Case Number: BC632675 Hearing Date: July 26, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

chadi yassine ;

Plaintiff,

v.

laverne fitness inc. , et al.;

Defendants.

Case No.: BC632675

Hearing Date: July 26, 2018

[TENTATIVE] order RE:

Demurrer to complaint

MOVING PARTY: Defendants, Core Health & Fitness LLC, and Core Industries LLC dba Star Trac

RESPONDING PARTY: Plaintiff, Chadi Yassine

The court has considered the moving, opposition, and reply papers.

Background

Plaintiff Chadi Yassine (“Plaintiff”) filed a complaint on September 2, 2016, alleging two causes of action for premises liability and general negligence. On October 24, 2016, Plaintiff filed a first amended complaint (“FAC”) alleging premises liability, general negligence, and products liability. The FAC also added Defendants Core Health and Fitness, LLC and Core Industries LLC dba Star Trec (“Defendants”), asserting products liability against them. On May 4, 2018, Plaintiff filed an ex parte application for leave to file a first amended complaint. This request was withdrawn the same day. On June 27, 2018, Defendants filed a demurrer to the complaint. Plaintiff filed an opposition on June 13, 2018. Defendants filed a reply on July 18, 2018.

Plaintiff’s FAC arises from an injury Plaintiff sustained at a gym. On September 5, 2014, Plaintiff was using exercise equipment at the Crunch gym, owned by defendant LaVerne Fitness. (Compl. p. 4.) The equipment malfunctioned and caused injury to Plaintiff. (Compl. pp. 4-5.) Plaintiff alleges the subject equipment was manufactured by Defendants and that the equipment was defective. (Compl. pp. 6-8.)

Defendants’ Demurrer

Defendants demur to the entire FAC on statute of limitations grounds. They argue that Plaintiff was not genuinely ignorant of Defendants’ identity or liability when the action commenced on September 2, 2016. Defendant asserts that Plaintiff’s declaration in support of Plaintiff’s ex parte application belies Plaintiff’s claims that he was ignorant of Defendants’ identities at the time he filed the original complaint. Defendant contends therefore contends the FAC was untimely filed against them because the two-year statute of limitations expired.

Plaintiff opposes and argues that the demurrer was late filed and that Plaintiff was truly ignorant of the identity of Defendants at the time of the Complaint. Plaintiff argues that he could not have reasonably been aware of the manufacturer, distributor, or seller of the equipment at the time of the accident or at the time of the filing of the Complaint. Plaintiff asserts he amended his complaint after filing, and since the amendment involved the same accident and injury, the amendment relates back to satisfy the statute of limitations. Further, Plaintiff asserts that the May 2018 ex parte application does not amount to an admission because it was filed in error. Plaintiff asserts that his counsel was unaware that a FAC and summons was previously filed, and the original complaint was inadvertently mixed up with the FAC due to a personnel change at Plaintiff’s law firm.

On reply, Defendant reiterates that Plaintiff was not genuinely ignorant of Defendants’ true identity, as supported by the ex parte application. Further, Defendants argue that the demurrer was not untimely because they are out of state and have additional time to respond.

LEGAL STANDARD

Meet and Confer Requirement

CCP section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (CCP § 430.41(a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (CCP § 430.41(a).)

Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

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 Dep’t of Water & 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 Ct. (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.)

DISCUSSION

Meet and Confer Requirement

Per CCP section 430.41(a), “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer…” (CCP § 430.41(a) [emphasis added].) Counsel’s declaration regarding a letter he faxed to Plaintiff’s counsel does not satisfy CCP § 430.41(a)’s requirement that the parties meet and confer in person or by telephone. (Gilefsky Decl., ¶ 5, Ex. 6.)

On this occasion, the Court will proceed to address the merits of the demurrer despite the insufficiency of the meet and confer. However, for any future motions that require a meet and confer effort, the Court cautions that an insufficient meet and confer, such as what occurred prior to the instant demurrer, will result in the demurrer or motion being placed off calendar.

Late Filed Demurrer

Plaintiff contends that the demurrer was late filed. However, Defendants reside out-of-state, and thus, the normal 30-day response time is extended past June 20, 2018 to June 30, 2018. (CCP § 415.40.) Thus, Defendants’ demurrer, which was filed on June 27, 2018, is not untimely.

Demurrer Analysis

The Court must first note that a demurrer is not the appropriate procedure for determining the truth of disputed facts. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.) “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Id. at 113; see StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9; see also Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) Here, Defendants argue that judicially noticeable documents—i.e. Plaintiff’s May 4, 2018 Ex Parte Application—should be held as a judicial admission that Plaintiff knew of Defendants’ identity at the time of filing the initial Complaint. Given the above rules, judicial notice would be improper here. As Plaintiff argues, the proper interpretation of these documents as an admission is disputable. (See Opp. pp. 7-9.) The Court agrees, as the Court would need to not only analyze the truth of the statements within the documents, but also analyze the surrounding circumstances and weigh the credibility of the parties. On this basis alone, the demurrer must be overruled, as the proper interpretation of the ex parte application in context along with Plaintiff’s assertions about the ex parte application should not be determined on demurrer.

Second, the Court would not necessarily interpret the documents as providing an admission because the circumstances of the application indicate that it was erroneously filed and was based on mistaken facts regarding the pleadings. The May 2018 ex parte application itself was to file a first amended complaint, when one was filed a year and half earlier in October 2016. Apparently realizing the mistake, Plaintiff withdrew the application before the hearing. Thus, the ex parte application appears to have been filed due to a mistake of fact regarding what was alleged in the Complaint and whether a FAC was filed. Moreover, Plaintiff asserts that the confusion over the Complaint was due to inadvertently mixing the FAC with the Complaint, which is reflected in the Complaint attached to the ex parte application. (See May 4, 2018 Ex Parte Application, Exs. A-B.) While the Court does not necessarily adopt Plaintiff’s position, these arguments highlight why determination of this issue would be inappropriate on demurrer. Such arguments are inherently fact and interpretation driven, and must be weighed outside of the pleading context.

As the Court cannot determine the proper interpretation of the ex parte application as an admission on demurrer via judicial notice, Defendants’ arguments regarding statute of limitations inherently fail. The Complaint was timely filed on September 2, 2016, within two years of the September 5, 2014 accident. (CCP § 335.1.) Defendants were added by way of the FAC, which relates back to the initial filing for purposes of the instant demurrer. (CCP § 474.) Accordingly, Defendants’ demurrer is OVERRULED.

Conclusion

Defendants’ demurrer is OVERRULED.

Defendants are to file and serve an answer within 10 days.

All parties should note the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

The moving party is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: July 26, 2018 ___________________________

Elaine Lu

Judge of the Superior Court