TENTATIVE RULING

Calendar: 6

Date: 4/26/2024

Case No: 23 GDCV01924 Trial Date:    None Set 

Case Name: De Leon v. Acevedo 

JUDGMENT ON THE PLEADINGS

Moving Party: Defendant Marco Soto Acevedo  

Responding Party: Plaintiff Aeris Nicole De Leon  

RELIEF REQUESTED:

Judgment on the Pleadings dismissing the action of plaintiff Aeris Nicole De Leon with prejudice  

CAUSES OF ACTION FROM THE Complaint 

1) Negligence  

2) Negligence Per Se 

 

SUMMARY OF FACTS:

Plaintiff Aeris Nicole De Leon alleges that on September 6, 2021, while plaintiff was a pedestrian, defendant Marco Soto Acevedo, while driving defendant’s vehicle, negligently ran through an intersection and collided into plaintiff’s body causing plaintiff to be injured. 

The complaint also alleges a claim for negligence per se, alleging that the injuries suffered by plaintiff were an occurrence the nature of which state statutes and regulations were designed to prevent, and plaintiff is within the class of persons whom such statutes and regulations are intended to protect.  

The file shows the complaint was filed on September 8, 2023 at 1:47 PM.   

ANALYSIS:

CCP § 438 establishes the procedures for moving for judgment on the pleadings, and  provides, in pertinent part:

“(c)(1) The motion provided for in this section may only be made on one of the following 

grounds:...

(B) If the moving party is a defendant, that either of the following conditions exist:

(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant.”

Subdivision (d) provides that “The grounds for the motion provided for in this section shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  

The motion may be granted with leave to file an amended complaint, or without leave to amend, in which case, judgment may be entered in favor of the moving defendant.   CCP § 438(h).

Defendant relies on CCP section 335.1, which provides, in pertinent part, that “[a]n action for… injury to… an individual caused by the wrongful act or neglect of another,” must be commenced “[w]ithin two years.”   See also, CCP section 335. 

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

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

Defendant argues that in this case, plaintiff alleges that defendant was responsible for plaintiff’s injuries and damages arising from a September 6, 2021 accident, and consequently plaintiff was required under CCP section 335.1 to file her action against defendant on or before September 6, 2023.  Plaintiff did not file this action until September 8, 2023, which is beyond the two-year statute of limitations.  

Defendant argues that plaintiff’s action is accordingly time-barred, and it is proper for this court to grant defendant’s motion for judgment on the pleadings without leave to amend. 

Plaintiff in opposition argues that plaintiff filed her complaint on September 6, 2023, which was within the prescribed statutory timeframe, but that due to an inadvertent error on the Civil Case Cover Sheet Addendum, the clerk rejected the filing.   

Counsel also submits a copy of the notice of rejection dated September 8, 2023, which states:

“The electronic filing described by the summary data below was reviewed and rejected by the Superior Court of California, County of LOS ANGELES….

“Reject Reason Other:  Glendale court address is listed on ADDENDUM document: Step 4: Statement of Reason and Address.”   

[Ahmad Decl., Ex. 2].

A problem with plaintiff’s argument is that none of the relevant information appears in the pleading itself, or in anything the court has been requested to, or could, take judicial notice of (other than the September 8, 2023 documents which appear as part of the court file, but for which judicial notice is not requested).  

The court evidently does not keep a record in the case file of notices of rejection or other documents received before the official acceptance of filing of the complaint and supporting documents.   

As noted above, the grounds for a motion for Judgment on the Pleadings “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  CCP section 438 (d).  

The opposition essentially concedes that from the face of the pleading in the file, the complaint was not filed by September 6, 2023, which plaintiff concedes was the statutory deadline, but argues that the September 8, 2023 filing date should be disregarded in favor of the September 6, 2023 date when the complaint was first attempted to be filed.  None of the facts concerning those earlier attempts are alleged in the pleading. 

The court accordingly considers the evidentiary showing offered by plaintiff in the opposition not as a showing to defeat the motion for judgment on the pleadings, but only on the issue of whether leave to amend will be permitted.  

Plaintiff relies on Cuadra v. Millan (1998) 17 Cal.4th 855, in which the California Supreme Court, in determining that the Labor Commissioner had authority to calculate backpay from the date wage claims were filed rather than the date the claims were heard, rejected an argument that the filing of the complaint tolled the statute of limitations.  Plaintiff relies on the following highlighted language in the Court’s opinion:

“To begin with, the commissioner does not correctly state the issue. Although some judicial opinions—including the decision under review—speak of the filing of a complaint as “tolling the statute of limitations,” the usage is imprecise and potentially misleading. More accurately, the plaintiff's act of filing the complaint fixes the date on which the “action is commenced” (Code Civ. Proc., § 350), thus allowing the defendant and the court to determine whether the action is “commenced within the period[ ] prescribed” by the applicable statute of limitations (id., § 312), and hence is timely. Clarity of thought will be promoted by reserving the use of the phrase, “the statute of limitations is tolled,” for instances in which the running of the statute is temporarily suspended by a specified condition—e.g., the plaintiff's minority (id., § 352) or incarceration (id., § 352.1), the defendant's absence from the state (id., § 351), an injunction or stay of the action (id., § 356), or a state of war (id., § 354)—and will resume when that condition is lifted.

Cuadra, at 864, italics in original, emphasis added.  

“(c) Failure to provide cover sheet

If a party that is required to provide a cover sheet under this rule or a similar local rule fails to do so or provides a defective or incomplete cover sheet at the time the party's first paper is submitted for filing, the clerk of the court must file the paper. Failure of a party or a party's counsel to file a cover sheet as required by this rule may subject that party, its counsel, or both, to sanctions under rule 2.30.”

