Superior Court, State of California



PLEASE READ: BECAUSE OF A CRITICAL SHORTAGE OF SHERIFF’S DEPUTIES AVAILABLE TO SUPPORT AND SECURE COURT FACILITIES, BEGINNING ON JUNE 13, 2022 AND UNTIL FURTHER NOTICE, NO IN-PERSON APPEARANCES ARE PERMITTED IN DEPARTMENT 10. PARTIES MAY APPEAR BY MICROSOFT TEAMS ONLY. THE COURT SINCERELY REGRETS THE INCONVENIENCE.

PLEASE READ: Beginning on August 15, 2022, the Santa Clara Superior Court will be using MICROSOFT TEAMS for remote hearings (including law and motion hearings, case management conferences, and other conferences), unless otherwise ordered by the Court.

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EFFECTIVE JULY 24, 2017, THE COURT WILL NO LONGER PROVIDE OFFICIAL COURT REPORTERS FOR LAW AND MOTION HEARINGS. If any party wants a court reporter, the appropriate form must be submitted. See court website for policy and forms.

TROUBLESHOOTING TENTATIVE RULINGS

If you do not see this week’s tentative rulings, either they have not yet been posted, or your web browser cache (temporary internet files) is pulling up an older version. You may need to “REFRESH”, or “QUIT” your browser and reopen it – or adjust your internet settings so you only see the current version of the web page. Otherwise, your browser may continue to show an older version of the web page even after the current tentative rulings have been posted.

|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 | 21CV385753 |Cornelius Lopes vs Seven & i Holdings et al |The Bloom defendants’ demurrer to the First Amended Complaint is |

| | | |unopposed and is SUSTAINED without leave to amend. Demurring parties |

| | | |to prepare the formal order. |

|LINE 2 | 21CV389355 |ALI UYANIK et al vs JUAN GALAN RAMIREZ et al |Click on Line 2 for ruling |

|LINE 3 | 22CV397376 |Mario Maldonado Juarez vs Lumnije Madzar |Click on Line 3 for ruling |

|LINE 4 | 22CV399639 |GEORGINA MONTANO vs EYE CENTER OF NORTHERN |Click on Line 4 for ruling |

| | |CALIFORNIA, INC. et al | |

|LINE 5 | 20CV366468 |Saiid Mohamed vs Nahum Schwartz et al |Cross-complainants’ motion for summary judgment is unopposed and is |

| | | |GRANTED. The court also GRANTS the accompanying request for judicial |

| | | |notice and request to dismiss the Sixth Cause of Action from the |

| | | |Cross-Complaint. Moving party to prepare the formal order. |

|LINE 6 | 22CV396663 |American Express National Bank vs Shaibu |Plaintiff American Express National Bank’s motion for summary |

| | |Ibrahim |judgment is unopposed and is GRANTED. The court also GRANTS the |

| | | |accompanying request for judicial notice. Moving party to prepare the|

| | | |formal order. |

|LINE 7 | 19CV349792 |Division of Labor Standards Enforcement vs |This matter and the other pending discovery motions on calendar for |

| | |CAPITAL MAILING SERVICES, INC. et al |January 19 and 24 are ORDERED to an informal discovery conference |

| | | |(IDC) with Judge Carol Overton on January 31, 2023 at 9:30 a.m. The |

| | | |court will reach out to the parties with a virtual meeting |

| | | |invitation. Counsel with full decision-making authority are ordered |

| | | |to attend. The hearings on January 19 and 24 in this case are hereby |

| | | |vacated. The motions hearings shall be continued to March 16, 2023 at|

| | | |9:00 a.m. in this department, and seven days beforehand (on March 9, |

| | | |2023), the parties must file a non-argumentative joint statement |

| | | |describing what issues remain following the IDC. Nevertheless, the |

| | | |parties are to appear on January 17 at 9:00 a.m. by MS Teams. |

|LINE 8 | 19CV349792 |Division of Labor Standards Enforcement vs |This matter and the other pending discovery motions on calendar for |

| | |CAPITAL MAILING SERVICES, INC. et al |January 19 and 24 are ORDERED to an informal discovery conference |

