Opinion
NOT TO BE PUBLISHED
Santa Barbara County Super. Ct. No. 1220885, Denise de Bellefeuille, Judge
David Gelsinger, in pro. per., and for Plaintiff and Appellant.
Nye, Peabody & Stirling and Karen K. Peabody for Defendants and Respondents.
OPINION
GILBERT, P.J.
David Gelsinger appeals a judgment of dismissal entered after the trial court sustained a demurrer without leave to amend. (Code Civ. Proc., § 581, subd. (f), 581d.) We affirm.
All further statutory references are to the Code of Civil Procedure.
FACTS AND PROCEDURAL HISTORY
On July 3, 2006, Gelsinger filed a complaint against Nick Fuentes and Shannon Tarkanian, alleging a cause of action for defamation. Gelsinger, a former university student, alleged that Fuentes and Tarkanian, university employees, slandered him on March 19, 2004 and April 24, 2004. He stated: "[Fuentes and Tarkanian] made slanderous remarks about [him] (in a judicial incident report)" causing him to lose university housing and meal privileges.
On October 11, 2006, Fuentes demurred to the complaint, asserting that the one-year limitations period applicable to defamation precludes the action. (§§ 340, subd. (c), 430.10, subd. (e).) Gelsinger did not submit opposing written argument. At the November 16, 2006 hearing, Gelsinger appeared in propria persona. The trial court sustained the demurrer and granted Gelsinger 30 days' leave to amend the complaint.
On December 18, 2006, Fuentes filed a notice of ruling and served it upon Gelsinger by mail.
On December 18, 2006, Tarkanian demurred to the complaint, also asserting that the one-year statute of limitations bars the action. Gelsinger did not submit any written argument in response.
On January 25, 2007, the trial court sustained the demurrer without leave to amend. Gelsinger did not appear at the hearing nor had he filed an amended complaint with the trial court. The trial court then dismissed the action.
Gelsinger appeals the judgment of dismissal.
DISCUSSION
Gelsinger argues that the trial court erred by dismissing the action because he "amended the complaint [and] sent a copy to the [trial judge's] secretary, (to be given to the Judge)." He also asserts that he did not receive notice of the hearing regarding Tarkanian's demurrer.
Our task in reviewing the sustaining of a demurrer involves a determination whether the complaint states facts sufficient to constitute a cause of action. (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083.) We assume the truth of properly pleaded facts and reasonable inferences therefrom. (Ibid.) When a plaintiff receives an opportunity to amend his complaint but does not do so, we strictly construe the complaint and presume that he has stated his case as strongly as possible. (Id., at p. 1091.)
Section 340, subdivision (c), provides for a one-year limitations period for a cause of action for libel or slander. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246.) Generally, the one-year period commences when the defendant communicates the defamatory statements to others. (§ 312; Shively v. Bozanich, supra, 31 Cal.4th 1230, 1247.) The statute protects potential defendants from stale claims and encourages plaintiffs to be diligent. (Shively v. Bozanich, supra, 31 Cal.4th 1230, 1246.)
Here Gelsinger alleges that Fuentes and Tarkanian defamed him on March 19, 2004, and April 26, 2004. He filed his complaint on July 3, 2006, more than two years later. The one-year limitations period of section 340, subdivision (c), bars his action. (Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995 ["A complaint showing on its face the cause of action is barred by the statute of limitations is subject to general demurrer."].)
Section 471.5, subdivision (a), requires plaintiff to file an amended complaint with the trial court and serve a copy upon the defendants. Here despite his attendance at Fuentes's demurrer hearing and service of the notice of ruling upon him, Gelsinger did not file an amended complaint with the trial court and serve it upon defendants. The trial court properly dismissed the action. (§ 581, subd. (f)(2); Cano v. Glover (2006) 143 Cal.App.4th 326, 330.) "Section 581, subdivision (f)(2) ' . . . gives the defendant the right to obtain a court order dismissing the action with prejudice once the court sustains a demurrer with leave to amend and the plaintiff has not amended within the time given.' [Citations.]" (Cano v. Glover, supra, 143 Cal.App.4th 326, 330.) Although Gelsinger is acting in propria persona, he must follow the same procedural rules as an attorney. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.)
Gelsinger claims that he did not receive notice of the hearing regarding Tarkanian's demurrer. The notice was mailed, however, to his address of record. He filed a timely notice of appeal of the judgment of dismissal, and did not seek to set aside the judgment for lack of notice.
The judgment is affirmed. Respondents to recover costs on appeal.
We concur: YEGAN, J., COFFEE, J.