Tentative Rulings

Case Number: BC644069    Hearing Date: April 6, 2021    Dept: 39

Superior Court of California

County of Los Angeles

Stanley Mosk Courthouse

Department #39

Plaintiff Wu Hong (“Plaintiff”) filed this action on December 16, 2016, alleging that Lama Norbu (“Defendant”) sexually assaulted her in China in 2010. The Court held a bench trial on November 16, 2020. Defendant had raised an affirmative defense under the statute of limitations. There was no dispute that Plaintiff was an adult at the time of the alleged assault, so the statute of limitations was two years, per Code of Civil Procedure section 335.1.

Following the trial, the Court afforded Plaintiff an opportunity to brief the statute of limitations issue. The Court issued a tentative statement of decision on January 11, 2021, following which the Court held a hearing on the tentative statement of decision. Plaintiff’s counsel appeared at the hearing and raised oral objections to the Court’s tentative statement of decision. Following the hearing, the Court adopted its statement of decision. The Court signed the proposed judgment on February 17, 2021.

Plaintiff filed a motion for reconsideration of the Court’s decision and judgment in this case, per Code of Civil Procedure section 1008(a). As an initial matter, Plaintiff’s counsel represents that she was allotted only ten minutes during the hearing. That is not correct. The Court placed no time limitations on Plaintiff’s counsel’s argument. Instead, the Court permitted Plaintiff’s counsel to use as much time as she felt necessary, and she did so.

The Court denies the motion on two procedural grounds. First, reconsideration of a bench trial is not authorized under section 1008. Second, in the alternative, the motion does not satisfy the requirements of section 1008(a). Either ground is a basis to deny this motion.

Putting aside the procedural issues, the Court denies the motion on the merits. Plaintiff argues that the Court should toll the statute of limitations, but the Court does not have authority to do so under these circumstances. The law is clear: The statute of limitations is two years, per Code of Civil Procedure section 335.1. There is no statutory authority to the contrary. The Legislature—not this Court—has authority to extend statutes of limitations. For example, the legislature extended the time to file an action for “recovery of damages suffered as a result of childhood sexual abuse” to “22 years of the date the plaintiff attains the age of majority or within five years of the date the plaintiff discovers or reasonably should have discovered [the injuries.].” (Code Civ. Proc., § 340.1.) However, this applies only to cases involving plaintiffs who suffered sexual abuse as minors. The Legislature did not extend the statute for cases involving sexual assault of adults, so Plaintiff cannot rely on this section.

In the absence of statutory authority, Plaintiff relies on the “discovery rule,” which “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discovery, the cause of action.” (NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1232.) Plaintiff argues that: (1) She lived in China and did not come to the United States until February 12, 2014; (2) She did not know Defendant’s identity or location; and (3) “[A]s a Chinese national she had no idea that she had any legal rights in the USA to pursue [Defendant] for a claim of rape.” (Plaintiff’s Post-Trial Brief, p.6.) However, the Court of Appeal has held that these facts do not toll the statute of limitations:

First, the discovery rule uses an objective test that looks not to what the particular plaintiff actually knew but to what a reasonable inquiry would have revealed. Second, the limitations period begins to run when the circumstances are sufficient to raise a suspicion of wrongdoing, i.e., when a plaintiff has notice or information of circumstances sufficient to put a reasonable person on inquiry. Thus, the plaintiff need not be aware of the specific facts necessary to establish the claim. Moreover, ignorance of the legal significance of known facts or the identity of the wrongdoer will not delay the running of the statute.

(Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, citations and internal quotations omitted.)

Plaintiff attempts to distinguish the instant case by arguing that Defendant’s residence and the location of the appropriate venue were unknown. Even these facts are not sufficient to invoke the discovery rule because Plaintiff certainly was aware of the wrongdoing in 2010, which is the dispositive issue. Essentially, there is no legal distinction between the “identity of the wrongdoer” and the location of the wrongdoer for purposes of the discovery rule. Moreover, the Court disagrees with Plaintiff’s argument that she had no legal remedy. Plaintiff could have filed a civil action in 2010 against the New Century Foundation (since Defendant allegedly was acting in the course and scope of his employment) and sought discovery concerning Defendant’s identity and location.