| | | |(IDC) with Judge Carol Overton on January 31, 2023 at 9:30 a.m. The |

| | | |court will reach out to the parties with a virtual meeting |

| | | |invitation. Counsel with full decision-making authority are ordered |

| | | |to attend. The hearings on January 19 and 24 in this case are hereby |

| | | |vacated. The motions hearings shall be continued to March 16, 2023 at|

| | | |9:00 a.m. in this department, and seven days beforehand (on March 9, |

| | | |2023), the parties must file a non-argumentative joint statement |

| | | |describing what issues remain following the IDC. Nevertheless, the |

| | | |parties are to appear on January 17 at 9:00 a.m. by MS Teams. |

|LINE 9 | 19CV349792 |Division of Labor Standards Enforcement vs |This matter and the other pending discovery motions on calendar for |

| | |CAPITAL MAILING SERVICES, INC. et al |January 19 and 24 are ORDERED to an informal discovery conference |

| | | |(IDC) with Judge Carol Overton on January 31, 2023 at 9:30 a.m. The |

| | | |court will reach out to the parties with a virtual meeting |

| | | |invitation. Counsel with full decision-making authority are ordered |

| | | |to attend. The hearings on January 19 and 24 in this case are hereby |

| | | |vacated. The motions hearings shall be continued to March 16, 2023 at|

| | | |9:00 a.m. in this department, and seven days beforehand (on March 9, |

| | | |2023), the parties must file a non-argumentative joint statement |

| | | |describing what issues remain following the IDC. Nevertheless, the |

| | | |parties are to appear on January 17 at 9:00 a.m. by MS Teams. |

|LINE 10 | 21CV390618 |Albertsons Companies, Inc., a Delaware |Defendant and Cross-Complainant Quotient Technology Inc.’s motion to |

| | |Corporation vs Quotient Technology, Inc., a |seal is unopposed and is GRANTED. Moving party to prepare formal |

| | |Delaware Corporation |order. |

|LINE 11 | 21CV382738 |Clifton Chester et al vs Richard Gargano et al |This matter will be heard by Judge Kirwan in Department 75 on |

| | | |February 2, 2023. Please confirm with Department 75 as to the exact |

| | | |date and time, and as to the procedures for appearing in that |

| | | |department. |

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Case Name: Ali Uyanik, et al. v. Juan Galan Ramirez, et al.

Case No.: 21CV389355

This is an action arising from an October 14, 2020 motor vehicle accident involving a vehicle driven by Plaintiff Ali Uyanik (“Plaintiff”) and a vehicle driven by Defendant Juan Galan Ramirez (“Defendant”). The original and still operative Complaint is a verified complaint filed on October 4, 2021, stating a single cause of action for motor vehicle negligence.

The initial answer to the Complaint, filed on November 12, 2021 by Defendants Juan Galan Ramirez and Genoeva Martinez, was unverified. An amended answer filed on November 22, 2021 was also unverified. On February 23, 2022, Wawanesa Insurance Company filed a limited civil action (case no. 22CV395264) against Defendant Ramirez, and that action was consolidated with this one by order of the Court (Hon. Kirwan) on April 13, 2022. The limited civil action was subsequently dismissed with prejudice on August 30, 2022. On June 7, 2022, Plaintiff dismissed Genoeva Martinez as a defendant. Following this dismissal, counsel for both parties submitted a stipulation on July 13, 2022 to allow Defendant Martinez to file a verified answer to the complaint. Defendant Martinez’s verified Answer was filed on August 18, 2022, accompanied by a proof of service indicating electronic service on that same date.

Currently before the court is a Motion to Strike Defendant Ramirez’s answer, filed by Plaintiff on September 15, 2022.

I. Requests for Judicial Notice

“Judicial notice may not be taken of any matter unless authorized or required by law.” (Evidence Code §450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2; See also Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 [Since judicial notice is a substitute for proof, it is always confined to those matters that are relevant to the issue at hand.]; Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant”].) It is the Court, and not the parties, that determines relevance. Evidence Code §453(b) requires a party seeking notice to “[furnish] the court with sufficient information to enable it to take judicial notice of the matter.” Both sides here have submitted requests for judicial notice.

A. Plaintiff’s request

In support of the motion to strike, Plaintiff has submitted a request for judicial notice of three documents, none of which are attached to the request: (1) the complaint in this action (case no. 21CV389355); (2) an opposition to a motion to dismiss apparently filed by Wawanesa Insurance Company and an accompanying declaration; and (3) Wawanesa’s dismissal of its complaint in case no. 22CV395264.

