Judge: Michael E. Whitaker, Case: 22STCV32658, Date: 2023-01-12 Tentative Ruling

Case Number: 22STCV32658    Hearing Date: January 12, 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 Gerardo Jimenez Ramirez (Plaintiff) sued Defendant G&M Oil Company, Inc. (Defendant) based on a slip and fall incident.  Defendant demurs to the entire complaint as time barred.  Plaintiff opposes the demurrer.  Defendant replies.

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  A demurrer lies where the dates alleged in the complaint show the cause of action is barred by the statute of limitations.  (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.)  The running of the statute must appear “clearly and affirmatively” from the face of the complaint. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4h 32, 42.) 

The statute of limitations on causes of action for negligence and premises liability is two years.  (Code Civ. Proc., § 335.1.)  Claims for negligence and premises liability accrue upon occurrence of the last act necessary to complete the cause of action.  (Code Civ. Proc., § 312; see generally Fox v. Ethicon Endo-Surgery, Inc. (2005) 34 Cal.4th 797, 806-809.)

Here, Defendants argue both the first cause of action for negligence and the second cause of action for premises liability in Plaintiff’s complaint are time-barred.  In particular, Defendant asserts the complaint alleges the subject incident underlying Plaintiff’s claims occurred on October 4, 2020, and Plaintiff filed the complaint on October 5, 2022, after the applicable statute of limitations had run. 

In opposition, Plaintiff does not dispute that the complaint is untimely.  Instead, Plaintiff contends he filed the complaint only one calendar day after the statute had run due to counsel for Plaintiff’s inadvertence.  Plaintiff thus seeks relief under Code of Civil Procedure section 473, subdivision (a)(1), requesting the Court to permit the complaint to be filed after the expiration of the statute of limitations for counsel’s failure to meet the statutory deadline. 

Under Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”  (Code Civ. Proc., § 473, subd. (a)(1).) 

But nothing in Sections 335.1 and 473 vests the Court with the authority to expand the statute of limitations to bring a cause of action or excuse an untimely filing due the inadvertence or mistake of counsel.  (See Santa Monica College Faculty Assn. v. Santa Monica Community College Dist. (2015) 243 Cal.App.4th 538, 545 [“section 473 cannot be relied upon to excuse a party's failure to comply with a jurisdictional statute of limitations”]; see also Hanooka v. Pivko (1994) 22 Cal.App.4th 1553, 1561 [“Where the statute lacks an explicit provision for extension, it must be inferred the Legislature did not intend to permit relief on grounds of good cause or under section 473”].)  Consequently, the Court finds that Section 473 relief is unavailable.

CONCLUSION AND ORDER

The Court concludes Plaintiff’s complaint, on its face, is barred by the statute of limitations, and sustains Defendant’s demurrer to Plaintiff’s complaint, without leave to amend.[1]

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