993) 19 Cal.App.4th 1595, 1597 [a plaintiff has “the burden of establishing facts bringing the case within an exception to the general rule requiring dismissal…”].)

A delay in discovery is insufficient grounds to justify Plaintiff’s failure to timely serve Raven. (County of Los Angeles v. Superior Court (1988) 203 Cal.App.3d 1205, 1209 [“Quintero's sole excuse that service of the complaint was delayed because his counsel was conducting discovery does not provide a reasonable basis for denial of the motion to dismiss and does not justify the failure to serve County within the time period set forth in section 583.420, subdivision (a)(1)”].)

Plaintiff has not shown a basis for tolling. As such, Plaintiff untimely served Raven, which warrants dismissal.

Conclusion

Raven’s motion is GRANTED.

Raven is ordered to give notice.

"


b"

Case Number: ****5368 Hearing Date: July 16, 2021 Dept: 29

TENTATIVE

Raven’s motion is GRANTED.

Legal Standard

“The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” (CCP ; 583.210(a).)

“If service is not made in an action within the time prescribed in this article: (1) The action shall not be further prosecuted and no further proceedings shall be held in the action. (2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.” (CCP ; 583.250(a).) “The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.” (CCP ; 583.250(b).)

“In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: (a) The defendant was not amenable to the process of the court. (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. (c) The validity of service was the subject of litigation by the parties. (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.” (CCP ; 583.240(a)-(d).)

“A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her…(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.” (CCP ; 418.10(a)(1) and (3).)

Discussion

Here, the action was commenced on March 27, 2017 when Plaintiff filed the Complaint against Does 1 to 100. Thus, absent tolling or some other excuse permitted by statute, the Summons and Complaint needed to be served no later than March 27, 2020.

On January 21, 2021, Plaintiff filed an “Amendment to Complaint” and named Raven as Doe 5. Plaintiff served Raven with the Summons and Complaint on February 4, 2021, well past the three-year mark.

Plaintiff argues he is excused from the three-year statute because (1) Raven concealed its identity from Plaintiff, making it impossible, impracticable, or futile to serve Raven, and (2) Plaintiff exercised reasonable diligence. (Mitchell Decl., ¶¶ 4-18, 25-32.)

A. Amendment to Correct a Misnomer

The Court notes that on May 19, 2021, Plaintiff filed an “Amendment to Complaint,” indicating that the true name of DMC is Raven. (Mitchell Decl., ¶ 32, Exh. H.)

The parties do not dedicate much time to this, but the Court finds it important to analyze.

Section 473 of the Code of Civil Procedure provides that the court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading by adding the name of any party, or by correcting a mistake in the name of a party. Whether an amendment of a pleading will be allowed to change the description or characterization from an individual, a partnership or other association, after the statute of limitations has run depends on whether the misdescription or mischaracterization is merely a misnomer or defect in the description or characterization, or whether it is a substitution or entire charge of parties. In the former case an amendment will be allowed; in the latter, it will not be allowed.” (Thompson v. Palmer Corp. (1956) 138 Cal.App.2d 387, 390.)

If the true name of DMC is Raven, then Plaintiff may amend the FAC and proceed with litigation. In contrast, if Raven is being joined in the litigation for the first time, then Plaintiff may not proceed with litigation against Raven, for the reasons discussed in Section B, “Amendment to Add a New Party.”

Here, it appears that DMC and Raven are different parties. (Compare Mitchell Decl., Exh. A with Exh. B [difference in addresses]; Compare Mitchell Decl., Exh. E with F [difference in name of entities].)

The Court finds that the parties are different, in light of the evidence presented by Plaintiff and the fact that Raven has appeared in the litigation, whereas DMC has not.

B. Amendment to Add Raven as a New Party

“The tolling provision for impossibility, impracticability or futility does not exist in a vacuum. ‘ “What is impossible, impracticable, or futile is determined in light of all the circumstances of a particular case, including the conduct of the parties and the nature of the proceedings. The critical factor is whether the plaintiff exercised reasonable diligence in prosecuting its case. [Citation.] The statute must be liberally construed, consistent with the policy favoring trial on the merits.” [Citation.] ...’ [Citation.]” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270.)

Here, a review of the evidence shows that the delay in discovering Raven’s identity stems from a delay in discovery. (Mitchell Decl., ¶¶ 5-17, 25-26.) Plaintiff has not provided evidence that Raven attempted to conceal its identity. (Mitchell Decl., ¶¶ 30-31; Perez v. Smith (1993) 19 Cal.App.4th 1595, 1597 [a plaintiff has “the burden of establishing facts bringing the case within an exception to the general rule requiring dismissal…”].)

A delay in discovery is insufficient grounds to justify Plaintiff’s failure to timely serve Raven. (County of Los Angeles v. Superior Court (1988) 203 Cal.App.3d 1205, 1209 [“Quintero's sole excuse that service of the complaint was delayed because his counsel was conducting discovery does not provide a reasonable basis for denial of the motion to dismiss and does not justify the failure to serve County within the time period set forth in section 583.420, subdivision (a)(1)”].)

Plaintiff has not shown a basis for tolling. As such, Plaintiff untimely served Raven, which warrants dismissal.

