Judge: Audra Mori, Case: 22STCV09420, Date: 2022-12-15 Tentative Ruling

Case Number: 22STCV09420    Hearing Date: December 15, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

On March 17, 2022, Plaintiff Ashaki Noni Mitchell (“Plaintiff”) filed this action against Defendants Sean Vincent Molina, Curtis Dartagnan, and C & A Trucking (collectively, “Defendants”) for damages arising from a motor vehicle accident that occurred on February 29, 2020.  The complaint asserts causes of action for motor vehicle and general negligence. 

Defendants now demur to the complaint arguing that it is barred by the applicable statute of limitations.  Plaintiff opposes the motion.  As of December 12, 2022, no reply has been received. 

Defendants contend the action was not filed within the two-year statute of limitation for bodily injury claims, and that the Covid tolling provisions do not appear to apply because the incident occurred prior to when the tolling period started. 

In opposition, Plaintiff argues the complaint was timely filed under Judicial Council Emergency Rule 9, as the statute of limitations was tolled under this provision for 178 days from April 6, 2020 to October 1, 2020. 

2. Demurrer

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).  (CCP §§ 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.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

a. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).) 

Defendants fulfilled this requirement prior to filing the demurrer.  (Demurrer Hilgers Decl. ¶¶ 1-2.)

b. Analysis

CCP § 335.1 provides that the statute of limitations for “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” is two years.[1] 

Judicial Council Emergency Rule 9(a), as amended on or about May 29, 2020, states: “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.”  The Advisory Committee Comment for Emergency Rule 9 provides: “Emergency rule 9 is intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action.” 

Tolling is defined in part as, “(Of a time period, esp. a statutory one) to stop the running of; to abate <toll the limitations period>.”  (Black’s Law Dictionary, 11th Ed. 2019, “Toll.”)  The effect of tolling is that the limitations period stops running during the tolling event, and begins to run again when the tolling event has concluded.  (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.)  “As a consequence, the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of time during which the tolling event previously occurred.’  (Id. at 370-71; see also Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1120-1121 [same]; cf. United States v. Ibarra (1991) 502 U.S. 1, 4 n. 2 [“Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped.”].) 

Here, Plaintiff’s complaint, which was filed on March 17, 2022, alleges that the subject accident occurred on February 29, 2020.  Defendants argue the complaint is barred by the statute of limitations because it was filed over two years after the accident.  Defendants seemingly contend that Emergency Rule 9 does not apply to Plaintiff’s complaint because “the subject incident did not occur during the tolling period.”  (Dem. at p. 4:4-5.) 

Based on its plain language, Emergency Rule 9 stopped the running of the statute of limitations in this matter from April 6, 2020 to October 1, 2020.  The time between April 6, 2020 and October 1, 2020 is 178 days.  Consequently, because Emergency Rule 9 tolled the statute of limitations for Plaintiff’s claims for 178 days, this tolled interval was tacked onto the end of the limitations period and extended the time for Plaintiff to file the action by 178 days.  (See Lantzy, 31 Cal.4th at 370; see also Willis, 48 Cal.App.5th at 1120-21.)  178 days after February 28, 2022, which was two years after the accident, was August 25, 2022.  Therefore, Howard’s complaint was timely filed in March 2022.

Defendants’ citation to cases involving disability or imprisonment is unavailing, as Defendants cite no authority suggesting that Emergency Rule 9 was intended to apply to claims that accrued only between April 6, 2020 to October 1, 2020, or to statute of limitations that expired between these dates.  Rather, by its terms, “Emergency rule 9 is intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action.”  (Judicial Council of Cal., Advisory Comm. Comment, emphasis added.) 

Although not binding on this Court, the case of Palacios v. Interstate Hotels & Resorts Inc. (N.D. Cal. 2021) 2021 WL 4061730, cited by Plaintiff is illustrative.  In Palacios, the plaintiff worked as a room attendant for the defendant until she was terminated, after which on January 31, 2020, she received a right to sue notice from the California Department of Fair Employment and Housing (“DFEH”).  (Id. at *1.)  The plaintiff’s claims were governed by California’s statutes of limitations, and the deadline for the plaintiff to file her Fair Employment Housing Act (“FEHA”) claims against the defendant was one year after receiving the right to sue notice from DFEH.  (Id. at *2 citing Cal. Gov. Code § 12965.)  The plaintiff filed her complaint against the defendant on February 3, 2021, alleging various claims, including violations of FEHA.  (Ibid.)  The defendant argued that the plaintiff’s FEHA claims were barred because she received the right to sue notice from DFEH on January 31, 2020, but she did not file her action until more than a year later on February 3, 2021.  (Ibid.)  The plaintiff did “not dispute that, in ordinary times, California Government Code section 12965(b) would require her to bring suit within one year of DFEH's notice. However, she argue[d] her complaint was timely filed under emergency rules promulgated by the Judicial Council of California (“JCC”) as a result of the COVID-19 pandemic.”  (2021 WL 4061730 at pp. *3-4.)  The Court analyzed Emergency Rule 9 and found that it tolled the time for the plaintiff to file her FEHA claims from February 1 to July 29, 2021, which is a period of 178 days.  (2021 WL 4061730 at *3.)  Because the plaintiff filed her FEHA claims before July 29, 2021, the Court held that they were timely.  (Id. at *3, 4.) 

            Defendants did not file a reply, and thus, make no effort to distinguish Palacios v. Interstate Hotels & Resorts Inc. from this matter. 

Defendants’ demurrer to the complaint is overruled.  Defendants are ordered to file their responsive pleading within 20 days.   

Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 15^th day of December 2022