Case Name: Frank L. Burrell, III, as Trustee of the Frank L. Burrell 1937 Trust v. Sang Bae Lee, et al.

Case No.: 1-04-CV-020433

Demurrer to the fourth amended complaint and motion to strike by defendant Eugene Zambetti; motion to dismiss and demurrer to the fourth amended complaint by the Estate of Peter Zambetti and the Estate of Julia Zambetti; motion to dismiss and demurrer to the second amended cross-complaint by the Estate of Peter Zambetti and the Estate of Julia Zambetti

Plaintiff failed to comply with California Rules of Court, rule 3.1113(d) [a responding memorandum may not exceed 15 pages]. Plaintiff is directed that future filings must comply with all applicable statutes and rules.

The requests for judicial notice (“RJN”) are GRANTED but only insofar as the Court takes judicial notice of the existence of the documents, not the truth of any matters asserted therein. (See Evid. Code, § 452, subd. (d); People v. Woodell (1998) 17 Cal.4th 448, 455 [a court cannot take judicial notice of the truth of hearsay statements in its files, “including pleadings, affidavits, testimony, or statements of fact”].)

A. Eugene Zambetti’s Demurrer to the Fourth Amended Complaint

1. Failure to State Sufficient Facts

a. Statute of Limitations

Defendant Eugene Zambetti’s (“Zambetti”) demurrer to the fifth (negligence), seventh (negligence per se), eighth (breach of contract), twelfth (waste), thirteenth (ultrahazardous activities), and fifteenth (violation of Business and Professions Code section 17200) causes of action on the ground of failure to state sufficient facts [Code Civ. Proc., § 430.10, subd. (e)] is OVERRULED. Zambetti argues that the applicable limitation periods bar these claims. Plaintiff contends in opposition that the allegations of delayed discovery contained in the fourth amended complaint (“4AC”) avoid the bar of the statute of limitations.

“In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

Plaintiff has adequately alleged delayed discovery. Under the first prong, Plaintiff alleges the discovery of the contamination of the property that serves as the basis for the causes of action at issue. Plaintiff alleges that in July 2002 an environmental assessment was performed at the property, which concluded that “there was potentially a prior release of PCE.” (4AC, ¶ 63.) Upon receiving this report, Plaintiff hired an attorney and they received a Phase II assessment in October 2002, which revealed concentrations of PCE in the soil and groundwater emanating from Hillview Cleaners at a level greater than that permitted by law. (Id., ¶ 64.)

Under the second prong, Plaintiff alleges his inability to have made an earlier discovery despite reasonable diligence. Plaintiff alleges that in September 1996 he received a letter from the California Regional Water Quality Control Board requesting information. (Id., ¶ 59; see Zambetti’s RJN, Ex. C.) A soil investigation by Environmental Geosciences Services found PCE on the property at a level below the regulatory guidelines, and thus, recommended no remediation work. (4AC, ¶ 60.) In 1998, another site assessment was made by P&D Environmental Services. (Id., ¶ 62.) This additional assessment found that no additional investigation of the property was warranted. (Id.) Although an owner is expected to conduct an adequate investigation of all parts of his property given the knowledge that toxic chemicals have been detected on any portion of the property, CAMSI IV v. Hunter Tech. Corp. (1991) 230 Cal.App.3d 1525, 1537-38, Plaintiff alleges that he relied on the recommendation from these reports and believed no further investigation or remediation was required even though it now is known that the investigations missed “extremely elevated levels of contaminants in the groundwater on the Property.” (4AC, ¶¶ 60, 64; see also id., ¶ 67 [“Plaintiff believed that the environmental ‘experts’ who were conducting environmental investigations and site assessments were in fact qualified to make such determinations and justifiably relied on them.”].)

