On 10/19/2017 RODNEY MYERS JR filed a Personal Injury - Motor Vehicle lawsuit against COUNTY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and DANIEL M. CROWLEY. The case status is Pending - Other Pending.
****0294
10/19/2017
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
DANIEL M. CROWLEY
MYERS RODNEY JR
COLLINS SHAWNIKA
COMPTON CITY OF
LOS ANGELES COUNTY OF
DOES 1 TO 100
ARUP DOE 2
COMSTOCK COMPANY DOE 5
J.F. SHEA CONSTRUCTION INC. DOE 4
CITY OF COMPTON
HNTB DOE 3
LOS ANGELES METROPOLITAN TRANSPORTATION AUTHORITY DOE 6
WALSH SHEA CORRIDORS CONTRACTORS
WALSH SHEA CONTRACTORS INC. DOE 7
ANYTIME DUMPING INC.
MYERS DIAMON AMARI
COLLINS SHAWNIKA
SPECIALLY APPEARING DEFENDANT LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY
IBISI ERIC ESQ.
IBISI ERIC OKWUDILI ESQ.
CORNWELL CRAIG J. DEPUTY CITY ATTY
COLLINS COLLINS MUIR & STEWART LLP
PAZ JOSE R.
BECK TERESA
CITRON THOMAS H.
AINSLIE ADAM ANTHONY
WEBB LANE ELLIS
8/13/2020: Reply - REPLY DEFENDANTS WALSH SHEA CORRIDOR CONSTRUCTOS' REPLY TO PLAINTIFFS' OPPOSITION TO MOTION FOR PROTECTIVE ORDER
11/12/2020: Objection - OBJECTION DEFENDANT WALSH SHEA CORRIDOR CONSTRUCTORS' OBJECTIONS TO "EVIDENCE" REFERRED TO IN PLAINTIFFS' OPPOSITION TO DEFENDANT'S DEMURRER
11/12/2020: Objection - OBJECTION DEFENDANT WALSH SHEA CORRIDOR CONSTRUCTORS' OBJECTIONS TO PLAINTIFFS' "EVIDENCE" IN PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE
10/20/2020: Request for Dismissal
9/3/2020: Proof of Service (not Summons and Complaint)
9/3/2020: Declaration - DECLARATION DECLARATION OF PENDERGRASS IN SUPPORT OF DEFENDANT WALSH SHEA CORRIDOR CONSTRUCTOR'S OPPOSITION TO PLAINTIFFS' EX PARTE APPLICATION TO COMPEL NON PARTY AUGUSTIN CIRA TO ATTEN
10/8/2019: Minute Order - MINUTE ORDER (DEFENDANT CITY OF COMPTON'S EX PARTE APPLICATION FOR AN ORDER...)
2/14/2020: Amendment to Complaint (Fictitious/Incorrect Name)
4/23/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/23/2020
4/23/2020: Request for Entry of Default / Judgment
5/18/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 05/18/2020
6/30/2020: Motion for Order - MOTION FOR ORDER COMPELLING PLAINTIFFS, RODNEY MYERS, JR. AND DIAMOND AMARI MYERS TO RESPOND
7/6/2020: Notice - NOTICE NOTICE OF HEARING
8/5/2020: Ex Parte Application - EX PARTE APPLICATION TO ADVANCE THE HEARING ON DEFENDANT'S MOTION FOR PROTECTIVE ORDER TO SEPTEMBER 30, 2020
8/7/2020: Minute Order - MINUTE ORDER (PLAINTIFF'S EX PARTE APPLICATION TO ADVANCE THE HEARING ON DE...)
