Judge Anne Hwang, Case Number: 22STCV18279, Date: 2023-09-08 Tentative Ruling

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 (which is highly encouraged). 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.

DEPARTMENT	32
HEARING DATE	September 8, 2023
CASE NUMBER	22STCV18279
MOTION	Demurrer
MOVING PARTY	Defendant Gwendolyn Smith
OPPOSING PARTY	Plaintiff Maria Guevara Negrete

Defendant Gwendolyn Smith (“Defendant”) demurs to the complaint filed by Plaintiff Maria Guevara Negrete (“Plaintiff). The demurrer is opposed.

The complaint alleges that on December 6, 2019, Plaintiff and Defendant were involved in a motor vehicle accident. When the accident occurred, Plaintiff was driving an Uber passenger, Alejandro Rodriguez (“Rodriguez”). Rodriguez sued Plaintiff, Defendant, and Uber in a previous lawsuit, 20STCV47325.[1] On July 6, 2021, Plaintiff filed a motion for leave to file a cross-complaint against Defendant in that case. On October 14, 2021, Defendant opposed Plaintiff’s motion. At the hearing on the motion on October 28, 2021, Plaintiff withdrew the motion. The case subsequently settled.

On June 3, 2022, Plaintiff filed this negligence action against Defendant seeking damages based on the December 2019 incident.

Defendant demurs to the complaint, arguing that Plaintiff’s claim is time-barred by one day. Defendant argues that when applying Emergency Rule 9, which tolled the statute of limitations from April 6, 2020 to October 1, 2020, the complaint must have been filed by June 2, 2022.

Plaintiff argues that the two-year statute of limitations should be equitably tolled because (1) Defendant had timely notice of the claim since they were both parties to the previous lawsuit involving the same accident, (2) Defendant is not prejudiced because Plaintiff only filed the complaint one day late, and (3) Plaintiff acted reasonably and in good faith leading to her untimely filing of the complaint. In reply, Defendant argues the statute of limitations should be strictly applied and that Plaintiff’s arguments regarding equitable estoppel, reasonable notice, and prejudice are irrelevant. At the prior hearing on the demurrer, the Court continued the hearing and ordered supplemental briefing on the following issues:

“(1) whether equitable tolling principles apply here under Addison v. State of California (1978) 21 Cal.3d 313, Elkins v. Derby (1974) 12 Cal.3d 410, and McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, based on the prior suit (20STCV47235) filed against the parties who were defendants in that suit, involving the same underlying incident; or (2) whether the facts here are distinguishable from the foregoing cases based on Plaintiff’s withdrawal of her motion for leave to file a cross-complaint against Defendant in the prior suit, making equitable tolling principles inapplicable.”

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) 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 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, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) A general demurrer may be brought where the dates alleged in the complaint show the cause of action is barred by the statute of limitations. (See Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring 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., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

According to the declaration of Gabriel Wainfeld, counsel for Defendant did not attempt to meet and confer in person or by telephone as required, but rather sent an email to Plaintiff’s counsel. In any event, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41(a)(4).)

A plaintiff has two years to commence an action based on an injury caused by negligence. (Code Civ. Proc. § 335.1.) In 2020, Emergency Rules Related to COVID-19 were enacted. Emergency Rule 9 tolled the statutes of limitations for civil causes of action that exceed 180 days from April 6, 2020, until October 1, 2020. (CRC Emergency Rule 9.) Plaintiff’s action accrued on December 6, 2019, and thus, was affected by Emergency Rule 9. Without Emergency Rule 9, the original statute of limitations in this case would have been December 6, 2021. However, Emergency Rule 9 tolled that by 178 days resulting in the final day to file this case as June 2, 2022. Plaintiff filed the complaint on June 3, 2022 and therefore, was one day late.

“The equitable tolling of statutes of limitations is a judicially created, nonstatutory doctrine.” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.) The doctrine broadly applies when “an injured person has several legal remedies and, reasonably and in good faith, pursues one.” (Ibid.) (quoting Elkins v. Derby (1974) 12 Cal.3d 410, 414.)

“Three factors determine whether the statute of limitations is equitably tolled in a particular case: (1) timely notice to defendants in filing the first claim; (2) lack of prejudice to defendants in gathering evidence to defend against the second claim; and (3) good faith and reasonable conduct by plaintiffs in filing the second claim.” (Downs v. Department of Water and Power (1997) 58 Cal.App.4th 1093, 1100.)

Defendant argues in the supplemental briefing that the three cases are distinguishable from the facts here because those cases are limited to a complaint filed in federal court (Addison), a worker’s compensation remedy (Elkins), and a FEHA type claim (McDonald). (See Def. Supp. Br. at pg. 2.) Defendant argues that none of the cases involved a motion for leave to file a cross-complaint which was withdrawn. Plaintiff argues that the motion for leave to file a cross-complaint was against the same parties involving the same incident, and the delay here was only one day for which no prejudice has been claimed. (Pl. Supp. Br. at pg. 3.)

The Court disagrees with Defendant that the cases are limited by the type of alternative relief sought by the moving party. Rather, the cases make clear that it is the pursuit of an alternative legal remedy, reasonably and in good faith, to which the doctrine of equitable tolling may apply. In Addison v. State of California (1978) 21 Cal.3d 313, plaintiffs brought an action in state court after the statute of limitations expired. But because they had filed a timely complaint in federal court based on the same facts, the court applied equitable tolling to preserve their claim. (Id. at 316.) There, the court found that plaintiff made an affirmative act that put defendants on notice of the types of claims they would bring. (Id. at 319.) The court found that “[i]f the tolling doctrine were not applied, plaintiffs would be denied a hearing on the merits of their claim. The doctrine’s application, on the other hand, should not substantially undermine the policy of prompt resolution of claims. As we have noted, plaintiffs filed their state court action within nine months after their right to sue arose and by reason of the federal suit, defendants were fully notified within the six-month statutory period of plaintiffs’ claims and their intent to litigate. Defendants were informed at all times of the nature of plaintiffs’ claims. Any delay resulting from plaintiffs’ original erroneous choice of forum was minimal.” (Id. at 321.)

Here, in the first lawsuit, Plaintiff’s motion to seek leave to file a cross-complaint also included a proposed cross-complaint against Defendant, alleging a claim of negligence. (Motion for Leave to File a Cross-Complaint filed July 6, 2021, Exh. A.) Plaintiff attempted to pursue a legal remedy that was available within the statute of limitations: she attempted to bring a cross-complaint against Defendant in a previous lawsuit, stemming from the same facts and cause of action as the current case. Therefore, Defendant had actual notice of the claim Plaintiff would later bring in this lawsuit.

In addition, Defendant is unlikely to be prejudiced because as stated above, Plaintiff missed the deadline to file by one day. Additionally, the fact that Plaintiff withdrew the motion to file the cross complaint does not foreclose a court from applying equitable tolling. A voluntary dismissal of the first proceeding does not automatically bar the application of equitable tolling. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 111.) Lastly, no argument has been made that Plaintiff acted unreasonably or without good faith in filing the present complaint.

Defendant shall give notice of the Court’s order and file a proof of service of such.

[1] The parties refer to that lawsuit, and the Court therefore takes judicial notice of the court’s records in that case. (See Evid. Code § 452(d).)