Judge: Lisa R. Jaskol, Case: 23STCV15705, Date: 2023-09-21 Tentative Ruling
Case Number: 23STCV15705 Hearing Date: November 13, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On July 6, 2023, Plaintiffs Andrew Lopez and Jessica Valenzuela filed this action against Defendants Khachik Gumuryan (“Gumuryan”), Lankershim Towing (“Towing”), and Does 1-100 for motor vehicle and general negligence.
On September 8, 2023, Plaintiffs filed a first amended complaint against Gumuryan, Towing, and Does 1-50 for negligence, negligent hiring, retention, supervision, and training, and negligent entrustment.
On October 3, 2023, Gumuryan and Towing (“Defendants”) filed a demurrer to be heard on November 13, 2023. On October 30, 2023, Plaintiffs filed an opposition. On November 3, 2023, Defendants filed a reply.
Trial is currently scheduled for January 2, 2025.
PARTIES’ REQUESTS
Defendants request that the Court sustain the demurrer.
Plaintiffs request that the Court overrule the demurrer.
LEGAL STANDARD
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
* * *
In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].)
“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).” (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).)
DISCUSSION
A. The complaint
In their first amended complaint Plaintiffs allege the following:
1. The accident
On June 29, 2021, while acting within the scope and course of his employment for Towing, Gumuryan negligently caused a collision between the tow truck he was driving and Plaintiffs’ vehicle on the 101 freeway.
“Upon the low impact collision, Plaintiffs were marginally thrusted forward, and did not experience any immediate or substantial pain, to the extent that neither Highway Patrol nor any emergency medical responders were contacted.” (First Amended Complaint ("Complaint") ¶ 17.)
2. Valenzuela
On June 30, 2021, Valenzuela decided to undergo a medical evaluation at a nearby hospital because she had begun to experience slight pain in her neck, back, and hip, which she believed was due to muscle soreness given the low impact of the collision. At this time, Valenzuela did not believe that this was result of a long-lasting and/or permanent injury caused by the collision. Valenzuela was examined and was diagnosed with no obvious trauma or any permanent injury other than mild sclerosis that was consistent with degenerative change. Valenzuela was discharged on the same day and was told to take over the counter pain medication for her slight muscle soreness. (Complaint ¶ 19.)
On July 2, 2021, believing that her continued slight pain was merely due to muscle soreness, Plaintiff sought further medical evaluation at another hospital. Valenzuela’s diagnosis was consistent with the prior June 30, 2021, diagnosis. No obvious trauma or permanent injury were identified other than the chronic degenerative issues involving her back and muscle soreness and spasms that the prior medical evaluation and diagnosis had previously confirmed. (Complaint ¶ 20.)
On July 7, 2021, Valenzuela saw a chiropractor because she had begun to experience acute and distressing pain in her shoulder, hips, lower back, and sporadic severe headaches. (Complaint ¶ 21.)
On September 22, 2021, Valenzuela received a positive diagnosis from her chiropractor of severe, long-lasting, and potentially permanent injuries to her cervical, lumbar, and thoracic spine. These findings were subsequently confirmed by the physician she consulted afterwards as latent injuries emanating from the June 30, 2021, collision. (Complaint ¶ 22.)
3. Lopez
On June 30, 2021, Lopez underwent a medical evaluation at a local urgent care because he had begun to experience slight pain in his neck and back, which at that time he believed was due to muscle soreness given the low impact of the collision. At this time, Lopez did not believe that this was result of a long-lasting and/or permanent injury caused by the collision. Lopez was examined and diagnosed with no obvious trauma or permanent injury other than muscle soreness and spasms consistent with the low impact of the collision. Lopez was discharged the same day and was given NSAID medication for his slight muscle soreness. (Complaint ¶ 25.)
Later, Lopez began to experience acute and distressing pain in his neck and lower back, an inability to turn his neck, and radiating pain and numbness that would intermittently spread into his legs. This alarming development compelled Lopez to seek further medical intervention and consult with a physician. (Complaint ¶ 26.)
On August 11, 2021, Lopez received a diagnosis by his physician of severe, long-lasting, and potentially permanent injuries to his cervical and lumbar spine, lower and upper extremity radiculopathy, and post traumatic disc bulging, as latent injuries emanating from the June 30, 2021 collision. (Complaint ¶ 27.)
