Judge: Anne Hwang, Case: 23LBCV02245, Date: 2024-04-23 Tentative Ruling

Case Number: 23LBCV02245    Hearing Date: April 23, 2024    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

On November 27, 2023, Plaintiff Filemon R. Lopez (“Plaintiff” in pro per) filed a complaint against Defendant USAA Casualty Insurance Company (“Defendant”) for damages sustained after an alleged May 27, 2014 motor vehicle accident.

Defendant now demurs on the basis that the complaint fails to state facts to constitute a cause of action because it is barred by the statute of limitations. No opposition has been filed.

LEGAL STANDARD

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.) If dates are missing from the complaint that would show the statute of limitations bars recovery, then there is no ground for a general demurrer. The party demurring must instead ascertain the factual basis for the contentions and file a motion for summary judgment. (See United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 505.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

MEET AND CONFER

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).)

The Declaration of Arnold S. Levine states that the parties spoke about the instant demurrer, through a Spanish interpreter. (Levine Decl. ¶ 3–4.) Therefore, the meet and confer requirement was met.

JUDICIAL NOTICE

The Court takes judicial notice of Defendant’s exhibits A and B: Remittitur issued by Second Court of Appeal, Division Two, dated May 28, 2019, dismissing appeal in matter of Rocha v. Sealey (BC610902) and Minute Order dated March 8, 2021, dismissing Filemon R. Lopez v. USAA Casualty Ins. Comp. (19STCV31776) for failure to prosecute. (Evid. Code § 452(d).)

The Court, on its own, takes judicial notice of the Court’s record in case number 19STCV31776.

ANALYSIS

Defendant argues the complaint is barred by the statute of limitations. The statute of limitations for a personal injury action is two years. (Code Civ. Proc. § 335.1.) The complaint alleges a motor vehicle accident and states the “accident occurred in Long Beach, CA in May 27, 2014.” (Complaint, 1.) Therefore, the statute of limitations in this case expired on May 27, 2016. Since this action was filed on November 27, 2023, the action is barred on the face of the complaint.

Plaintiff’s complaint also states: “Please Judge I (sic) asking please give me the extension the two years when the superior court closed for Covid-19.” (Complaint, 2.) In 2020, the California Rules of Court enacted Emergency Rule 9, which tolled the statute of limitations for civil actions from April 6, 2020, until October 1, 2020, or 178 days. (CRC Emergency Rule 9.) However, given that this action expired in May 2016, before that rule was enacted, there is no basis for extending the statute of limitations in this case.

Furthermore, the materials judicially noticed show that Plaintiff previously filed a complaint based on the facts of this case but abandoned the trial after the trial judge ruled against him on motions in limine. (Exh. A.) The Court of Appeal affirmed the trial court’s dismissing the action under Code of Civil Procedure section 581(d). Also, the minute order from case number 19STCV31776 shows that Plaintiff filed a previous action against Defendant which was dismissed without prejudice on March 8, 2021 after failing to appear at trial. (Exh. B.) The complaint in that case also alleges damages against Defendant based on a May 27, 2014 accident. (Complaint, filed 9/9/19.)

Plaintiff does not oppose this motion and therefore fails to meet his burden that the pleading can be amended successfully. Therefore, in light of the two cases that Plaintiff previously filed concerning this matter, and the fact Plaintiff does not oppose this motion, the demurrer is sustained without leave to amend. 

CONCLUSION AND ORDER

Therefore, the Court SUSTAINS the demurrer to Plaintiff’s complaint without leave to amend.

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