Notice of all three documents is DENIED as irrelevant to the issue before the Court, which is whether any legitimate basis for striking the verified Answer has been timely presented.

B. Defendant’s request

With the opposition to the motion, Defendant Ramirez has submitted a request for judicial notice of three documents, attached to the request as exhibits A-C, under Evidence Code section 452(d) (court records). Exhibits A and B are copies of civil filing rejection letters issued on July 5 and 19, 2022. Exhibit C is a copy of the verified Answer filed by Defendant Ramirez on August 18, 2022.

Notice of exhibits A and B is DENIED as irrelevant to the issue before the Court. Notice of exhibit C is DENIED as unnecessary, as the Court already reviews the pleading subject to a demurrer or motion to strike. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].)

II. Motion to Strike Defendant Ramirez’s Answer

As an initial matter, the court makes three observations. First, a motion to strike a pleading such as an answer is created and governed by statute, specifically Code of Civil Procedure (“CCP”) sections 435-437. As a result, Plaintiff’s copious references to various portions of the California Constitution in his motion are irrelevant. In addition, the request for entry of default and default judgment embedded in plaintiff’s motion is inappropriate and will not be considered at this time. Unless and until Defendant’s Answer is stricken there is no basis for default. (See Cuddahy v. Gragg (1920) 46 Cal.App. 578, 580 [“a court has no authority to enter default of a defendant if, when it is entered, he has a pleading on file.”]) The Court is unaware of any authority permitting a combined motion to strike and motion for entry of default. Plaintiff has also not moved for judgment on the pleadings under CCP section 438; any arguments directed to such a motion in Plaintiff’s memorandum of points and authorities have not been considered.

Second, the court notes that Plaintiff does not appear to have complied with CCP section 435.5, as there is no mention of any meet-and-confer efforts regarding the motion to strike. Before filing a motion to strike, a moving party must “meet and confer in person or by telephone” with the opposing party to determine “whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (CCP § 435.5(a).) This conference should occur at least five days before the deadline to file the motion to strike. (CCP § 435.5(a)(2).) When filing the motion to strike, the moving party must include a declaration stating either “the means by which the moving party met and conferred with [the other party] and that the parties did not reach an agreement resolving the objections raised by the motion to strike” or [the other party] “failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (CCP § 435.5(a)(3).) This is the only proper basis for submitting a declaration with a motion to strike or demurrer.

Neither the motion itself nor the accompanying declaration from Plaintiff’s counsel makes any mention of meet-and-confer efforts specific to this motion. Notwithstanding this failure, as “[a] determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike,” (CCP § 435.5(a)(4)), the Court will consider the motion.

Third, there is no authority for the filing of evidentiary objections in the context of a demurrer or motion to strike. Therefore, the objections to evidence filed with Defendant’s opposition have not been considered and will not be ruled upon.

A. Analysis of the Motion to Strike

Pursuant to CCP section 436, a court may strike out any irrelevant, false, or improper matter inserted into any “pleading” (defined in CCP section 435(a)) or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (See CCP § 436.) In ruling on a motion to strike, the court reads the pleading under attack (complaint, cross-complaint, answer, etc.) as a whole, all parts in their context, and assumes the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (CCP § 437(a).)

The court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike. Accordingly, the Court has not considered the contents of the declaration of Plaintiff’s counsel, the contents of any exhibits attached to that declaration, or any arguments based upon this extrinsic evidence.

Ultimately, the court agrees with Defendant Ramirez that the motion to strike is untimely. A motion to strike must be brought “within the time allowed to respond to a pleading.” Where the pleading in question is an Answer, the time to respond by either demurrer or motion to strike is 10 days after service of the Answer. (See CCP § 430.40(b) [“A party who has filed a complaint or cross-complaint may, within 10 days after service of the answer to his pleading, demur to the answer.”]; CCP § 435(b)(1); Rule of Court 3.1322(b).) Defendant Ramirez’s verified Answer was filed with the Court on August 18, 2022 and served by electronic mail on the same date. Under CCP section 1010.6, electronic service adds two court days to the deadline, but even with this extension, the present motion is clearly untimely, as it was not filed until 28 days after service, on September 15, 2022.

