Valentine Okigbo v. Antonio Calderon, et al.

(Beverly Hills Courthouse: Dept. 205) September 1, 2026 DEPARTMENT 205 LAW AND MOTION RULINGS

Superior Court of California County of Los Angeles - West District Beverly Hills Courthouse / Department 20 5 HARSHAL TOPIWALA, Plaintiff, v. FEREIDOUN KHALILIAN, et al., Defendant s. | Case No.: 2 3 S M CV 0 4144 Hearing Date: September 1, 2026 [TENTATIVE] order RE: D efendant 's MOTION TO VACATE entry of DEFAULT and default judgment | This hear ing is on Defendant Fereidoun Khalilian's motion to vacate entry of default and default judgment.

Defendant's memorandum of points and authorities has multiple procedural defects. The motion is single spaced which violates the¿rule¿against¿single¿spacing. (CRC,¿Rule¿2.108(1).) And given the¿single¿spacing, the 17-page motion also¿ violates the 15 - page limit for non-summary judgment motions. (CRC,¿Rule¿3.1113(d).) A memorandum that exceeds the page limits must be considered in the same manner as a late-filed paper. (Rules of Court, Rule 3.1113(g) .) The Court has discretion to refuse to consider late-filed papers, but if it declines to do so, the minutes or order must so indicate. (Rules of Court, Rule 3.1300(d) .)

The Court declines to consider Defendant's motion to vacate entry of default and default judgment given the procedural defects noted above. The motion is denied without prejudice.

DATED: September 1, 2026 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Case Number: 25SMCV05123 Hearing Date: September 1, 2026 Dept: 205 Superior Court of California County of Los Angeles - West District Beverly Hills Courthouse / Department 20 5 VALENTINE OKIGBO, Plaintiff s, v. ANTONIO CALDERON, et al., Defendant s. | Case No.: 2 5SMCV05123

Hearing Date: September 1, 2026 [TENTATIVE] order RE: defendant s' DEMURRER TO first amended complaint | BACKGROUND This case arises from a car versus scooter accident. On October 23, 2023, Plaintiff Valentine Okigbo was traveling on his electric scooter westbound in the rightmost lane of westbound Santa Monica Boulevard, in Beverly Hills. Defendant Antonio Calderon was driving westbound in the lane immediate ly to Okigb o's left, when he abruptly merged into Okigbo ' s lane wit hout signaling, and collided into Okigbo. Okigbo wa s stru ck by Antonio's car which then threw him from his scooter and onto the ground. Plaintiff claims Antonio violated various California Vehicle Code Sections, including but not limited to, Section 23103(a) (reckless driving) and Section 22107 (merging lanes) . Plaintiff also alleges that Defendant Richard Calderon negligently entrusted his car to Antonio.

On September 26, 2025, Okigbo filed a complaint against Defendants for motor vehicle and general negligence. According to Defendants, a t the time the Complaint was filed, Okigbo was deceased. He died on December 30, 2024, from causes unrelated to the accident. On June 10, 2026, Valentine's mother, Philomena Okigbo, filed a first amended complaint ("FAC"), in her role as personal representative for the estate of Valentine Okigbo.

Th is hearing is on Defendants' demurrer to the FAC. Defendants argue that the FAC is time-barred because the accident happened on October 23, 2023; there is a two year statute of limitations for negligence claims which means that the limitations period expired on October 23, 2025; the original complaint was filed on September 29, 2025, but by Valentine who was already dead at the time the original complaint was filed, and the first amended complaint does not relate back to the original complaint and is time barred because it was filed on June 10, 2026, well past the limitations period.

MEET AND CONFER Code Civ. Proc. Sec. 430.41 require s that before the filing of a demurrer the moving 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. (Code Civ. Proc. Sec. 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ.

Proc. Sec. 430.41(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. Sec. 430.41(a)(3).) Defendants submit the declaration of Robert Gonter who does not clearly state whether the parties met and conferred by telephone or in person. Notwithstanding, the Court cannot overrule a demurrer based on an insufficient meet and confer.

LEGAL STANDARD "[A] demurrer tests the legal sufficiency of the allegations in a complaint." (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not "sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment"); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 ("A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.") . The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

REQUEST FOR JUDICIAL NOTICE Defendants seek judicial notice of Valentine Okigbo's death certificate. The Court of Appeal found that¿judicial notice¿may be taken of a¿death certificate¿because¿judicial notice¿may be taken of official acts of the legislative, executive, and judicial departments of a state and of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (People v. Terry (1974) 38 Cal.App.3d 432, 43 9.)¿ Here,¿the death certificate attached to the request for judicial notice is redacted and stamped with the words " Informational, Not A Valid Document To Establish Identity. " Given the stamp across the document, the Court cannot conclude whether it is an official record of a state agency and therefore, denies the request for judicial notice.

