Judge Ralph C. Hofer, Case 22GDCV00811 2023-03-24 Tentative Ruling

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

The FAC alleges that Emergency Rule 9, as amended, tolls the statute of limitations for commencing or initiating a civil cause of action from April 6, 2020 to October 1, 2020, and that the tolled interval, no matter when it took place, is tacked on to the end of the limitations period, extending the deadline for suit by the entire length of time during which the tolling event previously occurred.

Defendants Karen Shamilyan and Misak Shamilyan filed a demurrer to the original complaint, which was heard on January 13, 2023. The court issued a tentative ruling via posting on LACourt.org website, which was to sustain the demurrer on the ground the claims in the complaint were barred by the applicable statute of limitations, and the tolling provisions relied upon by plaintiff did not appear to provide sufficient additional time to save the claim.

“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.”

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.

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 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 argue 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 appears to be the reasonable interpretation of the tolling provision. The example 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.”

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. This conclusion is the basis on which the court previously sustained the demurrer to the complaint and directed the parties to further meet and confer and brief the court on the issue in connection with any further challenge to the pleading.

“On March 4, 2020, Governor Gavin Newsom declared a state of emergency as a result of the threat of COVID-19 and on April 6, 2020, Emergency Rule 9 was adopted that tolled the statute of limitation for commencing or initiating a civil cause of action until 90 days after the Governor declared that the state of emergency related to the COVID-19 pandemic was lifted.

On May 29, 2020, the Judicial Council amended Emergency Rule 9, by adopting among other things, subdivision (b) which ended the tolling period for statute of limitations in civil causes (that are 180 days or more) on October 1, 2020. As such, the tolled interval pursuant to the Emergency Rule 9, as amended, is calculated from April 6, 2020 to October 2020. “[T]he 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.” See Regents of the Univ. of Cal. v. Cigna Health Corp 2022 Cal. Sup. LEXIS 63067 citing Committee for Sound Water & Land Development v. City of Seaside (2022) 79 Cal.App. 5th 389; Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370-371; Rubin v. Ross (2021) 65 Cal.App.5th 153, 162.”

The opposition does not discuss the case, cited in the FAC, Regents of the Univ. of Cal. v. Cigna Health Corp. (2022) 2022 Cal. Sup. LEXIS 63067, which is appropriate, as the decision is not published, or binding, but is a ruling by the Superior Court of California, County of Los Angeles, in an unrelated case.

The published case which the FAC indicates was cited in that non-citable case, Committee for Sound Water & Land Development v. City of Seaside (2022) 79 Cal.App. 5th 389, does include the language that in connection with Emergency Rule 9 (b) 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.” Committee, at 403. However, that case involved an accrual event, like the example in the Advisory Committee comment, which occurred before the April 20, 2020 date, in that case, on March 6, 2020. Committee, at 404.

The opposition argues that the tolled interval applies in its entirety to the claim here pursuant to another case alleged in the Attachment, Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370-371, in which the California Supreme Court recognized that in connection with an action based on a latent defect in construction on real property, defendants may be equitably estopped to assert a statute of limitations defense under the proper circumstances. The case did not involve the construction of a statutory tolling provision, but an analysis of the theory of equitable tolling, after a review of various equitable tolling cases, the Court noting:

“As these cases illustrate, the effect of equitable tolling is that the limitations period stops running during the tolling event, and begins to run again only when the tolling event has concluded. 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.

However, the Court went on to find that equitable tolling did not apply to extend the statute of limitations sufficiently in that case and gave as an example in a footnote to the above quoted passage a case in which the period of tolling while repairs were being undertaken by defendant had occurred entirely within the ten year statutory period during which the statute of limitations applied. See Lantzy, at 371, n. 5. The case law cited accordingly does not appear to stand for the proposition that the entire period from April 6, 2020 to October 1, 2020 under Emergency Rule 9 would apply here to toll the statute of limitations under the Emergency Order where the cause of action did not accrue, and the tolling event did not occur, until after April 20, 2020. The reasonable interpretation appears to remain that the period from April 20, 2020 to the date of the accident, May 10, 2020, would not apply toward the tolling period.

