Judge: Marcella O. Mclaughlin, Case: 37-2022-00020253-CU-PO-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  PI/PD/WD - Other Motion to Quash (Civil) 37-2022-00020253-CU-PO-CTL KRVAVICA VS SUNCREST VILLAS OWNERS ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Quash Service of Summons, 08/18/2023

A. The Dependable Group's motion to quash service of summons and complaint is DENIED.

'Absent compliance with Code of Civil Procedure section 474, service of a summons on a purported Doe defendant is ineffective.' Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145. Improper service of a defendant under section 474 may be attacked by a motion to quash.

McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375.

In this case, plaintiff did not substitute The Dependable Group for a fictitious Doe defendant. Rather, plaintiff simply named The Dependable Group as a new defendant in the SAC. Thus, plaintiff did not need to comply with section 474 in order to properly serve The Dependable Group.

The Dependable Group argues that the motion should be granted even if section 474 does not apply because the claims against it are barred by the statute of limitations. However, '[a] motion to quash service challenges only the lack of jurisdiction over the person and, when ruling on such a motion, the trial court is not permitted to determine the merits of the complaint.' McClatchy, 247 Cal.App.5th at 375.

B. The Dependable Group's demurrer to the second amended complaint is OVERRULED.

The statute of limitations for a personal injury claim is two years. Code Civ. Proc. § 335.1. However, '[i]n order for the bar of the statute of limitations to be raised by demurrer, 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, the SAC alleges that the accident occurred on December 3, 2021. (SAC at ¶¶ 1, 13.) The court must accept this fact as true. Moreover, although plaintiff now asserts in her opposition brief that the accident occurred on December 3, 2020, the court cannot consider such extrinsic matters when ruling on a demurrer. Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229. Accordingly, the court is unable to conclude on this limited record that the claims against The Dependable Group are time-barred as a matter of law.

C. The Dependable Group must file and serve an answer to the SAC by December 18, 2023.

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