TENTATIVE RULING

 

Calendar:    9

Date:          1/13/2023 

Case No: 22 GDCV00811 Trial Date: None Set 

Case Name: Kang v. Shamilyan, et al.

DEMURRER

Moving Party:            Defendants Karen Shamilyan and Misak Shamilyan  

Responding Party: Plaintiff Steve S. Kang      

RELIEF REQUESTED:

Sustain demurrer to Complaint    

CAUSES OF ACTION: from (Form) Complaint 

1) Motor Vehicle

SUMMARY OF FACTS:

Plaintiff Steve Sukdoo Kang alleges that defendant Karen Shamilyan negligently operated a motor vehicle, causing injuries and damages to plaintiff.  The complaint alleges that defendant Misak Shamilyan owned the subject motor vehicle which was used with defendant’s permission and entrusted the motor vehicle.  The complaint alleges that the alleged negligent acts occurred on May 10, 2020.

ANALYSIS:

Defendants Karen Shamilyan and Misak Shamilyan argue that the single cause of action alleged in the complaint fails to state fact sufficient to constitute a cause of action because the statute of limitations bars the cause of action. 

In general, the statute of limitations is mandatory, based on the language of CCP section 312, which provides:

“Civil actions, without exception, can only be commenced within the periods prescribed by this title...unless, where, in special cases, a different limitation is prescribed by statute.”

A demurrer on the ground a cause of action is barred by the statute of limitations should be sustained only where the facts alleged on the face of the complaint “clearly and affirmatively” show that the cause of action is barred.   It is not enough that the complaint might be barred.   Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.  

Defendants argue that the cause of action for motor vehicle negligence is subject to the two-year time period permitted under CCP § 335.1 for actions for “injury to… an individual caused by the wrongful act or neglect of another.”      

 

Defendants argue that plaintiff alleges that on May 10, 2020, plaintiff sustained personal injuries as a result of a car accident, but that this action was filed on November 3, 2022, when the claims for personal injury must have been filed by May 10, 2022.  

The complaint alleges that the acts giving rise to the motor vehicle negligence cause of action “occurred on”  “05/10/2020.”  [Complaint, para. MV-1].  This action was filed on November 3, 2023, more than two years later. 

Plaintiff in opposition argues that this action is subject to Rules of Court, Emergency Rule 9, which tolled the statute of limitations for civil causes of action exceeding 180 days from April 6, 2020 to October 1, 2020.   

Plaintiff relies on California Rules of Court Appendix 1 Emergency Rule 9, adopted by the Judicial Council on April 6, 2020, which provides, in pertinent part, “(a) Nothwithstanding 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.”  

Plaintiff also relies on subdivision (c) of Rule 9, adopted effective March 11, 2022, which provides, 

“This rule will sunset on June 30, 2022 unless otherwise amended or repealed by the Judicial Council.  This sunset does not nullify the effect of the tolling of the statutes of limitations and repose under the rule.” 

Plaintiff also cites to Advisory Committee comments on Emergency Rule 9 which indicate that Rule 9 is “intended to apply broadly” and provides an example showing how the tolling period is tacked onto the end of the statute of limitations period. 

Plaintiff argues that the statute of limitations here was accordingly tolled for the 178 days between April 6, 2020 through October 1, 2020, in effect, from May 10, 2022 to November 4, 2022, so that the complaint filed on November 3, 2020 was timely.  

However, it would appear that the incident here did not occur until May 10, 2020, so any tolling would not have started on April 6, 2020, but on May 10, 2020.  The statute appears to have been tolled only through October 1, 2020, when the two year statute would have begun, so that the two year statute expired on October 1, 2022, making the complaint filed on November 3, 2022 barred by the statute. 

Defendants in the reply argues that the statute of limitations tolling in Rule 9 applies for a period of up to 178 days if the cause of action had already accrued as of April 6, 2020, but that since the incident did not occur here until May 10, 2020, plaintiff does not reap the benefit of the full 178 days.  This argument appears to be the reasonable interpretation of the tolling provision.  The example plaintiff relies upon in the opposition from the Advisory Committee comment indicates,

“For example, if the right to file a cause of action subject to the four-year statute of limitations in Code of Civil Procedure section 337 first accrued on February 15, 2020, the statute of limitations, having been tolled from April 6, 2020, until October 1, 2020, under subdivision (a), would expire in August 2024 rather than February 2024.”

CRC Appendix 1, Emergency Rule 9, Advisory Committee Comments. 

This situation is not a case, as in the example, where the cause of action accrued before April 6, 2020, but where the accrual occurred after April 6, 2020, so that plaintiff here does not appear entitled to the entire tolling period necessary to render the claims in the complaint timely filed.   

The cause of action accordingly appears to be barred, the tolling provision does not appear to save the claim, and the demurrer could be sustained without leave to amend. 

Plaintiff in the opposition does not request leave to amend, or explain how any amendment could correct the deficiency in the pleading.   The court will hear argument with respect to whether leave to amend will be permitted. While the court is mindful that this is the original pleading in the matter, and ordinarily one opportunity to amend would be permitted, this may be the rare case where the pleading shows on its face that it is incapable of appropriate amendment.  See King v. Mortimer (1948) 83 Cal.App.2d 153, 158 (“unless [an original complaint] shows on its face that it is incapable of amendment, denial of leave to amend constituted an abuse of discretion….”).  

Given the recent adoption of Rule 9, and its amendments, the court is inclined to permit one opportunity to amend the complaint, if possible, and will expect any further challenge to the pleading to be fully briefed by both sides, in meet and confer efforts, and, if appropriate, any further filings with this court.

RULING:

Defendants’ Demurrer to Plaintiff’s Complaint is SUSTAINED WITH/WITHOUT LEAVE TO AMEND.  

The claims in the complaint are barred by the applicable statute of limitations, and any tolling provisions relied upon by plaintiff do not appear to provide sufficient additional time to save the claims, but the court will give plaintiff one last opportunity to amend the complaint. 

The parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer may be filed.  Any further meet and confer or challenge to an amended pleading must fully brief the statute of limitations tolling argument under CRC Emergency Rule 9. 

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.