DISCUSSION The original complaint was filed on September 29, 2025 which is within the statute of limitations (of October 23, 2025) . Defendants nonetheless argue that Vale n tine was dead at the time the original complaint was filed, and he had no standing to file the Complaint. Valentine's mother, Philomena, did not substitute in as the personal representative of Valentine until June 10, 202 6, which is well past the expiration of the limitations period, and therefore the FAC is time-barred.

The Court has denied the request for judicial notice and therefore, there are no judicially noticeable facts showing that Valentine was dead at the time of the original complaint. The FAC itself refers to the fact that Valentine is dead but does not specify when he died. Accordingly, because the demurrer hinges on the death certificate (which the Court has declined to judicially notice), the Court cannot sustain the demurrer.

In any event, even if the Court were to judicially notice the death certificate, its ultimate ruling would not change. C ourts have permitted plaintiffs who have been determined to lack standing, or who have lost standing after the complaint was filed, to substitute as plaintiffs the true real parties in interest.¿(See e.g., Klopstock v. Superior Court ¿(1941) 17 Cal.2d 13, 19-21¿[administrator of¿deceased¿shareholder's estate substituted as plaintiff in corporate derivative action] .)¿ Amendments for this purpose are liberally allowed.¿(Klopstock¿v.

Superior Court, 17 Cal.2d at 19-21; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, Sec. 1126, p. 581;¿ id., Sec. 1155, p. 614.) (Branick¿v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 24 3.)¿ " The important limitation on the rule just mentioned is that the plaintiff proposed to be substituted may not 's tate facts which give rise to a wholly distinct and different legal obligation against the defendant. ' (Klopstock, 17 Cal.2d at 13, 2 0.)¿ For this purpose, " [i]n determining whether a wholly different cause of action is introduced by the amendment technical considerations or ancient formulae are not controlling; nothing more is meant than that the defendant not be required to answer a wholly different legal liability or obligation from that originally stated. " (Branick, 39 Cal.4th at 243-24 4.)¿ Accordingly, " The cases on amending pleadings during trial suggest trial courts should be guided by two general¿ principles: (1) whether facts or legal theories are being changed and (2) whether the opposing party will be prejudiced by the proposed amendment . . . . ' [Citation.] " (Garcia v.

Roberts, 173 Cal.App.4th at 91 0.)

Witkin has summarized the authorities as follows:¿ " [T] he allowance of amendment and relation back to avoid the statute of limitations does not depend on whether the parties are technically or substantially changed; rather the inquiry is as to whether the nature of the action is substantially changed. And most of the changes in parties do not change the nature of the action. " (5 Witkin, Cal. Procedure,¿ supra, Pleading, Sec. 1151, pp. 609-610; formerly 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, Sec. 1147, quoted in¿ California Air Resources Bd. v.¿ Hart, 21 Cal. App. 4th 289, 30 0 ¿[citing both Witkin and¿ Klopstock].)

H ere, the legal theories and facts have not changed. B oth pleadings arise exclusively from the same October 2, 2023 collision where Mr. Calederon merged into Mr. Okigbo while Mr. Okigbo was riding his electric scooter. The two complaints seek recovery for the same personal injuries and damages allegedly sustained by Mr. Okigbo as a result of the crash. B oth pleadings assert the same Motor Vehicle and General Negligence causes of action against the same Defendants.

As to prejudice, Defendants argue they will be prejudiced because the statute of limitations already expired at the time Philomena substituted in as the personal representative of her son's estate. However, if this type of prejudice could prevent substitution, then the holding in Klopstock would be eviscerated. Under Klopstock and its progeny, there can be no prejudice where the amended complaint is based on the same facts as the original complaint because Defendants were put on notice of the need to defend against a claim in time to prepare a fair defense on the merits.

Defendants ' reliance on Coats v. K-Mart Corp. (1989) 215 Cal. App. 3d 961 is misplaced. In¿ Coats, the mother of a decedent did not obtain appointment as administratrix of the decedent ' s¿estate before filing a wrongful death action. (Id. at 964-96 5.)¿ The Court in Coats deemed the action to have been filed as of the date of the administratix appointment, nearly six years after the injury occurred and well past the statute of limitations. The holding in Coats has been called into question by Cloud v.

Northrop Grumman (1998) 67 Cal.App.4 th 995. In Cloud, the Court observed that "[a] lthough ¿ Klopstock ¿had involved a situation similar to¿ Coats, in which an action should have been filed by an administratrix but instead was filed by a party who lacked standing,¿ Klopstock ¿was not cited in¿ Coats. " (Cloud, 67 Cal.App.4 th at 1009.) The court in Cloud then went on to hold that " [t] o the extent the trial court in this case interpreted¿ Coats ¿to hold that amendments substituting in a real party in interest do not ' relate back, ' such an interpretation would conflict with¿ Klopstock ¿and its progeny.¿ Klopstock ¿is a Supreme Court opinion while¿ Coats ¿is a Court of Appeal opinion.