b. Laches

Zambetti’s demurrer to each cause of action based on laches is OVERRULED. Laches is an equitable defense based on the principle that those who neglect their rights may be barred from obtaining relief in equity. (Golden Gate Water Ski Club v. Cnty. of Contra Costa (2008) 165 Cal.App.4th 249, 263.) The defense of laches may be raised by general demurrer if the complaint shows on its face unreasonable delay plus prejudice or acquiescence. Only then is the burden of establishing an excuse shifted to the plaintiff. (Duskin v. San Francisco Redevelopment Agency (1973) 31 Cal.App.3d 769, 774.) Zambetti fails to establish prejudice from the face of the 4AC. Laches consists of unreasonable delay that results in some prejudice to the Defendant; delay alone, is not a bar. (Zakaessian v. Zakaessian (1945) 70 Cal.App.2d 271, 726.) The 4AC merely discloses the lapse of a long period of time without affirmatively showing or necessarily implying any injury to Zambetti.

2. Legal Capacity to Sue

a. Eighth Cause of Action

Zambetti’s demurrer to the eighth cause of action for breach of contract on the ground that the person who filed the pleading does not have the legal capacity to sue [Code Civ. Proc., § 430.10, subd. (b)] is OVERRULED. Zambetti argues that Plaintiff cannot assert the necessary privity to maintain standing to establish a breach of contract claim.

An assignee who takes possession under an assignment without an express assumption of the obligation of the lease is not bound by the contractual obligations of the lease. (Kelly v. Tri-Cities Broad., Inc. (1983) 147 Cal.App.3d 666, 676.) A “lease has a dual character; it is a conveyance of an estate for years, and a contract between lessor and lessee. The result is that dual obligations arise, contractual obligations from the terms of the lease, and obligations under the law from the creation of the tenancy. As it is sometimes expressed, there are dual obligations arising from ‘privity of contract’ and ‘privity of estate.’” (Id.) “This dual character of the obligations of a tenant may be illustrated by an assignment of the tenant’s right without any assumption of the obligations by the assignee. The assignee who does not assume is not liable on the lease, that is to say, is not bound by its contractual obligations. But the non-assuming assignee who occupies the premises is liable by reason of his tenancy, and his obligation, arising out of privity of estate, continues at least through the period of his occupancy. Likewise, where the new tenant comes in without even a written assignment, but takes over possession of the old lessee with the consent of the lessor, he is liable for rent.” (Id. at pp. 676-77.)

“An assignee who takes possession under an assignment without an express assumption of the obligations of the lease is not bound by the contractual obligations of the lease. As long as he remains in possession the nonassuming assignee is bound to pay the rent, maintain the insurance, make repairs, and pay the taxes, if the lease so provides. However, these obligations terminate when the assignee terminates his possession. In the absence of an express assumption of the lease by the assignee there is no privity of contract between the assignee and the landlord, and the assignee is not liable for the covenants which are not otherwise binding under the privity of estate.” (Id. at p. 677; emphasis added.)

“Unless the assignee specifically assumes all of the contractual obligations incident to the lease, his relationship with the original landlord is based only on privity of estate. . . . Should the assignee abandon the premises or reassign the lease, his privity of estate with the landlord would be divested. Therefore, for example, the assignee’s liability for continued rental payments would cease.” (Id.) “In the absence of an express covenant on his part the assignee is liable only for such covenants as run with the land and only during such time as he holds the term.” (Id. at pp. 677-78.) “California law is clear: An assignee, in the absence of an express assumption, is liable only for covenants which run with the land and only during the period of his occupancy. His liability ceases with cessation of the possession.” (Id. at p. 678; see also 7 Miller & Starr, California Real Estate (3rd ed. 2001) Landlord and Tenant, §19:63, pp. 173-74.)

In the case at bar, the shopping center (including Hillview Cleaners) was held in the F.L. Burrell Testamentary Trust No. 2 (“Trust No. 2”) from 1995 to September 25, 1987. (4AC, ¶ 6.) The shopping center was then transferred on that date to the Frank L. Burrell 1937 Trust (“1937 Trust”), which still holds equitable title to the property. (Id.) Plaintiff alleges he has a contractual right to maintain a cause of action against Zambetti by way of assignment. When Trust No. 2 transferred the shopping center (including the Hillview Cleaners premises) to the 1937 Trust, it assigned all of its tangible and intangible interests in the property to the 1937 Trust. (Id., ¶ 49.)