The Court sympathizes with Plaintiff. However, this Court is required to follow statutes enacted by the Legislature and precedent from the Court of Appeal. The discovery rule does not permit this Court to toll statutes of limitations in sexual assault cases until the perpetrator is identified. Instead, Plaintiff must seek redress from the Legislature or the Court of Appeal.

Based upon the foregoing, Plaintiff’s motion for reconsideration is denied. The Court discharges the Order to Show Cause why the Court should not issue the proposed judgment. The Court issued this OSC in error, as the Court previously issued the judgment on February 17, 2021. The Court orders the Clerk to serve a copy of this order upon the parties.

Case Number: BC644069    Hearing Date: January 12, 2021    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

NOTICE

The Court issues this tentative statement of decision, per California Rules of Court, rule 3.1590. This is the Court’s proposed statement of decision. Any party may, within 15 days after the proposed statement of decision and judgment has been served, serve and file objections to the proposed statement of decision or judgment, per California Rules of Court, rule 3.1590(g). The Court takes the hearing—currently set for January 12, 2021—off-calendar. Instead, the Court sets an Order to Show Cause why this statement of decision should not issue. The hearing shall be held on February 10, 2021, at 9:00 a.m., in Department #39 of the Stanley Mosk Courthouse. If Plaintiff’s counsel wishes to be heard on this statement of decision or any objection, she may appear (in-person or remotely). The Court’s clerk shall serve this tentative statement of decision and the accompanying judgment.

INTRODUCTION

Plaintiff Wu Hong (“Plaintiff”) alleges that she was sexually assaulted by Defendant Lama Norbu (“Defendant”) in China in 2010. In his answer, Defendant raised an affirmative defense under the statute of limitations, among others, and has referenced this issue in his pleadings before this Court. The case proceeded to trial on November 16, 2020, following which the Court authorized post-trial briefing on the issue of the statute of limitations. Now, the Court issues this statement of decision and enters a judgment for Defendant. Plaintiff shall take nothing by this action.

PROCEDURAL HISTORY

Plaintiff filed this action in the Alameda County Superior Court on January 20, 2016, asserting the following causes of action: (1) Battery, (2) Assault, (3) Sexual Assault, (4) Sexual Battery, (5) Intentional Infliction of Emotional Distress, (6) Reckless Disregard and Endangerment, (7) Misrepresentation, (8) False Promise, and (9) False Imprisonment. Plaintiff alleges that she suffers from a congenital heart disease and sought spiritual treatment from Defendant, who purportedly had healing powers. (Complaint, ¶¶ 10-13.) Plaintiff alleges that she met Defendant in Beijing, China in August 2010. (Ibid.) Plaintiff alleges that Defendant sexually assaulted her during this meeting. (Id., ¶¶ 19-35.)

The parties, by and through counsel, stipulated to transfer this case to the Los Angeles County Superior Court, and the case was transferred on December 16, 2016. On October 10, 2019, Defendant’s counsel filed an ex parte application to be relieved as counsel. The application was accompanied by a motion to be relieved on Form MC-051, as well as a declaration on Form MC-052. Defendant’s counsel sought to be relieved because Defendant had filed a federal civil action against him, among others, giving rise to a conflict of interest. Defendant’s counsel also informed the Court that Defendant had fired him. The Court denied the ex parte application but set the motion for hearing on October 31, 2019. Following a hearing, the Court granted the motion and relieved Defendant’s counsel.

After stipulating to transfer this case to the Los Angeles County Superior Court, Defendant has made repeated attempts to move the case to New York. On May 22, 2019, Defendant filed a notice of removal to the U.S. District Court for the Southern District of New York (“SDNY”). Then, on February 18, 2020, Defendant again sought “removal” of the case to the New York Supreme Court. The respective courts denied the removal requests. Since that time, Defendant has repeatedly filed “Responses” requesting that this case be transferred to courts in New York. However, none were filed as a motion or noticed for hearing.

On August 19, 2020, Plaintiff waived jury trial in this matter. Defendant never requested a jury trial. Nor did Defendant pay the required jury fees. Therefore, the Court ordered that the trial would be conducted as a bench trial. The Court’s clerk provided notice of this order, but Defendant neither objected to the Court’s ruling nor requested a jury trial and paid the required jury fees.

