Judge: Lynne M. Hobbs, Case: 22STCV02045, Date: 2023-09-27 Tentative Ruling
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Case Number: 22STCV02045 Hearing Date: February 28, 2024 Dept: 30
MARISOL SERRANO, et al. vs JOSE ADAN ALARCON GONZALEZ
TENTATIVE
Defendant’s demurrer is OVERRULED. Plaintiff is ordered to give notice.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)
Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code of Civ. Proc. § 430.41.)
Discussion
i. Meet and Confer
The Court finds the meet and confer requirement has been met. (Schmitt Decl.)
ii. Merits
Defendant argues that the FAC fails to plead sufficient facts to state a cause of action for negligence because the cause of action is time-barred. A demurrer lies where the dates alleged in the complaint show the cause of action is barred by the statute of limitations. (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) The running of the statute must appear “clearly and affirmatively” from the face of the complaint. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4h 32, 42.)
The statute of limitations on a cause of action for negligence is two years. (Code Civ. Proc., § 335.1.) The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) In general, a statute of limitations begins to run “when the cause of action is complete with all of its elements,” namely, wrongdoing, causation, and resulting harm. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 (Norgart).)
Here, Plaintiff’s first amended complaint (FAC) alleges that Defendant struck Serrano on July 16, 2019. Under the applicable statute of limitations, Plaintiff’s deadline to file her complaint was July 16, 2021. Plaintiff’s Complaint was filed on January 18, 2022, which falls after two years from the date of the alleged injury. The Judicial Council issued Emergency Rule 9 on April 6, 2020, which allowed the time to file the Complaint to be tolled from April 6, 2020, until October 1, 2020. Thus, Plaintiff would have had to file the complaint by January 10, 2022.
The delayed discovery rule “. . . postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Fox, supra, 35 Cal.4th at p. 807.) “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’” (Ibid. (citation omitted).) “Rather than examining whether the plaintiff[] suspect[s] facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiff[ has] reason to at least suspect that a type of wrongdoing has injured [her].” (Ibid.)
“In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of the discovery and (2) the inability to have made earlier discovery despite reasonable diligence. [Citation.] In assessing the sufficiency of the allegations of the delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’” (Id. at p. 808 (citations omitted).)
Here, as to delayed discovery, the FAC alleges that Plaintiff went to the ER for evaluation, but was quickly released with nothing more than an as-needed prescription for over the counter painkillers. Thus, between July 16 and July 24, Plaintiff initially assumed she had escaped without actual Injuries.
However, that changed on July 25th, when a physical exam and X-rays revealed, “fixation subluxations in several segments," of her spine consistent with “Post-Traumatic Sprain/strain of the cervical spine."
The FAC further alleges that Plaintiff had delayed discovery, therefore, a reasonable jury could find Serrano's claim did not actually accrue-- and her two-year limitations period did not begin to run until July 25, 2019.
Viewing the allegations of the FAC liberally and in context, Plaintiff’s allegations regarding when she found out about her injuries are sufficient, at this stage of the proceedings, to constitute facts regarding the time and manner of discovery and her inability to have made earlier discovery despite reasonable diligence. (See McKelvey, supra, 40 Cal.4th at p. 637.) Although Plaintiff will be required to prove that her claims are not barred by the statute of limitations at a later point of the proceedings with evidence, on demurrer, these allegations suffice.
As alleged, Plaintiff’s cause of action accrued on July 25, 2019. After adding the period of time the statute of limitations was tolled under Emergency Rule 9, Plaintiff’s deadline to file the complaint would have been January 19, 2022. As noted above, Plaintiff filed the complaint on January 18, 2022.
Lastly, while Defendant argues that the delayed discovery rule only applies to a cause of action for medical malpractice, Defendant offers no legal authority for this assertion and the Court is aware of none. Further, in the supplemental brief, Plaintiff points to Daley v. Regents of Univ. of Cal. (2019) 39 Cal.App.5th 595, 606, which specifically held that the delayed discovery rule applied to the statute of limitations at issue, Code of Civil Procedure section 335.1. The Court in Daley stated:
“Section 335.1, defining the limitations period for battery, does not specify whether commencement of the period may be postponed due to the plaintiff's lack of discovery. While the discovery rule is sometimes expressly incorporated in some form into a statute (see, e.g., § 340.5), it may also be applied by the courts based on common law. (Norgart, supra, 21 Cal.4th at p. 397.) In fact, courts have often been the first to announce the application of the discovery rule to a genre of claims, with the Legislature later codifying the rule into a statute. (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1429–1430, 131 Cal.Rptr.2d 684.) Where a statute is silent as to the accrual of a cause of action, there is a "presumption in favor of permitting settled common law accrual rules to apply," including equitable exceptions to the general rule. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1193.) Put another way, " ‘ "[u]nless expressly provided, statutes should not be interpreted to alter the common law, and should be construed to avoid conflict with common law rules." ’ " (Ibid.)
(Daley, supra, 39 Cal.App.5th at 603.) As such, Defendant’s argument is rejected.
Conclusion
Based on the foregoing, Defendant’s demurrer is OVERRULED.