Hillview Cleaners was owned by members of the Zambetti family from 1955 until April 1983. (Id., ¶ 40.) In 1976, Zambetti entered into a written lease with the trustee for Trust No. 2, to lease and operate Hillview Cleaners at the property. (Id., ¶ 46.) In January 1981, Zambetti signed a five year lease extension. (Id.) The 1976 Lease and its extension required Zambetti to comply with all requirements of municipal, state, and federal laws. (Id., ¶ 47.) In March 1983, defendants/cross-complainants Sang Bae Lee and Hyo Suk Lee (collectively “the Lees”) purchased Hillview Cleaners from Zambetti. (Id., ¶ 48.)

As part of the purchase of Hillview Cleaners, all of the terms and conditions of the 1976 Lease were assigned without releasing Zambetti. (Id.) In March 1983, the trustee for Trust No. 2 signed a consent of assignment allowing Zambetti’s assignment of the lease to the Lees. (Id.) This assignment specifically states that it “is subject to all of the terms, covenants, and conditions in said Lease and subsequent extensions thereof contained, and with the specific understanding that this consent is not a consent to any future assignment of said lease or subsequent extensions thereof and that the original lessees (to wit, the forgoing Assignors) are not released from any liability under said lease or extensions thereof by reason of said assignment.” (Id., Ex. B.) Thus, Plaintiff alleges that Zambetti remains responsible for liability, including the disposal and release of hazardous substances under the extensions of their lease. Plaintiff has standing to maintain this claim against Zambetti.

b. Twelfth Cause of Action

Zambetti’s demurrer to the twelfth cause of action for waste on the ground that the person who filed the pleading does not have the legal capacity to sue [Code Civ. Proc., § 430.10, subd. (b)] is OVERRULED. Similar to the eighth cause of action for breach of contract, Plaintiff alleges a contractual right to maintain a claim for waste. When Trust No. 2 transferred the shopping center (including Hillview Cleaners) to the 1937 Trust, it assigned all of its tangible and intangible interests in the property to the 1937 Trust, including its reversion interest in the property and its claims against, and rights to sue, tenants for committing waste. (4AC, ¶¶ 48-49, 174, Ex. E.)

3. Lack of Jurisdiction

Zambetti’s demurrer to the fourteenth cause of action under the Resource Conservation and Recovery Act (“RCRA”) on the ground that the Court lacks jurisdiction [Code Civ. Proc., § 430.10, subd. (a)] is SUSTAINED WITHOUT LEAVE TO AMEND. Although no California court has addressed this issue, the majority of federal courts have held that the federal courts have exclusive jurisdiction over RCRA citizen suits. (See Litgo New Jersey Inc. v. New Jersey Dep’t Envtl. Pro. (3d Cir. 2013) 725 F.3d 369, 394-98 [“federal courts have exclusive jurisdiction over RCRA claims”]; Fletcher v. U.S., 116 F.3d 1315, 1327 (10th Cir. 1997) [describing Eighth Circuit’s rationale in Blue Legs v. U.S. Bureau of Indian Affairs (8th Cir.1989) 867 F.2d 1094, 1097-98, as based on “RCRA’s exclusive federal jurisdiction provision and its legislative history, which expressed a congressional preference for prompt federal adjudication of citizen suits under RCRA”]; Reservation Tel. Co-op. v. Three Affiliated Tribes of Fort Berthold Reservation (8th Cir. 1996) 76 F.3d 181, 185 [“the RCRA placed exclusive jurisdiction for suits brought under the RCRA in the federal courts”]; Marrero Hernandez v. Esso Standard Oil Co. (D. Puerto Rico 2009) 597 F. Supp. 2d 272, 282 [same]; K-7 Enterprises, L.P. v. Jester (E.D. Tex. 2007) 562 F. Supp. 2d 819, 827 [same]; City of Waukegan v. Arshed (N.D. Ill. 2009) 2009 WL 458621, *1, 3 [“Indeed, although not entirely a settled matter, most courts have held that RCRA actions are exclusively federal.”]; see also Remington v. Mathson (N.D. Cal., Mar. 26, 2010, CV09-4547 NJV) 2010 WL 1233803, *6.); but see Davis v. Sun Oil Co. (6th Cir. 1998) 148 F.3d 606, 612 [state courts have concurrent jurisdiction over RCRA claims].)

