Judge: Daniel S. Murphy, Case: 20STCV05697, Date: 2023-01-13 Tentative Ruling

Case Number: 20STCV05697    Hearing Date: January 13, 2023    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 a demurrer to the FAC on the grounds that Plaintiff improperly added him as a Defendant and exceeded the statute of limitations. Defendant additionally argued that he could not be sued in his individual capacity. Plaintiff did not file an opposition to the demurrer, which was sustained without leave to amend on October 31, 2022. However, on December 14, 2022, the Court granted Plaintiff’s motion to set aside the ruling after finding that Plaintiff was not properly served with the demurrer.  

            The demurrer has been reset for January 13, 2023, and the Court addresses it herein.

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

            Defendant acknowledges that “[a] personal representative is appointed by the Court only after a probate has been opened.” (Dem. 6:11-12.) Defendant also acknowledges that “no probate proceeding was opened and . . . no notice to creditors was provided by the trustee” in this case. (Dem. 9:4-5.) Absent a formal probate proceeding and notice to creditors, “the time to assert a claim against a decedent's revocable trust is governed by the more general statute of limitations for all claims against a decedent embodied in Code of Civil Procedure section 366.2.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 255.) Section 366.2 imposes a one-year statute of limitations.

            Plaintiff concedes that the FAC as written presents a statute of limitations issue. (Opp. 3:3-4.) However, Plaintiff requests leave to amend to allege grounds for equitable estoppel. Although Section 366.2(b) provides that the one-year limitation may not be tolled except for circumstances not applicable here, equitable estoppel is distinct from tolling. Equitable estoppel is “not concerned with the running and suspension of the limitations period, but rather comes into play only after the limitations period has run and addresses itself to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period.” (Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847.) “[B]ecause equitable estoppel operates directly on the defendant without abrogating the running of the limitations period as provided by statute, it might apply no matter how unequivocally the applicable limitations period is expressed.” (Id. at p. 848.)

            The Court finds that it is possible for Plaintiff to allege equitable estoppel to cure the statute of limitations defect caused by Section 366.2. Therefore, leave to amend is warranted. (See JPMorgan Chase Bank, N.A. v. Ward (2019) 33 Cal.App.5th 678, 684.)

            Lastly, Plaintiff has not offered any basis for suing Defendant in his individual capacity. Defendant is merely the trustee of decedent Levine’s estate and has incurred no personal liability to Plaintiff.

CONCLUSION

            Defendant Herschel Manalo’s demurrer to First Amended Complaint is SUSTAINED with leave to amend to allege facts establishing equitable estoppel. Manalo is stricken as an individual defendant but remains as the trustee of decedent Levine’s estate.