Judge Michelle C. Kim, Case 22STCV36643 2023-03-21 Tentative Ruling

On November 21, 2022, Plaintiff Kevin Menjivar (“Plaintiff”) filed this action against Defendant Jorge Alberto Calderon (“Defendant”) for personal injuries arising from a motor vehicle accident that occurred on September 18, 2020.

Defendant now demurs to the complaint arguing that Plaintiff’s claims are barred by the applicable statute of limitations under CCP § 335.1. Plaintiff opposes the demurrer, and Defendant filed a reply.

Defendant asserts that under the Judicial Council’s Emergency Rule 9, the two-year statute of limitations for Plaintiff’s action was tolled from September 18, 2020- the date of the accident- to October 1, 2020- the date provided for in Emergency Rule 9. Defendant contends that as a result, the deadline for Plaintiff to file this action was two years plus 13 days from September 18, 2020, which Defendant calculates as being October 3, 2022.

In opposition, Plaintiff contends that Emergency Rule 9 tolled the statute of limitations from April 6, 2020 to October 1, 2020, which totals 178 days. Plaintiff contends that Plaintiff therefore had 178 days added to the original deadline of September 18, 2022, to file this action, which Plaintiff asserts was March 15, 2023. Plaintiff argues that Emergency Rule 9 is clear that the total tolling period of 178 days is tacked onto the end of the statute of limitations for Plaintiff’s claim.

In reply, Defendant contends that Emergency Rule 9 does not extend the two-year deadline by 178 days. Defendant contends that Plaintiff’s interpretation is incorrect, as it does not comport with how tolling provisions are supposed to operate. Defendant argues that it does not make sense to extend the two-year period by the time that passed between April 6, 2020 and September 18, 2020, because this period already elapsed before the subject accident even occurred. Defendant further asserts that Plaintiff improperly relies on unpublished trial court orders that should not be considered.

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, 116 Cal.App.4th at 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 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.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Arnold Decl. ¶ 3.)

Defendant requests judicial notice be taken of Plaintiff’s complaint filed in this matter on November 21, 2022. The request is granted. (Evid. Code § 452(d).)

Plaintiff, in his opposition, requests judicial notice be taken of (1) State of Emergency Declaration, issued by the Office of the Governor of the State of California, dated March 4, 2020, (2) Executive Order N-33-20, issued by Governor Gavin Newsom on March 19, 2020, (3) Emergency Rules, adopted by the Judicial Council of California as Appendix 1 o the California Rules of Court on April 6, 2020, (4) Amended Emergency Rules, adopted by the Judicial Council of California as Appendix 1 of the California Rules of Court on May 29, 2020, (5) Amended Emergency Rules, adopted by the Judicial Council of California as Appendix 1 of the California Rules of Court on November 13, 2020, (6) Sunset Emergency Rules in Response to the COVID-19 Pandemic, adopted by the Judicial Council of California on March 11, 2022, (7) Court Order on Demurrer in Teresa Pineda de Godine v. Kuldeep Singh, Los Angeles Superior Court Case No. 20STCV46958, (8) Court's Order on Demurrer in Ronald Kari v. Denni Mortensen, et al., Los Angeles Superior Court Case No. 20STCV43052, (9) Court's Order on Demurrer in Porsha Howard v. Enrique P. Arrison, Los Angeles Superior Court Case No. 21STCV07279, (10) Court's Order on Demurrer in Marcos Antonio Velasquez v. Kecheng Chen, et al., Los Angeles Superior Court Case No. 22AHCV00938, and (11) Government Code § 68115(a)(4).

The request is granted as to each item. (Evid. Code § 452(c), (d), (e).) However, the Court notes that while judicial notice is taken of the existence of the trial court orders in other actions, (items 7-10), such orders are not binding on this Court.

CCP § 335.1 provides that the statute of limitations for “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” is two years.

Judicial Council Emergency Rule 9(a), as amended effective March 11, 2020, states: “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.” The Advisory Committee Comment for Emergency Rule 9 provides: “Emergency rule 9 is intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action.”

Tolling is defined in part as, “(Of a time period, esp. a statutory one) to stop the running of; to abate <toll the limitations period>.” (Black’s Law Dictionary, 11th Ed. 2019, “Toll.”) The effect of tolling is that the limitations period stops running during the tolling event, and begins to run again when the tolling event has concluded. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) “As a consequence, 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.’ (Id. at 370-71; see also Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1120-1121 [same]; cf. United States v. Ibarra (1991) 502 U.S. 1, 4 n. 2 [“Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped.”].)

