Judge Lee W. Tsao, Case Number: 23NWCV02340, Date: 2024-04-04 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV02340, Date: 2024-04-04 Tentative Ruling

Case Number: 23NWCV02340 Hearing Date: April 4, 2024 Dept: C

GALLEGOS v. SULLY-MILLER CONTRACTING, CO.

CASE NO.: 23NWCV02340

HEARING: 04/04/24

I. Defendant SULLY-MILLER’s Demurrer to Plaintiff’s Complaint is SUSTAINED with 30 days leave to amend.

II. Defendant SULLY-MILLER’s unopposed Motion to Strike Portions of Plaintiff’s Complaint is GRANTED without leave to amend.

Moving Party to give notice.

Defendant’s Request for Judicial Notice is GRANTED. (Cal. Ev. Code §452.)

Plaintiff ANDRES GALLEGOS (“Plaintiff”) was injured in a car accident on July 22, 2021. This action was filed on July 27, 2023. Plaintiff’s Complaint asserts the following two causes of action: (1) General Negligence; and (2) Motor Vehicle Negligence.

Demurrer

Defendant SULLY-MILLER CONTRACTING COMPANY (“Defendant”) generally demurs on the basis that Plaintiff’s claims are barred by the statute of limitations.

Under CCP §335.1, the statute of limitations for “injury to, or for the death of, an individual caused by the wrongful act or neglect of another” is two years. “Where the complaint discloses on its face that the statute of limitations has run on the causes of action stated in the complaint, it fails to state fact sufficient to constitute a cause of action.” (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) However, 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.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

Here, Plaintiff alleges that the Subject Accident occurred on July 22, 2021. This action was filed on July 27, 2023—which is more than two years later. The face of the complaint shows that this action is barred under CCP §335.1.

In Opposition, Plaintiff argues that the doctrine of equitable tolling applies. Notwithstanding, Plaintiff’s arguments in Opposition are not facts actually alleged within the four walls of the operative pleading. The Demurrer is SUSTAINED with 30 days leave to amend to enable Plaintiff the opportunity to plead additional facts related to equitable tolling, if possible.

Motion to Strike

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP §436.)

As of April 2, 2024, no Opposition has been filed to the Subject Motion to Strike, seemingly in concession on the merits. The unopposed motion to strike punitive damages is GRANTED without leave to amend. Moreover, the Complaint fails to plead facts that support a recovery of punitive damages because only nondeliberate (i.e. negligent) conduct is alleged.