Plaintiff argues that for purposes of the statute of limitations, “filing” means delivery of the paper to the clerk at the clerk’s place of business during business hours, and that as such, rejection of a petition by the clerk for technical defects cannot undo a “filing” that has already occurred. 

 Plaintiff relies on United Farm Workers of America v. Agricultural Labor Relations Board (1985) 37 Cal. 3d 912, 918, in which the California Supreme Court found the Court of Appeal had erred in granting motions of the Agricultural Labor Relations Board (ALRB) and Admiral Packing Company (Admiral) to dismiss a petition for review by the United Farm Workers (UFW) as untimely.   

In that case, the petition for review was submitted to the clerk’s office of the Court of Appeal on the 30th and final day for seeking review under Labor Code section 1160.8.  A deputy clerk stamped the petition “received April 2, 1984” but mailed it back to petitioner with an unsigned handwritten note stating that the petition did not comply with the Rules of Court, as it had no Table of Authorities Index.   United Farm Workers, at 914.  Counsel for petitioner received the petition on April 3, 2018, called the clerk’s office and pointed out that a different rule applied to a petition for review and no table of authorities was required, with the chief deputy telling counsel the petition was unverified and instructed it be returned with verification.  Id.  Counsel did so immediately, and the verified petition was filed on April 5, 2018. 

The Court reviewed the various applicable Rules of Court, and case law, and held that the petition had been improperly dismissed:

“ALRB and Admiral argue that the deputy clerk properly refused to file UFW's defective brief under rule 46. It is indeed arguable that the omission of a required verification is a technical defect which is properly within the clerk's scrutiny. Nevertheless, it cannot be the rule that the timeliness of a petition depends on whether the clerk catches such technical defects. Accordingly, we conclude that ‘filing’ for purposes of compliance with the time limits of Labor Code section 1160.8 means what it does in all other contexts: actual delivery of the petition to the clerk at his place of business during office hours. (See People v. Slobodion (1947) 30 Cal.2d 362, 367 [181 P.2d 868]; Hallett v. Slaughter (1943) 22 Cal.2d 552 [140 P.2d 3].) Thus, it is the filer's actions that are scrutinized in determining whether a petition was timely filed. Rejection of the petition by the clerk under rule 46 for a technical defect cannot undo a ‘filing’ that has already occurred. This is not to say, however, the reviewing court could not later order dismissal if a party has not undertaken timely correction of defects noted. We hold only that a defective petition may not be dismissed for untimeliness under Labor Code section 1160.8 when it is delivered to the appropriate clerk's office during office hours within the time limits set therein.

United Farm Workers, at 918

The Second District in Mentzer v. Hardoin (1994) 28 Cal.App.4th 1365, 1372 cited United Farm Workers in determining that presentation of an arbitrator’s award to a deputy clerk constitutes the act of filing for purposes of calculating the time within which a party may seek a trial de novo, despite a practice of delaying the filing of the award for 30 days after it was received by the arbitration clerk or administrator.  Mentzer, at 1372.  

Although not cited by the parties, the court also notes that since the filing of this motion on February 29, 2024, and shortly after the opposition was filed, the Ninth Circuit Court of Appeals, on April 10, 2024, interpreting California procedural law, held that for purposes of removability of an action to federal court, “an electronically submitted complaint is not ‘filed’ in California state court until is it processed and endorsed or otherwise acknowledged as officially filed by the clerk of the court.”  Casola v. Dexcom, Inc. (Ninth Circuit, 2024) 2024 WL 1547021.  

The court recognizes that this recent case was directed primarily to addressing potential misuse of removal procedures, which are not at issue here, and expressly recognizes that for timeliness purposes a pleading may be deemed filed on the date it was presented to the clerk’s office for filing.  See Casola, at 8-9.  The case is also not a California state appellate decision but a federal case.  However, this court will expect in connection with any further challenge to an amended pleading, if warranted after a good faith meet and confer, a full discussion of the applicable authorities by both sides.    

The motion for judgment on the pleadings is granted with leave to amend on the ground the face of the pleading, including its designated date of filing on September 8, 2023, shows that the action is barred by the applicable two-year statute of limitations, which plaintiff does not dispute began to run on the alleged date of the incident on September 6, 2021.    

            The motion requests that the motion be granted without leave to amend.  However, this is the original complaint in the action, and the first attack on the pleading. In such a case, leave to amend must be granted unless the complaint on its face appears incapable of amendment:

“Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.”

Virginia G. v. ABC Unified School District (1993) 15 Cal.App.4th 1848, 1852.   

It is held, in fact, that in the case of an original complaint, plaintiff need not even request leave to amend: “unless [an original complaint] shows on its face that it is incapable of amendment, denial of leave to amend constituted an abuse of discretion irrespective of whether leave to amend is requested or not.”  King v. Mortimer (1948) 83 Cal.App.2d 153, 158, citations omitted.  

Here, as discussed in detail above based on the evidence submitted with the opposition, the complaint does not appear incapable of amendment, and leave to amend is granted to permit plaintiff to plead facts which would take this matter outside the bar of the statute of limitations.   

Under CCP section 438 (h)(2), the court must grant 30 days leave to amend: “Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be.”  

RULING:

Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND on the ground the pleading as alleged, including from the face of the pleading its designated date of filing of September 8, 2023, shows that the action is barred by the applicable two-year statute of limitations, which began to run on the alleged date of the incident on September 6, 2021.    

Thirty days leave to amend to plead around the bar of the statute of limitations. CCP § 438 (h)(2).

Before any further challenge to the pleading is filed, the parties are ordered to meet and confer in good faith in full compliance with statutory authority, including CCP § 439 (a) (“If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion for judgment on the pleadings against the amended pleading”), and CCP §§ 430.41 and 435.5 (pertaining to demurrers and motions to strike).   

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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