Judge: Audra Mori, Case: 22STCV32893, Date: 2023-01-04 Tentative Ruling

Case Number: 22STCV32893    Hearing Date: January 4, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Shoshone E. Huey (“Plaintiff”) filed this action against Defendant RMG ABC, LLC (“Defendant”) for damages relating to Plaintiff’s slip and fall on Defendant’s property on October 5, 2020.  On October 6, 2022, Plaintiff filed the complaint alleging causes of action for negligence and premises liability against Defendant for personal injury and property damage.   

Defendant now demurs to the complaint arguing the claims against Defendant are barred by the applicable statute of limitations.  The demurrer is unopposed. 

  Defendant asserts that while Plaintiff claims she slipped and fall on Defendant’s property on October 5, 2020, Plaintiff did not file her complaint until October 6, 2022, one day after the statute of limitations expired under CCP § 335.1.  Defendant argues that nothing tolled the time for Plaintiff to file her complaint, and thus, the demurrer should be sustained without leave to amend.   

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.”]).

“[I]f a plaintiff alleges that the defendant's single wrongful act invaded two different primary rights, he has stated two causes of action, and this is so even though the two invasions are pleaded in a single count of the complaint.”  (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1364 [finding that an “inartfully” pled single cause of action was actually several causes of action).]  “The manner in which a plaintiff elects to organize his or her claims within the body of the complaint is irrelevant to determining the number of causes of action alleged under the primary right theory.”  (Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257.)  

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).) 

The Court finds Defendant has fulfilled this requirement prior to filing the demurrer.  (Demurrer McKenzie Decl. ¶¶ 2-4.)

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.  Further, the statute of limitations for an action to recover for loss to personal property is three years.  (CCP § 338(c).)  Claims for personal injuries and property damage are thus separate causes of action with separate statutes of limitation.  (Holmes v. David H. Bricker, Inc. (1969) 70 Cal.2d 786, 789.)

In this case, Plaintiff’s complaint alleges that October 5, 2020, Plaintiff “slipped and fell on her way to the restroom on what it appeared to be a recently mopped floor…”  (Compl. at p. 4.)  The premises liability claim alleges that Defendant caused injuries to Plaintiff.  (Ibid.)  Additionally, the negligence claim alleges that Defendant caused injuries and property damage to Plaintiff.  (Id. at p. 5.) 

Defendant is correct that the statute of limitations for Plaintiff’s personal injury claims is governed by CCP § 335.1.  However, the complaint also alleges that Defendant’s negligence caused Plaintiff property damages.   Therefore, the complaint is actually asserting separate claims for premises liability and negligence for personal injury and for negligence for injury to property.  (See Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1463 [“[T]he labeling of a pleading is not determinative, but rather the subject matter of the action is to be determined from its allegations, regardless of what they may be called.”].) 

            Plaintiff’s negligence claim for injury to property was timely filed within three years of the alleged incident.  (CCP § 338(c).)  Defendant in its moving papers makes no argument otherwise.  Accordingly, the demurrer to the negligence claim for injury to property is overruled. 

As to the claims for premises liability and negligence for personal injury, Plaintiff’s complaint was untimely filed on October 6, 2022, more than two years after the alleged slip and fall incident.  (CCP § 335.1.)  Plaintiff does not dispute that her claims were not tolled by Judicial Council Emergency Rule 9, and Plaintiff fails to make any showing that the complaint was otherwise timely filed.[1] 

            The demurrer to the premises liability and negligence claims for personal injury is sustained. 

The burden is on Plaintiff to show in what manner she can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)   In this case, Plaintiff does not oppose the demurrer.

Defendant’s demurrer is sustained to the premises liability and negligence claims for personal injury without leave to amend.

 Defendant is ordered to serve and file a response to the negligence claim for property damage within 20 days. 

Defendant is 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 4^th day of January 2023