Judge: Michelle C. Kim, Case: 22STCV27788, Date: 2023-05-24 Tentative Ruling

Case Number: 22STCV27788    Hearing Date: May 24, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Jorge Hernandez (“Plaintiff”) filed this action on August 25, 2022, alleging his sole cause of action for motor vehicle negligence against Defendants Kenneth Orlando Thompson and Ricky Bledsoe dba LA Blue Plumbing Heating & AC (“Bledsoe”) based on a motor vehicle accident that occurred on February 28, 2020.

            Bledsoe, at this time, demurs to the Complaint on the grounds that it fails to state a cause of action under Code of Civil Procedure section 430.10(e), specifically on the grounds that Plaintiff’s claim is time-barred under Code of Civil Procedure section 335.1. Plaintiff has opposed the motion and Bledsoe has replied.

2. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, supra, 116 Cal.App.4th at p. 994.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

a. Meet and Confer

            The Court notes that, although counsel for the parties exchanged e-mail communications with each other regarding the issue underlying this demurrer, (Ashley Decl., ¶ 1, Ex. 2), there does not appear to have been any discussions in person or by telephone, as is required under Code of Civil Procedure section 430.41(a). While the Court may not overrule a demurrer for inadequately meeting and conferring, (CCP § 430.41(a)(3)(B)(4)), the Court nevertheless admonishes the parties to fully comply with these requirements going forward.

b. Analysis

The applicable statute of limitation and method of computation are as follows:

“Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” (CCP § 335.1) “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” (Id. § 12; Civ. Code § 10 [same].) The statute of limitations for personal injury claims is computed the same as any other procedural statute under Code of Civil Procedure sections 12, 12a, and 12b. (B. When to Sue—Statute of Limitations, Cal. Prac. Guide Pers. Inj. Ch. 5-B.) “’Year’ means a period of 365 days; ‘half year,’ 182 days; ‘quarter of a year,’ 91 days. The added day of a leap year, and the day immediately preceding, if they occur in any such period, shall be reckoned together as one day.” (Gov't Code § 6803.)

Bledsoe demurs to the Complaint on the grounds that Plaintiff’s sole cause of action for motor vehicle negligence is time-barred under Code of Civil Procedure section 335.1. Bledsoe contends that the deadline for Plaintiff to file this action was August 24, 2022, based on the accident occurring on February 28, 2020 and Emergency Rule 9 promulgated during the COVID-19 pandemic, the latter of which tolled the applicable statute of limitations here between April 6, 2020 and October 1, 2020, for a total of 179 days. Bledsoe computes the deadline as beginning on February 28, 2020 until April 5, 2020 for a total of 38 days, tolling for 179 days between April 6, 2020 and October 1, 2020, and then resuming for 692 days until August 24, 2022. Given that Plaintiff filed this action on August 25, 2022, Bledsoe contends Plaintiff was one day too late.

In opposition, Plaintiff contends that Bledsoe miscalculates by basing his time computation from February 28, 2020, when it should be based on February 29, 2020 per Code of Civil Procedure section 12, which excludes the initial day from the computation. In reply, Bledsoe contends the first-day exclusion rule under Code of Civil Procedure section 12 does not apply here because if that day is excluded then the statute of limitation is being calculated from the day after, which is a subsequent point in time, instead of being calculated from the day the injury accrued.

The Court believes that Bledsoe is incorrect. The first-day exclusion rule under Code of Civil Procedure section 12 applies to personal injury actions. (B. When to Sue—Statute of Limitations, Cal. Prac. Guide Pers. Inj. Ch. 5-B [“The exact time is computed as under any other procedural statute: The first day is excluded and the last day is included; and if the last day is a Saturday, Sunday or holiday, plaintiff has until the next business day to file.”] [italics in original] citing CCP §§ 12, 12a, 12b, Tran v. Fountain Valley Community Hospital (1997) 51 Cal.App.4th 1464, 1466-67, and Bellamy v. Appellate Dept. of Sup. Ct. (Central Valley Gen. Hosp.) (1996) 50 Cal.App.4th 797, 800.)

The Court believes that Plaintiff is also incorrect, although the error is in Plaintiff’s favor. 2020 was a leap year and the law disregards leap year days for computational purposes, so February 29, 2020 does not exist for purposes of computing the statute of limitations here. (Gov’t Code § 6803 [“The added day of a leap year, and the day immediately preceding, if they occur in any such period, shall be reckoned together as one day.”) [emphasis added].) The proper date for computation is March 1, 2020. 730 days, i.e., two years, from March 1, 2020 is March 1, 2022. 179 of those days were tolled under Emergency Rule 9, which means that the deadline for Plaintiff to file this action would be August 27, 2022, but that day was a Saturday, which means Plaintiff would have had until the next business day of Monday, August 29, 2022 to file this lawsuit. (CCP §§ 10, 12a.) Viewed another way, there are 36 days between March 1, 2020 and April 5, 2020, which leaves 694 days starting on October 2, 2020, which again results in a deadline of August 29, 2022 since August 27, 2022 was a Saturday.

Therefore, the Court finds that Plaintiff’s claim is not time-barred. Bledsoe’s demurrer is OVERRULED. The Court orders Bledsoe to file an Answer to the Complaint within 10 days of the date of this order.

Bledsoe to give notice.

PLEASE TAKE NOTICE:

·       Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

·       If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

·       Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue. 

·       If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Dated this 24^th day of May, 2023