On 03/18/2019 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY filed a Contract - Insurance lawsuit against ALEJANDRO JIMENEZ. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Spring Street Courthouse
Los Angeles, California
JAMES E. BLANCARTE
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
MAHFOUZ RICHARD L.
KIM LEAH J.
12/2/2020: Notice of Change of Firm Name - Notice of Change of Firm Name
7/16/2020: Order (name extension) - Order Proposed Order
7/16/2020: Stipulation and Order (name extension) - Stipulation and Order to Cont Trial
5/3/2019: Demand for Jury Trial - Demand for Jury Trial
5/3/2019: Answer - Answer
3/26/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service
3/18/2019: Civil Case Cover Sheet - Civil Case Cover Sheet
3/18/2019: Complaint - Complaint
3/18/2019: Summons - Summons on Complaint
3/18/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
3/18/2019: First Amended Standing Order - First Amended Standing Order
Hearing03/15/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury TrialRead MoreRead Less
DocketNotice of Change of Firm Name; Filed by: Alejandro Jimenez (Defendant); New Firm Name: LAW OFFICES OF THOMAS D. POKLADOWSKI & ASSOCIATESRead MoreRead Less
DocketUpdated -- Leah J. Kim (Attorney): Organization Name changed from Law Offices of Francine B. Kelly & Associates to LAW OFFICES OF THOMAS D. POKLADOWSKI & ASSOCIATESRead MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/21/2022 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 08/04/2020Read MoreRead Less
DocketPursuant to written stipulation, Non-Jury Trial scheduled for 09/14/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Party was rescheduled to 03/15/2021 08:30 AMRead MoreRead Less
DocketStipulation and Order to Cont Trial; Filed by: State Farm Mutual Automobile Insurance Company (Plaintiff); As to: Alejandro Jimenez (Defendant)Read MoreRead Less
DocketAnswer; Filed by: Alejandro Jimenez (Defendant); As to: State Farm Mutual Automobile Insurance Company (Plaintiff)Read MoreRead Less
DocketDemand for Jury Trial; Filed by: Alejandro Jimenez (Defendant)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by: State Farm Mutual Automobile Insurance Company (Plaintiff); As to: Alejandro Jimenez (Defendant); Proof of Mailing Date: 03/25/2019; Service Cost: 45.00; Service Cost Waived: NoRead MoreRead Less
DocketNon-Jury Trial scheduled for 09/14/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/21/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketComplaint; Filed by: State Farm Mutual Automobile Insurance Company (Plaintiff); As to: Alejandro Jimenez (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: State Farm Mutual Automobile Insurance Company (Plaintiff); As to: Alejandro Jimenez (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: State Farm Mutual Automobile Insurance Company (Plaintiff); As to: Alejandro Jimenez (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk CourthouseRead MoreRead Less
Case Number: 19STLC02657 Hearing Date: September 17, 2020 Dept: 56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
MIRIAM RODRIGUEZ, et al.,
CASE NO.: 19STLC06257
[TENTATIVE] ORDER RE: DEMURRER TO COMPLAINT
Date: September 17, 2020
Time: 8:30 a.m.
MOVING PARTY: Defendant Merchants Bonding Company (“Moving Defendant”)
RESPONDING PARTY: Plaintiff Luis Alfonso
The Court has considered the moving, opposition, and reply papers. Despite Moving Defendant’s argument that the Court should disregard Plaintiff’s untimely opposition, the Court exercises its discretion and will consider the entirety of Plaintiff’s opposition papers.
Plaintiff’s complaint arises from the alleged wrongful actions of a notary public. On July 5, 2019, Plaintiff filed a complaint against Defendants alleging causes of action for: (1) cancellation of instrument; and (2) declaratory judgment. The crux of Plaintiff’s complaint is the appearance of a false certificate of acknowledgement of a notary, Miriam Rodriguez (“Rodriguez”), on a Substitution of Trustee (“SOT”) form which was executed on October 30, 2015.
On September 17, 2019, Moving Defendant filed a demurrer to the complaint on the grounds that each cause of action asserted against Moving Defendant is barred by the statute of limitations. On January 13, 2020, Department 94 of this Court ruled on Moving Defendant’s demurrer and placed the demurrer off calendar. The January 13, 2020 minute order stated that because Department 94 is a limited jurisdiction court, it lacked jurisdiction to grant Plaintiff’s requests for cancellation of instrument and declaratory relief. Department 94 reclassified this action as a civil unlimited jurisdiction case and advanced and vacated all future hearing dates that were set in Department 94.
On January 27, 2020, the Court issued a notice of case reassignment which stated that this action, which was previously assigned to the Honorable Serena R. Murillo in Department 26, was now assigned to the Honorable Holly J. Fujie sitting in Department 56 of this Court.
On August 24, 2020, Moving Defendant filed and served notice of its demurrer to the complaint. Such notice attached the demurrer which was filed in September of 2019 but was taken off-calendar.
MEET AND CONFER
The meet and confer requirement has been met.
“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) “On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted.” (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 198.) A demurrer will be sustained without leave to amend if there exists no “reasonable possibility that the defect and be cured by amendment.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” (Id.)
Issue No.1: Statute of Limitations
Moving Defendant contends that the entire complaint is barred by the statute of limitations.
