Judge: Margaret L. Oldendorf, Case: 22AHCV01035, Date: 2023-05-05 Tentative Ruling

Case Number: 22AHCV01035    Hearing Date: May 5, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

            I.         INTRODUCTION

            This is an Unruh action. The facts concern the lease of a vehicle by Plaintiffs. They allege that California Auto Resources Service, Inc.’s (CARS) employee Andy Yan made comments to Plaintiff Boxiang Liu reflecting animus based on his gender identity and gender expression and that Yan made physical threats to Plaintiff Chengguang Wu.     

            Before the Court is a motion for an order striking CARS’s demurrer and entering its default. Because the demurrer was timely filed the motion is denied.

II.        LEGAL STANDARD

            Code Civ. Proc. §435(b)(1) and (3) provide authority to strike a demurrer. It requires that such motion be filed within the time to respond to the demurrer (at least nine court days prior to the hearing). And it requires the motion be set for hearing concurrently with the demurrer. The motion fails to comply with this second requirement.

III.      ANALYSIS

            The basis for this motion is the timing of CARS’s demurrer. Plaintiffs argue that it was filed beyond the 30 day deadline provided by Code Civ. Proc. §430.40(a). The First Amended Complaint was filed February 28, 2023. According to the proof of service attached thereto, it was electronically served on defense counsel that same day.

            Code Civ. Proc. §12 provides the rule for computing the “time in which any act provided by law is to be done.”[1] As Plaintiffs note, the time provided by law to respond to a demurrer is thirty days. According to §12, that thirty day time period is computed by excluding the first day (February 28) and including the last (March 30); unless the last day is also a holiday and then it is also excluded. Additionally, because the pleading was served electronically, the time to respond was extended by two court days. Code Civ. Proc. §1010.6(a)(3)(B). In other words, the time to respond was extended two court days beyond March 30, 2023.

            March 31 was a holiday and April 1 and April 2 were weekend days; none were court days. Thus, the two-court day extension began April 3 and ended April 4, allowing CARS until April 4 to file its demurrer. As the demurrer was in fact filed on April 4, 2023, it is timely. There is no basis to strike it.

            In their reply Plaintiffs indicate that they seek guidance as to whether the two court days are counted at the “front” or “back” end. The answer has to do with how the time is counted. When the computation concerns the time in which any act is to be done, time is counted forward (Code Civ. Proc. §12); with extensions tacked onto the end of the time period. When the computation of time concerns notice of a hearing, time is counted backwards (Code Civ. Proc. §12c); with extensions tacked on at the front (which is essentially what Plaintiffs are calling “front end” counting).

IV.      ORDER

            Plaintiffs’ motion to strike the demurrer is denied.  It remains on calendar for June 7, 2023.

            Defendant is ordered to give notice of this ruling.

Dated:                                                                        _______________________________

                                                                                          MARGARET OLDENDORF

                                                                                 JUDGE OF THE SUPERIOR COURT