Judge: Deirdre Hill, Case: 22STCV29880, Date: 2023-03-24 Tentative Ruling

Case Number: 22STCV29880    Hearing Date: March 24, 2023    Dept: M

Hearing Date:                         March 21, 2023

Moving Parties:                      Defendant Allegiant Air, LLC

Responding Party:                  Plaintiff Danny Morris

Demurrer to Complaint

            The court considered the moving, opposition, and reply papers.  The court declines to consider the surreply.

RULING

The demurrer to the complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

BACKGROUND

On September 14, 2022, plaintiff Danny Morris filed a complaint against Allegiant Air, LLC and Does 1 through 20 for (1) negligence (against Does), (2) negligent hiring, retention, and supervision, (3) negligence (against Allegiant), and (4) gross negligence.

On November 10, 2022, the case was transferred to Dept. M from the PI Hub.

LEGAL AUTHORITY

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.  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.  “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

            Defendant Allegiant Air demurs to the complaint on the ground that it fails to state sufficient facts to constitute a cause of action because it is barred by the two-year statute of limitations under CCP §335.1.

“The statute of limitations is a ‘ground for objection to a complaint’ . . . and, therefore, may be raised in a demurrer.”  Cavey v. Tualla (2021) 69 Cal. App. 5^th 310, 325.  For a statute of limitations to bar a claim on demurrer, “the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”  Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42. 

            The complaint alleges that plaintiff was a passenger on an Allegiant Air flight from Tulsa, Oklahoma to LAX on January 20, 2020.  Plaintiff purchased a ticket indicating he was disabled, was taken by wheel chair to his airline seat, and was seated in Row 3, near the front of the plane.  Complaint, ¶8.  Plaintiff entered the plane that day with a pre-existing medical condition, which required him to stretch out his leg, among other items.  Id., ¶9.  Plaintiff’s leg was stretched out and Doe 1 flight attendant was walking from the front of the plane toward the back and struck plaintiff’s knee, causing injury and immediate pain to plaintiff.  Within minutes, plaintiff experienced severe pain and swelling in his low back.  Id., ¶10.  As a result of the incident, plaintiff has and continues to suffer personal and permanent injuries.  Id., ¶11.

            The complaint also alleges that on January 7, 2020, plaintiff filed in pro per an action against defendant and Does in the Central District of California, Case No. 8:22-cv-00024.  The complaint stated that it was filed in federal court under diversity jurisdiction.  Id., ¶12.  On August 18, 2022, the Hon. Josephine Staton dismissed plaintiff’s federal court case, without prejudice, in major part because plaintiff failed to establish the federal court had jurisdiction; plaintiff failed to plead a short and plain statement of such and one of the named defendants in that case was also a citizen of California.  The court’s order allowed plaintiff to file anew in state court of appropriate jurisdiction, i.e., California.  Id., ¶13.  Under federal statute, a state law claim is tolled while the claim is pending in federal court and for a period of 30 days after the federal action is dismissed, unless state law provides for a longer tolling period.  See 28 USC §1367(d).  As such, plaintiff has timely filed his state law claims.  Id., ¶14.

Under 28 USC §1367, “(a) . . . in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.  Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties.  . . . (c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if – . . . (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction . . . . (d) The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” 

Section 1367(d) “’codifies the court-developed pendent and ancillary jurisdiction doctrines under the label “supplemental jurisdiction.”’  In expressly adopting the doctrine, Congress endorsed and ‘enabled federal courts and litigants to . . . deal economically—in single rather than multiple litigation—with related matters.’ . . . ‘When [federal] district courts dismiss all claims independently qualifying for the exercise of federal jurisdiction, they ordinarily dismiss as well all related state claims.’”  Sales v. City of Tustin (2021) 65 Cal. App. 5^th 265, 271 (citations and internal quotations omitted).

Under this section “federal courts have supplemental jurisdiction to adjudicate state law claims over which they do not have jurisdiction if these claims are transactionally related to the claims within a federal court’s original jurisdiction.  When a federal court declines to exercise this supplemental jurisdiction and dismisses claims that fall outside of its original jurisdiction under [section 1367(c)], the period of limitations for any dismissed claim ‘shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.’”  Long v. Forty Niners Football Co., LLC (2019) 33 Cal. App. 5^th 550, 558.

