GARY ROBINSON
C/O
El Castillo
12000 Washington Blvd.
Culver City, CA 90232
Plaintiff in Pro Per
SUPERIOR COURT OF LIMITED JURISDICTION
COUNTY OF LOS ANGELES
West Los Angeles
1633 Purdue Avenue,
Los Angeles, CA 90025
GARY ROBINSON, Plaintiff, Vs. DANIEL LUCHASKY, Does one through ten inclusive, Defendants. _____________________________________
-------------------------------------------------------- _________________________________ |
) ) ) ) ) ) ) ) ) ) |
Case No.: 01T02053
plaintiff's motion for summary adjudication, memorandum of points and authorities Date: xxxxxxx25, 2002 Time: 8:30 A.M. Dept: 93
Trial Date: Trial date: 4-23-03 at 10:30 AM
|
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.
///
///
///
///
Table of Contents
I. INTRODUCTION
II. BACKGROUND
*III. EQUITABLE EXCEPTIONS TO THE STATUTE OF LIMITATIONS
*A. Policy Behind The Statue Of Limitations
*B. Relation Back Doctrine
*C. Equitable Tolling Doctrine
*IV. ARGUMENT
*A. The Statute Of Limitations Is not applicable Because The Complaint Relates Back To The Original Complaint Filed Within One Year Of The Battery.
*B. The Statute Of Limitations Should Be Equitably Tolled.
*V. CONCLUSION
*
TABLE OF AUTHORITIES
MEMORANDUM OF POINTS AND AUTHORITIES
The Defendant's demur of Plaintiff's complaint for the tort of battery is based on the one year statute of limitations. Plaintiff's opposition is based on the Relation Back Doctrine and Equitable Tolling Doctrine. Base on these doctrines the Court should overrule Defendant's demure.
This battery case was brought by Plaintiff, Gary Robinson against Defendant, Daniel Luchasky. The original complaint was filed on May 11, 2001. Defendant served his answer on June 16, 2001.
At that time status hearing dates were not set at the time of the filing of the complaint. The parties were notified of the status hearing by mail. The court mailed notices of status hearing for September 26, 2001, on August 24, 2001. The case file contains proof of service for this notice and shows that the plaintiff's notice was mailed to the following address :
Gary Robinson
12000 Washington Blvd.
Culver City, CA 9xxxx
The address on the complaint and on the proof of service of the Defendant's answer is the following.
Gary Robinson
C/o
El Castille
12000 Washington Blvd.
Culver City, CA 9xxxxx
The post office returned the notice undelivered with a stamp "Not Deliverable as Addressed Unable to Forward.". The returned notice with enveloped containing the return to sender stamp was placed in the file on September 4, 2001. The address was not corrected. No notice was sent to the correct address. No phone call was received notifying the plaintiff of the upcoming status hearing. The Defendant was notified of the hearing and appeared at the hearing. Plaintiff was not notified and did not show up at the hearing.
Because of the Plaintiff's failure to appear, a hearing was set to show cause on October 01, 2001. The notice of this hearing was again sent to the same defective address and the post office again returned the notice undelivered on October 17, 2001. Again the notice was put into the case file and no new notice mailed. Not having notice of the second hearing, Plaintiff again failed to appear.
Because of this, the case was dismissed without prejudice. The notice of the dismissal was again sent to the same defective address December 4, 2001 and returned by the post office undelivered on December 28, 2001. At that time the Plaintiff was unaware that any hearings had taken place and that the case had been dismissed.
Believing that the case was still open, Plaintiff served Defendant with a Request for Admissions on January 21, 2002. Knowing that the case had been dismissed, the Defendant did not answer the request.
Plaintiff filed a motion for an Order Establishing Admissions. Despite the fact that the case had been dismissed, the clerk of the court accepted the filing and a hearing date was assigned. On March 20, 2002, Defendant filed an opposition to the motion, arguing that it should be denied because of the fact that the case had been dismissed. An exhibit in his papers contained a copy of the proof of service showing the dismissal. This was the first time that the Plaintiff was aware that the case had been dismissed.
The plaintiff contacted the court clerk to verify the dismissal. The plaintiff was told that the case had been dismissed without prejudice, and that the Plaintiff could not file an amended complaint because of the dismissal. The Plaintiff was told that he would have to file a new complaint with a new case number.
On April 21, 2002, Plaintiff filed to new complain for the identical cause of action (Case # 02T01924). On June 7, 2002, Defendant demurred to the complaint asserting that the statute of limitations had expired. In the demur the facts stated that two hearing had taken place for which the Plaintiff did not show. This was the first time that Plaintiff was aware that the hearings had taken place.
The plaintiff asked the court clerk to see the file and at that time discovered that the three notices had been sent to the defective address and returned by the post office undelivered.
Defendant has demurred on the grounds that the complaint is barred by the statute of limitations. Plaintiff asserts that his complaint is not barred by the statute of limitations because the original complaint was commenced within one year of the battery. The original complaint # 01T02053 was filed on May 11, 2001. The current case #02T01924 is identical to case # 01T02053 in all but the amount prayed for.
