Judge: Nick A. Dourbetas, Case: 2020-01144390, Date: 2022-10-21 Tentative Ruling

1. Demurrer to Amended Complaint
2. Motion to Strike

Motion No. No. 1:

Defendant Michael G. Honetschlager’s Demurrer to Plaintiff’s First Amended Complaint (“FAC”) is SUSTAINED with leave to amend. (See Code Civ. Proc. § 430.10, subd. (e).)

The allegation of extreme and outrageous conduct by defendant was defendant told plaintiff in 2010 that he had a communicable disease, that he had been taking medication, and that he had accidentally transmitted it to plaintiff. (FAC ¶ 11.) Defendant told plaintiff in May of 2018, during a breakup argument, that the transmission of the communicable disease to plaintiff was intentional in order to maintain the relationship and control over plaintiff, rendering her “damaged goods”, that he had hidden physical symptoms from plaintiff in order to intentionally give her the disease, and that he had infected at least one other woman with the same disease. (Id. ¶ 12.)

While this conduct occurred in 2010, plaintiff did not discover the truth about defendant’s acts until May of 2018. Assuming that the statements were made on 05/31/18, and including the stay in Emergency Order 9a, the statute of limitations on plaintiff’s claims against Michael Gerald Honetschlager appear to have run on 11/25/20.

Whether a plaintiff may amend the complaint to change a party's description or characterization “after the statute of limitations has run depends on whether the misdescription or mischaracterization is merely a misnomer or defect in the description or characterization, or whether it is a substitution or entire change of parties. In the former case an amendment will be allowed; in the latter, it will not be allowed.” (See Thompson v. Palmer Corporation (1956) 138 Cal.App.2d 387, 390; 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 1151, p. 609.)

In this case, the court has already held that Michael Gerald Roe and Michael Gerald Honetschlager are different individuals. (See court’s 02/25/22 minute order.) Additionally, the court’s records do not reflect that the court issued an order approving the amendment of the FAC per the 07/23/22 filing by plaintiff.

The issuance of an amended summons does not change the result, as the issuance of a summons is a ministerial act by the court clerk and not a ruling by the court. (See Maginn v. City of Glendale (1999) 72 Cal.App.4th 1102, 110-7; Code Civ. Proc.  § 412.10.)

Thus, the Amendment to Complaint filed 07/23/22 (ROA 66) to identify Michael Gerald Honetschlager as a defendant in this action does not relate back to the filing of the complaint.

Thus the 1st cause of action appears barred by Calif. Code of Civil Procedure, section 335.1.

The court exercised it discretion and considered the late filed opposition and reply briefs.

Motion No. 2. Motion to Strike:

Based upon the court’s ruling on the demurrer, the motion to strike is DENIED AS MOOT.

Plaintiff to file an amended complaint within 15 days.

Defendant is ordered to give notice.