8/10/2020: Demurrer - with Motion to Strike (CCP 430.10)
2/12/2018: DECLARATION OF ADAM A. AINSLIE REGARDING INABILITY TO MEET AND CONFER REQUIREMENT
2/26/2018: REQUEST FOR DISMISSAL
Hearing10/07/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial
Hearing09/23/2021 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference
Hearing03/03/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Quash Service of Summons
Hearing12/08/2020 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses
Hearing11/19/2020 at 15:30 PM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Demurrer - without Motion to Strike
Hearing11/19/2020 at 15:30 PM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Demurrer - with Motion to Strike (CCP 430.10)
Docketat 3:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Demurrer - without Motion to Strike - Not Held - Advanced and Continued - by Court
DocketReply (Defendant Walsh Shea Corridor Constructors' Response to Plaintiffs' Evidentiary Objections to Beck's Declaration ISO of Demurrer and Beck's Declaration ISO Motion to Strike); Filed by WALSH SHEA CONTRACTORS INC. (DOE 7) (Defendant)
DocketReply (Defendant Walsh Shea Corridor Constructors' Response to Plaintiffs' Objections to Walsh Shea's Request for Judicial Notice); Filed by WALSH SHEA CONTRACTORS INC. (DOE 7) (Defendant)
DocketProof of Service (not Summons and Complaint); Filed by WALSH SHEA CONTRACTORS INC. (DOE 7) (Defendant)
DocketPROOF OF SERVICE SUMMONS
DocketPROOF OF SERVICE SUMMONS
DocketProof of Service (not Summons and Complaint); Filed by Shawnika Collins (Plaintiff); Diamon Amari Myers (Plaintiff); RODNEY, JR MYERS (Plaintiff)
DocketProof of Service (not Summons and Complaint); Filed by Shawnika Collins (Plaintiff); Diamon Amari Myers (Plaintiff); RODNEY, JR MYERS (Plaintiff)
DocketSummons; Filed by Shawnika Collins (Plaintiff); Diamon Amari Myers (Plaintiff); RODNEY, JR MYERS (Plaintiff)
DocketSUMMONS
DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL
DocketApplication ; Filed by Plaintiff/Petitioner
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
DocketComplaint; Filed by RODNEY, JR MYERS (Plaintiff)
Case Number: BC680294 Hearing Date: November 19, 2020 Dept: 28
Walsh's Demurrer with a Motion to Strike
Having considered the demurring, moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On October 19, 2017, Plaintiff Rodney Myers, Jr. and Diamond Amari Myers (collectively “Plaintiffs”) filed a complaint against Defendants County of Los Angeles and City of Compton. Plaintiffs allege negligence arising from the death of Decedent Rodney Myers (“Decedent”).
On February 26, 2018, the Court dismissed Defendant County of Los Angeles without prejudice.
On April 14, 2020, Plaintiffs filed amendments to Plaintiffs’ complaint to rename Doe 4 as Defendant J. F. Shea Construction, Inc. and Doe 7 as Defendant Walsh Shea Contractors Inc.
On August 3, 2020, Plaintiffs filed a first amended complaint (“FAC”) to, in part, allege premises liability, allege additional facts, and rename Defendant County of Los Angeles.
On August 10, 2020, Defendant Walsh Shea Corridor Constructors (erroneously sued as Walsh Shea Corridor Contractors and Walsh Shea Contractors, Inc.) (“Defendant Walsh”) filed a demurrer pursuant to Code of Civil Procedure section 430.10.
Also on August 10, 2020, Defendant Walsh filed a motion to strike pursuant to California Code of Civil Procedure section 435.
Trial is set for October 7, 2021.
PARTY’S REQUEST
Defendant Walsh asks the Court to sustain its demurrer and grant its motion to strike Plaintiff’s complaint because it is barred by the relevant statute of limitations.
JUDICIAL NOTICE
Defendant Walsh asks the Court to take judicial notice of a County of Los Angeles Sheriff’s Department’s Traffic Collision Report. The Court GRANTS the request for judicial notice of the existence of and creation of the traffic collision report pursuant to California Evidence Code sections 452, subdivision (c). However, the Court DENIES any request to take judicial notice of the truth of the matters asserted within this document. (See C.R. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.) Vehicle Code 20013
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 demurred to or stricken, 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 and motion to strike.¿ (See Code Civ. Proc. §§ 430.41, 435.5.)
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.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].)
Motion to Strike
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)
DISCUSSION
Meet and Confer
Defendant Walsh has not filed a code-compliant meet and confer declaration. It attempted to meet and confer by sending letters. Only in-person and telephonic meet and confer efforts are permissible. While the Court will rule on the merits of the demurrer and motion to strike, the parties are warned that future failures to follow the mandates of California Code of Civil Procedure may result in hearings taken off-calendar.
