DECLUE VS COSTCO WHOLESALE CORPORATION

of a reasonable person in the position of the discovering party, additional effort appears likely to bear fruit.” (Clement v. Alegra (2009) 177 Cal.App.4th 1277, 1294.) Importantly, the meet and confer declaration must state facts showing that the parties made “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (CCP § 2016.040, emphasis added.)

Here, DRG’s counsel sent one meet and confer letter on July 21, 2026, the day before the present Motion was filed. This was clearly done in an effort to meet the deadline to file the Motion to Compel under CCP §2031.310(c), which provides that unless notice of a motion to compel further responses is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.

The supplemental responses were electronically served on June 5, 2026, making the motion deadline July 22, 2026. It appears that DRG waited until the last minute under the belief that the supplemental responses could be addressed by the prior Motion filed before they were served, despite the fact that the supplemental responses were not addressed by that Motion or the accompanying separate statement.

Although there appears to be some animosity between counsel, the statute requires that the parties attempt to meet and confer. Since there was no meet and confer regarding the supplemental responses, the hearing will be continued to allow the parties to comply with the statutory requirements. It should be noted that the supplemental responses are a complete mess. Rather that complete, straightforward responses, RBI includes improper legal arguments and comments regarding DRG and counsel as “objections”.

These comments render the responses confusing and non-compliant. RBI also improperly refuses to produce documents that have been produced by other parties. Furthermore, because the supplemental responses are difficult to understand, it is not clear whether the responses are responsive to the RFPs demanding communications with various individuals. These issues should be addressed during the meet and confer process.

4. CASE # CASE NAME HEARING NAME DECLUE VS COSTCO DEMURRER / MOTION TO STRIKE CVME2401065 WHOLESALE COMPLAINT CORPORATION Tentative Ruling: Request for Judicial Notice Granted. Motion to Strike is denied without prejudice. Demurrer is overruled. Defendant to file response within 20 days.

Defendant Fuscoe Engineering, Inc demurs to the complaint arguing it fails to state a cause of action because the applicable two-year statute of limitations expired on September 1, 2024, before Fuscoe was ever named in this action, and Plaintiff cannot invoke Code of Civil Procedure1 section 474 to toll the limitations period because Plaintiff’s own prior filings conclusively establish that Plaintiff was not genuinely ignorant of facts giving rise to a cause of action against Fuscoe at the time the original Complaint was filed. (§ 430.10(e).) The companion motion to strike, brought under §§ 435 and 1 All further statutory references are to Code of Civil Procedure unless specified.

436, targets the Second Doe Amendment on the grounds that it “was not filed in conformity with [...] section 474; Motion to Strike” and that “Plaintiff’s subsequent attempt to re-name Fuscoe as DOE 5 after previously naming and dismissing Fuscoe constitutes an improper use of the fictitious-name procedure.” Fuscoe also argues the second attempt is an improper sham pleading and false Doe amendment that must be stricken. Fuscoe also submits a Request for Judicial Notice of various related filings by Plaintiff.

Plaintiff opposes the demurrer on the ground that section 474 turns on actual ignorance of liability-producing facts-not ignorance of a corporate name, general project involvement, or a suspicion that liability might exist. Plaintiff agues Costco’s discovery identified Fuscoe only as a design participant while representing that “the parking lot was built according to its exact design specifications and approved at design and final inspection,” and the March 2025 Certificate of Merit generically identified Fuscoe only as “the engineer of the project.”

Plaintiff contends the materially different, liabilityproducing facts, Fuscoe’s post-substantial-completion site walk, drainage grade certification, as-built signature, and admission that a required cover “wasn’t installed” and Fuscoe didn’t think we paid attention to it first emerged from the March 11, 2026 PMK deposition. (Parker v. Robert E. McKee, Inc. (1992) 3 Cal.App.4th 512, 516–518.) The opposition to the motion to strike advances the same theory, arguing that Fuscoe’s motion repackages the same statute-of-limitations theory advanced in its demurrer.

Plaintiff further argues the sham-pleading doctrine does not apply because there is no contradictory amended allegation and the second certificate simply reflects later PMK testimony disclosed a different factual basis, prompting renewed professional consultation. Any delay theory fails because Fuscoe identifies no loss of evidence, unavailable witness, inability to conduct discovery, or other prejudice caused by that interval. Both oppositions ask the Court to overrule the demurrer and deny the motion to strike, or in the alternative to grant leave to amend.

In reply, Fuscoe argues Plaintiff’s oppositions do not demonstrate newly discovered ignorance and do not dispute any judicially noticeable fact. It otherwise re-argues the points presented in their moving papers.

