18-CIV-04872 ALAN PETERSON VS. MICHAEL PETERSON, ET AL.

ALAN PETERSON MICHAEL PETERSON
ROBERT A. MILLER RONALD C. CHAUVEL

DEMURRER TO PLAINTIFF’S VERIFIED COMPLAINT BY MICHAEL PETERSON TENTATIVE RULING:

Defendant MICHAEL PETERSON’s Demurrer to Verified Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to all causes of action on statute of limitations grounds. In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred. McMahon v. Republic Van & Storage Co., Inc. (1963) 59 Cal.2d 871, 874. Here, the statute of limitations bar appears clearly on the face of the Verified Complaint as Plaintiff admits that he waited nineteen years to assert a claim to the Subject Property.

The discovery rule does not save Plaintiff’s claims. It is the discovery of facts, not their legal significance, that starts the statute of limitations running. 65 Butterfield v. Chicago Title Ins. Co. (1999) 70 Cal.App.4th 1047, 1054. A plaintiff “discovers” a cause of action when he at least suspects a factual basis, as opposed to a legal theory, for the elements of the cause of action. Lyles v. State of California. (2007) 153 Cal.App.4th 281, 286. Once a person suspects or should suspect wrongdoing, he must go find the facts and cannot wait for the facts to find him. Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397398. Here, Plaintiff asserts that he fully repaid the sums he owed to Defendant in November 1999, giving rise to his claim to 50% ownership of the Subject Property. (Verified Complaint at ¶20.) Yet there is no explanation for why Plaintiff sat on his rights for nineteen years and never demanded that he be placed on title until May 2018. (Verified Complaint at ¶25.) Accordingly, his claims are time-barred.

The Demurrer is OVERRULED on all other grounds.

Defendant’s request for monetary sanctions pursuant to Code Civ. Proc. §128.5 is DENIED. Defendant failed to follow the required procedure for such a motion as set forth in Code Civ. Proc. §128.5(f).

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.