Judge: Cynthia A Freeland, Case: 37-2022-00026581-CU-PO-NC, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - February 29, 2024

03/01/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00026581-CU-PO-NC HARRISON VS EPSTEIN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 12/13/2023

Defendant Marvin Epstein ('Defendant')'s motion for summary adjudication is denied.

Factual Background and Procedural History On December 15, 2019, Plaintiff Frank Harrison ('Plaintiff') and Defendant were involved in an automobile collision in Encinitas, California. See Defendant's Separate Statement of Undisputed Material Facts ('UMF') No. 1. Plaintiff's vehicle was damaged in the accident, which damage Plaintiff noticed at the scene of the accident. Ibid., at No. 2. While Plaintiff, at the scene of the accident, did not believe he was injured in the collision, Plaintiff testified at deposition that on December 15, 2019, after leaving the accident scene, he experienced a stiff neck. Ibid., at Nos. 4-5. Given Plaintiff's representation to Sentry, Sentry did not open a personal injury claim but instead opened only a property damage claim as to Plaintiff on December 18, 2019. Ibid., at No. 6. As of November 4, 2020, when Sentry had issued a check to Plaintiff's chosen repair shop for the property damage, Plaintiff still had not made a personal injury claim to Defendant or Sentry. Ibid., at No. 7. On January 29, 2021, Plaintiff's attorney sent Sentry a notice of representation letter in which counsel indicated that he represented Plaintiff's interests 'relative to the injuries and damages' from the accident. Ibid., at No. 8. Thereafter, Sentry assigned a personal injury claims adjuster to the case, and the claims adjuster acknowledged receipt of Plaintiff's counsel's representation letter on February 11, 2021. Ibid., at No. 9. Sentry did not send Plaintiff a statute of limitations notice letter because Plaintiff was represented by legal counsel. Ibid., at No. 10.

On December 7, 2021, Plaintiff, through counsel, commenced a lawsuit entitled Harrison v. Epstein, Case No. 37-2021-00051323-CU-PO-NC ('Case 1') before the Honorable Earl Maas III. Ibid., at No. 11.

At the time Case 1 was filed, Plaintiff's counsel was provided a Notice of Case Assignment and Case Management Conference ('CMC') (the 'Notice'), in which the court set the CMC for June 24, 2022. The Notice did not include any reference to possible dismissal or other potential sanctions should Plaintiff fail to appear at the CMC. See Plaintiff's Material Facts and Supporting Evidence ('PMF') No. 22. Plaintiff did not serve Defendant with a copy of the complaint and summons in Case 1, and he did not file a CMC Statement in preparation for the June 24, 2022 CMC. See UMF Nos. 12-13. On June 24, 2022, the court conducted a CMC in Case 1, however, neither Plaintiff nor his counsel appeared at that conference, apparently due to a calendaring error by Plaintiff's counsel's office. Ibid., at No. 14; PMF No. 23. The court dismissed, without prejudice, Case 1 on June 24, 2022. See UMF No. 15. The court served, via U.S. Mail on June 27, 2022, Plaintiff's counsel in Case 1 with the Notice of Dismissal. Ibid., at No. 16; PMF No. 24. Upon receipt of the Notice of Dismissal, Plaintiff's counsel, on July 7, 2022, filed this action bearing Case No. 37-2022-00026581-CU-PO-NC ('Case 2'). See PMF No. 25. In this case, Plaintiff has asserted claims for property damage and personal injury. See UMF No. 18. On March 14, 2023, Calendar No.: Event ID:  TENTATIVE RULINGS

3057774 CASE NUMBER: CASE TITLE:  HARRISON VS EPSTEIN [IMAGED]  37-2022-00026581-CU-PO-NC Defendant filed an Answer to the operative pleading in Case 2 in which he asserted various affirmative defenses, inclusive of a defense predicated upon applicable statutes of limitations, including California Code of Civil Procedure ('CCP') § 335.1. Ibid., at No. 20. On December 13, 2023, Defendant filed the pending motion for summary adjudication on the ground that Plaintiff's personal injury claim is barred by the applicable two-year statute of limitations.