Here, the complaint alleges that Defendant caused the subject accident on September 18, 2020. Plaintiff then filed his complaint on November 21, 2022, more than two years after the subject accident. While the parties agree that Plaintiff’s claim for personal injuries was tolled for some amount of time under Emergency Rule 9, the parties disagree as to whether the time for Plaintiff was tolled from September 18, 2020- the date of the accident- to October 1, 2020- the end of the tolling period provided for in Emergency Rule 9- which would be 13 days, or if it was tolled for the entire period of April 6, 2020 to October 1, 2020, which would be 178 days. Defendant contends the original deadline of September 18, 2022, was only tolled for 13 days, while Plaintiff contends the deadline was tolled for 178 days.

Emergency Rule 9 stopped the running of the statute of limitations in this action from September 18, 2020, the date Plaintiff’s cause of action accrued, to October 1, 2020. The time between September 18, 2020 and October 1, 2020 is 13 days. To the extent Plaintiff contends Emergency Rule 9 tolled the time for Plaintiff to file his action from April 6, 2020 to September 17, 2020, Plaintiff’s cause of action did not exist during this period. There was thus nothing for Emergency Rule 9 to toll during this time. Plaintiff’s cause of action did not accrue until September 18, 2020, and only at that point did the limitations period stop running. The limitations period stopped running for 13 days until October 1, 2020, at which point it began to run again. (See Lantzy, 31 Cal.4th at 370.) The tolled interval of 13 days is then tacked onto the end of the limitations period. (Id. at 370-71; Graybar Electric Co. v. Lovinger (1947) 81 Cal.App.2d 936, 938 [“When the operation of a statute of limitations is suspended for a given period of time the effect is to add an equal period to the statutory limitation.”].)

Consequently, because Emergency Rule 9 tolled Plaintiff’s cause of action for 13 days, this interval was tacked onto the end of the limitations period and extended the time for Plaintiff to file this action by 13 days. (See Lantzy, 31 Cal.4th at 370; see also Willis, 48 Cal.App.5th at 1120-21.) Two years after the date of the accident was Sunday, September 18, 2022, with the next court day being Monday September 19, 2022. Thirteen days after September 19, 2022, was Sunday, October 2, 2022, with the next court day being Monday October 3, 2022. Therefore, Plaintiff had until October 3, 2022, to file the complaint. Plaintiff, however, did not file the complaint until November 21, 2022, after the statute of limitations for Plaintiff’s personal injuries claims had passed.

Plaintiff cites to In re Caravas’ Estate (1952) 40 Cal.2d 33 (“Caravas”), in arguing that Plaintiff’s claim was tolled for 178 days. In Caravas, the decedent died intestate on September 30, 1941, and September 15, 1942, the court ordered the distribution of the decedent’s estate to the state treasurer after no heirs appeared to claim the estate. (Id. at 36.) However, on August 25, 1947, the petitioner filed a petition seeking an order that the state treasurer pay petitioner the funds of the estate. (Id. at 37.) The time for petitioner to file such an action was five years, and the petitioner provided that the reason for the delay in filing the action was “that Greece was occupied by German military forces from April 7, 1941, to November 30, 1944, and that during this period it was impossible to file a claim for the funds held by the state treasurer.” (Id. at 37.) The decedent’s heir, his mother, was a resident and citizen of Greece. (Id.) The trial court denied the claim because it was untimely filed. (Id.) However, the California Supreme Court found that because the decedent’s heir was a citizen and resident of Greece during the period when the United States was at war with Germany, his heir was unable to maintain a proceeding in a California court to recover her property. (Id. at 38-39.) “[T]he trial court erroneously included the period between September 15, 1942, the date of distribution to the state, and November 30, 1944, the date of termination of German occupation of Greece, in its computation of the five year period.” (Id. at 42.) As Defendant contends, the Caravas Court did not hold that the limitations period was tolled by the entire period that Germany occupied Greece.

Plaintiff’s citation to Graybar Electric Co. v. Lovinger (1947) 81 Cal.App.2d 936 (“Graybar”), is also distinguishable in because, as Defendant contends, in Graybar, the relevant cause of action accrued on August 6, 1940, but the relevant period did not begin until November 1940. (Id. at 937.) Unlike in Graybar, in this case, Plaintiff’s cause of action accrued during the tolling period provided under Emergency Rule 9.

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

In this case, Plaintiff requests leave to amend the complaint to include additional language pertaining to the tolling of the statute of limitations under Emergency Rule 9. However, as analyzed above, Plaintiff did not timely file the complaint even in considering Emergency Rule 9. This is a purely legal issue.

Therefore, Defendant’s demurrer is sustained to the complaint without leave to amend. The complaint against Defendant is ordered dismissed.

Hon. Michelle C. Kim

Judge of the Superior Court