On 01/03/2018 a Personal Injury - Other Personal Injury case was filed by THOMAS TON against THE BICYCLE CASINO in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LAURA A. SEIGLE
DOES 1 TO 20
THE BICYCLE CASINO
THE BICYCLE CASINO COMMUNITY FOUNDATION
6/11/2019: Civil Case Cover Sheet
6/11/2019: Amended Complaint
6/19/2019: Minute Order
1/3/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
First Amended Summons; Filed by Thomas Ton (Plaintiff)Read MoreRead Less
Complaint (1st); Filed by Thomas Ton (Plaintiff)Read MoreRead Less
Amended Complaint (1st); Filed by Thomas Ton (Plaintiff)Read MoreRead Less
Civil Case Cover Sheet; Filed by Thomas Ton (Plaintiff)Read MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Complaint; Filed by Thomas Ton (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC689040 Hearing Date: October 31, 2019 Dept: 4B
[TENTATIVE] ORDER RE: THE BICYCLE CASINO LP’S DEMURRER
On January 3, 2018, plaintiff Thomas Ton (“Plaintiff”) filed this action against defendant The Bicycle Casino for injuries sustained on January 5, 2016 from a slip and fall. The original complaint named The Bicycle Casino as the defendant. Plaintiff filed a First Amended Complaint on June 14, 2019 naming The Bicycle Casino Community Foundation as the defendant. On July 30, 2019, Plaintiff filed an Amendment to Complaint naming The Bicycle Casino, L.P. (“Defendant’) as the defendant.
Defendants demurs to Plaintiff’s Complaint on grounds that the negligence claim is time-barred.
II. LEGAL STANDARDS
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.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)
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.)
Defendant argues Plaintiff filed this action after the two-year statute of limitations expired. Defendant contends Plaintiff effectively dismissed the case against it when Plaintiff chose to file a First Amended Complaint naming The Bicycle Casino Community Foundation instead of The Bicycle Casino. Then, when Defendant amended the First Amended Complaint to correct the name to The Bicycle Casino, L.P., the limitations period had ended.
Code of Civil Procedure section 473(a) authorizes the court to “allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect.” (Code Civ. Proc., § 473(a).) In Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, the court addressed the difference between correcting a mistake in the name of a party pursuant to section 473, subdivision (a), and substituting in an entirely new party. “‘[T]he allowance of amendment and relation back to avoid the statute of limitations does not depend on whether the parties are technically or substantially changed; rather the inquiry is as to whether the nature of the action is substantially changed.’ [Citation].” (Id. at p. 1470.) The court pointed to Bank of America v. Superior Court (1973) 35 Cal.App.3d 555, where the party was named as Continental Casualty Company but the correct party was Continental Assurance Company. Allowing the party name to be amended was proper because the complaint clearly referred to Continental Assurance Company as the correct party. (Id. at pp. 1470-1471.)
Here both the original complaint and the First Amended Complaint alleged Plaintiff fell when “he was walking in the casino.” Allowing an amendment of defendant’s name from The Bicycle Casino Community Foundation to The Bicycle Casino, L.P. does not change the cause of action in any way. And, both complaints gave notice that the case concerned a fall in a casino with the name The Bicycle Casino. Thus, the amendment was a name correction, not a substitution of an entirely new party.
In its reply, Defendant makes a new argument – that Plaintiff waited nearly three years to serve it with the pleadings. Because Defendant did not raise this argument in its moving papers, the Court will not consider it at this time.
Defendant’s demurrer is OVERRULED.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.