Legal Analysis Motions for summary judgment and adjudication are subject to the same rules and procedures. See Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

(1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

The statute of limitations for a personal injury claim is two years. See Cal. Code Civ. P. § 335.1. In this case, there is no dispute about the timeline of events or the procedural history of the case. More to the point, while there is no dispute that Case 1 was filed in a timely manner, Case 2 was filed more than two years after Plaintiff's personal injury claim accrued. This, however, is not dispositive because the issue of equitable tolling has been raised.

While Plaintiff concedes that the operative pleading does not allege any facts regarding equitable tolling, the court nonetheless must consider whether it appears from the papers submitted that Plaintiff could state a cause of action. See Mills v. Forestex Co. (2003) 108 Cal. App. 4th 625, 641. In this case, Plaintiff's opposition demonstrates that Plaintiff could allege facts sufficient to demonstrate equitable tolling such that it is appropriate to deny the pending motion and grant Plaintiff leave to amend the operative pleading.

Notably, '[e]quitable tolling is a fact intensive issue and it is determined based upon evidence.' See Thomas v. Gilliland (2002) 95 Cal. App. 4th 427, 434. The elements of equitable tolling are three-fold: (1) the defendant received timely notice in pursuing the first remedy; (2) there is a lack of prejudice to the defendant in gathering evidence to defend against the second action; and (3) there is good faith and reasonable conduct by the plaintiff in filing the second action. Ibid. In this case, Plaintiff's opposition demonstrates that all three elements can be satisfied.

First, there is no dispute that Case 1 was timely filed after Plaintiff, through counsel, corresponded with Defendant's insurance carrier about the claims. Second, there is a lack of prejudice to Defendant, other than the expense of defending himself which is the normal prejudice occasioned by any lawsuit. Finally, Plaintiff has demonstrated that his filing of Case 2 was in good faith and reasonable under the circumstances. More specifically, because Plaintiff was not given notice that Case 1 could be dismissed if he did not attend the Case 1 CMC, dismissal of Case 1 was a violation of Plaintiff's due process rights, and the June 24, 2022 Minute Order dismissing the case is void as a matter of law. See Reid v. Balter Calendar No.: Event ID:  TENTATIVE RULINGS

3057774 CASE NUMBER: CASE TITLE:  HARRISON VS EPSTEIN [IMAGED]  37-2022-00026581-CU-PO-NC (1993) 14 Cal. App. 4th 1186, 1193. But for the void June 24, 2022 Minute Order, Case 1 would have remained active and, therefore, there would be no question that Plaintiff's claim for personal injury was timely. As such, equity dictates that the applicable statute of limitations be tolled and Plaintiff be afforded his ability to try the matter on the merits.

This foregoing conclusion is bolstered by the holding in Bollinger v. National Fire Ins. Co. of Hartford Conn. (1944) 25 Cal. 2d 399 ('Bollinger'). In Bollinger, the plaintiff, a bankruptcy trustee, brought an action to recover on a policy for fire insurance issued to the debtor. The policy required, among other things, the insured to give written notice of the loss without unnecessary delay and to submit the amount of loss to arbitration if the insurer did not assent to the amount claimed within 20 days after receipt thereof if an agreement was not otherwise reached. The policy also stated that '[n]o suit or action on this policy for the recovery of any claim shall be sustained, until after full compliance by the insured with all the foregoing requirements, nor unless within fifteen months next after the commencement of the fire.' Ibid., at 402. The plaintiff initiated the lawsuit on January 15, 1940. Thereafter, the defendant requested and was granted numerous continuances and extensions such that the trial was not conducted until January 8, 1941. At the close of the plaintiff's evidence, the defendant successfully moved for nonsuit on the ground that the action had been prematurely filed because 30 days had not elapsed from the time of agreement upon the amount of loss. Ibid. Thereafter, the plaintiff filed another action, the action that is the subject of the published decision, on February 21, 1941, alleging that the plaintiff did not learn until January 8, 1941, the trial, that the defendant was relying on a defense that the first action was premature. The defendant successfully demurred on the ground that the claim was untimely. Plaintiff appealed.

