Judge: Virginia Keeny, Case: 22VECV02215, Date: 2023-04-25 Tentative Ruling

Case Number: 22VECV02215    Hearing Date: April 25, 2023    Dept: W

CHRISTOPHER CERRITOS v. ANDREA GARFIELD

demurrer to the complaint

Date of Hearing:        April 25, 2023                                     Trial Date:       None set.

Department:              W                                                        Case No.:        22VECV02215

Moving Party:            Defendant Andrea Garfield

Responding Party:     No opposition

Meet and Confer:      Yes. (Spector Decl. ¶¶4-9)

BACKGROUND

This is an action for strict liability and negligence arising from a dog bite incident which took place in November 2020. Plaintiff Christopher Cerritos filed his complaint against Defendant Andrea Garfield on December 1, 2022.

[Tentative] Ruling

Defendant Andrea Garfield’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

DISCUSSION

Defendant Andrea Garfield moves the court for an order sustaining their demurrer to Plaintiff’s complaint without leave to amend and sanctions in the sum of $2,246.96.

Where the dates alleged in the complaint show the action is barred by the statute of limitations, a general demurrer lies. (Saliter v. Pierce Bros. Mortuaries (1978) 81 Cal.App.3d 292, 300.) However, when nothing appearing on the face of the complaint suggests that the action is barred by the statute of limitations, there are no grounds for a demurrer. (Union Carbide Corp. v. Superior Court (1984) 36 Cal.3d 15, 25.)  Further, a demurrer on the ground of the bar of the statute of limitations does not lie where the complaint merely shows that the action may have been barred. (Valvo v. University of Southern California (1977) 67 Cal. App. 3d 887, 895.) Instead, it must appear affirmatively that, upon the facts stated, the right of action is necessarily barred. (Id.)

Plaintiff alleges on November 29, 2020, while working as a landscaper on Defendant’s property, Plaintiff was attacked and severely bitten by Defendant’s dog causing injuries and harm to Plaintiff. (Compl. ¶¶9-10.) Pursuant to Code of Civil Procedure section 335.1, an action for  “assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” must be brought within two years.  Accordingly, Plaintiff’s deadline to file his complaint was November 29, 2022. Plaintiff filed and served their complaint on December 1, 2022 – two days after the statute of limitations had expired.

Because the action is barred on its face, the court sustains Defendant’s demurrer without leave to amend. The demurrer is unopposed.

Sanctions

Defendant seeks $2,246.96 in sanctions against Plaintiff and Plaintiff’s counsel, Robert Bazikyan, pursuant to Code of Civil Procedure section 128.6.

Code of Civil Procedure 128.6 never became operative. The court believes Defendant is moving pursuant to Code of Civil Procedure section 128.5. “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (CCP §128.5) However, a motion for sanctions pursuant to Section 128.5 must be made separate from other motions. (CCP §128.5(f)(1)(A).)

Defendant’s request for sanctions is DENIED.