Judge: John J. Kralik, Case: 22BBCV01029, Date: 2023-11-03 Tentative Ruling

Case Number: 22BBCV01029    Hearing Date: January 12, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Illya Kode (“Plaintiff”) alleges that on October 22, 2020, Plaintiff was involved in a motor vehicle accident with Defendant Justin Adam Scarbrough (“Defendant”) in Studio City.  Plaintiff alleges that Defendant negligently operated his vehicle so as to collide with Plaintiff’s person. 

The complaint, filed November 18, 2022, alleges causes of action for: (1) motor vehicle; and (2) general negligence.

B.     Motion on Calendar

On December 5, 2023, Defendant filed a demurrer to the complaint.

On December 29, 2023, Plaintiff filed an opposition to the demurrer.  According to the proof of service, the opposition was served on defense counsel by email on December 29, 2023. 

On January 5, 2024, Defendant filed a notice of non-opposition, stating that Defendant did not receive an opposition brief to the demurrer hearing. 

DISCUSSION

Defendant demurs to the complaint and the 1^st cause of action for negligence on the ground that they are barred by the applicable statute of limitations. 

Defendant argues that the accident occurred on October 22, 2020, but this action was filed on November 18, 2022, which is over 2 years and therefore time-barred by the 2-year statute of limitations.  (CCP § 335.1.)  Defendant argues that while Plaintiff attempted to file the lawsuit on October 19, 2022, the clerk of the court rejected the filing because it was filed with the wrong court.  (Auchard Decl., ¶4, Ex. 1.)  He argues that Plaintiff then filed the action with this Court on November 18, 2022, but by that point, Plaintiff had missed the deadline to be within the statute of limitations period.  Defendant argues that the relation back doctrine does not apply. 

According to Exhibit 1 of the demurrer papers, the clerk of the court received the summons, civil case cover sheet, and complaint on October 19, 2022, but rejected the filing on October 20, 2022 because it was filed in the wrong court district/location and indicated that the case should be filed in Burbank. 

In opposition, Plaintiff argues that the October 19, 2022 originally attempted filing date should apply because Plaintiff submitted the complaint for filing within a timely period with the Personal Injury Hub, but the filing came at the heels of the Personal Injury Hub’s Eighth Amended Standing Order, effective October 10, 2022.  Plaintiff’s counsel, Jason M. Glantz, states that promptly upon receipt of the notice of rejection, counsel re-routed the initial pleadings to this Court and resubmission was completed on November 18, 2022.  (Glantz Decl., ¶5.)  Plaintiff argues that the Court should apply equitable tolling and issue a nunc pro tunc order declaring the October 19, 2022 date as the filing date of the complaint.  (As noted above, Defendant filed a notice of non-opposition stating that he was not in receipt of any opposition papers.)

Based solely on the allegations of the complaint and the date of the filing of the complaint in this action, Plaintiff did not timely file this action within the 2-year statute of limitations period.  As such, the action is time barred.

Nevertheless, Plaintiff may have an argument that the original filing date of the complaint in the incorrect courthouse should be considered the operative date of the filing of this complaint.  However, a demurrer is not the proper mechanism to consider Plaintiff’s arguments and Plaintiff’s counsel’s declaration statements regarding his conduct and the procedural history of the case.  While there may be an argument to consider the October 19, 2022 as the operative filing date of the complaint filed in this action, Plaintiff should file an appropriate motion seeking such relief.  Further, Plaintiff’s counsel states that upon receiving notice of the rejection of the October 19, 2022 complaint, he “promptly” refiled the pleading with the Burbank Courthouse on November 18, 2022.  Counsel should explain why it took nearly a month to refile the identical papers with this Court. The Court does not mean to prejudge such an argument, but believes that it is not properly before the Court, and that the Court does not have sufficient guiding caselaw or sufficient facts to rule upon it.

The Court will continue the hearing on the demurrer so that Plaintiff can file an appropriate motion regarding the filing date of the complaint.  Also, as Defendant represented that he was not in receipt of a copy of the opposition papers, Plaintiff should re-serve the opposition.

CONCLUSION AND ORDER

Defendant Justin Adam Scarbrough’s demurrer to the complaint is continued to March 8, 2024 at 8:30 a.m.  Plaintiff is ordered to re-serve the opposition papers on Defendant.  Defendant may file a reply brief prior to the March 8, 2024 hearing date at least 5 court days before the hearing. 

Prior to the March 8, 2024 hearing date, Plaintiff should file and schedule an appropriate motion seeking a nunc pro tunc order regarding the filing date of the complaint.  The Clerk of Court is advised that Plaintiff may schedule his motion (so long as it is timely filed) concurrently with this demurrer on March 8, 2024. 

Defendant shall provide notice of their respective order.

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DATED:  January 12, 2024                                                    ___________________________

                                                                                          John Kralik

                                                                                          Judge of the Superior Court