Judge: Ronald F. Frank, Case: 22TRCV00924, Date: 2023-12-01 Tentative Ruling
Case Number: 22TRCV00924 Hearing Date: February 28, 2024 Dept: 8
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HEARING DATE: February 28, 2024
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CASE NUMBER: 22TRCV00924
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CASE NAME: Milagros Gibson v.
Xavier Flores, et al.
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MOVING PARTY: Defendants, Xavier Flores and Dana
Jenkins
RESPONDING PARTY: Plaintiff, Milagros Gibson (No
Opposition)
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TRIAL DATE: Not
Set.
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MOTION:¿ (1) Demurrer
(2)
Plaintiff’s Ex Parte Application for Order Dating the Filing of The Complaint
as of October 8, 2022
Tentative Rulings: (1) Defendants’ Demurrer is OVERRULED
(2) Plaintiff’s ex parte application is denied,
but the Court will apply the Legislative intent expressed in Plaintiff’s supplemental
briefing to toll the statute of limitations based on the clerical error of
rejecting Plaintiff’s attempted filing of the Complaint earlier than the
file-stamped date of October 11, 2022.
I. BACKGROUND¿¿
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A. Factual¿¿
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On October 11, 2022, Plaintiff, Milagros filed a Complaint against
Defendants Xavier Flores and Dana Jenkins (collectively “Defendants”). The
Complaint alleges causes of action for: (1) Motor Vehicle Negligence; and (2)
General Negligence.
Defendants now file a Demurrer to the Plaintiff’s Complaint.
B. Procedural¿¿
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On September 25, 2023, Defendants filed this
demurrer. No opposition had been filed prior to the originally scheduled
hearing. On December 1, 2023, the original date of this hearing, the Court
continued this motion, allowing opposition and reply briefs to be filed by
deadlines governed by the continued hearing date of January 19, 2024.
Nonetheless, no opposition was filed to the Demurrer. Instead, Plaintiff submitted a supplemental
brief as to his previously filed ex parte application for an order dating the
filing of the Complaint as of October 8, 2022.
On November 29, 2023, Plaintiff filed his ex parte
application for an order dating the complaint as of October 8, 2022. On January
4, 2024, Defendants filed their original opposition to Plaintiff’s ex parte
application. On January 19, 2024, Plaintiff filed its supplemental brief. On February
8, 2024, Defendants filed a response to this supplemental brief. On February
22, 2024, Plaintiff filed a request for judicial notice.
II. REQUEST FOR JUDICIAL NOTICE
With
their demurrer, Defendants requested this Court take judicial notice of the
following document:
1.
Plaintiff MILAGROS GIBSON’S Complaint filed on October
11, 2022, (Exhibit A.)
This Court GRANTS Defendants’ request and
takes judicial notice of the above document.
After
Plaintiff filed its supplemental brief for its ex parte application for an
order dating the Complaint filed as of October 8, 2022, and after Defendants
responded to this supplemental brief, Plaintiff requested this Court take
Judicial Notice of the following document:
1.
Minute Order dated August 17, 2023 in the matter of Navarro,
et al. v. Rojas, et al., Los Angeles Superior Court Case No.: 22LBCV00939
(Exhibit A).
The Court GRANTS this request and takes
judicial notice of the above.
III. ANALYSIS
A. Legal Standard
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.) “To survive a demurrer, the complaint need only
allege facts sufficient to state a cause of action; each evidentiary fact that
might eventually form part of the plaintiff’s proof need not be
alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of
action, the demurrer admits the truth of all material facts properly pleaded. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does
not admit contentions, deductions or conclusions of fact or law.” (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿
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A
pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., §
430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label
the parties and claims renders the complaint so confusing defendant cannot tell
what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition
Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for
uncertainty is strictly construed, even where a complaint is in some respects
uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th
612, 616.)
B.
Discussion
Here, the Complaint arises from an
alleged accident that occurred on October 9, 2020, and alleges causes of action
for motor vehicle negligence and general negligence causing personal injury to
Plaintiff. Defendants demur to the Complaint on the grounds that the pleading
does not state facts sufficient to constitute a cause of action because the
causes of action are barred by the statute of limitations.
Statute
of Limitations
Defendants argue that the demurrer fails to state a claim
as the two causes of action are bared by the statute of limitations in Code of
Civil Procedure § 335.1. A demurrer
can be utilized where the dates in the complaint demonstrate that the cause of
action is barred by the applicable statute of limitations. (Vaca v. Wachovia
Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.) An action for personal
injury must be brought within two years. (Code Civ. Proc., § 335.1.) An action
to recover for property damage is three years. (Code Civ. Proc., § 338, subd.
(c).)