In finding for the plaintiff, the California Supreme Court explained as follows: [u]nder the circumstances, it would be a perversion of the policy of the statute of limitation to deny a trial on the merits. [Citation omitted.] 'Statutes of limitations . . . in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put an adversary on notice to defend within the period of limitation and the right to be free of stale claims in time comes to prevail over the right to possess them.

Here, while the litigation shows no evidence of reckless haste on the part of either party, it cannot be said that the claims were not timely pursued.' Ibid., at 406-407. The court went on to explain: In any event this court is not powerless to formulate rules of procedure where justice demands it.

Indeed, it has shown itself ready to adapt rules of procedure to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits. . . [Citations omitted.] . . . Since this action is in reality a continuance of the earlier action involving the same parties, facts, and causes of action, and was promptly filed after entry of judgment on the nonsuit, plaintiff should not be deprived of a trial on the merits because he failed to seek other remedies in the municipal court. Statutes of limitations are not so rigid as they are sometimes regarded. Under certain circumstances property rights or immunities may be acquired as a result of the running of a statutory period, but the period will be extended or tolled by the occurrence of certain events, which may be the subject of conflicting evidence, such as absence from the state or disability. [Citation omitted.] It is established that the running of the statute of limitations may be suspended by causes not mentioned in the statute itself.

Ibid., at 410-411.

The undisputed facts of this case demonstrate that Case 2, like the case at issue in Bollinger, merely is a continuance of Case 1, with the same parties and facts. As such, it is only appropriate to conclude that the statute of limitations was tolled during the pendency of Case 1.

To the extent that Defendant urges a different outcome based on Thomas v. Gilliland (2002) 95 Cal. Calendar No.: Event ID:  TENTATIVE RULINGS

3057774 CASE NUMBER: CASE TITLE:  HARRISON VS EPSTEIN [IMAGED]  37-2022-00026581-CU-PO-NC App. 4th 427 ('Thomas'), the court respectfully finds Thomas inapposite under the circumstances. In particular, the Thomas court was faced with a voluntary dismissal and its effect on the statute of limitations. In contrast, the dismissal at issue was involuntary and was effectuated without notice to the Plaintiff.

As set forth above, the Thomas court articulated legal principles regarding equitable tolling applicable in this pending matter. Specifically, the Thomas court, noted that: '. . . courts have adhered to a general policy which favors relieving plaintiff from the bar of a limitations statute when, possessing several legal remedies he, reasonably and in good faith, pursues one designed to lessen the extent of his injuries or damage. [Citations.]' (Addison v. State of California (1978) 21 Cal.3d 313, 317.) The doctrine has also been applied to toll the statute of limitations in a personal injury claim while the plaintiff pursued a workers' compensation claim (Elkins v. Derby (1974) 12 Cal.3d 410), and where the plaintiff filed an action against its insurer that the trial court erroneously dismissed as premature (Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399). The doctrine of equitable tolling, however, only applies where the plaintiff has alternate remedies and has acted in good faith.

Thomas, 95 Cal. App. 4th at 434. In this case, Plaintiff could have chosen to set aside the dismissal in Case 1 or sought Case 2 under the good faith belief that the statute of limitations had been tolled during the pendency of Case 1.

Given the above, the court need not reach the legality/constitutionality of Emergency Rule 9 and its extension of the time by which claims were required to be filed. That being said, it is worth noting that if such a conclusion had been required, the court would have been compelled to adhere to the ruling in Lacour v. Marshalls of California, L.L.C. (2023) 94 Cal. App. 5th 1172.

Conclusion In light of the foregoing, the court denies Defendant's motion for summary adjudication given that Plaintiff has demonstrated that he could state a cause of action because the applicable statute of limitations was tolled. The court grants Plaintiff leave to amend to rectify his legally insufficient pleading.

Plaintiff shall submit his amended pleading within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 1, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 1, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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