Judge: Anne Hwang, Case: BC714561, Date: 2023-09-06 Tentative Ruling

Case Number: BC714561    Hearing Date: April 16, 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

This is a premises liability action based on an incident that occurred on October 23, 1999, when plaintiff David Whiteside (Plaintiff) was thirteen months old. Plaintiff initially filed a complaint against then defendants John Ivancic (John), Slavko Ivancic (Slavko), Gerald Fitzgerald and Susan Fitzgerald on September 7, 2000 (LASC Case No. BC236431). The initial action was voluntarily dismissed in 2002.

Plaintiff refiled the action on July 17, 2018 against John and Slavko. On September 6, 2018, Slavko filed his Answer, along with his Cross-Complaint against Gerald and Susan Fitzgerald. Slavko died on November 13, 2018. Slavko’s estate was substituted in as a defendant on July 22, 2022.

On July 25, 2023, the Court granted a motion to dismiss as to defendants Slavko Ivancic and the Estate of Slavko Ivancic.

On September 6, 2023, the Court granted Plaintiff’s motion for new trial, reinstated the proceedings and ordered Estate of Slavko Ivancic (“Estate”) to file a responsive pleading within 30 days.

On September 21, 2023, John Ivancic and The Estate of John Ivancic were dismissed without prejudice. (Min. Order, 9/21/23.)

On December 14, 2023, the Court overruled Estate of Slavko Ivancic’s demurrer to Plaintiff’s complaint. The Court ordered Estate of Slavko Ivancic to file a responsive pleading. (Min. Order, 12/14/23.)

On January 16, 2024, Estate of Slavko Ivancic filed an answer and a cross-complaint against Gerald Michael Fitzgerald, Susan Fitzgerald, and Roes 1 to 25 for indemnity, contribution, and declaratory relief.

Cross-Defendants Gerald Michael Fitzgerald and Susan Fitzgerald (“Cross-Defendants”) now demur to the cross-complaint by Estate of Slavko Ivancic on the basis that the underlying action must have been commenced against the Estate within one year under Code of Civil Procedure section 366.2. Cross-Complainant Estate of Slavko Ivancic (“Cross-Complainant”) opposes.

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.)

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 Robert Risbrough states that the parties spoke about the instant demurrer. Therefore, the meet and confer requirement was met.

JUDICIAL NOTICE

The Court declines to take judicial notice of Exhibit 1 and 2 as they have no effect on the ruling herein.

ANALYSIS

Cross-Defendants argue the underlying action and cross-complaint are both barred by Code of Civil Procedure section 366.2. Code of Civil Procedure section 366.2 provides:

“[i]f a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.”

Code of Civil Procedure section 362 provides in relevant part: “[t]his Title does not extend to actions already commenced….” Section 350 also provides that “[a]n action is commenced, within the meaning of this Title, when the complaint is filed.”

Here, Plaintiff filed his complaint on July 17, 2018, when Slavko was still alive. Therefore, since it was already “commenced” on the date of Slavko’s death, section 366.2 does not apply.

Cross-Defendants appear to argue that after Slavko died, Plaintiff should have amended his complaint within 1 year to name the Estate of Slavko Ivancic, pursuant to section 366.2. Cross-Defendants refer to Probate Code sections for filing claims against an estate. (Motion, 3.) However, none of the Probate Code sections cited by Cross-Defendants involve the statute of limitations applicable to a person who dies after a complaint is filed. Similarly, the authorities cited by Cross-Defendants do not involve the applicable limitations period when a person dies after a complaint against them is filed. (See, e.g., Bradley v. Breen (1999) 73 Cal.App.4th 798 [plaintiff filed a new action against appellants, during which appellants sought to file a cross complaint as to decedent’s personal representatives].)

            Cross-Defendants also argue that section 366.2 provides an independent basis to dismiss the cross complaint against them, but do not explain this argument. Cross-Defendants do not appear to be deceased. The plain language of section 366.2 applies to actions that are commenced against a person who dies before the expiration of the applicable limitations period.

Lastly, Cross-Defendants argue that Plaintiff delayed in bringing this action and has prejudiced their defense. (Motion, 11.) However, they cite no basis under Code of Civil Procedure section 430.10 for bringing this objection through a demurrer.

CONCLUSION AND ORDER

Therefore, the Court overrules Cross-Defendants Gerald Michael Fitzgerald and Susan Fitzgerald’s demurrer to Estate of Slavko Ivancic’s cross-complaint. Cross-Defendants shall file and serve an answer within 30 days.

Cross-Defendants Gerald Michael Fitzgerald and Susan Fitzgerald shall provide notice of the Court’s ruling and file a proof of service of such.