Meet and Confer - Code of Civil Procedure sections 430.41 and 435.5 requires a meet and confer process via phone, videoconferencing or in person before filing a demurrer or motion to strike. The meet and confer process requires the moving party to identify the causes of action or allegations subject to attack and the plaintiff must provide legal support for its position. (Id. at §§ 430.41(a)(1), 435.5(a)(1).) The demurring party must file a declaration stating the means by which the parties met and conferred, or the responding party failed to respond or meet and confer in good faith. (Id. at §§ 430.41(a)(3), 435.5(a)(3).)

Here, counsel declares she spoke with Plaintiff’s counsel regarding Fuscoe’s “contemplated responsive pleading,” the next day sent an email outlining the issues and received a response from Plaintiff’s counsel that he would not be dismissing Fuscoe. (Salama Decl., ¶¶ 3-5, Exh. A.) This is minimally sufficient.

Request for Judicial Notice - Fuscoe requests the Court take judicial notice of five records filed in this action: 1) Amendment to Complaint filed February 20, 2025, substituting Fuscoe for DOE 2 in this action; 2) Plaintiff's Certificate of Merit for Fuscoe filed March 28, 2025; 3) Request for Dismissal filed May 8, 2025, voluntarily dismissing

Fuscoe without prejudice; 4) Amendment to Complaint filed May 13, 2026, substituting Fuscoe for DOE 5; and 5) Plaintiff’s Certificate of Merit for Fuscoe filed May 13, 2026.

These documents may be judicially noticed pursuant to Evid. Code § 452(d), which permits judicial notice of court records. While a court may take judicial notice of court records, judicial notice reaches what those documents say, including inconsistent statements of a party, but does not resolve disputed questions of fact or establish conclusive proof of a party’s subjective knowledge of contested liability-producing facts. (Del E. Webb Corp. v. Structural Materials Co., (1981) 123 Cal.App.3d 593, 604-605.)

Standard - A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; C.C.P., § 430.10, subd. (e).)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts-- that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach 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.)

In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) Courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

Section 474

This section provides:

When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly; provided, that no default or default judgment shall be entered against a defendant so designated, unless it appears that the copy of the summons or other process, or, if there be no summons or process, the copy of the first pleading or notice served upon such defendant bore on the face thereof a notice stating in substance: “To the person served: You are hereby served in the within action (or proceedings) as (or on behalf of) the person sued under the fictitious name of (designating it).”

The certificate or affidavit of service must state the fictitious name under which such defendant was served and the fact that notice of identity was given by endorsement upon the document served as required by this section. The foregoing requirements for entry of a default or default judgment shall be applicable only as to fictitious names designated pursuant to this section and not in the event the plaintiff has sued the defendant by an erroneous name and shall not be applicable to entry of a default or default judgment based upon service,

in the manner otherwise provided by law, of an amended pleading, process or notice designating defendant by his true name.

The phrase “ignorant of the name of a defendant” in section 474 is broadly interpreted to mean not only ignorant of the defendant’s identity, but also ignorant of the facts giving rise to a cause of action against that defendant. (San Diego Navy Broadway Complex Coalition (2019) 40 Cal.App.5th 563, 579.) Therefore, the fact that Plaintiff was aware of Fuscoe’s identity but not the basis for her claims against it does not alone bar Plaintiff’s second Doe amendment naming Fuscoe as Doe 5.

Moreover, the purpose of section 474 is to allow a plaintiff to bring an action before it is barred by the applicable statute(s) of limitations. (Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 939-941; Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 599; Hahn v. New York Air Brake LLC (2022) 77 Cal.App.5th 895, 897- 898.) Section 474 is to be liberally construed to allow a plaintiff to avoid the bar of the statute of limitations when the plaintiff is ignorant of the identity of the defendant. (Olden v. Hatchell (1984) 154 Cal.App.3d 1032, 1035.)

Here, there is a potential statute of limitations issue as the applicable 2-year statute of limitations on Plaintiff’s claims against Fuscoe had run by the second time Plaintiff named Fuscoe as a Doe defendant (Doe 5). (See § 335.1.) The incident occurred on September 1, 2022, and Plaintiff filed the second Doe amendment on May 13, 2026. Fuscoe contends that Plaintiff’s March 28, 2025, Certificate of Merit, which identified Fuscoe as the engineer of the project and certified, after consultation with a licensed professional engineer, that a reasonable and meritorious basis existed to proceed against Fuscoe, demonstrates that Plaintiff was not genuinely ignorant of facts giving rise to a cause of action against Fuscoe when the original complaint was filed.

Fuscoe argues that the second Doe amendment therefore does not relate back to the filing of the original complaint and that Plaintiff’s claims are time-barred.