This Court agrees with the majority of federal courts that have addressed this issue. The language of 42 U.S.C. § 6972(a) unambiguously demonstrates that federal courts have exclusive jurisdiction over RCRA causes of action. (Litgo New Jersey Inc., supra, 725 F.3d at p. 395.) The statute provides that RCRA causes of action “shall be brought” in a “district court.” (Id.) Using language, “shall be brought” “is most naturally read as a mandate; the suit must be brought in a district court.” (Id.)

4. Uncertainty

Zambetti’s demurrer to each cause of action based on uncertainty [Code Civ. Proc., § 430.10, subd. (f)] is OVERRULED. Except to state that this is a ground for demurrer in his notice, Zambetti offers no discussion or argument on this point in his memorandum of points and authorities. (See Cal. Rules of Court, rule 3.1113(b) [memorandum must contain a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced].)

B. Eugene Zambetti’s Motion to Strike the Fourth Amended Complaint

Zambetti’s motion to strike paragraphs 188-206 (RCRA claim) is MOOT in light of the Court’s ruling sustaining the demurrer without leave to amend as to this cause of action.

Zambetti’s motion to strike paragraphs 207-14 (violation of Business and Professions Code section 17200 claim) is DENIED. Zambetti has not shown that the stipulation between the parties did not allow for the addition of this cause of action. (See Zambetti RJN, Ex. B; Macasinag Decl., Ex. 1.)

Zambetti’s motion to strike exhibit C attached to the 4AC is DENIED. Zambetti has not shown that the preliminary soil vapor data sampling performed by PES Environmental is protected by the mediation privilege contained in Evidence Code section 1119.

Zambetti’s motion to strike paragraphs 180-82 is DENIED. These paragraphs consist of excerpts from a report concerning PCE dry cleaning operations. The excerpts from the report are relevant to Plaintiff’s ulrahazardous activity cause of action (i.e. Zambetti was engaged in an “ultrahazardous” activity when he operated Hillview Cleaners).

Zambetti’s motion to strike reference to certain statutes in paragraph 144 is DENIED. Zambetti argues that these statutes cannot be used for Plaintiff’s negligence per se cause of action because they were enacted after he sold Hillview Cleaners. Plaintiff, however, alleges that Zambetti remained liable for any releases from Hillview Cleaners through January 24, 1992. (4AC, ¶¶ 48, 151.) Penal Code section 374.8 (enacted 1991), Water Code section 13387 (enacted 1987), and Health and Safety Code section 5411.5 (enacted 1992) all were enacted prior to that date.

Zambetti’s motion to strike paragraph 44 is DENIED. Paragraph 44 contains Zambetti’s deposition testimony regarding two spills of PCE during the early 1970s. Zambetti believes that this Court’s May 30, 2012 Order granting summary judgment held that this evidence was inadmissible. The Court made no such ruling as it merely found the evidence to be insufficient for purposes of the motion for summary judgment. (See Zambetti’s RJB, Ex. C at p. 2:14-24.)

Zambetti’s motion to strike paragraphs 10-11 from the prayer for relief regarding attorney’s fees is DENIED. The request still is supported by viable causes of action based on the Court’s ruling overruling the demurrer.

Zambetti’s motion to strike paragraph 12 from the prayer for relief regarding attorney’s fees under the RCRA is MOOT in light of the Court’s ruling sustaining the demurrer without leave to amend as to the RCRA cause of action.

