Judge: Michael E. Whitaker, Case: 20STCV29140, Date: 2022-07-26 Tentative Ruling

Case Number: 20STCV29140    Hearing Date: July 26, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Gigi Green sued defendant AMJ & JHL, L.P. based on a trip and fall.  Plaintiff then added defendant Mammo Enterprises, LLC dba Coda Bar (“Mammo”) via Doe Amendment on June 28, 2021.  Mammo moves to strike Plaintiff’s complaint against Mammo.  Plaintiff opposes the motion.

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

Here, the Court grants Defendant’s requests for judicial notice Nos. A-D per Evidence Code section 452, subdivision (d).  The Court notes, however, that while the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in such documents is not necessarily subject to judicial notice. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569.) “A court cannot take judicial notice of the truth of hearsay statements just because they are part of a court record or file.” (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865 [emphasis original].)

ANALYSIS

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (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.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)  “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Code Civ. Proc., § 437, subd. (a).) 

            Mammo moves to strike Plaintiff’s complaint as barred by the statute of limitations. Per Code of Civil Procedure section 335.1, the statute of limitations on a cause of action for personal injury is two years. (Code Civ. Proc., § 335.1.)  Paragraph 8 of Plaintiff’s complaint alleges the subject incident occurred on June 17, 2017.  (Complaint, ¶ 8.)  Accordingly, to be timely, Plaintiff was required to file her complaint by no later than June 17, 2019.  The Court notes that Plaintiff filed the complaint in this action on August 3, 2020. 

            In opposition, Plaintiff argues that the complaint is timely because the parties stipulated to waiver of the statute of limitations defense in Green v. AMJ & JHL, LP (Super. Ct. L.A. County, 2017, No. BC688979).  According to counsel for Plaintiff, Raymond Ghermezian (“Ghermezian”), the parties entered into the stipulation in the prior action because they wished to complete further discovery and participate in mediation, but the Court would not agree to continue trial in the matter.  (Declaration of Raymond Ghermezian, ¶ 5; Exhibit 2.)  Ghermezian states the parties entered the stipulation to preserve their respective interests, including being able to refile the action should they not reach an informal resolution.  (Declaration of Raymond Ghermezian, ¶¶ 5-6.)  Finally, Ghermezian states that the parties’ stipulation erroneously states the year 2020 when it should have stated the year 2021.  (Declaration of Raymond Ghermezian, ¶ 8.) 

That the parties filed a stipulation in Green v. AMJ & JHL, LP (Super. Ct. L.A. County, 2017, No. BC688979) is subject to judicial notice.  (See Evid. Code, § 452, subd. (d).)  However, the Court is unable to delve into and determine the parties’ subjective intent with respect to the terms of the stipulation. 

The parties’ stipulation in Green v. AMJ & JHL, LP (Super. Ct. L.A. County, 2017, No. BC688979) states that the “Defendants agree to waive the two-year statute of limitations defense for one year to June 17, 2020 for Plaintiff to file said personal injury action related to the trip and fall incident which occurred on or about June 17, 2017 at or near 5248 Van Nuys Boulevard, Van Nuys, CA 91401.”  (Declaration of Raymond Ghermezian, Exhibit 2.)  Thus, even per the terms of the parties’ stipulation, Plaintiff’s complaint filed on August 3, 2020 - which is 1 month and seventeen days after the date until which the parties agreed to waive the statute of limitations defense - is untimely. 

At the hearing on the motion on June 7, 2022, Plaintiff raised the argument that the complaint is nevertheless timely per the tolling of the statute of limitations filing actions provided by California Rules of Court Emergency Rule 9 (hereafter “Rule 9”).  The Court invited supplemental briefing on the issue.

Rule 9 provides: “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020. Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until October 1, 2020.” (Cal. Rules of Court, Emergency rule 9, subds. (a)-(b).)

First, Rule 9 does not apply to extend the parties’ stipulation that Plaintiff may have up to  June 17, 2020 to file a complaint related to the June 17, 2019 incident because the parties’ agreement is neither a statute of limitations nor a statute of repose.  It is simply private agreement between the parties that falls outside of the purview of Rule 9 and Plaintiff has not proffered any authority holding otherwise.[1]

Second, in calculating the applicable statute of limitations or repose, the tolling period of 178 days under Rule 9 is tacked onto the end of the limitations period. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370 [“the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of time during which the tolling event previously occurred”].)

As discussed above, Plaintiff was required to file her complaint by no later than June 17, 2019, based on the underlying incident date of June 17, 2017.  But the applicable statute of limitations for filing Plaintiff’s complaint expired 9 months and 20 days before Rule 9’s effective tolling period of April 6, 2020, through October 1, 2020.  The parties’ agreement to waive any statute of limitations defense until June 17, 2020, does not operate to extend the statute of limitations under Code of Civil Procedure section 335.1 to that date such that Plaintiff would be entitled to an additional 178 days after June 17, 2020, to file her complaint. 

CONCLUSION AND ORDER

Therefore, the Court grants the motion to strike Plaintiff’s complaint against Mammo as time-barred, and orders the complaint regarding Mammo, without leave to amend.

The Clerk of the Court shall provide notice of the Court’s ruling and file a proof of service of such.