Judge: Michael E. Whitaker, Case: 21STCV40502, Date: 2023-03-01 Tentative Ruling

Case Number: 21STCV40502    Hearing Date: March 1, 2023    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 Kevin Sergio Toscano (Plaintiff) sued Defendants Victor Ramon Dominguez Toscano, and GJ United Group, Inc. dba Ibiza Night Club and Restaurant (collectively, Defendants) based on injuries Plaintiff allegedly sustained during a physical altercation outside of a nightclub.   Defendant GJ United Group, Inc. dba Ibiza Night Club (GJ United) moves for judgment on the pleading on Plaintiff’s First Amended Complaint (FAC).  The motion is unopposed. 

ANALYSIS

A motion for judgment on the pleadings has the same function as a general demurrer, but may be made after the time to demur has expired. (Code Civ. Proc., § 438, subd. (f).)  “Like a demurrer, the grounds for the motion [for judgment on the pleadings] must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1013.)  In ruling on a motion for judgment on the pleadings, “[a]ll allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true.” (Rippon v. Bowen (2008) 160 Cal.App.4th 1308, 1313.) 

Here, Plaintiff’s FAC alleges causes of action for intentional tort, general negligence, and premises liability based on a single incident that occurred on “May 2-3, 2019.”  (FAC, pp. 4-6.)

The statute of limitations on causes of action for personal injuries is two years. (Code Civ. Proc., § 335.1.)  Such causes of action accrue upon the occurrence of the last act necessary to complete the cause of action. (Code Civ. Proc., § 312 [“Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute”]; see generally Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-809 [“Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements”].)  For example, “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834 [cleaned up].)  Accordingly, the statute of limitations on Plaintiff’s personal injury claims would have normally run on May 3, 2021.

But GJ United argues Plaintiff’s complaint is untimely even when Judicial Council Emergency Rules of Court, rule 9 (hereafter Rule 9), is applied.   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 August 3, 2020.” (Cal. Rules of Court, Emergency rule 9, subds. (a)-(b).)

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”].) Thus, the applicable tolling period of 178 days began to run on Plaintiff’s claim on May 3, 2021, and ended on October 28, 2021.

The Court notes Plaintiff filed his complaint on November 3, 2021, or 6 days after the end of the limitations period as extended by Rule 9.  The Court therefore concludes Plaintiff’s complaint, on its face, is untimely and his causes of action for personal injuries are barred by the statute of limitations under Code of Civil Procedure section 335.1. 

CONCLUSION AND ORDER

Therefore, the Court grants GJ United’s motion for judgment on the pleadings per Code of Civil Procedure section 438, without leave to amend. [1]

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