Case Number: BC660772 Hearing Date: October 01, 2018 Dept: 7

[TENTATIVE] ORDER RE: SUSTAINING THE DEMURRER TO FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

I. BACKGROUND

On May 9, 2017, plaintiff Wanda Kaczmarczyk (“Plaintiff”) filed a complaint against defendants Miracle Mile Properties LP (“Miracle Mile”) and Does 1 to 25 alleging causes of action for negligence and premises liability.

The complaint alleges that on June 2, 2015, Plaintiff was lawfully on the defendants’ premises when her foot got caught on the raised mat on the stairs that was not properly placed/secured thereby causing her to trip and fall down the stairs. (Complaint ¶ 5.) The address of the premises is 4221 Wilshire Blvd, Los Angeles CA 90010. (Id. ¶ 1.)

On June 28, 2018, Plaintiff filed a first amended complaint (“FAC”) against defendants Miracle Mile, Wash Multifamily Laundry Systems LLC (“Wash”) and Does 1 to 25 alleging causes of action for negligence and premises liability.

The FAC alleges that on June 2, 2015, Plaintiff was lawfully on the defendants’ premises when she fell while walking due to a pool of liquid. (FAC ¶ 5, 11.) The address of the premises is 16830 Kingsbury Street, Granada Hills, CA 91344. (Id. ¶ 1.)

On August 7, 2018, Miracle Mile demurred to the FAC and Plaintiff accordingly opposed the demurer. On September 11, 2018, the Court sustained the demurrer to the FAC without leave to amend. On August 24, 2018, prior to the Court’s ruling on Miracle Mile’s demurrer, Wash filed a demurrer to the FAC. Plaintiff failed to file an opposition to Wash’s demurrer.

II. LEGAL STANDARD

A general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations. (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325.) The running of the statute must appear clearly and affirmatively from the dates alleged. (Id.) It is not sufficient that the complaint might be barred. (Id.) If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. (Id.) The proper remedy is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment. (Id.)

III. DISCUSSION

a. Meet and Confer Requirement

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.) The Court notes that Wash has complied with the meet and confer requirement. (See Decl. Kwong.)

b. Statute of Limitations: Relation Back Doctrine

Wash contends that Plaintiff’s claims against Wash are barred by the applicable two-year statute of limitations because the allegations in the FAC do not relate back to the original complaint.

Code of Civil procedure section 335.1 provides that an action for injury to an individual caused by the wrongful act or neglect of another must be brought within two years.

Here, Plaintiff filed her complaint within two years of her alleged injury since the injury occurred on June 2, 2015, and the complaint was filed on May 9, 2017. On June 28, 2018, more than two years after Plaintiff’s alleged injury, Plaintiff filed the FAC, which for the first time named Wash as a defendant and added new allegations as to Plaintiff’s injury. Thus, unless the relation back doctrine applies such that the FAC is considered to be filed on the same date as the complaint, Plaintiff’s claims against Wash are time barred.

i. Failure to Comply with Code of Civil Procedure Section 474

Wash argues that the allegations in the FAC do not relate back to the original complaint because Plaintiff failed to comply with the Code of Civil Procedure section 474. Specifically, Wash argues that since Wash was not named as a defendant in the original complaint but was for the first time named as defendant in the FAC, Plaintiff was required to substitute Wash as a new defendant for a fictitious defendant pursuant to Code of Civil Procedure section 474. Wash argues that since Plaintiff failed to file such a substitution, Plaintiff’s claims against Wash are barred by the applicable statute of limitations because Plaintiff’s claims against Wash cannot relate back to the date of the filing of the original complaint.

The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. (Id.) If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed. (Id.)

Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)

Here, Plaintiff made no apparent attempt to satisfy this procedural requirement as exemplified by the fact that (1) no amendment to the compliant was made stating that Wash was substituted as a defendant for a fictitious Doe defendant, (2) the FAC adds Wash as a defendant but does not identify Wash as a substitute for a previously named fictitious defendant and (3) the summons of the FAC identifies Wash as being sued as an individual defendant, not as a defendant previously sued under a fictitious name. (See Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.)

