Case Name: Barkhordarian v. Stirling, et al.
Case No.: 1-12-CV-237257

Currently before the Court is the motion for summary judgment and/or summary adjudication of defendant Kyle Stirling (“Defendant”). Defendant’s motion is opposed by plaintiff Patrick Barkhordarian (“Plaintiff”).

Defendant moves for summary judgment and/or adjudication on the basis that Plaintiff’s first through third causes of action are barred by the applicable statutes of limitations, and the fourth and fifth causes of action cannot survive without these other claims. Defendant also contends that at least 16 of the recordings at issue do not support a claim for a violation of California Penal Code § 632 (the California Invasion of Privacy Act or “CIPA”).

Defendant’s motion is DENIED. Among other arguments, Plaintiff contends that Defendant does not meet his burden to prove any statute of limitations defense because it was not raised in his answer. “There are two ways to properly plead a statute of limitations: (1) allege facts showing that the action is barred, and indicating that the lateness of the action is being urged as a defense and (2) plead the specific section and subdivision [of the Code of Civil Procedure].” (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91, citing Brown v. World Church (1969) 272 Cal.App.2d 684, 691; see also Code Civ. Proc., § 458.) The failure to properly plead the statute of limitations waives the defense. (Martin v. Van Bergen, supra, 209 Cal.App.4th at p. 91.) Here, Defendant did not raise the statute of limitations as an affirmative defense in his answer at all, let alone identify the specific sections and subdivisions upon which he now relies. (See Answer to Complaint.) Nor did he allege any facts in his answer, relying instead upon a general denial. (Id.) Defendant consequently does not meet his burden to prove any statute of limitations defense and such a defense does not provide a basis for summary judgment or adjudication. (See Martin v. Van Bergen, supra, 209 Cal.App.4th at p. 91 [failure to plead the specific statute of limitations at issue waives that statute as a defense]; Mysel v. Gross (1977) 70 Cal.App.3d Supp. 10, 15-16 [where buyer did not plead underlying facts establishing bar to the action and pleaded wrong code section, she could not rely upon correct statute of limitations]; see also Cal. Union Ins. Co. v. Poppy Ridge Partners (1990) 224 Cal.App.3d 897, 903 [contractual limitations period, like statute of limitations, was waived where not pleaded as an affirmative defense; a general denial is insufficient to preserve such a defense].)

In addition to relying upon the statute of limitations, Defendant also contends that the first cause of action fails because at least 16 of the 85 recordings at issue do not support a CIPA claim for various reasons. However, given that addressing the issues raised by Defendant would resolve only a portion of Plaintiff’s CIPA claim, these issues are not appropriately resolved by summary adjudication. (See Code Civ. Proc., § 437c, subd. (f)(1) [“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”].)

Finally, Defendant contends that the fourth and fifth causes of action for declaratory and injunctive relief fail because a claim for declaratory relief is subject to the same statutes of limitations as Plaintiff’s other claims, while Plaintiff cannot show irreparable harm in support of his claim for injunctive relief due to the running of the statutes of limitations. Given that Defendant does not meet his burden to prove any statute of limitations defense, his arguments as to the fourth and fifth causes of action fail.

Defendant’s objections to evidence submitted with his reply papers are deemed MOOT in light of his failure to meet his initial burden on summary judgment.

The Court will prepare the order.