Judge: Theodore R. Howard, Case: 23-1310022, Date: 2023-08-17 Tentative Ruling

The Demurrer filed on 4/17/23 by Susan Angell, Esq. (“Defendant”), as to the Complaint filed on 2/27/23 by

John Kidd (“Plaintiff”) is OVERRULED.

The Demurrer, to the extent based on C.C.P. § 430.10(g), is OVERRULED, as the Complaint here does not

assert a breach of contract claim.

The Demurrer, to the extent based on C.C.P. § 430.10(f), is OVERRULED. A demurrer for uncertainty is strictly

construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified in

discovery. (Khoury v. Maly's of Calif., Inc. (1993) 14 CA4th 612, 616.) Here, the Complaint adequately apprises

the Defendant of the nature of and basis for the claim, for pleading purposes.

The Demurrer, based on the statute of limitations and C.C.P. § 430.10(e), is OVERRULED. A demurrer based on

a statute of limitations will not lie where the action may be, but is not necessarily, barred. (Lee v. Hanley (2015)

61 Cal.4th 1225, 1232.)

On demurrer, a court cannot consider matter not subject to judicial notice, or documents judicially noticed but

not accepted for the truth of their contents. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

Here, Defendant’s argument on limitations grounds is based on material beyond the scope of Demurrer, such as

an email communication with Plaintiff’s counsel as to the nature of the claim, and inferences Defendant seeks to

draw from filings in the underlying action. The Court thus cannot conclude, in this context, that the claim is

necessarily time-barred.

Plaintiff’s Request for Judicial Notice (“RJN”), which was belatedly filed with the Reply, is DENIED; Plaintiff’s

Objection thereto, filed on 8/11/23, is SUSTAINED. The RJN was belatedly submitted with the Reply, which

deprived Plaintiff of an adequate opportunity to respond thereto. In addition, even if it had been timely submitted

so that the Court could take notice of the existence

of the records under Ev. Code 452(f), the Court could not also then take notice, as fact, of inferences that

Defendant seeks to draw therefrom. (See Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264;

Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

Moving party is to give notice of this ruling