Hence¿ Klopstock ¿and the cases following its liberal rule of amendment control. " (Id. at 1010.)

Defendants also rely on Triplett v. Williams, 269 Cal. App. 2d 135 (1969) . However, Triplett did not concern a timely-filed lawsuit followed by amendment substituting the proper real party in interest. Rather, it involved an untimely complaint, and the issue was whether the beneficiaries of a trust could bring a suit after the limitations period had expired because the trustee or personal representative failed to act. It says nothing about whether a timely complaint asserting an existing cause of action may later be amended to identify the correct real party in interest while preserving the same claim.

In reply, Defendants attempt to distinguish Klopstock and its progeny from the present case by arguing that Plaintiff here did not demonstrate good faith in filing the original complaint when she knew her son was already dead. According to Defendant, "[t] his was a deliberate attempt to evade the expiration of the statute of limitations with an invalid complaint with full knowledge of Plaintiff's lack of standing. " They do not cite any case in support of their position that Plaintiff was required to demonstrate good faith. Branick suggests otherwise: " Defendants argue plaintiffs should not be permitted to substitute a new plaintiff because their failure to name the new plaintiff¿in their original complaint was not a mistake.¿No such rule exists. " (Branick, 39 Cal.4 th at 243.)

¿ Defendants also argue in reply that Plaintiff's amended complaint asserts an entirely different cause of action. Defendants cite in support to Dominguez v. City of Alhambra (1981) 118 Cal. App. 3d 237 which held that a proposed amended complaint adding the estate ' s survival cause of action could not relate back to the original wrongful death complaint filed by the heirs, because the survival action and the wrongful death action are wholly distinct causes of action seeking different damages on behalf of different parties. However, the original and amended complaint both stated a survival cause of action. Both complaints seek compensation for losses suffered before death. This is not a situation where the original complaint raised a survival action and the amended complaint raised a wrongful death claim.

Defendants also argue in reply that Plaintiff " failed to comply with the procedural requirements of Sec. 377.32, including filing a declaration under penalty of perjury with a certified copy of the death certificate. " However, this argument was not made in the demurrer, and the Court cannot consider an argument made for the first time in reply. ¿(Reichardt v. Hoffman, 52 Cal.App.4th at 76 4.)

CONCLUSION AND ORDER Based on the foregoing, the Court OVERRULES the demurrer. IT IS SO ORDERED. DATED: September 1, 2026 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Case Number: 25SMCV06313 Hearing Date: September 1, 2026 Dept: 205 Superior Court of California County of Los Angeles - West District Beverly Hills Courthouse / Department 20 5 ROBERT AMES, Plaintiff, v. CHRISTOPHER DAYN WALTON, et al., Defendant s. | Case No.: 2 5 SMCV0 6313 Hearing Date: September 1, 2026 [TENTATIVE] order RE: defendan t 'S DEMURRER TO COMPLAINT | This is a malicious prosecution case. Plaintiff Robert Ames alleges that Defendant Christopher Walton wrote a letter to the City of Santa Monica, the Police Chief, the City Attorney and the Mayor, falsely accusing Plaintiff of " dangerous actions and crimes being comminuted upon [Walton's] friend and sexual partner Monique Eagle, as well as her 3- minor children."

Walton supposedly demanded a "No Knock Arrest Warrant" be issued immediately against Plaintiff's home, claiming "This is a dangerous life threatening situation that requires immediate action." The letter was allegedly sent on September 12, 2022. Plaintiff, who appears pro se, has filed two claims for malicious prosecution and intentional infliction of emotional distress. The Complaint was filed on December 8, 2025.

This hearing is on Defendant's demurrer to the complaint. Defendant argues that the complaint is time barred because the applicable statute of limitations is two years; the allegedly false letter was sent on September 2, 2022; the limitations period therefore expired on September 2, 2024, yet the complaint was not filed until December 8, 2025 which is well after the limitations period. Defendant is appearing in pro se.

Code Civ. Proc. Sec. 430.41 require s that before the filing of a demurrer the moving 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. (Code Civ. Proc. Sec. 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. Sec. 430.41(a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. Sec. 430.41(a)(3).) Defendant has not filed any meet and confer declaration. Accordingly, the Court takes his demurrer off calendar. IT IS SO ORDERED. DATED: September 1, 2026 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court

Case Number: 26SMCV00891 Hearing Date: September 1, 2026 Dept: 205 Superior Court of California