B. The demurrer
Defendants argue that Plaintiffs’ complaint, filed July 6, 2023, is barred by the two-year statute of limitations for negligence claims, which ran on June 29, 2023.
C. Opposition
Plaintiffs argue “the delayed discovery rule tolls the June 29, 2023, statute of limitations for Plaintiff Valenzuela, to either July 7, 2023, or September 22, 2023, based on her discovery of her latent and now permanent injuries that were only discovered through reasonable diligence and manifestation of symptoms in the weeks following the June 29, 2021, low-impact collision . . . .” (Opposition p. 6.)
Plaintiffs argue the delayed discovery rule tolls the June 29, 2023 statute of limitations for Lopez to August 11, 2023 “based on his discovery of his latent and now permanent injuries that that were only discovered through reasonable diligence and manifestation of symptoms in the weeks following the June 29, 2021, low-impact collision . . . .” (Opposition p. 6.)
D. Analysis
“Where a demurrer raises the bar of the applicable statute of limitations, the court assesses whether ‘ “the complaint shows on its face that the statute bars the action.” ’ ” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 174 (Czajkowski), quoting E–Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315 (E-Fab).) “Such a defect ‘ “must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” [Citations.]’ ” (Ibid., quoting E-Fab, supra, 153 Cal.App.4th at p. 1316.)
When a plaintiff relies on the discovery rule as an excuse for an apparently belated filing of a complaint, “ ‘ “the burden of pleading and proving belated discovery of a cause of action falls on the plaintiff.” ’ ” (Czajkowski, supra, 208 Cal.App.4th at p. 174, quoting Investors Equity Life Holding Co. v. Schmidt (2011) 195 Cal.App.4th 1519, 1533.)
“More specifically, to overcome an apparent limitations bar, the plaintiff claiming delayed discovery of the facts constituting the cause of action has the burden of setting forth pleaded facts to show ‘ “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. The burden is on the plaintiff to show diligence, and conclusory allegations will not withstand demurrer.” ’ ” (Czajkowski, supra, 208 Cal.App.4th at p. 175, quoting E–Fab, Inc., supra, 153 Cal.App.4th 1308, 1324.)
“ ‘[T]he infliction of appreciable and actual harm, however uncertain in amount, will commence’ the running of the statute of limitations.” (Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 642, quoting Davies v. Krasna (1975) 14 Cal.3d 502, 514 (Davies).) “Davies v. Krasna, which first announced the appreciable harm rule, was concerned that a plaintiff not delay bringing an action until there was ‘a more certain proof of damages’ . . . .” (Id. at p. 644, quoting Davies, supra, 14 Cal.3d at p. 515.)
Here, Plaintiffs sought medical attention on June 30, 2021, the day after the collision, because they were experiencing what they describe as “slight pain” in their necks and backs and in Valenzuela’s hip. Plaintiffs attributed their pain to muscle soreness given the low impact of the collision. They did not believe the collision had caused long-lasting or permanent injuries. (Complaint ¶¶ 19, 25.)
Accordingly,
the facts alleged in the complaint show that Plaintiffs suffered appreciable
harm within one day of the collision and they attributed this harm to the
collision. Although the extent of the
injuries became clear only later, their claims accrued on June 30, 2021, when
they experienced appreciable harm. Plaintiffs
filed their complaint more than two years after June 30, 2021. Therefore, the statute of limitations bars
the complaint.
“It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action.” (Cal. Practice Guide, supra, ¶ 7:129.1, p. 7(l)-60.) “But the court should deny leave to amend where the facts are not in dispute and no liability exists under substantive law.” (Id., p. 7(l)-61.) “It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading.” (Id., ¶ 7:130, p. 7(l)-61.)
Although
Plaintiffs request leave to amend, they have not explained how they could amend
the complaint to avoid the limitations problem created by the current complaint’s
allegations. The Court therefore
sustains the demurrer without leave to amend.
CONCLUSION
The Court SUSTAINS the demurrer of Defendants Khachik Gumuryan and Lankershim Towing to the first amended complaint of Plaintiffs Andrew Lopez and Jessica Valenzuela without leave to amend.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.