On 08/24/2017 TRACEY ANN VERHOEVEN filed a Personal Injury - Motor Vehicle lawsuit against BRAULIO IVAN ACEVESZARAGOZA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
VERHOEVEN TRACEY ANN
ACEVESZARAGOZA BRAULIO IVAN
ACEVES BRAULIO IVAN
SPELLERBERG JEFFERY K. ESQ.
SPELLERBERG JEFFERY KENT
BARMASSE JASON M.
5/10/2018: Minute Order
6/11/2018: ASSOCIATION OF COUNSEL
11/15/2018: Motion to Be Relieved as Counsel
12/7/2018: Minute Order
12/7/2018: Minute Order
12/21/2018: Order Granting Attorney"s Motion to Be Relieved as Counsel-Civil
4/18/2019: Notice of Ruling
4/18/2019: Minute Order
1/2/2018: Proof of Service
11/9/2017: PROOF OF SERVICE SUMMONS
10/27/2017: PROOF OF SERVICE OF SUMMONS
10/27/2017: PROOF OF SERVICE BY MAIL
10/27/2017: DECLARATION OF DILIGENCE
9/14/2017: Other -
at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Trial Setting Conference - HeldRead MoreRead Less
Notice of Ruling; Filed by Braulio Ivan Aceves (Defendant)Read MoreRead Less
Minute Order ( (Trial Setting Conference)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 4; Jury Trial - Not Held - Vacated by CourtRead MoreRead Less
at 10:00 AM in Department 4; Final Status Conference - Not Held - Vacated by CourtRead MoreRead Less
Proof of Service - Order Granting Attorney's Motion to be Relieved as Counsel; Filed by Braulio Ivan Aceveszaragoza (Legacy Party)Read MoreRead Less
Notice (of Vacating Final Status Conference and Trial Dates and Setting Trial Setting Conference); Filed by Braulio Ivan Aceves (Defendant)Read MoreRead Less
at 1:30 PM in Department 4; Hearing on Motion to be Relieved as Counsel (for Attorney Scott E. Braybrooke, Voss, Silverman & Braybrooke LLP as to Defendant Braulio Ivan Aceves) - Held - Motion GrantedRead MoreRead Less
Order Granting Attorney's Motion to Be Relieved as Counsel-Civil; Filed by ClerkRead MoreRead Less
Minute Order ((Hearing on Motion to be Relieved as Counsel for Attorney Scot...)); Filed by ClerkRead MoreRead Less
DECLARATION OF DILIGENCERead MoreRead Less
PROOF OF SERVICE BY MAILRead MoreRead Less
Proof of Service by Mail; Filed by Plaintiff/PetitionerRead MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
Declaration; Filed by Plaintiff/PetitionerRead MoreRead Less
Summons; Filed by Tracey Ann Verhoeven (Plaintiff)Read MoreRead Less
SummonsRead MoreRead Less
Complaint; Filed by Tracey Ann Verhoeven (Plaintiff)Read MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC672021 Hearing Date: October 28, 2019 Dept: 4A
Motion for Judgment on the Pleadings
Having considered the moving, opposing, and reply papers, the Court rules as follows.
On August 24, 2017, Plaintiff Tracey Ann Verhoeven (“Plaintiff”) filed a complaint against Defendant Braulio Ivan Aceveszaragoza and DOES 1 to 35, asserting a cause of action for motor vehicle negligence in connection with an automobile accident that occurred on August 23, 2015, at the intersection of Pico Boulevard and Ocean Avenue, in Santa Monica, California. Plaintiff alleged Defendant Braulio Ivan Aceveszaragoza operated the motor vehicle. Plaintiff alleged she suffered wage loss, loss of use of property, hospital and medical expenses, general damage, property damage, and loss of earning capacity.
On January 22, 2018, Defendant Braulio Ivan Aceves (sued/served as Braulio Ivan Aceveszaragoza) (“Defendant”) filed an answer to the complaint.
Trial is set for November 18, 2019.
Defendant moves for judgment on the pleadings in this action.
A party may move for judgment on the pleadings or the court may, on its own motion, grant a motion for judgment on the pleadings. (C.C.P. §438(b)(1)-(2).) If the moving party is a defendant, a motion for judgment on the pleadings under C.C.P. §438 may be made on the ground that the “complaint does not state sufficient facts to constitute a cause of action against that defendant.” (C.C.P. §438(c)(1)(B)(ii).) The grounds for a motion for judgment on the pleadings “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or the in the supporting points and authorities, except as the court may otherwise permit.” (C.C.P. §438(d).)
“The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. [Citations]” (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) “Judgment on the pleadings does not depend upon a resolution of questions of witness credibility or evidentiary conflicts. In fact, judgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. [Citation]” (Id.)
Defendant Braulio Ivan Aceves (“Defendant”) moves for judgment on the pleadings against Plaintiff Tracey Ann Verhoeven (“Plaintiff”), pursuant to C.C.P. §438.
Plaintiff filed a complaint on August 24, 2017. The complaint contains a single cause of action for motor vehicle negligence. Plaintiff, by way of the complaint, seeks recovery for personal injuries and property damages.
Plaintiff’s claim for personal injuries appears to be time-barred on the face of the complaint. Plaintiff’s claim for personal injuries is subject to the two-year statute of limitations set forth in C.C.P. §335.1. Generally, the cause of action begins to accrue on the date of the plaintiff’s injury, unless the discovery rule applies. (See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 (“As previously noted, both sides agree that the one-year limitations period of section 340, subdivision (3) applies to this case. Both sides also agree that the common law rule, that an action accrues on the date of injury [Citation], applies only as modified by the ‘discovery rule.’”).) In the complaint, Plaintiff alleged the accident occurred on August 23, 2015. Plaintiff did not file the instant action until August 24, 2017, two years and one day after the alleged accident occurred. (See C.C.P. §12 (“The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.”).) Thus, Plaintiff’s claim for personal injuries appears to be time-barred on the face of the complaint.
In opposition, Plaintiff argues Defendant waived the statute of limitations affirmative defense by failing to raise the defense in his answer and failing to amend his answer to assert the statute of limitations affirmative defense over the last four years. (Opposition, pgs. 2-12.) The Court agrees. “[A] defendant must plead defenses in an answer or demurrer, or risk waiver. (Code Civ. Proc., § 430.80, subd. (a).) A defendant waives a statute of limitations defense by failing to plead it in an answer or raise it as a ground of a general demurrer.” (See Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 842-843 [citations omitted].) In this case, Defendant filed its Answer on January 22, 2018, but failed to assert an affirmative defense based on a failure to comply with the statute of limitations. Having failed to raise the defense by demurrer or answer when he appeared in 2018, Defendant waived its right to rely on such a defense. It cannot simply raise the defense now by way of a motion for judgment on the pleadings.
Defendant argues that it may properly raise the affirmative defense by motion for judgment on the pleadings to challenge a complaint that is untimely on its face. But such a rule would eviscerate the general principle that an affirmative defense, like a failure to comply with the applicable statute of limitations, must be promptly raised or it will be forfeited. The Court rejects the notion that a defendant can file an answer without mentioning a limitations defense, make no attempt to amend the answer to add such a defense, and then simply raise the defense through a motion for judgment on the pleadings on the eve of trial. Such a result would undermine established pleading standards and their goal of providing fair notice of the issues that are to be litigated.
Because the Court finds that Defendant has waived any right to assert a limitations affirmative defense, it is unnecessary to address the other opposing arguments raised by Plaintiff.
Defendant’s motion for judgment on the pleadings is DENIED.
Defendant is ordered to give notice of the Court’s ruling.
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