Defendant cites Cal. Code Civil Procedure § 350 "Civil actions, without exception, can 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 of page 5 of the demurrer states that "the fact that plaintiff filed a case that was dismissed does not toll the stature of limitations." But 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, 160 Cal. 501 (1911) relates to the issue of when the statute of 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. 43 Cal. App. 4th 1200 (1996), at 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. (See Associated Truck Parts, Inc. v. superior Court, 228 Cal. App. 3rd 864 (1991); Elkins v Derby, 12 Cal. 3rd. 410 (1974); Lantzy v. Centex Homes, Cal. App. 4th (2001); Bendix Corp. v. City of Los Angeles, 150 Cal. App. 3rd 921 (1984); Smeltzley v. Nicholnson Mfg. Co., 18 Cal. 3rd 932 (1977); Leahey v. Dept. of Water and Poser, 75 Cal. App. 2nd 281 (1946); Austin v. Massachusetts Bonding & Insurance Co., 56 Cal. 2nd 596 (1961) ; American Western Banker v. Price Waterhouse, 12 Cal. App. 4th 39 (1993); Barrington v. A. H. Robins Co., 39 Cal. 3rd 146 (1985))
In Associated Truck Parts, Inc., 228 Cal. App. 3rd 864 (1991) the court 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." (Elkins , 12 Cal. 3rd (1974) at 420) "[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, 12 Cal. 3rd (1974) at 418 .
`
Policy Behind The Statue Of LimitationsThe policy exceptions to the statute of limitation relate to the notification purpose of the statute. "That purpose in the oft-quoted words of Justice Holmes is to "[prevent] surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and the witnesses have disappeared." (Elkins , 12 Cal. 3d at 417)
The equitable doctrine of "relating back" has evolved over the last century. The court found that when an amended complaint related back to an original complaint that was not barred by the stature of limitations, the amended claim was not barred.
At first an amendment could relate back only if it involved the same legal theory of action. (Anderson v. Mayer 1875 cited by "Austin , 56 Cal. 2nd at p600 ) Later the court expanded the rule to allow a change in legal theory if the amendment did not involve a "wholly different legal liabilities or obligation." (Wells v Lloyd (1936) cited by "Austin ., 56 Cal. 2nd at 601) The modern rule is known as the Austin Rule. (Smeltzley , 18 Cal. 3rd at 940) In it the amended claim is said to relate back if it involves "the same general set of facts." (Austin , 56 Cal. 2d at 600)
In 1977 in Smeltzley, 18 Cal. 3rd at p 936 the court expanded the relation back rule to allow an amended complaint to avoid "the statute of limitations as a bar against named parties substituted for fictitious defendants."
In 1985, the rule was again expanded to include supplemental pleadings. In Bendix Corp., 150 Cal. App. 3rd at 926 the court found that "Where . . ., the original pleading gave notice that the alleged wrongful conduct was of a continuing nature, supplemental pleadings addressed to the same conduct should not encounter statute of limitations questions."
In 1985 the relation back rule was expanded to apply to Cal. Code Civil Procedure
§-581a , a delay-in-prosecution statute and is now known as the Barrington rule. (Barrington, . 39 Cal. 3rd . at 151)
In Lantzy (2001) Cal. App. 4th at page 2 equitable tolling of the statute of limitations was granted . "Statues of limitation will not however, be applied inflexibly 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]
In Bendix Corp., 150 Cal. App. 3rd at p. 926 the court defined equitable tolling as requiring " a balancing of the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public policy served by the statute of limitations."
The claim for which the Defendant has filed a demurrer involves a re-filing of a complaint that was filed before the running of the one year statute of limitations. The re-filed case involved the exact set of facts, cause of action, and Defendants. The original case was dismissed without prejudice. This dismissal occurred because notices intended for the plaintiff were incorrectly addressed by a court employee causing the plaintiff to miss critical hearings.
Although the current case is not an amended or supplemental claim as in the previously cited cases it is more alike the original in that all of the facts and defendants and causes of action are identical. Therefore, the relation back doctrine applies. ((Leahey , 75 Cal. App. 2nd at 286) "The nature of the right sued upon, and not the form of the action or the relief demanded, determines the applicability of the statute of limitations.")
To determine if the Statute of Limitations should be equitably tolled in a case the court balances the injustice to the Plaintiff resulting from a bar of his claim against the public policy purpose of the statute of limitations. That purpose is to prevent surprise through the revival of stale claims. In this case there would be a grave injustice done to the Plaintiff because the original case was dismissed due to no fault of his own and because the claim is neither stale nor a surprise to the Defendant.
The court should overrule the demurrer of this case because the statute of limitations does not apply. It has been shown that this case relates back to the original claim not barred by the statute of limitations. Also equitable principles requires that to prevent injustice being done the statute should be tolled.
Dated: …………………………., 2002
__________________________
Gary Robinson