Case Number: BC583066 Hearing Date: March 01, 2018 Dept: 53

mohammed wadood, et al. vs. jp normandie enterprise, llc , et al.;

BC583066, March 1, 2018

[Tentative] Order RE: DEFENDANTS’ DEMURRER TO FOURTH AMENDED COMPLAINT

Defendant JP NORMANDIE ENTERPRISE, LLC’S Demurrer to Fourth Amended Complaint is SUSTAINED WITH LEAVE TO AMEND.

BACKGROUND

Plaintiffs Mohammed Wadood and Saleha Bano (jointly, “Plaintiffs”) filed this action on May 28, 2015, against Defendant JP Normandie Enterprise, LLC (“Defendant”). Plaintiffs filed the operative Fourth Amended Complaint (“4AC”) on December 4, 2017.

The 4AC alleges that Plaintiffs leased a unit in an apartment complex owned, operated, managed, and maintained by Defendant. Plaintiffs lived in a two-bedroom unit with their two children. Plaintiffs allege that Defendant failed to maintain the apartment unit in safe condition, failing to ensure that it had no electrical or gas problems and working fire and carbon monoxide alarms. The fAC further alleges that on June 18, 2014, a fire erupted in Plaintiffs’ unit, while their teenage son was there alone, killing him. Plaintiffs allege that no fire or carbon monoxide alarms ever went off. Defendant’s property manager allegedly became aware of the fire at or just before 6:00 p.m., but took no steps to check on the occupants inside the unit or call the fire department until about eighteen minutes later.

The 4AC asserts causes of action for (1) negligence (wrongful death), (2) negligence (wrongful death), (3) negligence per se – violation of H&SC § 13113.7 (wrongful death), (4) negligence per se – violation of H&SC § 17926 (wrongful death), (5) negligence – conscious disregard for safety of others (wrongful death).

Defendant demurs to the second cause of action on the grounds that it fails to state a cause of action. Plaintiffs oppose.

Legal Standard

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

Discussion

“The elements of a negligence cause of action are duty, breach, causation and damages.” (Cty. of Santa Clara v. Atl. Richfield Co. (2006) 137 Cal.App.4th 292, 318.) The statute of limitations for wrongful death caused by negligence is two years. (Code Civ. Proc., § 335.1.)

Defendant argues that the second cause of action is barred by the statute of limitations because the theory put forward by Plaintiffs was not pled in the initial Complaint filed in 2015, and the injury-causing fire occurred in June 2014. Instead, Plaintiffs have added a whole new set of facts upon which a right of action is based – an entirely new duty of Defendant, namely, a duty at the time of the fire to ensure the safety of its tenants. As the Court previously held, this duty should have been alleged in the initial Complaint.

Plaintiffs concede that the facts underlying this cause of action relates back to the filing of the First Amended Complaint in January 2017, rather than the initial Complaint filed in May 2015. (See 4AC, ¶ 35.) Even so, the statute of limitations had already run in January 2017. Nevertheless, Plaintiffs argue that they have amended their complaint to include facts that suggest delayed discovery of the pertinent facts underlying this cause of action. To wit, Plaintiffs deposed Defendant’s property manager on June 27, 2016, regarding the circumstances of the fire. Plaintiffs allege that Defendant’s property manager testified at deposition that she knocked on Decedent’s door several times and immediately called 911 in an effort to aid the Decedent. (4AC, ¶ 33.) However, video surveillance Plaintiffs obtained from the Los Angeles Fire Department on November 7, 2016 showed that instead, Defendant’s property manager had not knocked on Decedent’s door and that she had purportedly lied during her deposition. (4AC, ¶¶ 33-34.) Consequently, Plaintiffs argue, the statute of limitations was tolled until November 7, 2016.

The delayed discovery rule postpones accrual of a cause of action until the plaintiff discovers, or has reason to discovery, the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) A plaintiff has reason to discover a cause of action when he or she “has reason at least to suspect a factual basis for its elements.” (Ibid.) (citation omitted) In making its determination of delayed discovery, the court looks to “whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.” (Ibid.) Nevertheless, plaintiffs are “required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation.” (Id. at p. 808.) “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.’” (Ibid.) (citation omitted) (emphasis in original)

In the 4AC, Plaintiffs have pled the time and manner of discovery (the videotape from the Los Angeles Fire Department, pursuant to a subpoena from Defendant’s counsel). However, Plaintiffs have not pled the inability to have made earlier discovery despite reasonable diligence. For one, Plaintiffs allege that the deposition of the property manager took place in June 2016. By then, the statute of limitations had already run. Further, Plaintiffs do not allege in the 4AC why the videotape could not have been obtained via Plaintiffs’ own subpoena. In the opposition, Plaintiffs submit that they did serve a subpoena but did not receive a videotape and were not informed that a videotape existed. The Court finds that Plaintiffs have failed to specifically plead facts showing inability to have made earlier discovery despite reasonable diligence. Plaintiffs submit that they can amend to include additional allegations concerning the discovery of the videotape. Therefore, the Court sustains the demurrer and grants Plaintiffs leave to amend to allege specific facts showing Plaintiffs’ inability to have made earlier discovery despite reasonable diligence.

CONCLUSION

Based on the foregoing, Defendant’s demurrer is sustained as to the second cause of action with leave to amend.

Plaintiffs are ordered to provide notice of this ruling.

DATED: March 1, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court