Demurrer
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.)
“The general rule is that an amended complaint that adds a new defendant 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. A recognized exception to the general rule is the substitution under 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. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)
“Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Id.) “A further and nonprocedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant Doe’s] identity at the time she filed her original complaint. The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. However, if the plaintiff is actually ignorant of the defendant’s identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff's negligence.” (Id. at p. 177; see also Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 779-782.)
Here, Plaintiff was injured on April 9, 2017. (Compl., p. 4; FAC, p. 4.) The complaint was filed on October 19, 2017. Thus, the complaint was timely filed.
The Court finds Plaintiff’s naming of Defendant Walsh on August 10, 2020 relates back to the filing of Plaintiff’s complaint on April 9, 2017. The initial complaint alleges Does 1 through 100 negligently left a pile of dirt in the middle of the street, which caused Decedent’s death. (Compl., p. 4.) Paragraph six of the complaint states the true names of the Doe Defendants were unknown to Plaintiff. (Compl., p. 2.) These allegations are echoed in the FAC. (See FAC, pp. 2, 4.) It is immaterial that Plaintiff did not allege the Doe Defendants were agents or employees of other defendants or that their capacities are unknown. (See Compl., p. 6(a)-6(b).) As such, the demurrer must be overruled.
Motion to Strike
Defendant Walsh attempts to have the strike the complaint based on extrinsic evidence to show Plaintiff was not truly ignorant of Defendant Walsh’s identity and that Plaintiff was dilatory in naming Defendant Walsh. The Court cannot do so. Thus, the motion to strike must be denied.
Defendant Walsh’s argument that Plaintiff’s two-year undue delay in naming Defendant Walsh constitutes prejudice is not supported with authority such that the Court may grant the motion to strike.
CONCLUSION
The demurrer is OVERRULED.
The motion to strike is DENIED.
Plaintiff is ordered to give notice of this ruling.
Plaintiff is ordered to file the proof of service of this ruling with the Court within five days.
County of Los Angeles' Demurrer
Demurrer without a Motion to Strike
Having considered the demurring and opposing papers, the Court rules as follows.
BACKGROUND
On October 19, 2017, Plaintiff Rodney Myers, Jr. and Diamond Amari Myers (collectively “Plaintiffs”) filed a complaint against Defendants County of Los Angeles (“Defendant COLA”) and City of Compton. Plaintiffs allege negligence arising from the death of Decedent Rodney Myers (“Decedent”).
On February 26, 2018, the Court dismissed Defendant COLA without prejudice.
On April 14, 2020, Plaintiffs filed amendments to Plaintiffs’ complaint to rename Doe 4 as Defendant J. F. Shea Construction, Inc. and Doe 7 as Defendant Walsh Shea Contractors Inc.
On August 3, 2020, Plaintiffs filed a first amended complaint (“FAC”) to, in part, allege premises liability, allege additional facts, and rename Defendant COLA.
On October 8, 2020, Defendant COLA filed a demurrer pursuant to Code of Civil Procedure section 430.10.
On October 10, 2020, the Court dismissed County of Los Angeles without prejudice.
Trial is set for October 7, 2021.
PARTY’S REQUEST
Defendant COLA asks the Court to sustain its demurrer to Plaintiff’s complaint for four reasons. First, it is uncertain what causes of action are alleged against Defendant COLA. Second, Plaintiff’s complaint is barred by the relevant statute of limitations.
JUDICIAL NOTICE
Defendant Walsh asks the Court to take judicial notice of a County of Los Angeles Sheriff’s Department’s Traffic Collision Report. The Court GRANTS the request for judicial notice of the existence of and creation of the traffic collision report pursuant to California Evidence Code sections 452, subdivision (c). However, the Court DENIES any request to take judicial notice of the truth of the matters asserted within this document. (See C.R. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.)
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 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.)
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.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].)
DISCUSSION
The Court finds the demurrer is moot because Plaintiff voluntarily dismissed Defendant COLA on October 23, 2020.
CONCLUSION
The demurrer is OVERRULED as MOOT.
