Judge: Anne Hwang, Case: 20STCV34171, Date: 2023-09-11 Tentative Ruling

Case Number: 20STCV34171    Hearing Date: September 15, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Deanna Bonds sued defendant 21^st Century Insurance (Defendant) based on a motor vehicle collision.  Defendant demurs to Plaintiff’s second amended complaint as barred by the applicable statute of limitations and on the ground that Defendant is an improper party.  No opposition was filed.

ANALYSIS

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

            A demurrer lies where the dates alleged in the complaint show the cause of action is barred by the statute of limitations. (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) The running of the statute must appear “clearly and affirmatively” from the face of the complaint. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4h 32, 42.)  “Face of the complaint” includes matters shown in exhibits attached to the complaint and incorporated by reference or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) 

Here, Plaintiff alleges in her second amended complaint that the accident between Defendant and herself occurred on August 6, 2017 due to Defendant’s negligence. (Complaint, p. 4; Attachment 1.) Her original complaint was filed on September 4, 2020.

The statute of limitations on a cause of action for negligence is two years. (Code Civ. Proc., § 335.1.) The cause of action for negligence accrues and the statute of limitations accrues upon occurrence of the last act necessary to complete the cause of action. (Code Civ. Proc., § 312; see generally Fox v. Ethicon Endo-Surgery, Inc. (2005) 34 Cal.4th 797, 806-809.)  In order to state a claim for negligence, Plaintiff must allege the elements of: (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

            “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.”  (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 [citation omitted].)  “A plaintiff has reason to discover a cause of action when he or she has reason at least to suspect a factual basis for its elements.”  (Ibid. [citation omitted].)  With respect to the discovery rule, the term “elements” refers to the generic elements of “wrongdoing, causation, and harm.”  (Ibid.)  A plaintiff’s 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. (Ibid.) “If the last element of the cause of action to occur is damage, the statute of limitations begins to run on the occurrence of ‘appreciable and actual harm, however uncertain in amount,’ that consists of more than nominal damages.” (San Francisco Unified School Dist. v. W.R. Grace & Co. (1995) 37 Cal.App.4th 1318, 1326 (citing Davies v. Krasna (1975) 14 Cal.3d 502, 513-14).)   

Here, Plaintiff’s second amended complaint does not cure the statute of limitations issue. (See Minute Order, July 12, 2022.) Plaintiff alleges the accident took place on August 6, 2017 and that at the time of the accident, her “body was hurled forward violently, and her head slammed back hard into the headrest of her drivers’ seat.” (Complaint, Attachment 1 ¶ 16.) Plaintiff also alleges that after a few seconds, she told Defendant that “she felt pain in [her] neck and back and would be going to the hospital to get evaluated.” (Id. ¶ 17.)  Afterwards, Plaintiff drove herself to the Emergency Department of Providence St. John’s Hospital and was treated for whiplash, neck, and back pain. (Id. ¶ 18.) Plaintiff further alleges that “[i]n the months that followed, the Plaintiff started to experience additional symptoms that surpassed her neck and back pain.” (Id. ¶ 22.) “As the symptoms escalated in severity, the Plaintiff sought medical attention from her Primary Care Physician.” (Id. ¶ 23.) By August 3, 2018, Plaintiff had to have emergency brain surgery. (Id. ¶ 24.) Plaintiff then appears to allege a series of missed diagnoses by treating medical professionals, until she discovered through new specialists that she suffers from a rare condition. (Id. ¶ 26-27.)

Plaintiff appears to be alleging that she did not have specific knowledge of the particular damage caused by the incident. However, her complaint alleges that she had knowledge of the incident on August 6, 2017, and that it caused her significant harm, resulting in her seeking emergency treatment. She further had knowledge of the escalating and worsening symptoms in the months that followed. Plaintiff therefore had notice of “appreciable and actual harm,” even if uncertain in amount.

In light of the Court’s ruling, the Court declines to reach Defendant’s alternative argument that it is not a proper party.

CONCLUSION AND ORDER

Therefore, Defendant’s Demurrer to the complaint is Sustained without leave to amend.

 On
the Court’s own motion, the Trial Setting Conference is vacated. Court sets
Order to Show Cause re Dismissal for Failure to enter Judgment for November 15,
2023, at 08:30 AM in Department 32 at Spring Street Courthouse.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.