Here, the Complaint instructs that
the alleged automobile accident occurred on October 9, 2020. As such, the
statute of limitations for personal injury would have required that a Complaint
be filed by October 9, 2022. The Complaint in this action was not filed until
October 11, 2022. As such, the causes of action relating to Plaintiff’s
personal injuries are time barred. However, the Complaint alleges that because
of the accident, Plaintiff has suffered: (1) Loss of Use of Property;
(2) Hospital and Medical Expenses; (3) General Damage; (4) Property
Damage; and (5) Loss of Earning Capacity. Based on the relevant
statute, Plaintiff could have brought her Complaint relating to property damage
within three years, making that last date to file her claim October 9, 2023.
Thus, because Plaintiff’s action to
recover damages for personal injury has a two-year statute of limitations, and
because the Complaint was filed over two years after the date of the accident,
the Court finds that Plaintiff’s causes of action relating to personal injury
are time barred. However, Plaintiff’s causes of action relating to property
damage are not. As such, without making any allowance for tolling of the statute
as discussed below, the demurrer would have been SUSTAINED as to Plaintiff’s
claim for personal injury, and would have been OVERRULED as to Plaintiff’s
claimed property damage.
Ex Parte
Application for Order Dating the Complaint Filed as of October 8, 2022.
This Court notes that Plaintiff
originally filed an ex parte application on October 13, 2022, which was denied by
this Court, noting that the Court would revisit this issue once the Defendant
had appeared. Proof of Service had not been served on Defendants until August
8, 2023. As noted in Plaintiff’s supplemental brief, Code of Civil Procedure §
1010.6(e)(4)(E) states:
“If the clerk of the court does not file a complaint or cross-complaint
because the complaint or cross complaint does not comply with applicable
filing requirements or the required filing fee has not been paid, any
statute of limitations applicable to the causes of action alleged in the
complaint or cross complaint shall be tolled for the period beginning on the
date on which the court received the document and as shown on the confirmation
receipt described in subparagraph (A), through the later of either the
date on which the clerk of the court sent the notice of rejection described in
subparagraph (C) or the date on which the electronic filing service provider or
electronic filing manager sent the notice of rejection as described in
subparagraph (D), plus one additional day if the complaint or cross complaint
is subsequently submitted in a form that corrects the errors which caused the
document to be rejected. The party filing the complaint or cross complaint
shall not make any change to the complaint or cross complaint other than those
required to correct he errors which caused the document to be rejected.” (emphases
added.)
Here, Plaintiff originally submitted
the claim on October 8, 2022, the confirmation receipt notes that this was the
date in which the court received the document. Further, the clerk sent the
notice of rejection on October 10, 2022. (Declaration of Leon Laufer (“Laufer
Decl.”), ¶ 3, Exhibit 2.) Plaintiff indicates that on October 10, 2022, he immediately
refiled the summons and complaint, and it was rejected on October 11, 2022.
(Laufer Decl., ¶ 4.) However, there are no exhibits attached to the ex parte
application illustrating such. The tolling period would have kicked in on
October 8, 2022 (the Court’s original receipt of the Complaint), would have
lasted through October 10, 2022 (the Court’s notice of rejection), and would
have added one more day (October 11, 2022) to the tolling period so long as
Plaintiff submitted a form that corrected the errors which caused the document
to be rejected. However, the Court is wondering where this middle October 10,
2022 submission and October 11, 2022 rejection is. Nonetheless, however, under
the tolling guidelines illustrated by this Court, technically, the statute of
limitations based on the original October 8, 2022 rejection would have tolled
the statute until October 11, 2022, which is when the Court ultimately accepted
filing.
The Court understands that there was
significant delay in the filing of this case and service of the summons and
complaint, and also understands that had Plaintiff brought this motion as a
noticed motion for relief under section 473, as argued in Defendants’ response
to this ex parte application, that that motion would likely be denied. However,
pursuant to Code of Civil Procedure § 1010.6(e)(4)(E), Plaintiff’s statute of
limitations was statutorily tolled to October 11, 2022. As such, the above
demurrer, based on the statute of limitations, is OVERRULED as to both the
bodily injury and property damage claims.
The Court’s view is that a clerical mistake by the clerk’s office in
refusing to accept the Complaint for filing – even though it was filed in the
wrong courthouse – cannot in the interests of justice bar a bodily injury
plaintiff from being able to present a suit for those injuries. Plaintiff’s counsel here is not the only practitioner
who waited until the last minute to file a lawsuit, on the even of the two-year
anniversary of the accident. Nor is
plaintiff’s counsel here the only practitioner who failed to heed the multiple advance
notices of the transformation of the PI hub from a centralized downtown
location to a decentralized branch court location as of October 10, 2022. While the Court will not back-date the
complaint, the Court will apply the tolling rules in Section 1010.6(e)(4)(E)
and apply those rules to the pending demurrer.
With the couple of tolling days added, the October 11, 2022 filing date
is timely as a matter of law.
IV.
CONCLUSION¿¿
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For the foregoing reasons,
Defendants’ Demurrer is OVERRULED. Defendants
shall answer within 20 days.
Plaintiff is ordered to give notice.¿¿¿