Plaintiff is ordered to give notice of this ruling. laintiff is ordered ruling
City of Compton's Demurrer
Having considered the demurring papers, the Court rules as follows. reply
BACKGROUND
On October 19, 2017, Plaintiff Rodney Myers, Jr. and Diamond Amari Myers (collectively “Plaintiffs”) filed a complaint against Defendants County of Los Angeles and City of Compton . Plaintiffs allege negligence arising from the death of Decedent Rodney Myers (“Decedent”).
On February 26, 2018, the Court dismissed Defendant COLA without prejudice.
On April 14, 2020, Plaintiffs filed amendments to Plaintiffs’ complaint to rename Doe 4 as Defendant J. F. Shea Construction, Inc. and Doe 7 as Defendant Walsh Shea Contractors Inc.
On July 13, 2020, Defendant Compton pursuant to Code of Civil Procedure section 430.10.
On August 3, 2020, Plaintiffs filed a first amended complaint (“FAC”) to, in part, allege premises liability, allege additional facts, and rename Defendant County of Los Angeles.
On October 10, 2020, the Court dismissed County of Los Angeles without prejudice.
Trial is set for October 7, 2021.
PARTY’S REQUEST
Defendant Compton asks the Court to sustain its demurrer to the first and second counts of Plaintiff’s premises liability cause of action because their based on common law.
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 demurred to in person or by telephone 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.)
Demurrer
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda Taylor v. City of Los Angeles Dept. of Water and Power 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. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court “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.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher Shields v. County of San Diego [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].)
DISCUSSION
Meet and Confer
The Court finds Defendant Compton has filed a code-compliant meet and confer declaration. (Paz Decl., ¶¶ 7, 17.)
Demurrer – Statutory Liability
A public entity’s direct liability must be statutorily based, not based on common law. (Gov. Code § 815; Munoz v. City of Palmdale (1999) 75 Cal.App.4th 367, 369-370.) A public entity may be vicariously liable for its employee’s conduct. (Gov. Code §§ 815.2, 820.)
Plaintiff’s first and second counts of Plaintiff’s premises liability cause of action are However, Defendant Compton has brought the incorrect procedural vehicle to challenge these counts of Plaintiff’s premises liability cause of action. PH II, Inc. v. Superior Court 83 [finding a motion to strike must be brought to challenge a portion of a cause of action].) Thus, the demurrer must be overruled.
CONCLUSION
The demurrer is OVERRULED.
Defendant Compton is ordered to give notice of this ruling.
Defendant Compton is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.
Case Number: BC680294 Hearing Date: November 18, 2020 Dept: 28
alsh's Demurrer with a Motion to Strike
Having considered the demurring, moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On October 19, 2017, Plaintiff Rodney Myers, Jr. and Diamond Amari Myers (collectively “Plaintiffs”) filed a complaint against Defendants County of Los Angeles and City of Compton. Plaintiffs allege negligence arising from the death of Decedent Rodney Myers (“Decedent”).
On February 26, 2018, the Court dismissed Defendant County of Los Angeles without prejudice.
On April 14, 2020, Plaintiffs filed amendments to Plaintiffs’ complaint to rename Doe 4 as Defendant J. F. Shea Construction, Inc. and Doe 7 as Defendant Walsh Shea Contractors Inc.
On August 3, 2020, Plaintiffs filed a first amended complaint (“FAC”) to, in part, allege premises liability, allege additional facts, and rename Defendant County of Los Angeles.
On August 10, 2020, Defendant Walsh Shea Corridor Constructors (erroneously sued as Walsh Shea Corridor Contractors and Walsh Shea Contractors, Inc.) (“Defendant Walsh”) filed a demurrer pursuant to Code of Civil Procedure section 430.10.
Also on August 10, 2020, Defendant Walsh filed a motion to strike pursuant to California Code of Civil Procedure section 435.
Trial is set for October 7, 2021.
PARTY’S REQUEST
Defendant Walsh asks the Court to sustain its demurrer and grant its motion to strike Plaintiff’s complaint because it is barred by the relevant statute of limitations.
JUDICIAL NOTICE
Defendant Walsh asks the Court to take judicial notice of a County of Los Angeles Sheriff’s Department’s Traffic Collision Report. The Court GRANTS the request for judicial notice of the existence of and creation of the traffic collision report pursuant to California Evidence Code sections 452, subdivision (c). However, the Court DENIES any request to take judicial notice of the truth of the matters asserted within this document. (See C.R. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.) Vehicle Code 20013
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 demurred to or stricken, 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 and motion to strike.¿ (See Code Civ. Proc. §§ 430.41, 435.5.)