As the motion is untimely, it is not necessary for the Court to address any of the Plaintiff’s substantive arguments. Nevertheless, the Court notes that Plaintiff’s primary argument appears to be that no verified Answer was filed by Defendant Ramirez, but this is plainly incorrect. The Court’s docket establishes that Defendant Ramirez’s verified Answer was accepted for filing and was filed on August 18, 2022.

Plaintiff’s motion to strike the verified Answer is DENIED.

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Case Name: Mario Maldonado Juarez v. Lumnije Madzar

Case No.: 22CV397376

I. Facts

THIS IS A PERSONAL INJURY ACTION CONCERNING A DOG BITE THAT PLAINTIFF MARIO MALDONADO JUAREZ ALLEGEDLY RECEIVED FROM DEFENDANT LUMNIJE MADZAR’S DOG. PLAINTIFF WAS HIRED TO WORK ON DEFENDANT’S PROPERTY, AND DEFENDANT’S DOG BIT PLAINTIFF WHILE HE WAS WORKING. (COMPLAINT, P. 4.)

The Complaint, filed on April 19, 2022, alleges the following causes of action:

1. General Negligence

2. PREMISES LIABILITY

a. COUNT 1: NEGLIGENCE

b. COUNT 2: WILLFUL FAILURE TO WARN

DEFENDANT FILED THIS MOTION TO STRIKE ON SEPTEMBER 20, 2022, SEEKING TO STRIKE COUNT TWO OF THE PREMISES LIABILITY CAUSE OF ACTION:

Page 1 of 1 ‘Attachment to Complaint’, Second Cause of Action Premises Liability, Paragraph Prem. L-3, Count Two – Willful Failure to Warn [Civil Code section 846].

Plaintiff filed an Opposition on January 3, 2023, to which Defendant replied on January 9, 2023.

II. Motion to Strike

UNDER SECTION 436 OF THE CODE OF CIVIL PROCEDURE, A COURT MAY STRIKE OUT ANY IRRELEVANT, FALSE, OR IMPROPER MATTER INSERTED INTO ANY PLEADING, OR STRIKE OUT ALL OR PART OF ANY PLEADING NOT DRAWN OR FILED IN CONFORMITY WITH THE LAWS OF THIS STATE, A COURT RULE, OR AN ORDER OF THE COURT. (CODE CIV. PROC. § 436.) THE GROUNDS FOR A MOTION TO STRIKE MUST APPEAR ON THE FACE OF THE CHALLENGED PLEADING OR FROM MATTERS OF WHICH THE COURT MAY TAKE JUDICIAL NOTICE. (CODE CIV. PROC. § 437, SUBD. (A); SEE ALSO CITY AND COUNTY OF SAN FRANCISCO V. STRAHLENDORF (1992) 7 CAL.APP.4TH 1911, 1913.) IN RULING ON A MOTION TO STRIKE, THE COURT READS THE COMPLAINT AS A WHOLE, ALL PARTS IN THEIR CONTEXT, AND ASSUMES THE TRUTH OF ALL WELL-PLEADED ALLEGATIONS. (SEE TURMAN V. TURNING POINT OF CENTRAL CALIFORNIA, INC. (2010) 191 CAL.APP.4TH 53, 63 [CITING CLAUSON V. SUPER. CT. (1998) 67 CAL.APP.4TH 1253, 1255].)

Defendant moves to strike Count Two of the Second Cause of Action – Willful Failure to Warn pursuant to Civil Code section 846.

In support of the motion, Defendant asserts that Civil Code section 846 was intended to govern property for recreational use, and that Plaintiff has failed to plead that the property was for recreational use or that he was present on the property for recreational purposes.

Section 846 of the Civil Code, known as the “recreational use immunity statute,” provides that “[a]n owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose except as provided in this section.” (Civ. Code. § 846; see also Hoffmann v. Young (2022) 13 Cal.5th 1257.)

(a) An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.

(d) This section does not limit the liability which otherwise exists for any of the following:

(1) Willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.

(2) Injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose.

(3) Any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

(Civ. Code, § 846.)

Here, Plaintiff attempts to read the exception set forth in subdivision (d)(3) without reference to the general rule. Plaintiff relies on subdivision (d)(3) as a standalone provision to advance an affirmative claim for relief while ignoring the general provisions of section 846 that apply to limit liability in a recreational land use context. (See Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707 [holding the “purpose of section 846 is to encourage property owners ‘to allow the general public to recreate free of charge on privately owned property.’”]; see also Hoffmann v. Young, supra, 13 Cal.5th 1257; Parish v. Lloyd (1978) 82 Cal.App.3d 785, 787.)