The Court held a final status conference on November 2, 2020. Plaintiff’s counsel appeared telephonically but Defendant did not appear. The Court continued the final status conference to November 6, 2020. On that date, Plaintiff’s counsel appeared but Defendant did not. Department One assigned this trial to the undersigned, and the Court ordered the parties to appear for trial on November 16, 2020. Plaintiff’s counsel indicated at the hearing that she would accept the assignment and provided notice to Defendant. Defendant did not file any motion or challenge under Code of Civil Procedure section 170.

Plaintiff’s counsel appeared on the morning of trial but Defendant did not. The Court waited for approximately one hour before calling the matter in the event Defendant was running late. Following the trial, the Court authorized the parties to file post-trial briefs on the statute of limitations.

EVIDENCE

1. Testimony of Jorge Torres – Torres testified that he has been the Director of the New Century Foundation since 2012 and was a volunteer since 2004. Torres testified that he traveled to China in 2010 with Defendant, who also was affiliated with the New Century Foundation. The Court does not consider testimony that New Century Foundation terminated Defendant in 2012 in response to allegations of improper conduct.

2. Testimony of Emilia Wang – Wang testified that Defendant was affiliated with the New Century Foundation in 2010 and gave seminars in China during this time period. The Court does not consider testimony that Defendant sexually assaulted Wang and that she received a judgment against him.

3. Deposition Testimony of Plaintiff – Plaintiff’s counsel introduced a certified copy of her client’s deposition transcript in Emilia Wang v. Lama Norbu, Case No. BC517398. Pursuant to Code of Civil Procedure section 2025.620, a deposition may be introduced against a party who was present or represented at the deposition if, among others: (1) The deponent resides more than 150 miles away from the place of the trial; (2) The deponent is unable to attend or testify because of a physical illness or infirmity; or (3) Exceptional circumstances exist in consideration of the importance of live testimony in open court. (Code Civ. Proc. §§ 2025.620(c)(1), (2)(C), (3).) Defendant was represented by counsel, Mr. Thomas E. Moore III, during this deposition and was afforded the opportunity to ask questions of Plaintiff.

The Court grants Plaintiff’s counsel’s request based on any one of these reasons. First, the record is clear that Plaintiff resides in China, which is over 150 miles from the place of trial. Second, in the alternative, the record is clear that Plaintiff suffers from health issues which precluded her from traveling to the United States for trial. Third, in the alternative, the Court grants the request to introduce the transcript in lieu of live testimony based upon the global pandemic, which effectively prevents travel to the United States for trial. The Court has balanced these circumstances with the importance of presenting live testimony and finds that the interests of justice support the Court’s decision. Finally, Plaintiff provided notice of her intent to use this deposition transcript on January 29, 2020, and Defendant has not objected. Therefore, the Court accepts Plaintiff’s deposition transcript in lieu of live testimony.

Plaintiff testified that she suffers from congenital heart disease and sought a blessing from Defendant. Plaintiff testified that she understood Defendant had the ability to heal people of afflictions like Plaintiff’s condition. Plaintiff testified that she and her sister’s friend went to Defendant’s hotel room in the summer of 2010, after which her companion left her alone with Defendant. Plaintiff testified that Defendant began touching her, and she attempted to leave the room, but he pulled her back onto the sofa and prevented her from leaving. Plaintiff testified that Defendant then raped her.

4. Plaintiff’s Exhibit #1 (Defendant’s Response to Plaintiff’s First Set of Requests for Production of Documents) – Admitted.

5. Plaintiff’s Exhibit #2 (Affidavit of Miao Yuan in Lieu of Live Testimony) – Plaintiff may rely on an affidavit in lieu of live testimony if a copy has been served on Defendant at least 30 days prior to trial “together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.” (Code Civ. Proc. § 98(a).) Plaintiff has not complied with these requirements. Notice was provided on November 9, 2020, which is less than 30 days before trial, and the notice did not disclose the affiant’s current address. Also, the notary who notarized the affidavit is located in Contra Costa County, which is more than 150 miles from the place of trial. Therefore, the Court denies Plaintiff’s request for admission and shall not consider this affidavit.