Thus, the demurrer to the FAC is SUSTAINED on this ground. The Court however notes that the courts of this state have considered noncompliance with the party substitution requirements of section 474 as a procedural defect that could be cured and have been lenient in permitting rectification of the defect. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177.) Thus, this defect could be corrected by an amendment.

Regardless, the Court finds that Plaintiff’s claims against Wash are barred by the applicable statute of limitations because the allegations in the FAC do not relate back to the allegations in the complaint as analyzed below.

ii. Allegations of the FAC Compared to the Allegations of the Complaint

Wash demurs to the FAC on the ground that the FAC is time barred because Plaintiff did not timely file the FAC pursuant to the applicable statute of limitations period and the FAC does not relate back to the filing of the original complaint since the allegations in the FAC are based on different facts than those in the original complaint.

The modern rule with respect to actions involving parties designated by their true names in the original complaint is that, where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts. (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600.) The relation-back doctrine requires that the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408–409 citing to Barrington v. A.H. Robins Co. (1985) 39 Cal.3d 146, 150-151; Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934-940.)

Wash cites to Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342 to support its contention that the FAC does not relate back to the original complaint. In Coronet, one day before the running of the statute of limitations, the plaintiffs filed a wrongful death action alleging that their daughter had been electrocuted while using a defective hair dryer. (Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342, 344.) An amended complaint was filed more than a year later and for the first time identified defendant electronics manufacturer as one of the original “Does.” (Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342, 344.) The amended complaint alleged that the electrocution was caused by a table lamp whose socket and switch had been manufactured by the newly named defendant. (Id. at 344-345.)

The Court of Appeal in Coronet reviewed the history of the relation back doctrine and held that the amended complaint did not relate back to the original complaint because although there was just one electrocution, the complaint pleaded that the offending instrumentality was the hair dryer and the accident was the use of that hair dryer, while the amended complaint alleged that the instrumentality was a table lamp and the accident was the use of the lamp. (Id.) The Court of Appeal found that the difference between being electrocuted by a hair dryer and being electrocuted by a table lamp is as great as being electrocuted by the hair dryer and being poisoned by some improperly processed food found on the kitchen shelf. (Id. at 347.) Thus, the Court of Appeal found that although these two situations related to a single death at a single location, they were different “accidents” and involved different instrumentalities. (Id.) Therefore, the Court of Appeal issued a peremptory writ of mandate directing the trial court to vacate the order overruling the demurrer and entering an order sustaining the demurrer. (Id. at 348.)

Like in Coronet, here, the Court finds that the difference between the allegations in the complaint and the FAC are too great for the FAC to relate back to the complaint. While the complaint alleges that Plaintiff was injured when her foot got caught on the raised mat on the stairs that was not properly placed/secured thereby causing her to trip and fall down the stairs, the FAC alleges that Plaintiff fell while walking due to a pool of liquid that had dripped from the hallway above. (Compare Complaint ¶ 5 with FAC ¶ 5.) Additionally, while the complaint alleges that the injury occurred at the address 4221 Wilshire Blvd, Los Angeles CA 90010, the FAC alleges that the injury occurred at the 16830 Kingsbury Street, Granada Hills, CA 91344. (Compare Complaint ¶ 1 with FAC ¶ 1.)

Not only is the manner in which Plaintiff was injured different, so is the location of the alleged injury. Although both the complaint and the FAC describe situations where Plaintiff was injured, the situations are two different accidents and involve different instrumentalities. (Coronet Manufacturing Co. v. Superior Court (1979) 90 Cal.App.3d 342, 347.)

Thus, the Court finds that based on the holding in Coronet, the FAC does not relate back to the complaint. Plaintiff has failed to file an opposition.

Since the FAC does not relate back to the complaint and since the FAC was filed more than two years after the alleged date of Plaintiff’s injury, the FAC is barred by the applicable two-year statute of limitations period. Thus, the Court SUSTAINS the demurrer to the FAC. Based on the Court’s analysis above and Plaintiff’s failure to file an opposition, the Court finds that Plaintiff cannot reasonably amend the FAC. Thus, no leave to amend is granted.

Parties who intend to submit on this tentative must send an email to the Court at sscdept7@lacourt.org as directed by the instructions provided on the Court website at www.lacourt.org.

Moving Party is ordered to give notice.