CHRISTOPHER MATKIN, et al. vs SELL SIMI INC, et al.

Motions:

1. Doe Defendants Peter Weston (“Weston”) and Colleen Lutz’s (“Lutz”) (collectively “Defendants”) Demurrer to Plaintiffs’ Third Amended Complaint (“TAC”)

2023CUBC008771: CHRISTOPHER MATKIN, et al. vs SELL SIMI INC, et al.

2. Defendants’ Motion to Strike Plaintiffs’ Doe 1 and 81 and Doe 2 and 82 Amendments Under Code of Civil Procedure, sections 436 and 474.

Tentative:

Demurrer

Defendants’ demurrer to Plaintiffs’ TAC is OVERRULED.

Defendants’ demurrer contains a notice of demurrer and a memorandum of points and authorities but omits the demurrer itself, which must distinctly specify each ground for the demurrer in a separate paragraph and must state whether it applies to the entire complaint, or to specified causes of action. (Code. Civ. Proce. § 430.60; Cal. Rules of Court, rules 3.1320, subd. (a) and 3.1112, subds. (a)(c).) A judge may disregard a demurrer that does not comply with this requirement (Code. Civ. Proce. § 430.60.)

However, because there are only two causes of action for negligence and nuisance remaining against Defendants and the notice alleges, in substance, that each of these causes of action fails to state a cause of action and is barred by the statute of limitations, the Court declines to overrule the demurrer for the failure to comply with the foregoing code and rules and addresses the substance.

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.) Defendants have not filed a Request for Judicial Notice. The Court does not consider the documents attached to the demurrer and any reference to them in the memorandum of points and authorities is disregarded. The documents are not properly before the Court.

Statute of Limitations

Defendants Weston and Lutz were added to this action as Doe 1 and 81 and Doe 2 and 82, respectively, on November 18, and 19, 2025. Pursuant to the allegations of the TAC, they fall within the category of “Seller Defendants” (Does 1 and 2) and “Negligence Defendants” (Does 81 and 82.) Weston and Lutz allege that the sixth and seventh causes of action for negligence and nuisance are barred as to them by the three year statute of limitations (Code Civ. Proc. § 338) because they were named as Does more than three years after title was transferred to Plaintiffs on or about March 8, 2022.

Code of Civil Procedure section 474 allows a named defendant to be substituted for a fictitious defendant if, at the time of filing the complaint, the plaintiff was genuinely unaware of the named defendant’s identity or of facts giving rise to a cause of action against the named defendant who was otherwise known to the plaintiff. (San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, 579 (“California Coastal Com”.) “Ignorance of the facts giving rise to a cause of action is the ‘ignorance’ required by section 474, and the pivotal question is, ‘ “did plaintiff know facts?” not “did plaintiff know or believe that [he] had a cause of action based on those facts?” ’ ” (General Motors Corp. v.

Superior Court (1996) 48 Cal.App.4th 580, 594, quoting Scherer v. Mark (1976) 64 Cal.App.3d 834, 841.) Code of Civil Procedure section 474 allows a plaintiff in good faith to delay suing a particular person until the plaintiff has

2023CUBC008771: CHRISTOPHER MATKIN, et al. vs SELL SIMI INC, et al.

knowledge of sufficient facts that would cause a reasonable person to believe liability is probable. (McOwen v. Grossman (2007) 152 Cal.App.4th 937, 943-944.) Whether Plaintiffs knew of sufficient facts to name Defendants as Does prior to November 2025 is a factual question that could have been challenged by motion to quash service (See McLatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 374, and may still be challenged by motion for summary judgment or even at trial. (See Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 115-116, and California Coastal Com, supra, 40 Cal.App.5th at 579.) The Court may not make the determination urged by Defendants where the four corners of the TAC disclose only that Lutz was known to Plaintiffs as a successor trustee after the death of the prior owner/occupant and trustee Ms. Ruh.

Negligence and Nuisance Causes of Action

The general rule is that former owners, allegedly negligent in constructing an improvement on their property, are not subject to liability for injuries sustained on that property after they have relinquished all ownership and control except under specified exceptions. (Lewis v. Chevron U.S.A., Inc., (2004) 119 Cal.App.4th 690, 695(“Lewis”) citing to Preston v. Goldman (1986) 42 Cal.3d 108, 110.) The exception pertinent here is where a transferor knows about latent defects or had reason to believe they existed and did not disclose them. (Lorenzen–Hughes v. MacElhenny, Levy & Co. (1994) 24 Cal.App.4th 1684, 1688 (“Lorenzen–Hughes”).)

Plaintiffs allege that Weston and Lutz, now categorized as both “Seller Defendants” and “Negligence Defendants”, did not disclose that Ms. Ruh fostered dozens of cats and other animals in the property which had saturated the surface and subsurface drywall, framing, flooring, and cabinetry with feces and urine; and that they negligently performed substandard and unpermitted work at the property, without proper lead or asbestos mitigation, leaving behind urine and cadaver odor saturation as biohazard contaminants which constituted a nuisance. (TAC ¶¶ 38-41, 43, 45- 49, 101-105, 107-112.)

In ruling on a demurrer, the Court admits all material facts properly pleaded and facts that may be inferred from those that are expressly alleged. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998; Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078; Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1405.) It tests only the legal sufficiency of the complaint, not the plaintiff’s ability to prove the facts alleged, or possible difficulty in making such proof. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061.) The allegations specified above are sufficient under the principles specified in Lewis and Lorenzen–Hughes for purposes of a demurrer as to both the negligence and nuisance causes of action. (Civ. Code § 3479.)

Based on the foregoing, the Demurrer is OVERRULED.

Motion to Strike

Defendants’ Motion to Strike is DENIED.

The grounds for Defendants’ motion to strike must appear on the face of the TAC or from any matter of which the Court may take judicial notice. (Code Civ. Proc. § 437 subd. (a).) The Court

2023CUBC008771: CHRISTOPHER MATKIN, et al. vs SELL SIMI INC, et al.

does not consider the documents attached to the motion to strike. As discussed above, they are not properly before the Court. The Court may not determine a motion to strike based on factual representations made by Defendants’ attorney in the motion papers. (City & County of San Francsico v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913.) Here, the face of the TAC does not disclose that the naming of Defendants as Does is irrelevant, false, or improper. For these reasons and the reasons set forth above in discussing Defendants’ statute of limitations challenge to the TAC, the motion to strike is DENIED.

Defendants Peter Weston and Colleen Lutz shall file and serve their answer to the TAC on or before June 1, 2026.

Plaintiffs shall provide notice.

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