Case Number: BC696421 Hearing Date: November 27, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

Peter j. Zomber ;

Plaintiff,

v.

Jared William Pedersen , et al.;

Defendants.

Case No.: BC696421

Hearing Date: November 27, 2018

[TENTATIVE] order RE:

Demurrer to complaint

MOVING PARTY: Defendant, Jared William Pedersen

RESPONDING PARTY: Plaintiff, Peter J. Zomber

The court has considered the moving, opposition and reply papers.

Background

Plaintiff Peter J. Petersen (“Plaintiff”) filed a complaint on February 27, 2018, alleging causes of action for general negligence. Plaintiff’s complaint arises from a traffic collision that occurred on February 17, 2016.

On October 15, 2018, Defendant Jared William Pedersen (“Defendant”) filed a demurrer to the complaint. On November 9, 2018, Plaintiff filed an opposition. On November 13, 2018, Defendant filed a reply.

Defendant demurs to the complaint on statute of limitations grounds. Defendant argues that Plaintiff should have filed his suit by February 17, 2018, two years after the subject collision. Defendant notes that instead Plaintiff filed the instant suit 10 days past the limitations period.

Plaintiff argues that he attempted to file the suit within the statute of limitations twice, but was improperly rejected by the Court Clerks. Plaintiff asks that the court issue a ruling nunc pro tunc changing the date of filing to reflect his initial filing of the suit, February 14, 2018. Plaintiff also argues that the parties did not meet and confer prior to the filing of the demurrer, and Counsel’s declaration is inadequate.

Defendant replies and argues that the evidence provided by Plaintiff is insufficient, and the Court should therefore sustain the demurrer. Defendant contends that defense counsel did attempt to meet and confer prior to the filing of the demurrer.

LEGAL STANDARD

Meet and Confer Requirement

CCP section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (CCP § 430.41(a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (CCP § 430.41(a).) A similar meet and confer process and declaration is required for motions to strike. (See CCP § 435.5.)

Demurrer

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

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 Dep’t of Water & 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 Ct. (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 747.)

DISCUSSION

Meet and Confer Requirement

Counsel’s supplemental declaration satisfies CCP sections 430.41(a)(3)(B)’s declaration requirements. (Mahlstedt Decl. ¶ 3.) However, the Court notes that the initial declaration was not satisfactory. A declaration indicating whether or not the parties met and conferred should be provided with the moving papers.

Demurrer Analysis

“A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer.” (Basin Construction Corp. v. Department of Water & Power (1988) 199 Cal.App.3d 819, 823.) When a complaint “merely shows that the action may have been barred,” however, no demurrer will lie. (Los Angeles County v. Security First National Bank of Los Angeles (1948) 84 Cal.App.2d 575, 580.) Thus, when it is unclear on the face of a complaint whether the cause of action pleaded is barred by the statute of limitations, the ambiguity is to be resolved in favor of the non-demurring party. The statute of limitations for a personal injury action is two years. (CCP § 335.1.)

Here, the Complaint was file-stamped by the Court clerk on February 27, 2018, 10 days after the expiration of the statute of limitations. The Complaint thus is untimely on its face. However, Plaintiff’s declaration requests that the Court amend the initial filing date of the pleadings nunc pro tunc to February 13 or 14, 2018 based on the filing clerk’s improper rejection of his complaint(s) on those dates.[1]

Plaintiff’s Declaration indicates that his complaint was initially filed on February 13, 2018 at the Santa Monica Courthouse, but rejected because personal injury cases are required to be filed downtown. (Zomber Decl., ¶ 3.) The declaration goes on to state that the filing clerk rejected the complaint again on February 14 and February 21, 2018, after the case assignment sheet was properly attached. (Zomber Decl., ¶¶ 4-5.) Through the declaration, Plaintiff requests that the Court amend the date of the filings of the initial pleadings to February 13 or 14, 2018. (Zomber Decl. ¶ 8.) While the Court cannot take the factual assertions of the declaration as true for the instant demurrer, the Court can and should examine Plaintiff’s request for an order nunc pro tunc at a separate hearing on a noticed motion to be brought by Plaintiff to amend the filing date of the complaint because if such a request were granted, the Complaint would be timely filed and the demurrer overruled.

Numerous appellate courts have found error in the dismissal of a complaint on statute of limitations grounds without a hearing and in the denial of a plaintiff’s request to amend the filing date nunc pro tunc in situations where a court clerk has rejected a complaint for immaterial variance with court rules. (See Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777–778; see also Dillon v. Superior Court (1914) 24 Cal.App. 760; Carlson v. State of California Department of Fish & Game (1998) 68 Cal.App.4th 1268; Mito v. Temple Recycling Center Corp. (2010) 187 Cal.App.4th 276.) However, as noted above, the Court may not take judicial notice of the facts asserted in Plaintiff’s declaration in consideration of this demurrer. Nor are the facts in Plaintiff’s declaration alleged in the Complaint. Thus, the Court may not properly consider Plaintiff’s arguments in the present context of an opposition to Defendant’s demurrer. Instead, Plaintiff must bring a properly noticed motion to amend the filing date of the complaint nunc pro tunc, with supporting evidence, and Defendant may then counter with his own evidence and briefing.

The Court is therefore inclined to continue this demurrer to allow Plaintiff an opportunity to file and serve a noticed motion seeking an order amending the filing date of the complaint nunc pro tunc. (CCP §§ 128, 473.) Plaintiff is forewarned that if Plaintiff fails to file such a noticed motion to be heard on a date reserved in the Court Reservation System (CRS), the Court will not grant any further continuances of the instant demurrer, and the Court will proceed to rule on the demurrer on the next hearing date.

Conclusion AND ORDER

The request for an order amending the filing date of the complaint nunc pro tunc raised in Plaintiff’s opposition to this demurrer is not properly before this Court. Plaintiff must file a noticed motion seeking such relief.

Accordingly, Defendant’s demurrer is CONTINUED to February 8, 2019 at 1:30 pm in Department 5 to allow Plaintiff to file and serve a noticed motion seeking an order amending the filing date of the complaint nunc pro tunc. If Plaintiff fails to file such a noticed motion to be heard on a date reserved in the Court Reservation System (CRS), the Court will not grant any

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further continuances of the instant demurrer, and the Court will proceed to rule on the demurrer on the next hearing date (February 8, 2019).

The Court Clerk is to serve notice of this order on all parties.

DATED: November 27, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] The Court, on its own motion, will take judicial notice of the declaration. (Evid. Code § 452(d).) The Court will not take as true any hearsay or disputable facts contained within the declaration for the purposes of demurrer.