Because subdivision (d)(3) is written as an exception to a limitation, it does not appear to set forth an affirmative claim for relief unless Plaintiff can show that the general rule applies. Even though Plaintiff alleges that he was expressly invited on Defendant’s property, he has not alleged that the property was accessible for a recreational purpose.

Plaintiff has failed to allege facts to establish that section 846 applies to Defendant’s conduct or property. Plaintiff’s Opposition also does not indicate how the Complaint could be amended to support Count 2 of the Second Cause of Action. (See Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112 fn. 8 [“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”]; See also Drum v. San Fernando Valley Bar Ass’n. (2010) 182 Cal.App.4th 247, 253 [citing Medina].)  Nevertheless, the court will GRANT Defendant’s Motion to Strike with 10 days’ leave to amend, as it is not clear to the court whether the defect is curable, and Plaintiff has not previously been afforded an opportunity to amend.

III. Conclusion

THE MOTION TO STRIKE IS GRANTED WITH 10 DAYS’ LEAVE TO AMEND, PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 436.

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Case Name: Georgina Montano v. Eye Center of Northern California, Inc. et al

Case No.: 22CV399639

IV. Facts

THIS IS A MEDICAL MALPRACTICE ACTION BROUGHT BY PLAINTIFF GEORGINA MONTANO AGAINST DEFENDANTS WILLIAM ELLIS, M.D (“ELLIS”) AND EYE CENTER OF NORTHERN CALIFORNIA DBA ELLIS EYE LASER MEDICAL CENTERS (“EYE CENTER”) (COLLECTIVELY, “DEFENDANTS”).

Plaintiff initiated this action by filing the Complaint on June 1, 2022.

The Complaint alleges that on March 5, 2021, Plaintiff underwent a left medial pterygium removal with amniotic grafting surgery under the advice of Defendant Ellis. (Complaint, ¶ 11.) Plaintiff felt pain in her eye during the procedure and heard Defendant Ellis or his assistant state that she was bleeding. (Id. at ¶¶ 12-13.) Immediately after hearing the comment, Plaintiff saw a bright flash of light, smelled something burning, and felt a painful burning sensation in her left eye. (Id. at ¶ 13.)

On March 6, 2021, Plaintiff returned to Defendant Ellis’s San Jose office for a post-op follow-up, during which Plaintiff reported having intense blurred left eye pain and nausea. (Id. at ¶ 14.) On March 12, 2021, Plaintiff went to see Defendant Ellis again and reported having blurred vision and pain around her left eye; Defendant Ellis’s notes confirmed Plaintiff had swollen lymph nodes on her left side. (Id. at ¶ 15.)

During a subsequent follow up on April 2, 2021, Plaintiff reported deteriorating vision and seeing dark shadowy spots on her left eye; she also reported having blurred vision and pain in her left eye. (Id. at ¶ 16.) Upon hearing this, Defendant Ellis instructed Plaintiff to go to the emergency department of Santa Clara Valley Medical Center (“SCVMC”) on suspicion that Plaintiff was suffering a non-arteritic anterior ischemic optic neuropathy (“NAION”); SCVMC emergency notes indicated a diagnosis secondary to ophthalmologic injury. (Id. at ¶¶ 16-17.)

Plaintiff went to Defendant Ellis’s San Jose office on April 6, 2021, complaining of left temporal headaches, blurry vision, and pain. (Id. ¶ 18.) Plaintiff was subsequently referred to West County Optometry in El Cerrito, California for a Visual Field Test on April 12, 2021. (Ibid.) Plaintiff was instructed to give Defendant Ellis the test results. (Ibid.) Plaintiff went to Defendant Ellis’s El Cerrito office to make an appointment pursuant to the referral but was redirected to a neurologist in San Jose, California. (Id. at ¶ 19.)

Plaintiff’s last office visit with Defendant Ellis was on April 12, 2021, during which Plaintiff complained of constant headaches, intense left eye pain, blurred vision, loss or impairment of left eye vision, jaw pain, and neck pain. (Id. at ¶ 20.) To date, Plaintiff still experiences the aforementioned symptoms. (Id. at ¶ 21.)

