INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, AN INSURANCE EXCHANGE VS SHAYNE WEST

Tentative Rulings

Case Number: 19STLC03027    Hearing Date: February 22, 2021    Dept: 26

Case Number: 19STLC06032    Hearing Date: February 22, 2021    Dept: 26

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendant Precy Baltazar’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. DEFENDANT TO FILE PROPOSED JUDGMENT OF DISMISSAL WITHIN 10 DAYS’ SERVICE OF THIS ORDER.

ANALYSIS:

On June 27, 2019, Plaintiff Misty Jenks (“Plaintiff”) filed the Complaint in this action for motor vehicle negligence against Defendant Precy Baltazar (“Defendant”). Following the Court’s order granting Defendant’s motion to quash service of the Summons and Complaint, the parties stipulated to service of the Summons and Complaint on Defendant. (Stip, filed 11/16/20.)

Defendant filed the instant Demurrer to the Complaint on December 18, 2020. Plaintiff filed an opposition on February 16, 2021.

Discussion

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Bakshandeh Decl., ¶3 and Exh. B.)

Defendant demurs to the Complaint for failure to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Specifically, Defendant contends the Complaint is barred by the two-year statute of limitations for personal injuries set forth at Code of Civil Procedure section 335.1. A demurrer based on the statute of limitations may only be sustained where the defect affirmatively appears on the face of the pleading. (Childs v. State of California (1983) 144 Cal.App.3d 155, 161.)

Plaintiff is correct that “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” must be brought within two years of the wrongful act. (See Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236, 1246 [holding that the general rule is that a cause of action accrues when the wrongful act is done and not at the time of plaintiff’s discovery, but under the delayed discovery rule, a cause of action will not accrue until the plaintiff discovers or should have discovered, through the exercise of reasonable diligence, all the facts essential to the cause of action].)

Here, the Complaint alleges that the motor vehicle accident occurred on August 14, 2014. (Compl.. ¶MV-1.) Nor are there any facts to indicate the delayed discovery rule applies. (Id. at p. 5.) The instant action, however, was not filed until June 27, 2019, almost four years after the accident. Therefore, the Complaint demonstrates on its face that Plaintiff’s personal injury claims are barred by the statute of limitations.

Regarding the opposition filed by Plaintiff on February 16, 2021, the Court finds no basis to overrule the Demurrer. There is no indication the opposition was served on Defendant, was filed grossly untimely, and improperly relies on facts outside the pleadings and of which no request for judicial notice has been made. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [it has long been the law that a demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable].) Nor has Plaintiff demonstrated that the Complaint can be amended to set forth the necessary facts, as is her burden. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)

Conclusion

Defendant Precy Baltazar’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.

Case Number: 19STLC03027    Hearing Date: January 21, 2020    Dept: 26

: Interinsurance Exchange of the Automobile Club v. West, et al.

MOTION TO SET ASIDE DISMISSAL

(CCP § 473(b))

TENTATIVE RULING:

PLAINTIFF INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB’S MOTION TO SET ASIDE DISMISSAL IS GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 6, 2019 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT) IS SCHEDULED FOR 01/21/21 AT 08:30 AM IN DEPARTMENT 26.

ANALYSIS:

On March 27, 2019, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed the instant action for automobile subrogation against Defendant Shayne West (“Defendant”). On July 8, 2019, Plaintiff filed a Notice of Settlement of Entire Case. The Court set an OSC re dismissal and entry of default for September 6, 2019. When no party appeared for the OSC, the Court dismissed the entire action without prejudice.

Plaintiff filed the instant Motion to Vacate Dismissal on November 20, 2019. To date, no opposition has been filed.

Discussion

Plaintiff seeks relief from the dismissal pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

The Motion is timely brought six months after dismissal of the action and is supported by an attorney affidavit of fault. Plaintiff’s attorney declares that he mis-calendared the OSC. (Motion, Tapper Decl., ¶¶2-4.) Plaintiff also demonstrates that the parties have reached a settlement in this action. (Id. at ¶2.) Based on the timely request to vacate supported by an attorney affidavit of fault, Plaintiff’s Motion to Vacate Dismissal is GRANTED. THE DISMISSAL ENTERED ON SEPTEMBER 6, 2019 IS HEREBY VACATED.

ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT) IS SCHEDULED FOR 01/21/21 AT 08:30 AM IN DEPARTMENT 26.

Moving party to give notice.