Case Number: BC657305 Hearing Date: September 10, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

GAGIK HARUTYUNYAN,

Plaintiff(s),

vs.

ALCO HOLDING CO., ET AL.,

Defendant(s).

CASE NO: BC657305

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

September 10, 2019

1. Background Facts

Plaintiff, Gagik Harutyunyan filed this action against Defendants, Alco Holding Co., Alcoinvest, LLC, and New Era Investments, LLC for damages arising out of a crush injury sustained while using Defendants’ gate.

Defendant, Alco Holding Co. is a suspended corporation and therefore cannot file an answer in this case. Its insurance company, United Specialty Insurance Company, is therefore intervening on Alco’s behalf.

2. Motion for Summary Judgment

Intervener moves for summary judgment, contending the action is barred by the statute of limitations. It is without dispute that Plaintiff filed the complaint more than two years after he sustained his injuries. The sole issue before the Court is whether there are triable issues of material fact concerning tolling of the statute of limitations pursuant to Lewis v. Superior Court (1985) 175 Cal.App.3d 366.

a. Untimely Opposition

Defendant correctly notes that the opposition papers were filed one day late. Defendant asks the Court to refuse to consider the opposition due to the untimely filing. Plaintiff’s proof of service indicates Plaintiff served Defense Counsel via personal service with the opposition papers on 8/28/19. Plaintiff was required to serve the papers via overnight mail on 8/27/19; by serving them by personal service on 8/28/19, Plaintiff ensured they were delivered on the day they were due for delivery. The Court asks Plaintiff’s counsel to ensure timely filing and service in the future in connection with this and other actions, but finds refusing to consider the opposition would be unduly harsh under the circumstances.

b. Lewis Holding

Because this case turns on the holding of Lewis, supra, the Court has reviewed the case at length. In Lewis, the statute of limitations on the plaintiff’s claims was set to expire on 3/17/84. On 3/12/84, the plaintiff’s attorney was struck by an automobile and suffered catastrophic injuries. The attorney did not regain consciousness until 3/22/84. Once he regained consciousness, he suffered amnesia. He was ultimately released from the hospital about a month after his accident, and he returned to his office on 4/16/84. He realized the failure to file on 4/27/84, and filed the action the same day.

The trial court struck all of the plaintiff’s allegations concerning personal injuries from the case, and the court of appeals reversed. The court of appeals held that, under the circumstances, the statute of limitations was tolled pending the plaintiff’s attorney’s recovery. Importantly, the court of appeals held:

Surely, this language compels relief where, as here, the attorney was rendered totally disabled due to an unforeseen accident; was wholly incapable of performing his professional responsibility; and his disability commenced only five days before the running of the limitations period. The plaintiff client had promptly retained the attorney immediately after sustaining her personal injuries and the attorney diligently pursued the matter and was actively negotiating a settlement when the disability struck. Further, plaintiff was not notified of the disability of her attorney, nor of the failure to timely commence her action, until after the limitation period had expired. It would be absurd to attribute to the Legislature an intent to construe the language and underlying purpose of section 353.1 so narrowly as to benefit a plaintiff whose attorney became incompetent to practice near the commencement of the statutory period yet deny similar relief to a plaintiff whose attorney suffers the same onset of professional incompetence or license suspension only days before the period expired.

c. Facts of This Case

The complaint in this case was due to be filed no later than Monday, 2/13/17. Prior to 2/13/17, Plaintiff retained Garabad Kamarian to represent him in connection with his injuries. On Friday, 2/10/17, Kamarian began drafting the complaint. On Sunday, 2/12/17, Kamarian suffered a heart attack. Hospital staff indicated an intention to perform an operation and place a stent. On 2/13/17, Kamarian was transferred to Kaiser in Woodland Hills.

Once Kamarian returned home, his children describe him as being in a hazy and confused state, often crying, becoming fearful, not sleeping properly, and not moving around other than to go to the bathroom or around the house. By the end of March, these symptoms began to abate. His memory and recollection began to return.

On 4/06/17, Kamarian contacted Daniel Cantor, who was then working as an independent contractor attorney. Kamarian contacted Cantor to discuss this case. The two met on 4/10/17. Cantor helped to draft the complaint, including information about the heart attack. On 4/11/17, Kamarian filed the complaint Cantor had helped to draft. At some point after the filing of the complaint, Cantor began appearing on all captions of the case; it is unclear whether he has actually joined Kamarian’s law practice at this time.

d. Analysis

Intervener argues Kamarian’s story, while sad, does not rise to the level of Lewis, and therefore cannot support tolling of the statute of limitations. Intervener notes that the Lewis Court used terms like “total disability” and “virtually impossible.” Intervener argues Kamarian was merely very tired and confused, with some loss of memory, but was not completely incapacitated at any point in time.

Intervener relies on Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102-103 to support this position. Sanchez is distinguishable in a number of ways. First, it pre-dates Lewis. Second, it was the plaintiff, and not the attorney, who was hospitalized and seeking an order tolling the statute of limitations. Third, the plaintiff was hospitalized at some point approximately eleven months prior to the running of the statute of limitations, not at the time the statute actually ran.

There is a dearth of authority, other than Lewis, on this issue. The Court is inclined to find it is up to the jury to determine whether Kamarian’s heart attack was sufficiently debilitating to qualify him for tolling of the statute of limitations.

Intervener also argues that, even if the statute was tolled, the tolling could continue no longer than 2/19/17, when Kamarian was released from the hospital. Intervener relies on Grell v. Laci Le Beau Corp. (1999) 73 Cal.App.4th1300, 1305 to support this position. The statement in Grell, however, was mere dicta. The crux of the holding in Grell was that the statute of limitations is NOT tolled when a corporation is suspended.

It is not clear exactly how long, after Kamarian’s disability resolved, he had before he was required to file the suit. Notably, the attorney in Lewis returned to work on 4/16/84 but did not file the lawsuit until 4/27/84. The court of appeals did not take issue with the delay of eleven days between returning to work and filing the lawsuit. Absent clear authority on this issue, the Court finds Intervener failed to meet its burden to show it is entitled to judgment as a matter of law on the ground that Kamarian was obligated to file suit promptly after being discharged from the hospital.

The motion for summary judgment is denied. Intervener is ordered to give notice.