Section 411.35 requires counsel to file a certificate representing, after consultation with a licensed professional in the same discipline, that there is reasonable and meritorious cause to proceed. The consulted professional must opine that the named defendant was negligent in performing the applicable services. Section 411.35 is a substantive gatekeeping mechanism, but meeting it is analytically distinct from the section 474 inquiry: section 411.35 asks whether counsel has professionally vetted a claim; section 474 asks what specific liability-producing facts counsel actually knew when the original complaint was filed. “Although the statute refers literally only to ignorance of the name of a defendant, it is well established that amendment is permitted, even though the plaintiff knew a defendant’s name, if plaintiff was ignorant of the facts giving rise to a cause of action against that defendant.” (Parker v.

Robert E. McKee, Inc. (1992) 3 Cal.App.4th 512, 516.)

The March 2025 Certificate’s generalized identification of Fuscoe as the engineer of the project does not establish, as a matter of law, that counsel knew in March 2025 the granular post-substantial-completion facts pleaded in the second Doe Amendment that “Fuscoe performed a final inspection of the area where Plaintiff later fell prior to the incident” and “failed to identify and advise the general contractor that the grading and storm drain installation did not conform to the approved design plans, including the

absence of a required checkered plate at the curb opening.” (RJN, Exh. E.) Plaintiff represents that these specific facts first surfaced at the March 11, 2026, PMK deposition, and that the March 2025 Certificate was general and collective as to several Doe defendants and identified no Fuscoe-specific negligent act or omission. The section 474 inquiry turns on “what facts the plaintiff actually knew at the time the original complaint was filed,” not what could have been discovered through further investigation, and prior naming and dismissal does not preclude later re-adding a defendant as a Doe based on newly-discovered facts supporting liability. (Gen. Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 588)

Moreover, Fuscoe’s reply argument that Parker is limited to different legal capacities and does not reach different professional services under the same engagement does not support a different result. Parker holds that “amendment is permitted, even though the plaintiff knew a defendant's name, if plaintiff was ignorant of the facts giving rise to a cause of action against that defendant,” and that a previously unknown fact about the defendant’s role “provides a proper new factual basis for a cause of action.” (See Parker, supra, (1992) 3 Cal.App.4th 512, 516.)

The operative question is not the label affixed to the defendant’s relationship but whether newly discovered facts establish a distinct liability-producing connection to the injury. A design-side engagement does not, as a matter of law, put a plaintiff on notice that the same engineer also conducted a post-substantial-completion site walk, certified drainage after construction, signed asbuilt plans, and failed to identify nonconforming conditions. Parker itself permitted the plaintiff to proceed even where the defendant had been named and dismissed. (Id. at 518.)

The sham-pleading doctrine does not change the result; the two certificates of merit reflect different factual bases Plaintiff contends were surfaced at different times, not contradictory pleadings, and whether Plaintiff’s explanation is credible is a factual question not resolvable on demurrer. Demurrer is overruled as it cannot be determined on the face of the pleading or any judicially noticeable facts that Plaintiff’s claims are barred as a matter of law.

Motion to Strike - Pursuant to § 436(a), the court may “strike out any irrelevant, false, or improper matter inserted in any pleading.” When ruling on a motion to strike, the allegations of the pleading are assumed to be true and read in their context. (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.) A pleading is to be liberally construed. (CLD Construction v. City of Ramon (2004) 120 Cal.App.4th 1141, 1146.)

The motion to strike advances the same statute-of-limitations and § 474 genuine ignorance theory as the demurrer based on the same judicially-noticed materials. Indeed Fuscoe’s reply expressly disclaims any weighing of competing evidence, stating: Fuscoe does not ask the Court to judicially notice the truth of any disputed factual assertion or determine Plaintiff’s subjective knowledge by weighing competing evidence.

This disclaimer is fatal to the motion. A motion to strike a Doe amendment on statute-oflimitations grounds is not a purely pleading-based challenge. Under Barrows v. Am. Motors Corp. (1983) 144 Cal.App.3d 1 and A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, the moving party must present evidence, such as declarations,

discovery responses, deposition testimony, establishing that the plaintiff knew the defendant’s liability-producing role at the time the original complaint was filed and unreasonably delayed filing the Doe amendment, resulting in prejudice. Fuscoe develops neither. Motion to strike is denied without prejudice. The factual questions at the heart of Fuscoe’s section 474 theory such as counsel’s subjective knowledge in March 2025, the credibility of Plaintiff’s explanation, and prejudice cannot be resolved on the face of the pleading and judicially-noticed filings alone; they require a developed evidentiary record.