JULIAN BROADBERY V. ETHAN LIGHT, ET AL

Case Number

24CV04161

Case Type

Hearing Date / Time

Wed, 03/05/2025 - 10:00

Nature of Proceedings

Demurrer to Complaint

Tentative Ruling

Joseph S. Farzam / Ricxzziery J. Portillo of Joseph Farzam Law Firm for plaintiff

                                   

Andrew S. Meyers / Dalal Kaddoura of Straus Meyers, LLP for defendants Ethan Light and Pearl Light

RULING

The demurrer is sustained, with leave to amend on or before March 19, 2025.

The Court confirms: Trial date 12/3/25; MSC 11/7/24; Final CMC 9/3/25.

Background

Plaintiff’s complaint, filed July 26, 2024, alleges causes of action for (1) premises liability, (2) general negligence, (3) negligence per se, (4) assault and battery, and (5) strict liability against defendants Ethan Light and Pearl Light. Defendants are alleged to have been, “at all times mentioned herein,” the owners and/or in possession and control of property located at 6672 Abrego Road, in Goleta, at which they owned, controlled, possessed, managed, kenneled, housed, and kept a dog. In its general allegations, the complaint alleges that on or about January 29, 2019, while plaintiff was delivering items to 6672 Abrego Road in Goleta, he was pounced on and bitten by an unleashed dog at the premises, suffering severe damages and injury. In its first cause of action for premises liability, the complaint alleges that “[o]n or about JULY 26, 2022” [emphasis added], defendants Ethan Light and Pearl Light failed to properly maintain the premises, and/or protect against injuries by the dog.

Demurrer

Defendants have demurred to the complaint, on the basis that it alleges that plaintiff was attacked by the dog in January 2019, and the two-year personal injury statute of limitations set forth in Code of Civil Procedure section 335.1, had long since passed, barring the action. Defendant seeks to have the demurrer sustained without leave to amend.

There is no filed opposition to the demurrer.

Substitution of Attorney

On January 13, 2025, plaintiff filed a substitution of attorney form, substituting in attorneys Joseph S. Farzam and Ricxzziery J. Portillo of the Joseph Farzam Law Firm as attorneys of record for plaintiff, replacing plaintiff’s original attorney, Russell Behjatnia.

ANALYSIS

1.         Standards on demurrer.

The court’s task in ruling on a demurrer is to determine whether the complaint states a cause of action. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer admits the truth of all material facts properly pleaded (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967), no matter how unlikely or improbable they may be (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604), or how unlikely it will be that plaintiff will be able to prove the claim (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214). The court also assumes the truth of all reasonable inferences that may be drawn from the properly pleaded facts. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) The assumption of truth does not apply, however, to contentions, deductions, or conclusions of law or fact. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters, and therefore lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.)

Where the allegations of the complaint or matters of which judicial notice may be taken reveal a defense to the action, such as a statute of limitations bar, the plaintiff must “plead around” the defense by alleging specific facts which would avoid the apparent defense. Absent such allegations, the complaint is subject to demurrer for failure to state a cause of action. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 825; Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, 917, 921-922.) Similarly, where plaintiff relies on a theory of fraudulent concealment to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts that, if proved, would support the theory. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.) More specifically, if a plaintiff relies upon the discovery rule, the complaint must specifically allege facts showing “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.)

2.         The Case

Plaintiff’s complaint seeks damages for the personal injuries he sustained, on a variety of legal theories. As alleged in the complaint, filed July 26, 2024, the injury producing event—the dog attack—occurred on January 29, 2019.

Pursuant to Code of Civil Procedure section 335.1, the statute of limitations applicable to actions for personal injuries is 2 years. Since more than two years passed between the alleged injury-producing event and the filing of the complaint, the action is barred by the statute of limitations on its face.

Even so, the complaint contains at least one allegation that might tend to indicate that the 2019 date might have been alleged in error, or that there might be some other explanation for the July 2024 filing of the complaint. As noted above, the premises liability cause of action alleges that “[o]n or about JULY 26, 2022” [emphasis added], defendants Ethan Light and Pearl Light failed to properly maintain the premises, and/or protect against injuries by the dog. That date—July 26, 2022—is exactly 2 years prior to the filing of this action on July 26, 2024.

Further, even where claims are barred on their face by the statute of limitations, it would be an abuse of the court’s discretion to sustain a demurrer without leave to amend, without providing the plaintiff with an opportunity to attempt to plead around the statute of limitations bar in some manner, whether it be by explaining how and why the dates set forth in the pleading were alleged in error and what they truly were, or alleging facts to support tolling of the statute of limitations, or some other legally-recognized basis for concluding that the action is not barred by the passage of the statutory period.

The Court will therefore sustain defendants’ demurrer to the complaint but will permit plaintiff leave to file a first amended complaint on or before March 19, 2025, to allege whatever facts he may possess to clarify the date of the injury-producing event, and/or to allege a legal reason why the action should not be barred by the applicable statute of limitations.