Judge Joel R Wohlfeil, Case 37-2018-00054834-CU-BT-CTL 2023-10-27 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2018-00054834-CU-BT-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 25, 2023

10/27/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Business Tort Demurrer / Motion to Strike 37-2018-00054834-CU-BT-CTL AMINPOUR VS CALHOUN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 10/04/2023

The general Demurrer (ROA # 839) of Defendant Jeffrey Bodily ('Defendant') and Motion to dismiss the First Amended Complaint ('FAC'), and the causes of action therein asserted against Defendant, by Plaintiffs Ashkan King Aminpour and Larking, Inc. ('Plaintiffs'), is OVERRULED IN PART and GRANTED IN PART.

The general Demurrer is OVERRULED.

The Demurrer is not persuasive because whether the three-year period to initiate an action has elapsed is not a defect appearing on the face of the pleading that renders Plaintiffs unable to state a cause of action as against this Defendant.

The alternative Motion to dismiss is GRANTED.

A motion to dismiss is the proper procedure to employ where service is not made within the prescribed time. Code Civ. Proc. 583.250(a)(2).

'The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.' Code Civ. Proc. 583.210(a).

Plaintiff must identify and serve a Doe defendant with a summons and complaint within three years of the commencement of the action. Higgins v. Superior Court (2017) 15 Cal. App. 5th 973, 982.

In computing the three-year time period, any period in which the action was stayed must be excluded.

Code Civ. Proc. 583.240(b).

The parties agree that the stay pending appeal tolled the three-year period from November 4, 2021 to April 28, 2022, for a total of 548 days. Plaintiffs also appear to argue that they were, as a practical matter, unable to serve Defendant Bodily until formal discovery was completed, as this was necessary to identify Defendant Bodily. However, except for the appellate stay, discovery in this action was never stayed. Emergency Rule 9 effectuated during COVID-19 did not halt the ability to conduct discovery in a pending action.

The parties differ on whether Emergency Rule 9 operated as an independent stay for an additional 178-day period (April 6, 2020 to October 1, 2020).

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3029367 CASE NUMBER: CASE TITLE: AMINPOUR VS CALHOUN [IMAGED] 37-2018-00054834-CU-BT-CTL Emergency Rule 9 was adopted by the Judicial Council on April 6, 2020, following Governor Newsom's March 27, 2020 order giving the Judicial Council the authority to take the necessary action to respond to the COVID-19 pandemic. People v. Philadelphia Reinsurance Corporation (2021) 70 Cal. App. 5th Supp. 10, 15.

Emergency Rule 9 provides that 'the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.' This language 'is clear and unambiguous; Emergency Rule 9 tolls 'statutes of limitations and repose for civil causes of action.' Statutes of limitations and statutes of repose are specific statutes that serve to bar the initiation of legal proceedings after the expiration of a defined timeline.' Id. at 16 (footnote omitted).

'Emergency Rule 9 does not toll the various statutory timelines set forth in the relevant Penal Code sections governing the procedure for the forfeiture and exoneration of bail bonds, including the 180-day timeline for defendant's appearance, the timeline for the filing of a motion by the surety to extend the 180-day timeline, and the trial court's timeline for entering summary judgment as those timelines are not 'statutes of limitations or repose for civil causes of action.'' Id. Although the Advisory Committee comment explains that Emergency Rule 9 is to be applied 'broadly,' any such 'broad' application is expressly limited to toll the 'statute of limitations on the filing of a pleading in court asserting a civil cause of action.' Id. at 18.

In its 'circulating order memorandum' the Judicial Council explained that Emergency Rule 9 tolls the time period to commence or initiate a civil cause of action. Id. at 18, 19.

'Emergency Rule 9, the Advisory Committee comment thereto and the circulating order memorandum make no mention of any response in a pending action or proceeding, or any procedural timelines other than 'statutes of limitations or repose' for the assertion, commencement or initiation of an action.' Id. at 19.

Given the conclusion reached in the Philadelphia Reinsurance case, the Court finds that the opinion expressed by Judge Mark A. Young in the County of Los Angeles case of Jose Mireles v Axiall Corporation, Et Al. is a correct application of Emergency Rule 9.

