Case Name:   Lynne Bauer v. Western Athletic Clubs, et al.

Case No.:       1-12-CV-227612

 

Defendant Jensen Landscape Services, Inc. (“Jensen”) demurs to the complaint of plaintiff Lynne Bauer (“Bauer”) on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

Request for Judicial Notice

 

In support of its reply brief, Jensen asks the Court to take judicial notice of the following: (1) Bauer’s complaint; (2) Western Athletic Clubs’ (“Western”) written response to Bauer’s request for production of documents and exhibits thereto; (3) the fact that Bauer’s deposition was taken on June 19, 2013; (4) an order granting Pacific Sports Resort’s (“Pacific”) motion for summary judgment against Baysport, Inc. (“Baysport”); (5) a judgment in favor of Pacific and against Baysport entered on October 21, 2013; (6) Bauer’s amendment naming Jensen; and (7) the request for dismissal of Baysport’s cross-complaint against Jensen.

 

With regard to Bauer’s complaint, the order granting Pacific’s motion for summary judgment against Baysport, the judgment entered on October 21, 2013, Bauer’s amendment naming Jensen, and the request for dismissal of Baysport’s cross-complaint against Jensen, these documents all consist of court records relevant to the issues to be decided in this demurrer. (See Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [only relevant matters subject to judicial notice].) Accordingly, the request for judicial notice as to these documents is GRANTED.

 

With regard to Western’s written response to Bauer’s request for production of documents and the date of Bauer’s deposition, Jensen does not provide any specific authority empowering the Court to take judicial notice of this information. Accordingly, the request for judicial notice as to this information is DENIED.

Statute of Limitations Defense

 

Jensen demurs to Bauer’s complaint on the basis that the action is barred by the statute of limitations. It reasons that under Code of Civil Procedure section 335.1, Bauer had two years from the date of the September 13, 2011 incident to designate Jensen as a defendant. As Bauer did not add Jensen as a defendant until April 30, 2014, Jensen argues that her action is time-barred.

 

In opposition, Bauer contends that under the “relation-back” doctrine, her action against Jensen is not time-barred. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1278 [“The relation-back doctrine deems a later-filed pleading to have been filed at the time of an earlier complaint which met the applicable limitations period, thus avoiding bar.”].) Bauer’s argument is persuasive.

 

Here, Bauer meets each of the requirements for the application of the “relation-back” doctrine. First, Jensen does not contest that the original complaint properly alleged a cause of action against all defendants, including Doe 1, for “negligently plac[ing], permitt[ing], construct[ing], manag[ing] and maintain[ing], inspect[ing], [and] supervis[ing]” the sprinkler on which Bauer tripped. (See Compl., p. 2:24-27.) Second, Bauer alleges that, at the time she filed her complaint, she was ignorant of Jensen’s name and capacity. (See Compl., p. 1:22-24 [“The true names and capacities – whether individual, corporate, associate or otherwise – of Defendants DOES 1 through 30, are unknown to Plaintiff, who therefore sues such DOES by such fictitious names.”].) Finally, Bauer makes no other amendments to the original complaint.

 

Accordingly, the amended complaint relates back to the original complaint, and Jensen is considered a party to the action as of the filing of the original complaint on July 2, 2012. Therefore, Jensen is considered a party to the action as of the filing of the original complaint on July 2, 2012. As the original complaint was filed within two years of the incident from which Bauer’s injury arose, her action against Jensen is not time-barred.

 

Defense of Laches

 

In its reply brief, Jensen contends that Bauer’s amended complaint is barred by the defense of laches because Bauer became aware of its involvement on or about February 28, 2013, but did not designate Jensen as a defendant until fourteen months later. Jensen asserts that it was prejudiced by the delay. Generally, points raised for the first time in a reply brief should not be considered absent a showing of good cause for failure to present them before. (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) In any case, Jensen’s laches argument lacks merit. Jensen’s argument lacks merit.

 

Jensen argues that the Court may take judicial notice of the fact that Bauer became aware of Jensen’s involvement in the dispute on or about February 28, 2013 because she received a landscape management agreement identifying Jensen in response to a request for the production of documents. However, as indicated above, Jensen does not provide any basis for the Court to take judicial notice of this document. Accordingly, the Court cannot consider the landscape management agreement in connection with this demurrer. (See Barrows v. Am. Motors Corp. (1983) 144 Cal.App.3d 1, 9 [on demurrer, defendant may not rely on evidence outside pleading to demonstrate unreasonable delay by plaintiff].) Thus, Jensen does not establish that the defense of laches appears on the face of the original complaint or from judicially noticeable matter.

 

In sum, Jensen fails to clearly demonstrate that the action is barred by the statute of limitations or the defense of laches. Accordingly, Jensen’s demurrer to the complaint is OVERRULED.