Judge: Daniel S. Murphy, Case: 20STCV05697, Date: 2022-10-31 Tentative Ruling

Case Number: 20STCV05697    Hearing Date: October 31, 2022    Dept: 32

BACKGROUND

            On February 13, 2020, Plaintiff Cecile Lopez Macabagdal initiated this action against Defendants Norman Roy Levine and Hancock Plaza Homeowners Association, Inc. arising from alleged habitability issues. Defendant Levine was allegedly Plaintiff’s landlord. However, Levine died in January 2021. On July 13, 2022, Plaintiff filed a First Amended Complaint adding Herschel Manalo, individually and as trustee of Levine’s estate, as a Defendant.

            On August 26, 2022, Defendant Manalo filed the instant demurrer to the FAC on the grounds that Plaintiff improperly added him as a Defendant and exceeded the statute of limitations. Defendant additionally argues that he cannot be sued in his individual capacity. Plaintiff has not filed an opposition.

LEGAL STANDARD

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. (Code Civ. Proc., § 430.30, subd. (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. (Ibid.) 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, supra, 147 Cal.App.4th at 747.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Carroll Decl. ¶¶ 2-3.)

DISCUSSION

            “If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (Code Civ. Proc., § 366.2(a).)

            Levine died back in January 2021, but Plaintiff did not bring suit against the estate until July 2022, more than one year later. Therefore, the action is untimely. (See Code Civ. Proc., § 366.2(a).) “[T]he one-year statute applies to all debts of the decedent regardless of whom the claims are brought against. (Levine v. Levine (2002) 102 Cal.App.4th 1256, 1265.) Additionally, Defendant Manalo does not, by nature of being the trustee of Levine’s estate, become personally liable on the causes of action against Levine. Without an opposition, Plaintiff concedes that the demurrer is correct.

CONCLUSION

            Defendant Manalo’s demurrer is SUSTAINED without leave to amend.