Advanced Search

  Judicial Profile

Case Number: 19STLC06257    Hearing Date: December 22, 2020    Dept: 56















      CASE NO.: 19STLC06257




Date:  December 22, 2020

Time: 8:30 a.m.

Dept. 56



MOVING PARTIES: Defendants Merchants Bonding Company (“MBC”) and Miriam Rodriguez (“Rodriguez”)


RESPONDING PARTY: Plaintiff Luis Alfonso


            The Court has considered the moving and opposition papers.  No reply papers were filed.



            Plaintiff’s complaint arises from the alleged wrongful actions of a notary public.  On July 5, 2019, Plaintiff filed a complaint against Defendants alleging causes of action for: (1) cancellation of instrument; and (2) declaratory judgment.  The crux of Plaintiff’s complaint is the appearance of a false certificate of acknowledgement of a notary, Rodriguez, on a Substitution of Trustee (“SOT”) form which was executed on October 30, 2015.        


            Plaintiff filed the operative First Amended Complaint (“FAC”) alleging causes of action for: (1) cancellation of instrument; and (2) declaratory judgment. 


            Rodriguez and MBC filed separate demurrers to each cause of action in the FAC.  Plaintiff, however, did not file an opposition to the demurrer of MBC.  The Court will apply Plaintiff’s arguments in opposition to Rodriguez’s demurrer to MBC’s demurrer as well.  Both demurrers will be addressed in this ruling.



The meet and confer requirement has been met.



            The Court GRANTS Rodriguez’s request for judicial notice and OVERRULES Plaintiff’s objections to Rodriguez’s request for judicial notice.



A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)


Issue No.1: Statute of Limitations

            Rodriguez and MBC both contend that the entire FAC is barred by the statute of limitations.


            The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.  (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.)   There is an important qualification, however: in order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.  (Id. at 1315-1316.)  The statute of limitations is three years for an action against a notary public on his or her bond or in his or her official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or his or her agent, of the facts constituting the cause of action upon the bond. (Code Civ. Proc. § 338(f)(1).)


A notary’s official duties include taking the acknowledgement of deeds, verifying the identity of signatories, and collecting their signatures in a journal. (Purdum v. Holmes (2010) 187 Cal.App.4th 916, 923-924.)  If the action is based on notarial malfeasance, it does not accrue until the aggrieved party discovers the underlying facts and must be filed within one year of discovery or three years of the notarial act, whichever is later.  (Id.)  Every action against a notary in his or her official capacity is subject to a six-year maximum limitation period running from the date of the notarial act.  (Id.)  The six-year limit applies regardless of whether the action is based on malfeasance and whether discovery is delayed.  (Id.)   The nature of the right sued upon, not the form of action or relief demanded, determines the applicable statute of limitations.  (Id. at 924.)


            Here, the causes of action in the FAC are based on the alleged act of Rodriguez, in her official capacity, which occurred on October 30, 2015.  Although the FAC alleges that Plaintiff did not discover the wrongful act of Rodriguez until May of 2019 (FAC at ¶ 26), the original complaint alleged that Plaintiff discovered the underlying facts as to Rodriguez’s alleged wrongful act in at least April of 2017.  (Complaint at ¶¶ 24-25.)  The Court ignores the new and inconsistent allegations pleaded in the FAC because Plaintiff is attempting to plead inconsistent facts and does not offer an explanation for such inconsistency in his opposition[1].  Thus, the statute of limitations runs at the latest of: (1) three years from the date of Rodriguez’s alleged wrongful act; or (2) one year from the date of discovery, whichever is later.  The latest of those two dates is October 30, 2018, which is three years from the date of Rodriguez’s alleged wrongful act.  Plaintiff did not file the complaint until July 5, 2019, which is outside of the statute of limitations. 


            Thus, the FAC is barred on its face by the statute of limitations unless Plaintiff can invoke the delayed discovery rule.


Issue No.2: The Delayed Discovery Rule

            A plaintiff must bring a claim within the limitations period after accrual of the cause of action.  (Fox v. Ehicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.)  An important exception to the general rule of accrual is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.  (Id. at 807.)  A plaintiff has reason to discover a cause of action when he or she has reason to suspect a factual basis for its elements.  (Id.)  Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period. (Id.)  A plaintiff’s suspicion of the elements of a cause of action analyzes whether the plaintiff had reason to at least suspect that a type of wrongdoing has injured him (Id.)  The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.  (Id.)  In order to invoke the discovery rule, a complaint must specifically plead: (1) facts to show the time and manner of discovery; and (2) the inability to have made earlier discovery despite reasonable diligence.  (Id. at 808.)


            The Court finds that Plaintiff has not pled facts to invoke the delayed discovery rule, despite being made aware of the need to allege such facts by this Court’s ruling on the prior demurrer.  The FAC fails to plead specific facts showing: (1) reasonable diligence; (2) the inability to have made earlier discovery despite reasonable diligence; and (3) the manner of discovery.  Plaintiff suspected some wrongdoing as early as April of 2017 when he requested a copy of Rodriguez’s notary journal and did not receive a response within 15 days; however, Plaintiff did not file the complaint until over two years later.  


Plaintiff cannot avoid the bar of the statute of limitations by taking additional, fruitless actions as alleged in the “Delayed Discovery – Reasonable Investigation Would Not Have Disclosed Pertinent Facts” section of the FAC. In fact, Plaintiff has alleged since his first pleading that he was on notice that the allegedly fraudulent notarized document was not valid before April of 2017.  He cannot invoke the delayed discovery rule based upon the allegations added to the FAC.


            Due to the lack of specific facts pled to invoke the delayed discovery rule the FAC is barred by the applicable statute of limitations.  Moreover, Plaintiff has not cured the other defects in the original complaint, such as the lack of any basis for his alleged damages of $15,000.  The Court therefore SUSTAINS the demurrers of Rodriguez and MBC to the first and second causes of action in the FAC WITHOUT LEAVE TO AMEND.  


             Rodriguez is ordered to give notice of this ruling to all interested parties.


In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person.  The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.  This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.


Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.


        Dated this 22nd day of December 2020





Hon. Holly J. Fujie

Judge of the Superior Court


[1] Absent an explanation for the inconsistency, a court will read the original defect into the amended complaint under Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044.  MBC filed a demurrer to the original complaint on the ground of the statute of limitations, and such demurrer was sustained with leave to amend.

Simply fill the form below to sign up for updates

Thank you for signing up for updates