Judge: Cherol J. Nellon, Case: 21STCV07693, Date: 2023-05-15 Tentative Ruling

Case Number: 21STCV07693    Hearing Date: May 15, 2023    Dept: 28

Defendants Hansollioberon Ocampo, Bernadette Ocampo and Hannah Ocampo’s Demurrer

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On February 26, 2021, Plaintiff Jasmin Marie Gordon (“Plaintiff”) filed this action against Defendants Hansollioberon Ocampo (“Hansollieoberon”), Bernadette Ocampo (“Bernadette”) and Hannah Ocampo (“Hannah”) for negligence.

On March 8, 2023, Defendants filed a Demurrer to be heard on April 28, 2023. The Court continued the hearing on the motion to May 15, 2023. On April 14, 2023, Plaintiff filed an opposition. On April 21, 2023, Defendants filed a reply.

There is no currently scheduled trial date.

PARTY’S REQUESTS

Defendants request the Court sustain the demurrer as it is barred by the statute of limitations.

Plaintiff requests the Court overrule the demurrer.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any

one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

DISCUSSION

Plaintiff alleges that, on or about August 10, 2018, Plaintiff was struck by Defendants’ vehicle. Under CCP § 335.1, the statute of limitations for personal injury is 2 years from the date of injury, which would have set the last date to file as August 10, 2020. However, Emergency Rule 9, which went into effect in April of 2020, granted a tolling period of 178 days. This set the last day to file as February 4, 2021.

Plaintiff did not file the complaint until February 26, 2021, 22 days after the extended deadline.

Plaintiff incorrectly asserts the way in which a tolling of a statute of limitations operates. Plaintiff asserts, effectively, the tolling period should be counted twice. First, Plaintiff states that the relevant statute is effectively “on pause” from April 6, 2020, until October 1, 2020. That is correct—there is a period of 178 days in which the statute of limitations did not run. This is

usually calculated by adding on an additional 178 days to what would be the final date of filing. However, Plaintiff then argues that an additional 178 days should then be added on to the period after the end of the tolling period—starting from October 1, 2020. This is unsupported by the text of Emergency Rule 9. Plaintiff’s ‘extra’ 178 days runs from the final date of filling without the tolling statue, which would be August 10, 2023. The intent of Emergency Rule 9 was not to grant a windfall of extra days to Plaintiffs who sat on their rights, but rather to help those who could not pursue litigation due to impact of COVID-19 during the designated time period. Plaintiff failed to file her complaint during the applicable time period.

Plaintiff’s complaint is barred by the statute of limitations. The Court sustains the demurrer, without leave to amend.

CONCLUSION

Defendants Hansollioberon Ocampo, Bernadette Ocampo and Hannah Ocampo’s Demurrer is SUSTAINED, without leave to amend.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.