Defendants filed the present Demurrer on October 6, 2022, asserting that the sole cause of action in the Complaint – Professional Medical Malpractice – is barred under the applicable statute of limitations in Civil Code of Procedure sections 340.5 and 364.

V. Demurrer to the Complaint

IN RULING ON A DEMURRER, THE COURT TREATS IT “AS ADMITTING ALL MATERIAL FACTS PROPERLY PLEADED, BUT NOT CONTENTIONS, DEDUCTIONS OR CONCLUSIONS OF FACT OR LAW.” (PICCININI V. CAL. EMERGENCY MANAGEMENT AGENCY (2014) 226 CAL.APP.4TH 685, 688, [CITING BLANK V. KIRWAN (1985) 39 CAL.3D 311, 318].) “A DEMURRER TESTS ONLY THE LEGAL SUFFICIENCY OF THE PLEADING. IT ADMITS THE TRUTH OF ALL MATERIAL FACTUAL ALLEGATIONS IN THE COMPLAINT; THE QUESTION OF PLAINTIFF’S ABILITY TO PROVE THESE ALLEGATIONS, OR THE POSSIBLE DIFFICULTY IN MAKING SUCH PROOF DOES NOT CONCERN THE REVIEWING COURT.” (COMMITTEE ON CHILDREN’S TELEVISION, INC. V. GENERAL FOODS CORP. (1983) 35 CAL.3D 197, 213-214.) IN LIBERALLY CONSTRUING THE ALLEGATIONS WITHIN A PLEADING, THE COURT DRAWS INFERENCES FAVORABLE TO THE PLEADER. (PEREZ V. GOLDEN EMPIRE TRANSIT DIST. (2012) 209 CAL.APP.4TH 1228, 1239.)

A. Statute of Limitations

DEFENDANTS DEMUR TO PLAINTIFF’S COMPLAINT ON THE GROUND THAT IT IS TIME-BARRED UNDER CODE OF CIVIL PROCEDURE SECTION 340.5. DEFENDANTS FURTHER ARGUE THAT ALTHOUGH CODE OF CIVIL PROCEDURE SECTION 364 PERMITS A 90-DAY EXTENSION OF THE APPLICABLE STATUTE OF LIMITATIONS WITH THE SERVICE OF A NOTICE OF INTENT TO SUE, PLAINTIFF’S CLAIM IS STILL TIME-BARRED.

1. Applicable Statute of Limitation

IN AN ACTION FOR INJURY OR DEATH AGAINST A HEALTH CARE PROVIDER BASED UPON SUCH PERSON’S ALLEGED PROFESSIONAL NEGLIGENCE, THE TIME FOR THE COMMENCEMENT OF ACTION SHALL BE THREE YEARS AFTER THE DATE OF INJURY OR ONE YEAR AFTER THE PLAINTIFF DISCOVERS, OR THROUGH THE USE OF REASONABLE DILIGENCE SHOULD HAVE DISCOVERED, THE INJURY, WHICHEVER OCCURS FIRST.

(Code Civ. Proc., § 340.5.)

Defendants contend that the one-year limitations period in section 340.5 applies, because Plaintiff knew of her injury and had reason to suspect the cause less than three years before this action was filed. Plaintiff agrees that the one-year statute of limitations period of section 340.5 applies. (See Jolly v. Eli Lilly Co. (1988) 44 Cal.3d 1103, 1110-1111 (Jolly) [applying the one-year statute of limitation to malpractice claims].)

In support of their position, Defendants aver that the cause of action accrued on March 6, 2021, when Plaintiff experienced blurred left eye pain and nausea. (Complaint, ¶ 14.) By contrast, Plaintiff asserts that the cause of action actually accrued one day earlier, on March 5, 2021, when the procedure occurred. (Opposition, p. 7.)

In general, an action accrues on the date of injury (Jolly, supra, 44 Cal.3d at 1109), but regardless of whether we accept Plaintiff’s or Defendants’ position regarding the date of accrual, there is no dispute that one year from the date of accrual would have been no later than March 6, 2022.