Defendant argues that 28 USC §1367(d) does not toll the statute of limitations because plaintiff did not invoke supplemental jurisdiction when he previously filed in U.S. District Court.  Defendant contends that this provision was enacted to protect parties who decide initially to litigate their federal and state law claims in federal court together under supplemental jurisdiction, and that it provides assurance that their state law claims will not become time-barred while pending in federal court under supplemental jurisdiction, citing to Jinks v. Richland County, S.C. (2003) 538 US 456, 464; Guevara v. Ventura County Community College Dist. (2008) 169 Cal. App. 4^th 167, 171 (28 USC §1367 is “a provision enacted to protect parties who decide initially to litigate their federal and state law claims in federal court” and “gives assurance that state-law claims asserted under §1367(a) will not become time barred while pending in federal court.”) (citing to Jinks, supra).

Defendant asserts that plaintiff (who was self-represented) did not assert any coherent claim regarding jurisdiction in his U.S. District Court complaint and did not invoke any federal question jurisdiction.  Defendant contends that, at most, plaintiff attempted to invoke the court’s original jurisdiction via its mandatory Civil Cover Sheet which asserted diversity jurisdiction, but that supplemental jurisdiction was never invoked.  Also, defendant asserts, plaintiff did not assert any of the same causes of action.  Defendant further asserts that the order dismissing the federal complaint, stating that “Plaintiff may file anew in a state court of appropriate jurisdiction” did not expand the rights of plaintiff under state law.  See Request for Judicial Notice of complaint filed in District Court and US District Court’s order granting Allegiant Air’s motion to dismiss.

In opposition, plaintiff argues that under 28 USC §1367(d), plaintiff is allowed 30-days from the date the federal court dismissed his case to refile in state court and that plaintiff refiled his suit within the 30-day window.  He asserts that diversity jurisdiction is same as “supplemental jurisdiction.”  He further argues that plaintiff satisfies California’s requirements for equitable tolling.

In reply, defendant argues that the federal complaint contains one claim, if any, and it is not against Allegiant Air, as plaintiff does not allege vicarious liability or any connection between Allegiant and the flight attendant.  Further, defendant contends, plaintiff has not alleged equitable tolling or any other theory to plead around the two-year statute of limitations, and that, in any event, equitable tolling and any other theory would not apply.  Moreover, defendant argues, plaintiff has not cited to any case law that supports plaintiff’s “novel argument” that diversity jurisdiction is supplemental jurisdiction because it involves a federal court exercising original jurisdiction over state court claims.

The court finds that it appears that the two-year statute of limitations bars the claims because plaintiff alleges that the incident occurred on January 20, 2020, but the complaint was not filed until more than two years later, on September 14, 2022.  Although the federal complaint was dismissed on August 18, 2022 and the civil complaint was filed within 30 days, the allegations are insufficient that plaintiff has alleged tolling based on supplemental jurisdiction under 28 USC §1367.  Both parties request that the court take judicial notice of the federal complaint.  It appears that plaintiff was asserting original jurisdiction based on diversity of citizenship as to all of plaintiff’s purported claims rather than supplemental jurisdiction.  See Long, supra, stating that 28 USC §1367, “has no application here.  Long filed a diversity suit in federal court.  He did not appeal to the federal court's supplemental jurisdiction, nor did the federal court decline to exercise supplemental jurisdiction over any of his claims.  As Long does not set forth a reasonable basis from which we can conclude that he could overcome the deficiencies noted in his pleading, the trial court properly sustained defendant's demurrer without leave to amend.”  Further, the federal court does not appear to have dismissed the federal complaint based on any of the reasons under 28 USC §1367(c), including declining to exercise supplemental jurisdiction over state claims.  Moreover, plaintiff has not alleged equitable tolling.

The demurrer is SUSTAINED WITH LEAVE TO AMEND.

            Defendant is ordered to give notice of ruling.