Judge Stephen Morgan, Case Number: 22AVCV00490, Date: 2023-10-31 Tentative Ruling

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This is a motor vehicle – personal injury action. Plaintiff Cheryl Hammock (“Plaintiff”) alleges that (1) on or about January 10, 2020 at 14 Freeway North bound between Red Rover and Crown Valley, Acton, CA 93510, Defendants Norman Richarte (“Norman”)[1], Barbara Richarte (“Barbara”), Armando Cortez (“Cortez”) owned and/or operated a motor vehicle, causing a collision by striking the vehicle Plaintiff was driving, causing property damage, bodily injury, and general damages; and (2) on or about January 21, 2020, at Town Center Drive & Rancho Vista, Palmdale, CA 93551, Allison Alloway (“Alloway”) owned and/or operated a motor vehicle, causing a collision by striking the vehicle Plaintiff was driving, causing property damage, bodily injury, and general damages.

The Court notes that though there are two incidents alleged, a common factor to both is damages to Plaintiff’s vehicle.

On September 21, 2023, Defendants Norman, Barbara, and Cortez (collectively “Moving Defendants”) filed this Demurrer.

No Reply has been filed. “. . .[A]ll papers 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).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) The hearing is set for October 31, 2023. Accordingly, a Reply was due by October 24, 2023. Should an Opposition be filed, it is now untimely.

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.¿ (Cal. Code Civ. Proc. § 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.¿¿(Ibid.)¿¿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 v. Kirwan (1985) 39 Cal.3d 311, 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 without leave to amend 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).)¿¿¿¿

Meet and Confer Requirement– Before filing a demurrer or a motion to strike, 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 and 435.5.) It appears that this requirement has not been met. Counsel for Moving Defendants, Natalie Keshishian (“Keshishian”) attempted to meet and confer by calling Plaintiff’s counsel, Steven Ross (“Ross”), and sending an email; however, Keshishian has not received a response. (Decl. Keshishian ¶¶ 4-7.) However, “[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 the demurrer on its merits.

Application – Moving Defendants demur on the basis that the Complaint is subject to the statute of limitations as outlined in Cal. Code Civ. Proc. § 335.1 which states that the time limit for filing a personal injury action is two years.

Plaintiff presents that Emergency Rule 9 tolled the statute of limitations for 178 days and, thus, Plaintiff’s Complaint was timely.

The alleged incident occurred on January 10, 2020. This period was the beginning of implementations of shutdowns due to the COVID-19 pandemic; however, Moving Defendants do not address this or the Emergency Rules.

Emergency Rule 9, adopted by the Judicial Council and effective as of April 06, 2020 and as amended on May 29, 2020 reads, in relevant part:

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.

The statute of limitations for personal injury is two years or 730 days from the date of injury. The date of injury of the incident that involved Moving Defendants is January 10, 2020. Without the Emergency Rule 9 tolling, the statute of limitations expired on January 10, 2022. However, the period of tolling is 178 days or five months and 25 days. With the Emergency Rule 9 tolling, the statute of limitations is July 07, 2022. The Complaint was filed on July 07, 2022, within the statute of limitations with the Emergency Rule 9 tolling.

Plaintiff requests sanctions in the amount of $1,000.00 as defense counsel failed to meet and confer. Specifically, Plaintiff believes that defense counsel seems to have purposely only directed meet and confer efforts to one counsel, Steven Ross, who was no longer with the firm. Plaintiff emphasizes that there was an additional counsel on the pleadings, Devre D. Ross, that defense counsel could have reached out to.

“A court that permits or requires electronic filing in a case must maintain and make available electronically to the parties and other persons in the case an electronic service list that contains the parties' or other persons' current electronic service addresses, as provided by the parties or other persons that have filed electronically in the case.” (Cal. Rules of Court, Rule 2.251(e).) The Court’s records reflect that the email for Steven Ross is still an email of file.

Steven Ross’ email is also in the header of the Complaint, the only pleading Plaintiff had filed prior to this Opposition.

Cal. Rules of Court, Rule 2.251(g) provides for change of electronic service address:

(1) A party or other person whose electronic service address changes while the action or proceeding is pending must promptly file a notice of change of address electronically with the court and must serve this notice electronically on all other parties and all other persons required to be served.

(2) A party's or other person's election to contract with an electronic filing service provider to electronically file and serve documents or to receive electronic service of documents on the party's or other person's behalf does not relieve the party or other person of its duties under (1).

(3) An electronic service address is presumed valid for a party or other person if the party or other person files electronic documents with the court from that address and has not filed and served notice that the address is no longer valid.

It does not appear that Plaintiff’s counsel filed a notice of change of address with the Court or otherwise.

The circumstances do not support an inference that defense counsel “purposely attempted to meet and confer in a way that would not garner a response.” (Opp. 5:26-27.)

Defendants Norman Richarte, Barbara Richarte, and Armando Cortez’s Demurrer is OVERRULED.

[1] Defendants Norman Richarte and Barbara Richarte share the same surname. The Court addresses each individually by their first name for the purpose of clarity. No disrespect is meant.