Plaintiff in Pro Per

SUPERIOR COURT OF LIMITED JURISDICTION

COUNTY OF LOS ANGELES

West Los Angeles

1633 Purdue Avenue,

Los Angeles, CA 90025

Plaintiff opposes the demurrer to the complaint on the grounds that statute of limitations does not apply to this case.

WHEREFORE, Plaintiff prays that the demurrer be over ruled.

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Defendant's demurrer on the grounds that the complaint is barred by the statute of limitations. This complaint is not barred by the statute of limitations because the action was commenced within one year when the original complaint #02T01924 was filed on May 11, 2001. The current case #02T01924 is identical to case # 01T02053 a battery committed on May 19, 2000.

Defendant cites Cal. Code Civil Procedure § 350 "Civil actions, without exception, an only be commenced within the periods prescribed . . . The complaint alleges that the injury occurred on May 19, 2000, therefore the stature of limitations expired on May 19, 2001." Defendant states that "[a]n action is commenced when the complaint is filed."

Since the original complaint was filed on May 11, 2001, that action was commenced within the prescribed period, therefore this action is not barred by the statute of limitations.

The Defendant on lines 24-28 or page 5 of the demurrer states that "the fact that plaintiff filed a case that was dismissed does not toll the stature of limitations." Neither of the cases which Defendant cites, Osborn or Barton, relates to the tolling of the statute of limitations or dismissed cases.

Osborn v. Hopkins (1911) 160 Cal. 501, 506, relates to the issue of when the statute os limitations starts to run in a contract for services. There is no reference to a dismissed case or the tolling of the statute of limitations.

Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal. App. 4^th 1200, 1209 deals with the issue of the statute of limitations and the delayed discovery rule. Again, there is no referenced to the tolling of the statute of limitations.

There are many cases dealing with the tolling of the statute of limitations, but they do not support the Defendant's position. (Associated Truck Parts, Inc. v. superior Court (1991) 228 Cal. App. 3d 864; Elkins v Derby, 12 Cal. 3d 410 (1974); Lantzy v. Centex Homes (2001) Cal. App. 4^th ; Bendix Corp. v. City of Los Angeles, 150 Cal. App. 3^rd 921; Smeltzley v. Nicholson Mfg. Co., 18 Cal. 3d 932 (1977); Leahey v. Dept. of Water and Poser, 75 Cal. App. 2d 281; Austin v. Massachusetts Bonding & Insurance Co., 56 Cal. 2d 596; American Western Banker v. Price Waterhouse (1993) 12 Cal. App. 4^th 39; Barrington v. A. H. Robins Co. (1985) 39 Cal. 3d 146)

In Associated Truck Parts, Inc.,v. Superior Court (1991) 228 Cal. App. 3d 864 the held for the plaintiff in a case where the statute of limitations was tolled when a written notice was not given by a Defendant insurance company.

The California Supreme Court has frequently favored the suspension of the running of the statute of limitations. "A procedural practice is neither sacred nor immutable. It must be able to withstand the charge that it is inequitable burdensome or dysfunctional." (p420) "[t]his and other courts as well as legislatures have liberally applied tolling rules or their functional equivalents to situations in which the plaintiff has satisfied the notification purpose of a limitation statute." Elkins v Derby, 12 Cal. 3d 410 (1974).

In Lantzy (2001) Cal. App. 4^th at page 2 equitable tolling of the statute of limitations was granted . "Statues of limitation will not however, be applied inflexible where principles of equity and justice favor the application of equitable tolling and where suspension of the running of a statute does not frustrate its primary purpose to prevent surprise through the revival of stale claims [citations]. In appropriate circumstances, compliance with a stature of limitations will be excused by imposition of an estoppel [citations], or a statute will be tolled for sound reasons of public policy. [citations]