C. The Estate of Peter Zambetti and the Estate of Julia Zambetti’s Motion to Dismiss and Demurrer to the Fourth Amended Complaint

1. Motion to Dismiss

a. The Estate of Peter Zambetti

The Estate of Peter Zambetti’s motion to dismiss the 4AC under Code of Civil Procedure section 418.10, subdivision (a)(3), is GRANTED. Code of Civil Procedure section 583.210 provides that the complaint shall be served on a defendant within three years of filing. When a defendant is sued as a Doe defendant and named later, the three-year period begins to run at the filing of the original complaint. (See Gen. Motors Corp. v. Super. Ct. (1996) 48 Cal.App.4th 580, 589, n.10 [“In the section 474 context, however, once one defendant is sued, all fictitiously named defendants must be brought in within a maximum period of three years – because the summons must be returned within three years of its issuance (§ 583.210).].)

Plaintiff’s original complaint was filed on May 26, 2004. (The Estates’ RJN, Ex. A.) The Estate of Peter Zambetti was not named as a defendant at that time. In 2013, Plaintiff sought leave to file a Third Amended Complaint in order to designate the Estate of Peter Zambetti as Doe 2. (Id., Ex. B at pp. 2-3; see id. at p. 5:11-14 [“Plaintiff therefore seeks leave to amend his complaint to designate . . . the Estate of Peter Zambetti, deceased, individually and dba Hillview Cleaners, as Doe 2.”].) The Court (Hon. McKenney) granted Plaintiff’s motion on December 3, 2013. (See Dkt. # 0224.) Because the Estate of Peter Zambetti was added as a Doe defendant, the three year service rule began to run from the commencement of the case in 2004.

By 2013, the three year period within which the pleading could be served on the Estate of Peter Zambetti as a Doe defendant had lapsed. Thus, service on the Estate of Peter Zambetti in 2013 was untimely under Code of Civil Procedure section 583.210. Plaintiff’s argument that the Estate of Peter Zambetti now should be treated as a newly-added defendant instead of a Doe defendant ignores the motion for leave to amend where Plaintiff specifically asked to add the estate as Doe 2 as well as the Court’s subsequent order granting the motion.

b. The Estate of Julia Zambetti

The Estate of Julia Zambetti’s motion to dismiss the 4AC under Code of Civil Procedure section 418.10, subdivision (a)(3), is DENIED. Code of Civil Procedure section 583.310 provides that “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” If an action is not brought to trial within that time, the “action shall be dismissed by the court on its own motion or on motion of the defendant.” (Code Civ. Proc., § 583.360, subd. (a).) Thus, dismissal is “mandatory . . . except as expressly provided by statute.” (Id., § 583.360, subd. (b).)

Julia Zambetti (“Ms. Zambetti”) was named as a defendant in her individual capacity in Plaintiff’s original complaint filed on May 26, 2004. (The Estates’ RJN, Ex. A.) The parties represent that Ms. Zambetti died in 2006. The Estate of Julia Zambetti believes the five year period lapsed in 2009 because “it is established law that the five-year period is not interrupted by defendant’s death.” (Smith v. Bear Valley Milling & Lumber Co. (1945) 26 Cal.2d 590, 602.) According to the Estate of Julia Zambetti, the action had to be brought to trial against her, her personal representative, or the estate by 2009, but was not.

