Judge: Armen Tamzarian, Case: 21STCV36154, Date: 2023-04-19 Tentative Ruling

Case Number: 21STCV36154    Hearing Date: April 19, 2023    Dept: 52

Defendant Braswell’s Colonial Care’s Motion for Judgment on the Pleadings

Defendant Braswell’s Colonial Care (Braswell’s) moves for judgment on the pleadings on the complaint by plaintiffs Janice Deutsch and “Estate of Patricia Deutsch/Duff Shidaker.” 

Requests for Judicial Notice

            Defendant requests judicial notice of three exhibits, all of which are court records.  The records’ existence and legal effects are subject to judicial notice under Evidence Code § 452(d).  (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120.)         

            Defendant also requests judicial notice of, “The State Bar of California’s listing of licensed attorneys (calbar.ca.gov) which shows neither Janice Deutsch or Duff Shidaker are licensed to practice law in the State of California.”  That fact is subject to judicial notice as an official act of the judicial department and a fact not reasonably subject to dispute and capable of immediate and accurate determination via sources of reasonably indisputable accuracy.  (Evid. Code, §§ 452(c), (h).)

            Defendant’s requests for judicial notice Nos. 1-4 are granted.

Statutes of Limitations

            The statutes of limitations bar all causes of action alleged by the complaint.  A motion for judgment on the pleadings should be granted where “the complaint shows on its face that the statute [of limitations] bars the action.”  (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.)  “[T]he 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 p. 1316.)  The court must determine which statute of limitations applies and when the claim accrued.  (Ibid.)     

            The complaint alleges general negligence, which has a two-year statute of limitations.  (CCP § 335.1.)  The complaint also purports to allege seven other causes of action.  The first four of them allege violations of the United States Constitution: (1) the “loss of Mrs. Deutsch’s liberty”, (2) due process clause of the 14th Amendment, (3) summary seizure, and (4) “violation of the compulsory clause of the Sixth Amendment.”  When liberally construed, these four causes of action allege violation of 42 U.S.C. § 1983, which has a two-year statute of limitations.  (Mills v. City of Covina (9th Cir. 2019) 921 F.3d 1161, 1166.)  For the fifth cause of action, “obstruction of justice – frustration of a subpoena,” the statute of limitations is also two years under Code of Civil Procedure section 335.1 or 42 U.S.C. § 1983.  Finally, the sixth and seventh causes of action allege violations of California’s Patient Bill of Rights, which has a three-year statute of limitations.  (Health & Saf. Code, § 1430(b); CCP § 338(a); see Mou v. SSC San Jose Operating Company LP (N.D. Cal. 2019) 415 F. Supp.3d 918, 925.)

All causes of action accrued no later than August 31, 2015.  The complaint alleges defendant’s “acts or omissions to act” occurred between “October 9, 2012 – August 2015” (Comp., pp. 4-7.)  The longest statute of limitations therefore expired three years later, on August 31, 2018.  Plaintiffs filed the complaint on October 1, 2021, over three years after the longest statute of limitations expired.  None of these causes of action are timely without some form of tolling.

The complaint alleges the statute of limitations was tolled due to “an unanticipated term of incarceration” and that the complaint was filed “within one year of release from incarceration.”  (Comp., § 9.b., p. 2.)  Such tolling could only apply to Janice Deutsch because the complaint does not allege Duff Shidaker or Patricia Deutsch were incarcerated.  In any circumstance, tolling for incarceration could not extend the statutes of limitations enough to make the complaint timely.  “If a person entitled to bring an action… is, at the time the cause of action accrued, imprisoned on a criminal charge… the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.”  (CCP § 352.1(a).)  Regardless of the length of imprisonment, the tolling cannot exceed two years.   (See Austin v. Medicis (2018) 21 Cal.App.5th 577, 590; Brooks v. Mercy Hospital (2016) 1 Cal.App.5th 1, 7.)  At most, tolling based on incarceration would extend the longest statute of limitations to August 31, 2020.  Plaintiffs did not file the complaint until over a year later.

Violations of Constitutional Rights

            Plaintiffs’ causes of action for violations of constitutional rights also fail because Braswell is a private entity.  In general, the United States Constitution limits only the power of the state, not private actors.  “To state a claim for relief in an action brought under § 1983, [plaintiffs] must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.  Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach ‘ “merely private conduct, no matter how discriminatory or wrongful.” ’ ”  (American Mfrs. Mut. Ins. Co. v. Sullivan (1999) 526 U.S. 40, 49–50.) 

The complaint expressly acknowledges that “Braswell’s is a privately owned entity.”  (Comp., p. 4.)  Braswell’s cannot be liable for any of plaintiffs’ causes of action for violations of constitutional rights.

Duff Shidaker

The complaint also fails to allege sufficient facts to constitute any cause of action by plaintiff Duff Shidaker.  “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”  (CCP § 367.)  The complaint scarcely mentions Shidaker except to allege he was Patricia “Deutsch’s power of attorney.”  (Comp., p. 6.)  The complaint does not allege Braswell’s violated any rights held by Shidaker or caused any damage to Shidaker himself.

Being Patricia Deutsch’s attorney-in-fact does not make Shidaker a real party in interest.  “Generally, the person or entity possessing the right sued upon is the real party in interest.”  (Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 581 [holding entity with special power of attorney was not a real party in interest].)

Disposition

            Defendant Braswell’s Colonial Care’s motion for judgment on the pleadings is granted with leave to amend.  Plaintiffs shall file a first amended complaint no later than May 4, 2023.