Conclusion

Raven’s motion is GRANTED.

Raven is ordered to give notice.

"


Case Number: ****5368    Hearing Date: February 25, 2021    Dept: 29

Patrick Gabb v. DMC Management Co., et al.

Demurrer filed by Defendant California TrusFrame, LLC

TENTATIVE:

SUSTAIN the demurrer with leave to amend within 20 days.

ANALYSIS:

Legal Standard

Meet and Confer

Before filing a demurrer or motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading sought to be stricken or 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. (CCP ;; 430.41.) The Court finds that Demurring Defendants have filed code-compliant meet and confer declarations. (Taylor Decl., ¶¶ 4-6; CCP ; 430.41(a)(3)(B).)

Demurrer

Defendant can demur within the same period of time it has to answer the complaint, i.e., 30 days after service, unless extended by stipulation or court order. (CCP ; 430.40(a).) However, an untimely demurrer may be considered by the court in its discretion. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.)

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 747.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

A general demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to constitute a cause of action.” (CCP ; 430.10(e).) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.)

A demurrer may also be sustained if a complaint is “uncertain.” (CCP ; 430.10(f).) Uncertainty exists where a complaint’s factual allegations are so confusing that they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Discussion

1. Timeliness

As a preliminary matter, the parties dispute whether the demurrer is filed timely. Both parties agree that Plaintiff granted Demurring Defendant a 30-day extension to file a responsive pleading, which expired on December 20, 2020. (Taylor Reply Decl., ¶ 3.; Mitchell Decl., ¶ 6.) With respect to the timeliness of the demurrer, Demurring Defendant argues that the time to file a responsive pleading, i.e., demurrer, is extended or tolled by initiating a meet and confer between the parties. (Reply, 2:11-26.) Demurring Defendant does not provide any authority to support this proposition. The Court is not convinced by the argument.

Alternatively, Plaintiff contends that Demurring Defendant was in default by 30 days when it filed a demurrer to the complaint. Plaintiff asserts that his substantial rights have been prejudiced and that he has a right to take a default. Plaintiff does not explain how or what, if any, substantial rights have been prejudiced. Neither is the Court convinced by Plaintiff’s argument.

Even assuming Demurring Defendant failed to file timely responsive pleadings, here, the demurrer, within the extension granted by Plaintiff, the relevant rule specifically affords the Court discretion to consider the late demurrer. (See CCP ; 430.40(a) [“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (emphasis added).] The Court still retains its discretionary authority to consider the demurrer even if it was filed 30 days past due. (Jackson, supra, at 750. [“The trial court may exercise this discretion so long as its action does ‘not affect the substantial rights of the parties.’” (McAllister v. County of Monterey(2007) 146 Cal.App.4th 253, 281-82.)].) Accordingly, the Court will consider the “late” filing and issue a ruling on its merits.

2. General Demurrer to Both Causes of Action

The elements of a negligence cause of action are the existence of a duty of care, breach of that duty, and proximate cause resulting in injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-18.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Ortega v. Kmart Corp. (2001) (26 Cal.4th 1200, 1205.) To establish that a defendant owed a duty to a plaintiff in a premises liability claim, the plaintiff must allege facts to show that the defendant owned, leased, occupied, or controlled the subject property. (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 832.)

Here, following is the extent of what the complaint alleges:

At all times herein mentioned, defendants, and each of them, were the agent, employee or principal of the remaining defendants, and in doing the acts herein alleged, acted within such capacity.

Defendants and each of them negligently failed to keep the work area free of objects on the floor at the bottom of the stairwell. Defendants and each of them had a duty to keep the area free from objects on the floor at the bottom of stairwells.

(Compl. p. 4.)

The complaint lacks any allegation that Demurring Defendant owned, leased, occupied, or controlled the subject property. Plaintiff argues that Demurring Defendant’s statements in the moving papers are sufficient to support the cause of action. However, this is not the standard on which the Court relies. In analyzing a demurrer to the complaint, the Court looks to defects on the face of the complaint, not any other extrinsic matters. (SKF Farms, supra, at 905.)

Since Plaintiff fails to allege facts sufficient to show that Demurring Defendant owed a duty of care to Plaintiff in the complaint, the demurrer must be sustained in its entirety.

The Court will not examine whether the complaint is uncertain pursuant to CCP ; 430.10(f) because the demurrer must be sustained based solely on Plaintiff’s failure to state facts sufficient to constitute a cause of action.

Conclusion

Defendant California TrusFrame, LLC’s demurrer is SUSTAINED in its entirety with leave to amend within 20 days.

Moving party is ordered to give notice.



Case Number: ****5368    Hearing Date: February 11, 2021    Dept: 29

Gabb  vs.  DMC Management Co. et. al.

Court Order Re: Continuance of the February 11, 2021 Hearing to February 25, 2021;

On the Court's own motion, the Hearing Doe Defendant 3 - California Trusframe, LLC's Demurrer to Plaintiff's Complaint (CCP Section 430.10(e)-(f)) scheduled for 02/11/2021 is CONTINUED to 02/25/2021 at 01:30 PM in Department 29 at Spring Street Courthouse.

Judicial Assistant is directed to give notice



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