Judge: Stephen Morgan, Case: 21AVCV00627, Date: 2022-12-20 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

Case Number: 21AVCV00627    Hearing Date: December 20, 2022    Dept: A14

Background

This is a premises liability action. Plaintiff Heleodora Ortega (“Plaintiff”) alleges that on October 04, 2018, she was at Defendant 99 Cents Only Stores, LLC (“Defendant”)’s premises at 28360-B 20th Street East Palmdale, CA 93550 (the “Premises”) when she fell on a grape that was on the floor.

On August 06, 2021, Plaintiff filed her Complaint alleging one cause of action for Premises Liability.

On November 10, 2022, Defendant filed its Demurrer.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing is set for December 20, 2022. Accordingly, an Opposition was due by December 07, 2022. Should an Opposition be filed, it is now untimely.

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Legal Standard

Standard for Demurrer – A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal. App. 4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (CCP § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Id.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿ 

¿¿¿¿ 

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿ 

¿¿¿¿¿ 

Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)

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Meet and Confer Requirement¿– Before filing a demurrer, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.¿ (Cal. Code Civ.¿Proc. § 430.41.)¿ Defendant’s counsel, Michael A. Dolan, Jr. (“Dolan, Jr.”) presents that on October 26, 2022, he initiated a phone call in order to meet and confer as well as sent out two meet and confer emails. (See Decl. Dolan, Jr ¶¶ 4-5.) Dolan, Jr. states that he further met and conferred via email on November 07, 2022; however, Plaintiff’s counsel, Miguel Angel Olano (“Olano”), “has yet to provide any authority as to why Code of Civil Procedure 335.1 and Emergency Rule 9 do not serve to bar the instant action.” (Id. at ¶¶ 7-8.)  Dolan, Jr. has satisfied the requirements set out by Cal. Code Civ. Proc. § 430.41(a)(3). A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. (Cal. Code Civ. Proc. § 430.41(a)(4).) Accordingly, the Court addresses this demurrer on its merits.

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Discussion

Application – Defendant presents that this action is barred by the applicable statute of limitations set out by Cal. Code Civ. Proc. § 335.1. That is, the period prescribed for the commencement of an action for injury to an individual caused by the wrongful act or neglect of another is two (2) years and, here, (1) the alleged incident occurred on October 04, 2018, and (2) Plaintiff filed this instant action on August 06, 2021, approximately three years after the alleged incident. Defendant also presents that, due to the COVID-19 pandemic, the Judicial Council adopted Emergency Rule 9 “to suspend statutes of 19 limitations on all civil cases until 90 days after Governor Newsom lifts the state of emergency related to 20 the COVID-19 pandemic” and on May 29, 2020, the Judicial Council revised Emergency Rule 9 so that it “is no longer tied to the state of 24 emergency declaration.” (Opposition 4:18-24 [citing Corren, Judicial Council Revises Emergency Rule on Statutes of 21 Limitations in Civil Cases (May 29, 2020) Judicial Branch of California (as of Aug. 15, 2021)].) Defendant cites Emergency Rule 9 as:

(a) Tolling statute of limitations over 180 days

Notwithstanding any other law, the statutes of limitations and repose of civil causes of action that exceed 180 days are tolled from April 6; 2020, until October 1, 2020,

 (b) Tolling statutes of limitations of 180 days or less

Notwithstanding any other law, the statutes of limitations and repose of civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020.

Defendant presents that (1) the subject incident is alleged to have occurred on October 04, 2018; (2) as of April 06, 2020, 181 days remained before the applicable statute of limitations under Cal. Code Civ. Proc. § 3335.1 would have expired; (3) due to Emergency Rule 9, the statute of limitations was tolled herein from April 6, 2020 until October 1, 2020 (for a total of 178 days); (4) the applicable tolling moved the statute of limitations date herein from October 4, 2020 to April 1, 2021; and (5) this instant suit was filed on August 06, 2021, beyond the additional time afforded by Emergency Rule 9.