However, “[a]fter the decision in Bear Valley, the Legislature amended the five-year mandatory dismissal statute to provide that the statute is tolled whenever ‘[t]he defendant was not amenable to the process of the court.’ (Code Civ. Proc., § 583.240, subd. (a), formerly Code Civ. Proc., § 583, subd. (f).)” (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 959 n.6; see 6 Witkin, Cal. Proc. (5th ed. 2008), Proceedings Without Trial, § 403, p. 845, citing Pham v. Wagner Litho Mach. Co. (1985) 172 Cal.App.3d 966, 872 [“It has since been held that death of a party tolls the statute, both on the ground that the court’s jurisdiction is suspended until a personal representative is appointed . . . and because counsel’s authority terminates on the client’s death, making it impracticable and futile to bring the case to trial.”) In Herring v. Peterson (1981) 116 Cal.App.3d 608, 611-12, the court explained that where a defendant dies while an action is pending, the court lacks jurisdiction to try the matter or enter judgment for or against the defendant until the defendant’s personal representative or insurer is substituted as a party in place of the defendant. (See Sacks, supra, 7 Cal.App.4th at p. 959 [explaining that in Herring, “the plaintiff was prejudiced by the death of the defendant since the case was dismissed pursuant to the five-year mandatory statute (Code Civ. Proc., § 583, subd. (f)), even though the statute, under its terms, was automatically tolled by the death (i.e., the decedent was not amenable to process).”].)

Based on this authority, the running of the five year statute was tolled when Ms. Zambetti died in 2006. Since that time, the Estate of Julia Zambetti has not shown that a personal representative was appointed or an insurer has substituted as a party in place of Ms. Zambetti to demonstrate that the tolling period ceased. An argument could be made that the Third Amended Complaint filed on December 3, 2013 − the first pleading to name the estate as a defendant − resumed the running of the five year period. Using that date shows that the five year period has not run.

2. Demurrer

The Estate of Peter Zambetti’s demurrer as to the 4AC is MOOT in light of the ruling as to the motion to dismiss.

The Estate of Julia Zambetti’s demurrer to the fifth (negligence), seventh (negligence per se), eighth (breach of contract), twelfth (waste), thirteenth (ultrahazardous activities), fifteenth (violation of Business and Professions Code section 17200) causes of action on the ground of failure to state sufficient facts [Code Civ. Proc., § 430.10, subd. (e)] is OVERRULED. The Estate of Julia Zambetti argues that the applicable limitation periods bar these claims based on the same 1996 document raised in Zambetti’s demurrer. This argument fails for the same reasons detailed previously.

The Estate of Julia Zambetti’s demurrer to the fourteenth cause of action under the RCRA on the ground that the Court lacks jurisdiction [Code Civ. Proc., § 430.10, subd. (a)] is SUSTAINED WITHOUT LEAVE TO AMEND for the same reasons detailed in Zambetti’s demurrer.

The Estate of Julia Zambetti’s demurrer to the entire 4AC for failure to allege that the estate has insurance coverage for the claims asserted against it for recovery under Probate Code sections 550 et seq. is OVERRULED. The Court agrees with Plaintiff that the 4AC adequately alleges that the estate was required by its lease to have general liability insurance, and that the estate is covered with liability insurance issued by Fireman’s Fund Insurance Co. for the release and continuing subsurface migration of contamination that occurred during the early 1970s and 1980s. (4AC, ¶¶ 9, 44-45; see Constr. Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-99 [plaintiff was entitled to plead the legal effect of the contract rather than its precise language, and its complaint satisfactorily alleged that the insurance policy obligated the insurer to defend and indemnify plaintiff against suits seeking damages even though the policy was not appended to the complaint].)

D. The Estate of Peter Zambetti and the Estate of Julia Zambetti’s Motion to Dismiss and Demurrer to the Second Amended Cross-Complaint

1. Motion to Dismiss

a. The Estate of Peter Zambetti

The Estate of Peter Zambetti’s motion to dismiss the second amended cross-complaint (“SACC”) is DENIED. The Estate of Peter Zambetti argues that the SACC should be dismissed on the ground that the Lees failed to serve a summons with the SACC. The Lees represent in their opposition that the insurer for the Estate of Peter Zambetti now has been served with a summons and it was filed with the Court. A review of the Court’s docket reveals that a summons was filed on April 7, 2014, and a proof of service was filed on April 15, 2014. (See Dkt. # 0280, 0282.)

