Case Number: 19STLC10102 Hearing Date: March 02, 2020 Dept: 25

DEMURRER

(CCP § 430.41, et seq.)

TENTATIVE RULING:

Defendant Aaron Covington’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

OPPOSITION: Filed on February 7, 2020

REPLY: Filed on February 24, 2020

ANALYSIS:

Background

On October 31, 2019, Plaintiff Yelena Zolotova (“Plaintiff”) filed an action for motor vehicle negligence and general negligence against Defendant Aaron Covington (“Defendant”). Defendant was served with the Summons & Complaint on December 18, 2019. (1/24/20 Proof of Service.)

On January 21, 2020, Defendant filed the Instant Demurrer to Plaintiff’s Complaint (the “Demurrer”). On February 7, 2020, Plaintiff filed an Opposition and Request for Judicial Notice. To date, no reply brief has been filed.

Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

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. (Id.)

Finally, Code of Civil Procedure section 430.41 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.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of (1) the electronic service notification of filing of the Summons and Complaint from Online Legal Courier received by e-mail on September 16, 2019 for the case entitled Yelena Zolotova v. Aaron Covington, (2) electronic notice of rejection of filing from Online Legal Courier’s website on September 17, 2019 for the case entitled Yelena Zolotova v. Aaron Covington, and (3) electronic notice of accepting received from Online Legal Courier’s website on October 31, 2019. Plaintiff makes this request pursuant to Evidence Code section 452, subdivision (d).

Evidence Code section 452, subdivision (d) provides that judicial notice may be taken of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” The documents Plaintiff presents, however, are not official records of the Court, but rather records of the private company, Online Legal Courier. Thus, her request is DENIED.

Discussion

As an initial matter, the Court notes that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (Demurrer, Arquell Decl., ¶ 3-5.)

Defendant demurs to Plaintiff’s Complaint on the grounds that the Court has no jurisdiction over the subject matter and on the grounds that it fails to allege facts sufficient to constitute a cause of action because it is time barred by the applicable statute of limitations. (Demurrer., p. 2.) In opposition, Plaintiff argues that the Complaint should be deemed filed on September 16, 2019, within the statute of limitations, notwithstanding the court clerk’s rejection. (Oppo., p. 3:1-6.) Plaintiff explains the documents were rejected online because the Complaint and the Civil Case Cover Sheet were impermissibly filed as one document. (Id.)

A demurrer can be utilized where the dates in the complaint demonstrate that the cause of action is barred by the applicable statute of limitations. (Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.) An action for personal injury must be brought within two years. (Code Civ. Proc., § 335.1.) An action to recover for property damage is three years. (Code Civ. Proc., § 338, subd. (c).)

Here, the Complaint arises from an alleged accident that occurred on October 17, 2017, and alleges causes of action for motor vehicle negligence and general negligence causing personal injury to Plaintiff. (Compl., p. 4, 5.) The Complaint does not allege Plaintiff suffered property damage. (See Id. at p. 3, ¶ 11.) Thus, the applicable statute of limitations is two years.

Plaintiff’s Complaint was filed approximately 13 days after the statute of limitations had run. Plaintiff argues that the Summons and Complaint should be deemed filed on the first date Plaintiff presented the documents to the court’s clerk online, that is, on September 16, 2019. (Oppo., p. 4:25-28.)

Plaintiff relies on the three documents received from Online Legal Courier for her argument. However, as noted above, the Court cannot consider them in making a determination on the instant Demurrer as they are not actual court records, nor do they fall within a different category for permissible judicial notice. In addition, the Court record does not indicate that Plaintiff attempted to file any documents on September 16, 2019. Indeed, the Court’s records indicate that the first time Plaintiff presented her Summons & Complaint for filing was October 31, 2019.

Thus, because Plaintiff’s action to recover damages for personal injury has a two-year statute of limitations, and because this Complaint was filed over two years after the date of the accident, the Court finds that Plaintiff’s causes of are barred by the statute of limitations. Thus, Defendant’s Demurrer is SUSTAINED without leave to amend.

Conclusion & Order

For the foregoing reasons, Defendant Aaron Covington’s Demurrer to Plaintiff’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party is ordered to give notice.