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.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].)
Motion to Strike
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)
DISCUSSION
Meet and Confer
Defendant Walsh has not filed a code-compliant meet and confer declaration. It attempted to meet and confer by sending letters. Only in-person and telephonic meet and confer efforts are permissible. While the Court will rule on the merits of the demurrer and motion to strike, the parties are warned that future failures to follow the mandates of California Code of Civil Procedure may result in hearings taken off-calendar.
Demurrer
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.)
“The general rule is that an amended complaint that adds a new defendant 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. A recognized exception to the general rule is the substitution under 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. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)
“Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Id.) “A further and nonprocedural requirement for application of the section 474 relation-back doctrine is that [Plaintiff] must have been genuinely ignorant of [Defendant Doe’s] identity at the time she filed her original complaint. The omission of the defendant’s identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. Furthermore, if the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. However, if the plaintiff is actually ignorant of the defendant’s identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff's negligence.” (Id. at p. 177; see also Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 779-782.)
Here, Plaintiff was injured on April 9, 2017. (Compl., p. 4; FAC, p. 4.) The complaint was filed on October 19, 2017. Thus, the complaint was timely filed.
The Court finds Plaintiff’s naming of Defendant Walsh on August 10, 2020 relates back to the filing of Plaintiff’s complaint on April 9, 2017. The initial complaint alleges Does 1 through 100 negligently left a pile of dirt in the middle of the street, which caused Decedent’s death. (Compl., p. 4.) Paragraph six of the complaint states the true names of the Doe Defendants were unknown to Plaintiff. (Compl., p. 2.) These allegations are echoed in the FAC. (See FAC, pp. 2, 4.) It is immaterial that Plaintiff did not allege the Doe Defendants were agents or employees of other defendants or that their capacities are unknown. (See Compl., p. 6(a)-6(b).) As such, the demurrer must be overruled.
Motion to Strike
Defendant Walsh attempts to have the strike the complaint based on extrinsic evidence to show Plaintiff was not truly ignorant of Defendant Walsh’s identity and that Plaintiff was dilatory in naming Defendant Walsh. The Court cannot do so. Thus, the motion to strike must be denied.
Defendant Walsh’s argument that Plaintiff’s two-year undue delay in naming Defendant Walsh constitutes prejudice is not supported with authority such that the Court may grant the motion to strike.
CONCLUSION
The demurrer is OVERRULED.
The motion to strike is DENIED.
Plaintiff is ordered to give notice of this ruling.
Plaintiff is ordered to file the proof of service of this ruling with the Court within five days.
County of Los Angeles' Demurrer
Demurrer without a Motion to Strike
Having considered the demurring and opposing papers, the Court rules as follows.
BACKGROUND
On October 19, 2017, Plaintiff Rodney Myers, Jr. and Diamond Amari Myers (collectively “Plaintiffs”) filed a complaint against Defendants County of Los Angeles (“Defendant COLA”) and City of Compton. Plaintiffs allege negligence arising from the death of Decedent Rodney Myers (“Decedent”).
On February 26, 2018, the Court dismissed Defendant COLA without prejudice.
On April 14, 2020, Plaintiffs filed amendments to Plaintiffs’ complaint to rename Doe 4 as Defendant J. F. Shea Construction, Inc. and Doe 7 as Defendant Walsh Shea Contractors Inc.
On August 3, 2020, Plaintiffs filed a first amended complaint (“FAC”) to, in part, allege premises liability, allege additional facts, and rename Defendant COLA.
On October 8, 2020, Defendant COLA filed a demurrer pursuant to Code of Civil Procedure section 430.10.
On October 10, 2020, the Court dismissed County of Los Angeles without prejudice.
Trial is set for October 7, 2021.
PARTY’S REQUEST
Defendant COLA asks the Court to sustain its demurrer to Plaintiff’s complaint for four reasons. First, it is uncertain what causes of action are alleged against Defendant COLA. Second, Plaintiff’s complaint is barred by the relevant statute of limitations.
