Judge: William A. Crowfoot, Case: 22STCV27411, Date: 2022-12-13 Tentative Ruling

Case Number: 22STCV27411    Hearing Date: December 13, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On August 23, 2022, plaintiff Elaine Cubas (“Plaintiff”) filed this action against defendant FM Restaurants Acapulco Opco, LLC (“Defendant”).  Plaintiff alleges she was at Acapulco Mexican Restaurant Y Cantina located at 6270 E. Pacific Coast Highway, Long Beach, CA 90803, for brunch on February 16, 2020.  Plaintiff alleges that she stepped on a stair missing a "slip strip" when her foot then slid from underneath her, causing her to fall down the stairs.

On November 4, 2022, Defendant filed this motion on the grounds that the Complaint is facially untimely and barred by the applicable statute of limitations.

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)  

          Defendant’s counsel, Ryan Guiboa, submits a declaration that is insufficient to satisfy the meet and confer requirement.  Although counsel details their discussions with Plaintiff’s counsel, counsel fails to indicate whether the meet and confer took place in person or over the telephone.  The Court nevertheless proceeds to evaluate the demurrer on its merits.

The statute of limitations for a premises liability claim is two years.  Therefore, the Complaint would have needed to be filed by February 16, 2022, in order to be considered timely.  However, the COVID-11 19 Emergency Rule 9 tolled the statute of limitations for civil causes of action by an additional 178 days, and Plaintiff was therefore required to file her Complaint by August 12, 2022, at the absolute latest.  Instead, Plaintiff filed this action on August 23, 2022, making it untimely. 

In opposition, Plaintiff argues that the doctrine of equitable estoppel should be applied because Plaintiff’s counsel misunderstood Emergency Rule 9 and because Defendant had made a settlement offer within the statute of limitations.  The elements of an equitable estoppel claim are: (1) the party to be estopped must know the facts; (2) the party must intend that the party’s conduct will be acted on, or must act in such a way that the party asserting the estoppel had the right to believe that the conduct was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) that party must rely upon the conduct to the party’s detriment. (See Ashou v. Liberty Mutual Fire Ins. Co. (2006) 138 Cal.App.4th 748, 766-767.)

Defendant cites to eleven cases which decided that equitable tolling applies only in extraordinary circumstances and does not apply to attorney neglect or miscalculation of the statute of limitations.  Also, Plaintiff’s claim that she was somehow misled or induced into filing a late Complaint is unsubstantiated.  Plaintiff only asserts that Defendant sent an email with a specific settlement offer but does not discuss any of the elements necessary to show that equitable tolling applies, such as reliance on the settlement offer to forego filing the Complaint.  Therefore, Plaintiff has not shown that the statute of limitations should be equitably tolled. 

IV.     CONCLUSION

Defendant’s demurrer is SUSTAINED without leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.