Judge Mark E. Windham, Case Number: 22STLC02171, Date: 2023-11-30 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

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DEFENDANT IS TO FILE AND SERVE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.

Plaintiff Shan Mao (“Plaintiff”) filed the instant action against Defendant Hassan Mohamed Adan (“Defendant”) on April 1, 2022. Defendant filed an answer on June 17, 2022.

Defendant filed the instant Motion for Summary Judgment on September 11, 2023. No opposition has been filed to date.

The Complaint alleges causes of action for (1) motor vehicle negligence; and (2) general negligence. The action arises out of a motor vehicle accident that occurred on April 4, 2019. (Compl., ¶MV-1.) Defendant allegedly “negligently operated his vehicle so as to crash into plaintiffs storefront, causing major and catastrophic damage to the business premises. As a result of the damage, plaintiff was

required to close her business during the course of repairs, causing loss of income, profit, business, goodwill, & customers, in an amount not less than $25,000.00.” (Id. at ¶GN-1.)

Defendant moves for summary judgment on the grounds that the action is barred by the statute of limitations set forth at Code of Civil Procedure section 335.1 and asserted in the answer filed on June 17, 2022. Defendant moves for summary judgment on the Complaint pursuant to Code of Civil Procedure section 437c. A defendant seeking summary judgment must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff is under no evidentiary burden to produce rebuttal evidence until Defendant meets its initial moving burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 839-840.)

Code of Civil Procedure section 335.1 provides a two-year statute of limitations for “an action for assault, battery, or injury to, or for the death of an individual caused by the wrongful act or neglect of another.” (Code Civ. Proc., § 335.1.) Defendant argues that this statute of limitations applies to “non-property damage related economic loss” due to negligence and that Plaintiff is not claiming any property damage. In support of this, Defendant points to Plaintiff’s own characterization of the damages, namely that “no property damage is claimed.” (Motion, Separate Statement, Fact Nos. 5; Exh. 3 at Nos. 107.1, 108.1; Exh. 4, pp. 24:10- 12 and 44:7-13.) This action, however, was filed more than two years after the April 6, 2019 accident. (Motion, Separate Statement, Fact No. 8; Exh. 1.) This evidence carries Plaintiff’s initial burden of proof to show that the damages sought fall within the two-year statute of limitations and are time-barred. This shifts the burden of proof to Plaintiff to demonstrate the existence of a triable issue of material fact as to the statute of limitations. However, as Plaintiff has not filed an opposition, no such triable issue of material fact exists.

DEFENDANT IS TO FILE AND SERVE A PROPOSED JUDGMENT WITHIN 20 DAYS OF THIS ORDER.