2. Code of Civil Procedure Section 364 Notice

SECTION 364 OF THE CODE OF CIVIL PROCEDURE, SUBDIVISION (A), REQUIRES A PLAINTIFF TO SERVE A HEALTH CARE PROVIDER WITH A NOTICE OF INTENT TO SUE FOR PROFESSIONAL NEGLIGENCE AT LEAST 90 DAYS BEFORE COMMENCING AN ACTION. “NO PARTICULAR FORM OF NOTICE IS REQUIRED, BUT IT SHALL NOTIFY THE DEFENDANT OF THE LEGAL BASIS OF THE CLAIM AND THE TYPE OF LOSS SUSTAINED, INCLUDING WITH SPECIFICITY THE NATURE OF THE INJURIES SUFFERED.” (CODE CIV. PROC., § 364, SUBD. (B).) “IF THE NOTICE IS SERVED WITHIN 90 DAYS OF THE EXPIRATION OF THE APPLICABLE STATUTE OF LIMITATIONS, THE TIME FOR THE COMMENCEMENT OF THE ACTION SHALL BE EXTENDED 90 DAYS FROM THE SERVICE OF THE NOTICE.” (CODE CIV. PROC., § 364, SUBD. (D).) THE TOLLING IS EXPRESSLY LIMITED TO CIRCUMSTANCES WHERE THE NOTICE WAS SENT DURING THE LAST 90 DAYS OF THE LIMITATIONS PERIOD. (IBID.)

Defendants acknowledge that Plaintiff served a Code of Civil Procedure section 364 notice to Defendants on February 15, 2022, extending the statute of limitations by 90 days from the date of service. (Demurrer, p. 6.) Accordingly, Defendants assert that Plaintiff was required to file her Complaint by May 16, 2022. (Ibid.)

Plaintiff contends that her Complaint is timely because notice was filed within 90 days after March 5, 2022 – i.e., by June 3, 2022. Specifically, Plaintiff contends that given the prohibitory language of section 364, Code of Civil Procedure section 356 applies. (Code Civ. Proc. § 356 [“When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.”]) In essence, Plaintiff argues that, with her reading of section 356, Plaintiff had one year plus 90 days to file her Complaint.

The court concludes that Plaintiff has misapplied the 90-day extension. Section 364 makes it clear that the 90-day period extends “from the service of the notice” – in this case, 90 days from February 15, 2022. It does not add 90 days to the end of the entire one-year limitations period.

Moreover, the California Supreme Court has indicated that section 356 should not apply to section 364. According to the Supreme Court, permitting the application of both Code of Civil Procedure sections 356 and 364 would run contrary to the legislative intent. (Woods v. Young (1991) 53 Cal. 3d 315, 324 [“The anomalies created by applying the tolling provision of section 356 to section 364 suggest that when the Legislature enacted MICRA it did not intend section 356, a non-MICRA provision, to apply to section 364, a MICRA statute.”] Thus, courts have generally “held that the 1-year statute of limitations is "tolled" – rather than "extended" – for 90 days when the plaintiff gives notice of intent to sue in the last 90 days of the statutory period.” (Russell v. Stanford Univ. Hosp. (1997) 15 Cal.4th 783, 785 [citing Woods, supra, 53 Cal. 3d 315]; see also Belton v. Bowers Ambulance Serv. (1999) 20 Cal.4th 928.)

For the foregoing reasons, the court agrees with Defendants that Plaintiff’s complaint is time-barred.

VI. Conclusion

IT DOES NOT APPEAR REASONABLY LIKELY THAT PLAINTIFF CAN AMEND THE COMPLAINT TO AVOID THE STATUTE OF LIMITATIONS. (SEE GOODMAN V. KENNEDY (1976)18 CAL.3D 335, 349 (STATING THAT “PLAINTIFF MUST SHOW IN WHAT MANNER HE CAN AMEND HIS COMPLAINT AND HOW THAT AMENDMENT WILL CHANGE THE LEGAL EFFECT OF HIS PLEADING”), QUOTING COOPER V. LESLIE SALT CO. (1969) 70 CAL.2D 627, 636; SEE ALSO HENDY V. LOSSE (1991) 54 CAL.3D 723, 742 (STATING THAT “THE BURDEN IS ON THE PLAINTIFF… TO DEMONSTRATE THE MANNER IN WHICH THE COMPLAINT MIGHT BE AMENDED”).)  

In view of the foregoing, Defendants’ demurrer to the first cause of action is SUSTAINED without leave to amend.

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