6. Plaintiff’s Exhibit #3 (Affidavit of Jorge Torres in Lieu of Live Testimony) – Plaintiff did not seek admission of this exhibit because Plaintiff testified at trial.

7. Plaintiff’s Exhibit #4 (Defendant’s Response to Plaintiff’s Special Interrogatories, Set One) – Admitted.

8. Plaintiff’s Exhibit #5 (Defendant’s Response to Plaintiff’s Form Interrogatories, Set One) – Admitted.

DISCUSSION

The statute of limitations for “[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” is two years. (Code Civ. Proc., § 335.1.) In this case, the assault occurred in August 2010, and this case was filed approximately five-and-one-half years later, on January 20, 2016. Plaintiff seeks an order equitably tolling the statute of limitations, arguing that it was impossible for her to file this case within the two years. Plaintiff also argues that there were “extraordinary circumstances” that justify equitable tolling.

In general, the statute of limitations begins to run when “the cause of action is complete with all of its elements.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) The most important exception to this rule is the “discovery rule” which “postpones accrual of a case of action until the plaintiff discovers, or has reason to discovery, the cause of action.” (NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1232.) Plaintiff argues that: (1) She lived in China and did not come to the United States until February 12, 2014; (2) She did not know Defendant’s identity or location; and (3) “[A]s a Chinese national she had no idea that she had any legal rights in the USA to pursue [Defendant] for a claim of rape.” (Plaintiff’s Post-Trial Brief, p.6.) These facts do not toll the statute of limitations

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under the discovery rule:

First, the discovery rule uses an objective test that looks not to what the particular plaintiff actually knew but to what a reasonable inquiry would have revealed. Second, the limitations period begins to run when the circumstances are sufficient to raise a suspicion of wrongdoing, i.e., when a plaintiff has notice or information of circumstances sufficient to put a reasonable person on inquiry. Thus, the plaintiff need not be aware of the specific facts necessary to establish the claim. Moreover, ignorance of the legal significance of known facts or the identity of the wrongdoer will not delay the running of the statute.

(Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, citations and internal quotations omitted.) Nor do they constitute “impossibility” that would justify tolling the statute of limitations. Plaintiff could have retained counsel and filed a case against a Doe defendant until she identified and served Defendant.

Plaintiff also argues that the Court should equitably toll the statute of limitations based upon “extraordinary circumstances.” Plaintiff identifies insufficient legal authority in support of her request. Among other things, Plaintiff argues that Defendant was a religious figure, analogizing this case to those in which courts have extended or tolled the applicable statutes of limitations. However, those cases were based upon specific statutory authority. For example, the legislature passed Code of Civil Procedure section 340.1, which extends the time to file an action for “recovery of damages suffered as a result of childhood sexual abuse.” (Code Civ. Proc., § 340.1.) Plaintiff cites no such statutory authority that would apply to this case, and it would be an abuse of this Court’s power to extend the statute of limitations under these circumstances based upon the cases cited by Plaintiff. The Court has considered Plaintiff’s remaining arguments and do not find them persuasive.

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CONCLUSION

The Court finds that this action violated the applicable statute of limitations and that there is no basis to toll the statute. Therefore, the Court enters judgment in favor of Defendant. The Court’s clerk shall provide notice.

DATED: January 11, 2021 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Superior Court of California

County of Los Angeles

Department 32

Having conducted a bench trial in this matter on November 16, 2020, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Judgment shall be entered for the Defendant and against the Plaintiff. Plaintiff shall take nothing in this action.

IT IS SO ORDERED.

DATED: ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC644069    Hearing Date: October 31, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Attorney Winston K. McKesson (“Counsel”) moves to be relieved as counsel for Defendant Lama Nurbu (“Plaintiff”). The motion is granted.

Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required.  (Cal Rules of Court, rule 3.1362.) The basis for this motion is that Defendant has sued Counsel, creating a conflict of interest. This is a proper basis for withdrawal.  Accordingly, the motion is granted.

Counsel should note that the order will become effective upon the filing of proof of service of a signed copy of the orders on Defendant.  Counsel will remain the attorney of record until Counsel files with the Court proof of service of the signed order.

DATED: October 31, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court