Judge: Stephen Morgan, Case: 21AVCV00627, Date: 2023-01-31 Tentative Ruling

Case Number: 21AVCV00627    Hearing Date: January 31, 2023    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.

 

On December 19, 2022, Plaintiff filed her Motion for Order to Amend Filing Date pursuant to CRC 8.77 (“Motion for Order to Amend”).

 

On December 19, 2022, Plaintiff filed her Opposition to the Demurrer.

 

On December 20, 2022, a hearing on the Demurrer was held. The Court continued the matter to January 31, 2022 as the Motion for Order to Amend impacts the Demurrer.

 

On December 19, 2022, Plaintiff filed her Opposition to the Demurrer.

 

On January 12, 2022, Defendant filed: (1) a Reply to the Opposition to the Demurrer, and (2) an Opposition to Motion to Amend Filing Date.

 

No Reply has been filed to the Motion to Amend Filing Date. “. . .[A]ll reply papers [shall be filed with the court and a copy served on each party] at least five court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The hearing is scheduled for January 31, 2023. As such, a Reply was due on January 24, 2023. Should a Reply be filed, it is now untimely.

 

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Legal Standard

 

Standard for Amending Filing Date – “If the electronically submitted document received by the court complies with filing requirements, the document is deemed filed on the date and time it was received by the court as stated in the confirmation of receipt.” (Cal. Rules of Court, Rule 8.77 at (a)(2).) “If the clerk does not file a document because it does not comply with applicable filing requirements, the court must arrange to promptly send notice of the rejection of the document for filing to the electronic filer. The notice must state the reasons that the document was rejected for filing.” (Id. at subdiv. (b).) “If a filer fails to meet a filing deadline imposed by court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document, the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.” (Id. at subdiv. (d).)

 

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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 –

 

  1. Motion to Amend Filing Date pursuant to CRC 8.77

 

Plaintiff moves for a court order amending the filing date for the Complaint filed on August 06, 2021. Plaintiff argues that the Complaint was originally submitted electronically for filing on October 02, 2020. (Decl. Miguel Olano ¶ 5.) Plaintiff presents all dates in which the Complaint was attempted to be filed: October 5, 2020, October 7, 2020, February 23, 2021, March 9, 2021, March 26, 2021, April 29, 2021, June 26, 2021, July 10, 2021, and July 22, 2021. (Ibid.) Plaintiff requests the Court deem the filing date of the Complaint to be October 02, 2020, October 05, 2020, or October 07, 2020 under Cal. Rules of Court Rule 8.77(d).

 

Cal. Rules of Court Rule 8.77(d) reads:

 

d) Delayed delivery

 

If a filer fails to meet a filing deadline imposed by court order, rule, or statute because of a failure at any point in the electronic transmission and receipt of a document, the filer may file the document on paper or electronically as soon thereafter as practicable and accompany the filing with a motion to accept the document as timely filed. For good cause shown, the court may enter an order permitting the document to be filed nunc pro tunc to the date the filer originally sought to transmit the document electronically.

 

Defendant presents that Plaintiff’s counsel, Miguel Olano (“Olano”), does not provide any evidence that the e-filing service was inoperable and, instead, presents (1) that the attempted filings did not meet the filing requirement, and (2) provided a detailed description of how the Complaint did not comply with filing requirements due to his own failures. Defendant believes Olano’s declaration is not admissible as he failed to include a statement that his declaration is made with personal knowledge.

 

Regarding Defendant’s personal knowledge argument, both cases relied upon are in the context of summary judgment.

 

Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1107 states: “Here, however, the declaration explicitly recapitulated the contents of a second writing, exhibit B. That document was not incorporated in the McNiesh declaration, or even vouched for; it was merely described as ‘attached.’ It was therefore not given under oath, and did not fall within the implicit hearsay exception for affidavits and declarations.” This is not akin to the context of our case – Olano provided a declaration about his own health and actions, not a reiteration of a separate document. Osmond v. EWAP. Inc. (1984) 153 Cal.App.3d 842, 851 discussed the declarations of two individuals who could testify to their own state of mind.

 

Cal. Evid. Code § 702 reads:

 

(a) Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.

 

(b) A witness’ personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.

 

Here, it is clear through Olano’s declaration, his own testimony, that he is discussing his own health and actions, not those of another. Olano has also declared everything under the penalty of perjury. (See Decl. Olano ¶ 11.) The Court finds this sufficient.

 

The Court notes that this motion comes over one year since the Complaint was filed.

 

The Court has looked through the attached exhibits. Each rejection sheet for the electronic filing shows that the filings were rejected for the following:

 

 

Though the Complaint was filed electronically, the Court finds Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 informative. “The functions of the clerk are purely ministerial.” (Rojas, supra, 67 Cal.App.4th at 777.) “The clerk has no discretion to reject a complaint that substantially conforms to the local rules.” (Id.) “Where . . . the defect, if any, is insubstantial, the clerk should file the complaint and notify the attorney or party that the perceived defect should be corrected at the earliest opportunity.” (Id. at 777.)¿

 

The rejection notices show that the defects in the attempted filings of the Complaint were clerical in nature and did not affect the substance of the Complaint.

 

Accordingly, the Motion for Order to Amend is GRANTED.

 

  1. Demurrer

 

Defendant’s Demurrer is premised on the 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)].)

 

As the Court has granted the Motion for Order to Amend, the statute of limitations are no longer at issue.

 

Accordingly, the DEMURRER is MOOT.

 

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Conclusion

 

Plaintiff’s Motion to Amend Filing Date pursuant to CRC 8.77 is GRANTED.

 

Defendant 99 Cent Only Stores, LLC’s Demurrer is MOOT.