Judge: Jon R. Takasugi, Case: 24STCV29811, Date: 2025-03-03 Tentative Ruling

Case Number: 24STCV29811    Hearing Date: March 3, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is SUSTAINED, WITH 10 DAYS LEAVE TO AMEND. Accordingly, Defendant’s motion to strike is MOOT.

            On 11/13/2024, Plaintiff Isaiah Hoffman (Plaintiff) filed suit against Tricia Fossa and Mercury Insurance Company (collectively, Defendants), alleging: (1) negligence; (2) motor vehicle.

            On 1/30/2024, Defendants demurred to Plaintiff’s Complaint. Defendants also move to strike portions of Plaintiff’s Complaint.

Discussion 

            Defendants argue that Plaintiff’s Complaint is barred by the statute of limitations, and has failed to allege sufficient facts to state a claim.

            Plaintiff’s claim is based on an alleged accident on 11/12/2022. Plaintiff alleges that he suffered personal injury and property damage as a result of Defendant Fossa’s negligence. Plaintiff alleges that Mercury acted unreasonably in failing to cover the alleged loss. (See Complaint.)

Code of Civil Procedure section 335.1 provides the time limit within which an action must be filed for personal injury arising out of negligent acts, as follows:

Within two years:

An action for...injury to or for the death of, an individual caused by the wrongful act or neglect of another.

            Here, the alleged conduct by Defendant Fossa took place on 11/12/2022, yet, the Complaint was not filed until 11/13/2024, more than two years after the accident occurred. As such, the claim appears barred on its face as to Defendant Fossa.

            Plaintiff does not allege any facts which could show that Defendant Mercury’s conduct took place within the two-year statute of limitations period. Moreover, Plaintiff does not allege any contract between him and Mercury. Instead, Plaintiff pleads that Mercury was the insurance carrier of the vehicle that hit his. Plaintiff cannot allege breach of a contract that he is not a party to.

            In opposition, Plaintiff argues that the demurrer should be overruled because Defendants failed to meet and confer and because he attempted to file his case prior to the deadline, but there were electronic issues. In support, he cites Garg v. Garg (2022) 82 Cal.App.5th 1036, 1042 and Lazar v. Bishop, (2024) 107 Cal.App.5th 668.

However, first, Plaintiff’s Complaint does not allege any facts related to delayed delivery of the Complaint, and the Court is bound by the pleadings in considering the sufficiency of his claims. As such, the Court declines to concern the exhibits submitted as part of Plaintiff’s opposition. 

            Second, Gard and Lazar both concern appeals and Rule of Court 2.259(c) would appear to specifically exclude initial complaints from the delayed delivery rule:

(c) Delayed delivery

If a technical problem with a court's electronic filing system prevents the court from accepting an electronic filing on a particular court day, and the electronic filer demonstrates that he or she attempted to electronically file the document on that day, the court must deem the document as filed on that day. This subdivision does not apply to the filing of a complaint or any other initial pleading in an action or proceeding.

Still, the Court will allow Plaintiff 10 days leave to amend to allege facts which could set forth a viable claim.

Based on the foregoing, Defendant’s demurrer is sustained, with 10 days leave to amend. Accordingly, Defendant’s motion to strike is moot.

It is so ordered.

Dated:  March    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.