b. The Estate of Julia Zambetti

The Estate of Julia Zambetti’s motion to dismiss the SACC under Code of Civil Procedure section 418.10, subdivision (a)(3), is DENIED. Code of Civil Procedure section 583.310 provides that “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” If an action is not brought to trial within that time, the “action shall be dismissed by the court on its own motion or on motion of the defendant.” (Code Civ. Proc., § 583.360, subd. (a).) Thus, dismissal is “mandatory . . . except as expressly provided by statute.” (Id., § 583.360, subd. (b).) “As to a defendant either expressly named in the original complaint, or named in the original complaint by a fictitious name, the action commences on the date of the filing of the complaint.” (Gray v. Firthe (1987) 194 Cal.App.3d 202, 209, citing Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 38.)

The Lees’ original cross-complaint was filed on August 3, 2004. (The Estates’ RJN, Ex. D.) The Estate of Julia Zambetti was not named as a defendant at that time. The Lees represent in their opposition, and documents subject to judicial notice, show that the Lees requested that the Court designate the Estate of Julia Zambetti as a Doe defendant in September 2011. (Id., Ex. E; The Estates’ Amended Supplemental RJN, Ex. J; Opp. at p. 8:15-16.) The Court (Hon. McKenney) granted the Lees’ request on September 20, 2011. (The Estates’ Amended Supplemental RJN, Ex. K; see Dkt. # 0084.) The Lees’ argument that the Estate of Julia Zambetti is a new party that is different from Ms. Zambetti in order to start the five year window in 2011 ignores the fact that the Estate of Julia Zambetti was added as a Doe defendant via the Lees’ request and the Court’s subsequent order. The Lees’ reliance on Gray v. Firthe (1987) 194 Cal.App.3d 202, 209, to support its argument is misplaced. Gray held that as to new defendants added by amendment, and not merely as Does, the five-year period commenced as of the filing of the amended complaint. (Id. at pp. 209-10.) That is not the situation here. Because the Estate of Julia Zambetti was added as a Doe defendant, the five year window began to run from the date of the original cross-complaint on August 3, 2004. (Id. at p. 209.)

However, as noted, Ms. Zambetti’s death tolled the running of the five year period in 2006. The Court is unable to locate in the materials submitted the date Ms. Zambetti actually died in 2006 in order to determine if the five year period expired by at least September 20, 2011. The Estate of Julia Zambetti’s belief that it is the Lees’ burden to prove that dismissal is not warranted is not supported by Hughes v. Kimble (1992) 5 Cal.App.4th 59, 67, as that case deals with a plaintiff’s burden to demonstrate the “impossibility” exception under the statute. The Lees do not make an argument under that exception. Consequently, the motion to dismiss must be denied.

2. Demurrer

The Estates’ demurrer to each cause of action based on laches is OVERRULED. The Estates’ argument relies on facts not subject to judicial notice and which fall outside the four corners of the operative pleading. The Court has not considered the facts or the relevance attached thereto. (See Code Civ. Proc., § 430.30; Comm. on Children’s Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213-14 [“A demurrer tests only the legal sufficiency of the pleading.”].) As noted, the laches defense may be raised if the complaint shows on its face unreasonable delay plus prejudice or acquiescence. (Duskin, supra, 31 Cal.App.3d at p. 774.) The Estates fail to establish prejudice from the face of the SACC.

The Estates’ demurrer to the entire SACC for failure to allege that they have the right to recover insurance for the claims asserted is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. (See Croskey & Kaufman, Cal. Prac. Guide: Insurance Litigation, (Rutter Group 2013) §§ 15:56, 15:201.)

The Estates’ demurrer to the entire SACC because the Lees’ causes of action are defensive claims is OVERRULED. The Estates’ position is based on the fact that liability shifting is not covered under the insurance policies. (See Mem. at p. 8:19-21.) This is a factual determination that cannot be resolved with this demurrer. For purposes of this demurrer, the Lees seek the affirmative recovery of money damages for response costs they have incurred due to the release of hazardous substances on the property, declaratory relief, compensatory damages, and injunctive relief. (SACC at pp. 14-15.)