The doctrine of equitable tolling has developed primarily to avoid the harsh results of the rule that statutes of limitations are considered mandatory where an injured person has several legal remedies and reasonably and in good faith pursues one, and the defendant is not prejudiced thereby. Nichols v. Canoga Industries (1978 ) 83 Cal.App.3d 956, 962. In Nichols, the Second District reversed the dismissal of a complaint on statute of limitations ground where the complaint had alleged the filing of a complaint within the statute of limitations in another forum, in that case, the federal courts.

The equitable tolling rule is generally known as the Bollinger Rule, after the California Supreme Court case Bollinger v. National Fire Ins. Co. (1944) 25 Cal.2d 399. The elements of this rule have been summarized by the Second District as follows:

Plaintiff cites, without detailed discussion, Addison v. State of California (1978) 21 Cal.3d 313, 319, in which the California Supreme Court noted that the judicially created equitable tolling rule required a showing of three elements: “timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff.”

Plaintiff argues that in this matter the parties submitted the matter to an arbitration prior to the filing of this lawsuit, which was conducted and an award was made, finding the percentage of fault of plaintiff and defendants, but that defendant Misak Shamilyan’s insurer did not agree to pay the damages awarded in the arbitration. Plaintiff relies on a Request for Judicial Notice of an Arbitration Decision published by Arbitration Forums, Inc., which decision was “Published” on September 1, 2020, and which indicates that the arbitration “Date Filed,” was August 28, 2020. [RFJN, Ex. A]. This fact would suggest that the statute was equitably tolled for an additional time period from August 28, 2020 through September 1, 2020, a period of four days, which would not fully close the one month gap in the statutory period as statutorily tolled, argued by defendants.

The opposition argues that here the determination of the arbitrators was rejected by defendants through their insurance company on March 3, 2021, which was 187 days after the arbitration was sought on August 28, 2020, so that the statute was tolled for this period, in addition to the additional days urged by both parties of 178 days, as plaintiff contends, or 144 days, as defendants contend, so that either independently or in conjunction with Emergency Rule 9, equitable tolling results in the timely filing of the complaint. This argument, if valid, would close the gap such that the complaint was filed timely.

However, while plaintiff argues that equitable tolling for this substantial period applies, the argument is based on facts which are not set forth in the FAC. At best, the new Attachment 1 to the FAC merely cites, without discussion or facts, the Lantzy case, which discusses equitable tolling. The Request for Judicial Notice requests judicial notice of an Arbitration Decision which does not anywhere disclose the March 3, 2021 date that plaintiff is arguing the arbitration decision was rejected by defendant’s insurer.

It is not clear why plaintiff did not in the FAC fully allege the elements and facts supporting plaintiff’s argument that the statute of limitations has been equitably tolled here to overcome the court’s previous concern that the statute of limitations barred the cause of action completely.

The demurrer accordingly is sustained with leave to amend one final time to permit plaintiff to allege facts, including facts supporting each element of the doctrine of equitable tolling, to address the argument that the cause of action appears on its face to be barred by the applicable statute of limitations.

The claims in the First Amended Complaint are barred by the applicable statute of limitations, and any Emergency Rule 9 tolling provisions relied upon by plaintiff do not appear to provide sufficient additional time to save the claims. To the extent plaintiff argues in the opposition that equitable tolling applies to the claims based on the pursuit by plaintiff of arbitration, the FAC does not allege the elements of such a claim to defeat the bar of the statute of limitations, does not allege facts supporting the elements of such a claim, and all necessary facts to support the argument are not included in the material plaintiff has requested the Court to judicially notice.

The parties are ordered to meet and confer in full compliance with CCP § 430.41 before any further demurrer may be filed. Specifically, the parties are reminded that under CCP § 430.41, “(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone.” The Court further orders that any further meet and confer or challenge to an amended pleading must fully brief the equitable tolling argument.

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.