Judge: Steven A. Ellis, Case: 23STCV01475, Date: 2023-06-22 Tentative Ruling

Case Number: 23STCV01475    Hearing Date: October 12, 2023    Dept: 29

TENTATIVE

Defendant Luis Giovanni Gordiano’s demurrer is OVERRULED in part and SUSTAINED in part without leave to amend.

Background

This case arises out of an alleged vehicle accident on January 19, 2021, near the intersection of South Fetterly Avenue and East Olympic Avenue in Los Angeles, California.

On January 23, 2023, two years and four days after the accident, Plaintiff Juan Romero Rosales (“Plaintiff”) filed a complaint against Defendant Luis Giovanni Gordiano (“Defendant”), and Does 1 through 25, asserting causes of action for (1) negligence and (2) negligence per se.

On June 22, 2023, the Court sustained Defendant’s demurrer based on the applicable two- year statute of limitations, with leave to amend. 

Later that same day, on June 22, Plaintiff filed a First Amended Complaint (“FAC”). In the FAC, Plaintiff asserts the same causes of action against the same defendants. With regard to the statute of limitations issue, Plaintiff alleges:

Plaintiff is informed and believes, and thereupon alleges, that Defendant Giordiano was outside the State of California in February 2021 for a period of ten (10) days, following the subject motor vehicle accident in January of 2021, vacationing and/or honeymooning in Paris, France. Pursuant to California Code of Civil Procedure § 351, Plaintiff’s statute of limitations is therefore tolled for a period of ten additional days.

FAC, ¶ 4.

On September 11, 2023, Defendant filed this demurrer to the FAC. Plaintiff filed an opposition on September 29, and on October 5 Defendant filed a reply.

Legal Standard

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 via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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 p. 747.

Preliminary Matters 

First, with regard to the statutory meet-and-confer requirement of Code of Civil Procedure section 430.41, on August 23, 2023, Defendant’s counsel emailed Plaintiff’s counsel and stated that Defendant planned to demur to the FAC based on insufficient facts to prove that the statute was tolled; Plaintiff’s counsel did not respond. (Desalernos Decl., ¶ 7.) As a result, the parties did not comply with the mandatory requirement to meet and confer.  Although the Court may continue a hearing on a demurrer when there has been a failure to comply with the mandatory meet-and-confer provision of the statute, in these circumstances, given that the issues and positions of the parties have become fairly well crystalized through the demurrer and amendment process that has already occurred, the Court will exercise its discretion to proceed to the merits. 

Second, Defendant states in passing that he was not served with the FAC. But he has filed a demurrer and argued (exclusively) other grounds for relief. Under these circumstances, the Court will address the merits and treat the service issue as waived.

Third, Defendant does not comply with the procedural requirements for a demurrer: he files a notice of demurrer, a supporting memorandum, and even a supporting declaration, but no demurrer itself. Nonetheless, Plaintiff does not object to this procedural failure, whether on grounds of lack of notice of otherwise, and so the Court will address the merits.

Discussion

Statute of Limitations

Defendants demur to the entire FAC on the ground that it is barred by the two-year statute of limitations in Code of Civil Procedure section 335.1. (Mem., pp. 4-5.)  Defendant argues that the accident occurred on January 19, 2021, but the complaint was not filed until more than two years later, on January 23, 2023.

Defendant also asserts that Plaintiff does not provide supporting evidence that Defendant was in Paris for ten days and Defendant was not in Paris on the date of the service of the summons and complaint.

In paragraph 4 of the FAC, Plaintiff alleges that Defendant was absent from the State of California for ten days in February 2021, after the cause of action accrued, and therefore the statute of limitations was tolled for that period under Code of Civil Procedure section 351. Defendant argues that the FAC “does nothing to substantiate this claim.” (Mem. at p. 4.) In his reply papers, Defendant also submits a declaration from his attorney attesting that the international travel of Defendant that Plaintiff may be referencing occurred in August 2019, before the cause of action accrued. (Desalernos Reply Decl., ¶ 4.)

The Court OVERRULES the Demurrer on statute of limitations grounds. Plaintiff has adequately alleged in his FAC a factual basis for tolling. The Court will not consider evidence outside of the four corners of the FAC (and judicially noticeable facts) in ruling on a demurrer. Evidence regarding when Defendant did or did not travel may be submitted at a later stage of these proceedings (such as a motion for summary judgment or trial).

Second Cause of Action for Negligence Per Se

In the FAC, Plaintiff asserts a cause of action for negligence and a second cause of action for negligence per se. Defendant demurs on the ground that negligence per se is not a separate cause of action but falls under the umbrella of a negligence cause of action and simply provides an alternate method of proving the elements of negligence.

“The essential elements of a cause of action for negligence are: (1) the defendant's legal duty of care toward the plaintiff; (2) the defendant's breach of duty—the negligent act or omission; (3)¿injury to the plaintiff as a result of the breach—proximate or legal cause; and (4) damage to the plaintiff.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) Owing a duty of care to the plaintiff is an indispensable prerequisite to the imposition of liability for negligence. (Richards v. Stanley (1954) 43 Cal.2d 60, 63.) A duty is an “obligation, recognized by the law, requiring the actor to conform to certain standard of conduct, for the protection of others against unreasonable risks.” (Hilyar v. Union Ice Co. (1955) 45 Cal. 2d 30, 36-37.)

“[T]he doctrine of negligence per se is not a separate cause of action.” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534; accord Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn.2; Quiroz v. Seventh Ave. Center (2006) 140¿Cal.App.4th 1256, 1285.) Rather, the doctrine “creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Turner, supra, 27 Cal.App.5th at p. 534.) It “codifies the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation. (Quiroz, supra, 140¿Cal.App.4th at p. 1285.) 

Accordingly, the Demurrer to Second Cause of Action is SUSTAINED. As Plaintiff has offered no basis for the Court to conclude that the defect in this cause of action may be cured, the Demurrer to the Second Cause of Action is sustained WITHOUT LEAVE TO AMEND.

Conclusion

The Demurrer to the entire First Amended Complaint is OVERRULED.

The Demurrer to the Second Cause of Action (for negligence per se) is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant is ordered to respond to the FAC within 21 days.

Defendant is ordered to give notice.