“The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) “There is an important qualification, however: [i]n order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” (Id. at 1315-1316.) “An action against a notary public on his or her bond or in his or her official capacity except that a cause of action based on malfeasance or misfeasance is not deemed to have accrued until discovery, by the aggrieved party or his or her agent, of the facts constituting the cause of action.” (Code Civ. Proc. § 338(f)(1).)
“A notary’s official duties include taking the acknowledgement of deeds, verifying the identity of signatories, and collecting their signatures in a journal.” (Purdum v. Holmes (2010) 187 Cal.App.4th 916, 923-924.) “The general limitation period for an action against a notary in his official capacity is three years.” (Id. at 923.) “If the action is based on notarial malfeasance, it does not accrue until the aggrieved party discovers the underlying facts . . . and must be filed within one year of discovery . . . or three years of the notarial act, whichever is later.” (Id.) “[E]very action against a notary in his official capacity is subject to a six-year maximum limitation period running from the date of the notarial act. The six -year limit applies regardless of whether the action is based on malfeasance and whether discovery is delayed.” (Id.) “The nature of the right sued upon, not the form of action or relief demanded, determines the applicable statute of limitations.” (Id. at 924.)
Here, the causes of action in the complaint are based on the alleged act of Rodriguez, in her official capacity, which occurred on October 30, 2015. Plaintiff has alleged that he discovered the underlying facts with respect to Rodriguez’s alleged wrongful action in April 2017. (Complaint at ¶¶ 24-25.) In fact, Plaintiff’s opposition concedes that he was aware of some wrongdoing and grew suspicious at this time. (Opposition at 6:21-7:6.) Thus, the statute of limitations ran: (1) three years from the date of Rodriguez’s alleged wrongful act; or (2) one year from the date of discovery, whichever is later. The latest of those two dates is October 30, 2018, which is three years from the date of Rodriguez’s alleged wrongful act. Plaintiff, however, did not file the complaint until July 5, 2019, which is outside of the statute of limitations.
Thus, the complaint is barred on its face by the statute of limitations unless Plaintiff can invoke the delayed discovery rule.
Issue No.2: The Delayed Discovery Rule
Moving Defendant contends that Plaintiff cannot rely on the delayed discovery rule to argue that his complaint is not barred by the statute of limitations.
“A plaintiff must bring a claim within the limitations period after accrual of the cause of action.” (Fox v. Ehicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) “An important exception to the general rule of accrual is the discovery rule, which postpones accrual of a cause of action the plaintiff discovers, or has reason to discover, the cause of action.” (Id. at 807.) “A plaintiff has reason to discover a cause of action when he or she has reason to suspect a factual basis for its elements.” (Id.) “Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” (Id.) A plaintiff’s suspicion of the elements of a cause of action analyzes “whether the plaintiffs [had] reason to at least suspect that a type of wrongdoing has injured them.” (Id.) “The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.” (Id.) In order to invoke the discovery rule, a complaint must specifically plead: (1) facts to show the time and manner of discovery; and (2) the inability to have made earlier discovery despite reasonable diligence. (Id. at 808.)
The Court finds that Plaintiff has not pled facts to invoke the delayed discovery rule. Plaintiff’s complaint fails to plead specific facts showing: (1) reasonable diligence; (2) the inability to have made earlier discovery despite reasonable diligence; and (3) the manner of discovery. Plaintiff suspected some wrongdoing as early as April 2017 when he requested a copy of Rodriguez’s notary journal and did not receive a response within 15 days; however, Plaintiff did not file the complaint until over two years later.
Due to the lack of specific facts pled to invoke the delayed discovery rule, Plaintiff’s complaint is barred by the applicable statute of limitations. The Court therefore SUSTAINS the demurrer of Moving Defendant to the first and second causes of action in the complaint WITH 20 DAYS LEAVE TO AMEND.
While not raised by Moving Defendant, the Court will address additional inadequacies present in the complaint based upon the Court’s review of the pleading.
Issue No.3: The Lack of a Signed Complaint
“Every pleading must be subscribed, i.e., signed by the party or by his or her attorney.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)
Here, the complaint is not signed. While the Court recognizes that Plaintiff is currently representing himself in pro per, Plaintiff is still held to the same standard as an attorney. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Thus, Plaintiff’s complaint is defective on this ground pursuant to CLD Construction.
Issue No.4: Lack of a Prayer for Relief
A complaint must contain a prayer for relief. (Hoffman v. Pacific Coast Const. Co. (1918) 37 Cal.App.125, 132.) A complaint must contain “[a] demand for judgment for the relief to which the pleader claims to be entitled. If the recovery of money or damages is demanded, the amount demanded shall be stated.” (Code Civ. Proc. § 425.10(a)(2).)
Here, the complaint is void of a prayer for relief. Plaintiff’s complaint is not procedurally adequate pursuant to Hoffman and California Code of Civil Procedure, Section 425.10(a)(2).
Issue No.5: Damages
Based upon the Court’s review of the complaint, the complaint does not state how Plaintiff was damaged. Pursuant to the first cause of action, Plaintiff alleges that he was damaged in the sum of $15,000.00 but does not allege how such monetary damage occurred. (Complaint at ¶ 42.) A complaint is required to state facts constituting the causes of action asserted therein. (Code Civ. Proc. § 425.10(a)(1).)
As indicated above, Moving Defendant’s demurrer to the first and second causes of action in the complaint is sustained with 20 days leave to amend.
Moving party is ordered to give notice of this ruling.
In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 17th day of September 2020
Hon. Holly J. Fujie
Judge of the Superior Court