Case Number: 19STCV15492 Hearing Date: August 20, 2019 Dept: 2

Demurrer by Defendants, Guadalupe Viscarra and Juan Viscarra, to Plaintiff Harvey Coleman’s Complaint, filed on 7/22/19, is SUSTAINED without leave to amend.

The statute of limitations for injuries caused by the neglect of another is two years from the date of accrual. Cal Code Civil Procedure § 335.1. All of Plaintiff’s claims allege injury caused by the wrongful act of another.

In order for the court to sustain demurrer to the complaint based on a statute of limitations defect, the defect must clearly and affirmatively appear on the face of the Complaint. It is not enough that the complaint might be barred. Saliter v. Pierce Bros. Mortuaries, (1978) 81 Cal.App.3d 292 (1978), fn 2; Marshall v. Gibson Dunn & Crutcher (1995) 37 Cal.App.4th 1397.

The Complaint alleges that the incident occurred on 7/20/16. The 2-year statute of limitations expired on 7/20/18. The Complaint was filed on 5/2/19, 10 months after the statute of limitations expired. Thus, on the face of the complaint, it is barred by the statute of limitations.

Plaintiff has not shown that the 2-year statute of limitations was tolled. Plaintiff cites Bernson v. Browning-Ferris Industries which is factually distinguishable. Bernson concerned a libel action where Plaintiff alleged Defendants concealed their authorship of defamatory matter. The court held that because one should profit from one’s own wrongdoing, a Defendant can be equitably estopped from asserting the statute of limitations as the result of intentional concealment.

“Court held that although a cause of action for libel generally accrues when the defamatory matter is published, plaintiff alleged defendants concealed their authorship and plaintiff was unaware of defendants’ identities, and because one should not profit from one’s own wrongdoing, a defendant may be equitably estopped from asserting the statute of limitations when, as the result of intentional concealment, the plaintiff is unable to discover the defendant’s actual identity. Under those circumstances, the statute may be equitably tolled. The doctrine of equitable tolling requires that the plaintiff exercise reasonable diligence. Thus, the statute will be tolled only until such time as the plaintiff knows, or through the exercise of reasonable diligence should have discovered, the defendant’s identity.”

Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926.

Plaintiff is not alleging a claim for fraudulent concealment or any facts that equitable tolling should apply. Bernson noted that “where the facts are such that even discovery cannot pierce a defendant’s intentional efforts to conceal his identity, the plaintiff should not be penalized.” Bernson at 937.

The court’s file reflects that Plaintiff added moving parties as Does 1 and 2 being ignorant of the true names of the Defendants.

The plaintiff’s ignorance of the identity of the defendant does not delay the running of the statute of limitations. The statute of limitations begins to run when a cause of action accrues, even though the Plaintiff is ignorant of the cause of action or the identity of a wrongdoer. Baker v. Beech Aircraft Corp. (1974) 39 Cal.App.3d 315, 321.

Mere ignorance, not induced by fraud of the existence of facts constituting a cause of action does not prevent the running of the statute of limitations. Baker at 321.

Therefore, it was not necessary for Plaintiff to forego the timely filing of the complaint within two years of the accident, given the Doe amendment procedure. A properly filed Doe amendment would relate back to the filing of the original complaint. Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.

However, the Doe amendment here does not avoid the statute of limitations, since Plaintiff filed the Complaint 10 months after the 2-year statute of limitations had already expired. It was untimely filed in the first instance.

Moving party is ordered to give notice.