The Court, on its own motion, elects to take judicial notice of this Superior Court order. Exh. '1' ROA # 840. See Evid. Code 452(c).

Emergency Rule 9 does not apply because Code of Civil Procedure Section 583.210 is not a statute of limitation.

Plaintiffs cite State ex rel. Sills v. Gharib-Danesh (2023) 88 Cal. App. 5th 824. However, this opinion is not helpful as it addressed Emergency Rule 10(a), which extended the deadline to bring a civil action to trial under Code of Civil Procedure section 583.310.

Plaintiffs also argue that the three-year time limit was extended via the doctrine of equitable estoppel.

When computing the time limit 'there shall be excluded the time during which ... ¶ ...[s]ervice, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control. Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision.' Code Civ. Proc. 583.240(d).

The burden is on Plaintiff to make an adequate showing that it was impossible, impracticable or futile to effectuate service within the three-year period. Hill v. Superior Court for Los Angeles County (1967) 251 Cal. App. 2d 746, 755.

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3029367 CASE NUMBER: CASE TITLE: AMINPOUR VS CALHOUN [IMAGED] 37-2018-00054834-CU-BT-CTL Plaintiff must show not only objective impossibility in the true sense, but also impracticability due to excessive and unreasonable difficulty or expense. Id. Each case must be decided on its own particular facts, and no fixed rule can be prescribed to guide the court in its exercise of this discretionary power under all circumstances. Id. Estoppel is applicable where the conduct of one side has induced the other to take such a position that it would be injured if the first should be permitted to repudiate its acts. DRG / Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal. App. 4th 54, 59.

Four elements must ordinarily be proved to establish an equitable estoppel: (1) the party to be estopped must know the facts; (2) he must intend that his conduct will be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) he must rely upon the conduct to his injury.

Id.

'We conclude, therefore, that if the plaintiff was induced by the defendants to refrain from seeing an attorney, under circumstances which justify the application of the doctrine of equitable estoppel, and the conduct of the defendants was the cause of plaintiff's delay in filing return of service, the period during which plaintiff was induced to delay should not be counted as part of the three-year period.' Flamer v. Superior Court for Los Angeles County (1968) 266 Cal. App. 2d 907, 918.

'Here, the record contains no evidence that the defendants or their attorney made any representations to plaintiff concerning the calculation of the five-year period or that they would agree to an extension of the five-year period. The record indicates only that defendant Blas failed to appear voluntarily for her deposition, then sought continuances of the arbitration hearing date, and finally represented to plaintiff's counsel that she would be available for the arbitration during the summer of 1985. Such conduct does not constitute false assurances concerning the running of the five-year period.' Tejada v. Blas (1987) 196 Cal. App. 3d 1335, 1341.

Plaintiffs maintain that Defendants Fulkerson and Batta 'actively concealed the identity of Defendant BODILY.' Opposition Memorandum at page 9, lines 11 - 20. Even assuming this is true, there is no evidence that Defendant Bodily, himself, actively induced Plaintiff not to name and sue him. There is no evidence that Defendant Bodily's conduct was the cause of Plaintiffs' delay. As stated within section 583.240(d), Plaintiffs' failure to discover relevant facts or evidence is not a cause that will support tolling the three-year deadline.

Finally, Plaintiffs argue that the addition of new causes of action and new Defendants in the First Amended Complaint should restart the three-year period as of July 15, 2020. This argument is not persuasive.

In Barrington v. A. H. Robins Co. (1985) 39 Cal. 3d 146, the opinion concluded that a complaint amended to charge a fictitious defendant with a new cause of action arising from different operative facts need not be served within three years of the original filing. Instead, it is sufficient if service of the amended complaint occurs within three years after the filing of the amended complaint. The opinion found that the new cause of action was different in nature from any cause of action contained in the earlier complaint such that it did not relate back to the earlier pleading.

The FAC is this action contains fifteen causes of action. Only causes of action 14 (Civil Conspiracy) and 15 (Civil Extortion) were not alleged in the original pleading. A comparison of the facts alleged in the original Complaint and those alleged in the FAC, demonstrates that the operative facts supporting the additional causes of action are the same.

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3029367