Plaintiff does not oppose the motion.

First, the statute of limitations for personal injury is Cal. Code Civ. Proc. §335.1 which reads:

Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.

Next, Emergency Rule 9, as amended in 2020, reads in its entirety, including advisory committee comments:

Emergency rule 9. Tolling statutes of limitations for civil causes of action

(a) Tolling statutes of limitations over 180 days

Notwithstanding 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.

(Subd (a) amended effective May 29, 2020.)

(b) Tolling statutes of limitations of 180 days or less

Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that are 180 days or less are tolled from April 6, 2020, until August 3, 2020.

(Subd (b) amended effective May 29, 2020.)

(c) Sunset of rule

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 limitation and repose under the rule.

(Subd (c) adopted effective March 11, 2022.)

Emergency Rule 9 amended effective March 11, 2022; adopted effective April 6, 2020; previously amended effective May 29, 2020.

Advisory Committee Comment

Emergency rule 9 is intended to apply broadly to toll any statute of limitations on the filing of a pleading in court asserting a civil cause of action. The term “civil causes of action” includes special proceedings. (See Code Civ. Proc., §§ 312, 363 [“action,” as used in title of the code (Of the Time of Commencing Civil Actions), is construed “as including a special proceeding of a civil nature”); special proceedings of a civil nature include all proceedings in title 3 of the code, including mandamus actions under §§ 1085, 1088.5, and 1094.5—all the types of petitions for writ made for California Environmental Quality Act (CEQA) and land use challenges]; see also Pub. Resources Code, § 21167(a)–(e) [setting limitations periods for civil “action[s]” under CEQA].)

The rule also applies to statutes of limitations on filing of causes of action in court found in codes other than the Code of Civil Procedure, including the limitations on causes of action found in, for example, the Family Code and Probate Code.

Subdivision (c). The sunset of the rule does not nullify the effect of the tolling of the statutes of limitation and repose established by the rule. Depending on the specific facts of the case and the applicable statute of limitation or repose, the effect of the tolling may survive beyond the sunset date of the rule. For example, if the right to file a cause of action subject to the four-year statute of limitation in Code of Civil Procedure section 337 first accrued on February 15, 2020, the statute of limitation, having been tolled from April 6, 2020, until October 1, 2020, under subdivision (a), would expire in August 2024 rather than February 2024.

(California Courts, Appendix I Emergency Rules Related to COVID-19 (2022) <https://www.courts.ca.gov/documents/appendix_I.pdf> [as of Dec. 13, 2022].)

Here, the incident that forms the basis of this instant action is alleged to have occurred on October 04, 2018. Under Cal. Code Civ. Proc. § 335.1, the statute of limitations expired on October 04, 2020. The Court notes that two (2) is 730 days (365 days x 2 = 730). However, Emergency Rule 9 allowed for tolling of the statute of limitations due to the COVID-19 pandemic. The total tolling period from April 06, 2020 to October 01, 2020 is 178 days. From October 04, 2018 to April 06, 2020, a total of 550 days had elapsed, leaving a total of 180 days left in the statute of limitations for personal injury actions set out by Cal. Code Civ. Proc. § 335.1. 180 days from October 01, 2020 is Tuesday, March 30, 2021. Plaintiff filed this action on August 06, 2021.

For a statute of limitations to bar a claim on demurrer, “the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”  (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42, internal quotation marks omitted.)  In general, a statute of limitations begins to run “when the cause of action is complete with all of its elements,” namely, wrongdoing, causation, and resulting harm. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Here, the cause of action was completed on October 04, 2020 as that is when Plaintiff allegedly fell on the grape at Defendant’s Premises. Thus, the dates alleged in the Complaint show that the action is barred by the statute of limitations.

Accordingly, the DEMURRER is SUSTAINED.

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Conclusion