JUDICIAL NOTICE
Defendant Walsh asks the Court to take judicial notice of a County of Los Angeles Sheriff’s Department’s Traffic Collision Report. The Court GRANTS the request for judicial notice of the existence of and creation of the traffic collision report pursuant to California Evidence Code sections 452, subdivision (c). However, the Court DENIES any request to take judicial notice of the truth of the matters asserted within this document. (See C.R. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.)
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 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.)
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.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].)
DISCUSSION
The Court finds the demurrer is moot because Plaintiff voluntarily dismissed Defendant COLA on October 23, 2020.
CONCLUSION
The demurrer is OVERRULED as MOOT.
Plaintiff is ordered to give notice of this ruling.
Plaintiff is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.
Case Number: BC680294 Hearing Date: August 14, 2020 Dept: 28
Meyers v. County of Los Angeles
BC680294
Walsh Shea Corridor Constructors’ Motion for Protective Order
August 13, 2020
Background
This is a personal injury action arising out of Plaintiff’s claim that on April 9, 2017, their decedent was riding a motorcycle on Alameda Street when he hit a pile of dirt related to construction in the area, causing him to crash and die. The following dates are procedurally relevant:
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October 19, 2017 |
Plaintiffs file their complaint. Although the complaint names Does 1-100, the complaint does not indicate that the Does were the agents or employees of named defendants nor that the identity of these Doe defendants is unknown to Plaintiffs (Boxes 6 (a) and (b) of the form complaint (PLD-PI-001) was not checked). |
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February 14, 2020 |
Plaintiffs file an amendment to the complaint naming Wash Shea Corridors Contractors as Doe 7 |
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April 6, 2020 |
Plaintiffs file a notice of errata to the complaint, purporting to correct, inter alia, the missing checkmark in Boxes 6 (a) and (b). |
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May 15, 2020 |
Walsh Shea Corridor Constructors files a demurrer to the compliant with a hearing date on September 25, 2020 |
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July 28, 2020 |
Walsh Shea Corridor Constructors files the instant motion for protective order |
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August 3, 2020 |
Plaintiffs file an amended complaint |
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August 10, 2020 |
Walsh Shea Corridor Constructors files a demurrer and motion to strike Plaintiffs First Amended Complaint |
Discussion
Walsh Shea Corridor Constructors moves pursuant to CCP §§ 2017.020, 2031.060, 2033.080, and 2030.90 for a protective order seeking relief from having to respond to Plaintiffs’ Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admission. Code of Civil Procedure 2017.020 (a) provides, “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” Code of Civil Procedure sections 2031.060 (Requests for Production), 2033.080 (Requests for Admission), and 2030.90 (Interrogatories) each provide, “The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” Walsh Shea moves for a protective order on the basis that responding to Plaintiff’s discovery here would be an unwarranted annoyance and undue burden because, essentially, it is certain to succeed in this matter on the basis of a statute of limitations defense. The court is not so sure.
Walsh Shea cites no authority that the court should delay discovery pending a demurrer. As an aside, Walsh Shea argues in its moving papers that because it has filed a demurrer, its appearance on this motion is a “special appearance.” Walsh Shea cites to CCP § 1014. Yet, CCP § 1014 specifically states that filing a demurrer is an appearance and Walsh Shea acknowledges in its moving papers that filing a demurrer is a submission to the court’s jurisdiction. (Moving Papers, 1:8-15) The court finds this argument lacks candor.
In order to grant Walsh Shea’s motion, the court would have to determine that Plaintiff should be precluded from conducting discovery against Walsh Shea because Walsh Shea has an absolute defense to the case. The court cannot so find at this juncture. Walsh Shea filed this motion on the basis that its demurrer to Plaintiff’s complaint would surely be sustained without leave to amend. Plaintiff has since filed an amended complaint, rendering Walsh Shea’s demurrer moot. The court notes that Walsh Shea has since filed a demurrer and motion to strike to the amended complaint. Walsh Shea is, essentially, requesting the court to rule on these in ruling on this motion. The court declines to do so. Walsh Shea must respond to Plaintiff’s discovery.
Conclusion
Walsh Shea’s motion for a protective order is DENIED. Moving Party is to give notice.