Judge: Mark A. Young, Case: 22SMCV00212, Date: 2023-01-31 Tentative Ruling

Case Number: 22SMCV00212    Hearing Date: January 31, 2023    Dept: M

CASE NAME:           Farrell, et al., v. Darshad, et al.

CASE NO.:                22SMCV00212

MOTION:                  Demurrer to the Complaint

HEARING DATE:   1/31/2023

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. 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

            A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

            Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

            “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) 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. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) 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.)

REQUEST FOR JUDICIAL NOTICE

Plaintiff’s request for judicial notice is GRANTED.

Analysis

Fiola’s Cause of Action

Plaintiff Fiola has been dismissed. Therefore, the demurrer as to Fiola’s cause of action is moot.

Statute of Limitations

Defendant Goldie Marshall (as personal representative of the Estate of Henry Darshad) demurs on the grounds that the causes are barred by a one-year statute of limitations. Code of Civil Procedure section 366.2 provides, in pertinent part, as follows:

(a) If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.

(b) The limitations period provided in this section for commencement of an action shall not be tolled or extended for any reason except as provided in any of the following, where applicable:

[¶]

(2) Part 4 (commencing with Section 9000) of Division 7 of the Probate Code (creditor claims in administration of estates of decedents)…

(Emphasis added.)

Probation Code section 9351 relevantly provides that “[a]n action may not be commenced against a decedent’s personal representative on a cause of action against the decedent unless a claim is first filed as provided in this part and the claim is rejected in whole or in part. The filing of a claim tolls the statute of limitations.” Furthermore, Probation Code section 9353(a) states:

“Regardless of whether the statute of limitations otherwise applicable to a claim will expire before or after the following times, a claim rejected in whole or in part is barred as to the part rejected unless, within the following times, the creditor commences an action on the claim or the matter is referred to a referee or to arbitration:

(1) If the claim is due at the time the notice of rejection is given, 90 days after the notice is given.

(2) If the claim is not due at the time the notice of rejection is given, 90 days after the claim becomes due.”

            Here, Decedent died more than a year prior to filing this action. Thus, the statute of limitations would bar any causes of action filed more than one year after Decedent’s death, absent allegations supporting statutory or equitable tolling. (See Dacey v. Taraday (2011) 196 Cal.App.4th 962, 979-986; Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847-48.) This statute furthers the strong public policy of expeditious and final estate administration. (Bradley v. Breen (1999) 73 Cal. App. 4th 798, 805 [plaintiff’s right of indemnity against a defendant is lost if not claimed within 1 year of the defendant’s death, even if the right of indemnity could not have been claimed sooner].)

The allegations and the judicially noticeable documents demonstrate that the statute of limitations was tolled by a creditor’s claim. On October 21, 2021, Marshall received a Creditor’s Claim seeking $550,000 against the Estate for malicious prosecution. The claim was based on the following facts: “[T]he Decedent, and his Attorney Lorrain Anderson filed a frivolous and false claim that [Plaintiffs] were ‘squatters, forgers and thieves’… Together Darshad and Anderson maliciously prosecuted the claims to trial denying that there was a valid lease agreement in place and asserted that Farrell and other tenants drilled the locks to the premises … and took possession… Goldie Marshall, through a Special Power of Appointment, substituted in place of Henry Darshad and continued to prosecute the false claims of forcible detainer and forcible entry against Farrell/Schreiber. She testified as a witness against Farrell/Schreiber.” (Plaintiff’s RJN Ex. 10, emphasis added.) This creditor’s claim requests compensation for the torts underlying the instant malicious prosecution/IIED action. This claim therefore tolls the statute of limitations per Code of Civil Procedure section 366.2(b)(2) and Probation Code section 9100 et seq.

Based on the noticed documents, Plaintiff had at least 90 days from a notice of rejection of their creditor’s claim. Until a rejection was given on that claim, the statute of limitations is tolled. There is no allegation or noticeable document that suggests a rejection was given by the Estate. The Court therefore cannot conclude that the cause of action is barred by the statute of limitations. (See Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal. 4th 769, 781 [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].)

Defendant argues that the above provisions of the probate code do not apply because the creditor’s claims only seek liability “arising out of already adjudicated unlawful detainer actions” and are “wholly unrelated to the current litigation.” However, the facts asserted by the creditor’s claim clearly state that the claim was for malicious prosecution for the underlying unlawful detainer action.

            Accordingly, Defendant’s demurrer is OVERRULED.

Punitive Damages

Defendant moves to strike the punitive damages request.

In an action or proceeding against a decedent's personal representative or, to the extent provided by statute, against the decedent's successor in interest, on a cause of action against the decedent, all damages are recoverable that might have been recovered against the decedent had the decedent lived except damages recoverable under Section 3294 of the Civil Code or other punitive or exemplary damages.

(CCP § 377.42.)

Based on this statute, any claim of punitive damages against the Estate or Ms. Marshall in her representative capacity would fail as a matter of law. Therefore, to the extent that the Complaint requests punitive damages against Ms. Marshall as representative of the Estate, the claims must be stricken.

Plaintiff notes that Ms. Marshall may still be liable personally for punitive damages. Defendant counters that Ms. Marshall is not named in her personal capacity. Defendant is mistaken. The complaint alleges that Plaintiffs bring claims against Marshall “in her personal and representative capacity as the Executrix of the Estate[.]” (Compl., ¶ 1.) The complaint alleges that Marshall continued to prosecute the actions against Plaintiff without reasonable grounds. (See Compl., ¶ 43.) Code of Civil Procedure section 377.42 would not protect Ms. Marshall, individually, from punitive damages.

Accordingly, Defendant’s motion to strike is GRANTED without leave as to the punitive damages claim against Marshall as representative of the Estate only.