Judge: Thomas S. Mcconville, Case: 2021-01225158, Date: 2023-08-15 Tentative Ruling

Defendant Jeffery Holcombe’s Demurrer to Plaintiff’s First Amended Complaint (“FAC”) is SUSTAINED with leave to amend. (See Code Civ. Proc. § 430.10, subd. (e).) (“CCP”) 

The First and Second Causes of Action still appear barred by the applicable statutes of limitation as the gravamen of these causes of action sound in fraud.   CCP 338(d).  There are no facts alleged to delay the accrual of plaintiff’s causes of action. (See FAC Exh. A.)

“In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, 86 Cal.Rptr.2d 645.) In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’ (Ibid.)”  Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4^th 797, 808.

Plaintiff to file an amended complaint within ten days.  

Defendant shall give notice.