Judge: Daniel S. Murphy, Case: 20STCV05697, Date: 2023-04-12 Tentative Ruling

Case Number: 20STCV05697    Hearing Date: April 12, 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, the trustee of Levine’s estate, as a Defendant.

            On January 13, 2023, the Court granted Defendant Manalo’s demurrer to the FAC on statute of limitations grounds but granted leave to amend for Plaintiff to allege equitable estoppel. On February 2, 2023, Plaintiff filed the operative Second Amended Complaint, alleging that defense counsel failed to disclose Levine’s death for six months and then refused to disclose the identity of the trustee. (SAC ¶¶ 38-39.)

            On March 3, 2023, Defendant Manalo filed the instant demurrer to the SAC.

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

            Code of Civil Procedure section 366.2(a) imposes a one-year statute of limitations for commencing an action after the death of a defendant, regardless of the limitations period that would otherwise have applied. The one-year limitations period cannot be tolled except in limited circumstances. (See Code Civ. Proc., § 366.2(b).) However, 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.)        

            Defendant begins the demurrer by arguing that Plaintiff failed to follow the proper Probate Code procedure for substituting a personal representative. (See Code Civ. Proc., § 377.41.) The Court has rejected this argument previously. (See January 13, 2023 Order re Demurrer 3:4-11 [“Defendant acknowledges that a personal representative is appointed by the Court only after a probate has been opened . . . Defendant also acknowledges that no probate proceeding was opened and . . . no notice to creditors was provided by the trustee in this case”].) 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.) There is no indication from the complaint or judicially noticeable materials that any Probate Code requirements were triggered. Thus, the only issue is whether Plaintiff has adequately pled equitable estoppel as it relates to the one-year limitations period in Section 366.2.

            Defendant first argues that he did not take any affirmative action to prevent Plaintiff from filing this action, pointing out that Battuello involved a defendant who convinced the plaintiff not to file suit. However, “equitable estoppel may be appropriate where the defendant's act or omission actually and reasonably induced the plaintiff to refrain from filing a timely suit.” (Doe v. Marten (2020) 49 Cal.App.5th 1022, 1028.) “The requisite act or omission must involve a misrepresentation or nondisclosure of a material fact bearing on the necessity of bringing a timely suit.” (Ibid.) Nothing limits equitable estoppel to instances of affirmative action.

            With that being said, a defendant is not responsible for failing to disclose information that he had no duty to disclose in the first place. “[M]ere silence will not create an estoppel, unless there is a duty to speak.” (Spray, Gould & Bowers v. Associated Internat. Ins. Co. (1999) 71 Cal.App.4th 1260, 1268.) Plaintiff does not allege any basis upon which Defendant or his counsel had a duty to inform Plaintiff of Levine’s death or the identity of the trustee. Nor does Plaintiff cite any authority suggesting that defense attorneys have a general duty to disclose such information.

CONCLUSION

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