Judge Lynette Gridiron Winston, Case Number: 23PSCV03482, Date: 2024-02-06 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV03482, Date: 2024-02-06 Tentative Ruling

Case Number: 23PSCV03482 Hearing Date: February 6, 2024 Dept: 6

CASE NAME: Xinting Li Chan v. Perla Gu

Defendant’s Demurrer to Plaintiff’s Complaint

TENTATIVE RULING

The Court OVERRULES Defendant’s demurrer to Plaintiff’s complaint.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a dog-bite case. On November 8, 2023, plaintiff Xinting Li Chan (Plaintiff) filed this action against defendant Perla Gu (Defendant) and Does 1 to 10, alleging causes of action for general negligence and premises liability.

On January 5, 2024, Defendant filed a demurrer to the complaint. On January 24, 2024, Plaintiff opposed the motion. On January 26, 2024, Defendant replied.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

REQUESTS FOR JUDICIAL NOTICE

The Court DENIES Defendant’s requests for judicial notice. None of the documents requested for judicial notice fall under the categories enumerated in Evidence Code sections 451 or 452. (See Evid. Code §§ 451-452.) Additionally, even if the Court were to take judicial notice of the requested documents, it would only be as to “the existence, content and authenticity of public records and other specified documents”; it would not take notice of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

DISCUSSION

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), Defendant was required to meet and confer with Plaintiff before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) Defendant provided no declaration indicating whether the parties met and conferred. (Id., § 430.41, subd. (a)(3).) The Court finds Defendants’ efforts to meet and confer insufficient. Nevertheless, the Court may not overrule the demurrer for failure to adequately meet and confer. (Id., § 430.41, subd. (a)(4).) The Court also notes that Plaintiff did not raise this issue in the opposition. The Court will still consider Defendant’s demurrer, but admonishes Defendant to comply with the requirements of the California Rules of Court going forward.

Statute of Limitations

The statute of limitations for a personal injury action is two years from the date of the injury. (Code Civ. Proc., § 335.1.) A demurrer based on the statute of limitations only lies where the dates are shown on the face of the complaint. (Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25.) The phrase “on or about” is sufficient to overcome a demurrer based on the statute of limitations. (Childs v. State of California (1983) 144 Cal.App.3d 155, 159-160.)

Defendant demurs to all causes of action in the complaint on the grounds that they fail to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.41, subd. (e).) Specifically, Defendant contends both causes of action are time-barred under Code of Civil Procedure section 335.1. Defendant cites various documents and correspondence referencing the date of October 19, 2021, as the actual date of the incident, not November 9, 2021, as alleged in the complaint. (Demurrer, Exs. 1-5; Compl., GN-1, Prem.L-1.) Defendant concludes that since Plaintiff filed the complaint on November 8, 2023, it is arguably time-barred. The Court disagrees.

As noted above, and as Plaintiff correctly argues in opposition, the documents Defendant submitted with the demurrer are not subject to judicial notice. (See Evid. Code §§ 451-452.) Accordingly, those documents are beyond the scope of this demurrer and the Court may not consider them. (Blank, supra, 39 Cal.3d at p. 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) This leaves only the allegations of the complaint for the Court to consider.

The Court assumes the facts alleged in the complaint to be true for purposes of a demurrer. (Donabedian, supra, 116 Cal.App.4th at p. 994.) Plaintiff alleges that the incident occurred on or about November 9, 2021. (Compl., GN-1, Prem.L-1.) The complaint contains no other allegations regarding the date of the incident. Thus, the Court assumes at this stage of the action that the incident occurred on or about November 9, 2021. Additionally, the “on or about” phrase has been found to be sufficient as a matter of law to overcome a demurrer based on the statute of limitations. (Childs, supra, 144 Cal.App.3d at pp. 159-160.)

Moreover, even if the Court had granted Defendant’s request for judicial notice, it would not necessarily result in the Court sustaining the demurrer. Judicial notice would only have been taken as to “the existence, content and authenticity of public records and other specified documents,” not the truthfulness of the factual matters asserted in those documents. (Dominguez, supra, 87 Cal. App. 5th at p. 400.) Just because Defendant’s documents mention the date of October 19, 2021, as the date of the incident does not necessarily mean as a matter of law that it occurred on that date. Those documents would at most create a factual dispute, and a demurrer is not the appropriate procedure for determining the truth of disputed facts. (Panterra GP, Inc. v. Superior Court of Kern County (2022) 74 Cal. App. 5th 697, 709.)

Based on the foregoing, the Court OVERRULES the demurrer.

CONCLUSION

The Court OVERRULES Defendant’s demurrer to Plaintiff’s complaint.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.