Opinion
B322863
03-19-2024
TAICHANDRA FYELDEES, Plaintiff and Appellant, v. 99 CENTS ONLY STORE, LLC, Defendant and Respondent.
Taichandra Fyeldees, in pro. per., for Plaintiff and Appellant. Michael A. Dolan, Jr., for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 22STCV17425, Daniel M. Crowley, Judge. Affirmed.
Taichandra Fyeldees, in pro. per., for Plaintiff and Appellant.
Michael A. Dolan, Jr., for Defendant and Respondent.
STRATTON, P. J.
INTRODUCTION
Plaintiff and appellant Taichandra Fyeldees filed a complaint against 99 Cents Only Store, LLC for injuries she sustained while shopping in its Pasadena store. The complaint alleged that plaintiff slipped on water on the floor of the store. She suffered a painful back sprain and painful posterior disc bulge as a result of the fall. The complaint included three causes of action for general negligence, premises liability, and emotional distress. The incident occurred on July 30, 2017.
Plaintiff filed the complaint on May 26, 2022, almost five years later. The trial court found the causes of action barred by the applicable statute of limitations and sustained defendant's demurrer without leave to amend. We hold the trial court correctly concluded the causes of action are time-barred and affirm the order.
The record does not include a final judgment of dismissal. The appeal appears to have been taken from the order sustaining the demurrer to the complaint. Orders sustaining demurrers are not appealable. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) But an appellate court may deem an order sustaining a demurrer to incorporate a judgment of dismissal. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 920, disapproved on other grounds in Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1074.) It is particularly appropriate to do so when the absence of a final judgment results from inadvertence or mistake. (Id. at p. 921.) In this case, defendant does not argue for dismissal of the appeal and the issues are fully briefed. Under the circumstances we will decide this case on its merits by treating the order as incorporating a judgment of dismissal. (Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1019.)
DISCUSSION
A. Standard of Review
"In reviewing a judgment of dismissal after a demurrer is sustained without leave to amend, we assume the truth of all properly pleaded facts. We examine the complaint's factual allegations to determine whether they state a cause of action on any available legal theory regardless of the label attached to a cause of action. [Citation.] We do not assume the truth of contentions, deductions, or conclusions of fact or law, and may disregard allegations that are contrary to the law or to a fact that may be judicially noticed." (Fischer v. Time Warner Cable Inc. (2015) 234 Cal.App.4th 784, 790.) We review de novo a trial court's ruling on a demurrer and examine the operative complaint to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050 (King); Dudek v. Dudek (2019) 34 Cal.App.5th 154, 163 (Dudek).)
In addition," '[w]hen a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm." '" (Dudek, supra, 34 Cal.App.5th at p. 163, italics added.) Appellant shoulders the burden to show a reasonable possibility the complaint can be amended to state a cause of action. (Id. at pp. 163-164; King, supra, 5 Cal.5th at p. 1050.)
B. Applicable Law
A demurrer tests the legal sufficiency of the challenged pleading. (Milligan v. Golden Gate Bridge Highway &Transportation Dist. (2004) 120 Cal.App.4th 1, 5; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The judgment of dismissal after a sustained demurrer must be affirmed if the challenged pleading fails to plead an essential element or if the allegations disclose some defense or bar to recovery. (Brown v. Crandall (2011) 198 Cal.App.4th 1, 8.) We are to affirm if any of the grounds for demurrer raised by respondent is well taken and disposes of the causes of action of the complaint pending before us. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
We accept as true all material facts properly pleaded in the complaint, but do not assume the truth of contentions, deductions, or conclusions of fact and law. (Dudek, supra, 34 Cal.App.5th at p. 163; Estate of Holdaway (2019) 40 Cal.App.5th 1049, 1052.) "We give the complaint a reasonable interpretation and treat the demurrer as admitting all material facts properly pleaded that are not inconsistent with other allegations, exhibits, or judicially noticed facts." (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)
C. The Causes of Action Are Time-Barred.
The trial court found the causes of action for personal injury time-barred by the limitations period set by Code of Civil Procedure section 335.1: "Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another." (Code Civ. Proc., §335.1.) The complaint should have been filed on or about July 30, 2019.
In response to the COVID-19 pandemic, the Judicial Council adopted a series of emergency rules effective April 6, 2020. As amended, Emergency rule 9 tolled the statutes of limitations for civil causes of action from April 6, 2020 to October 1, 2020. (People v. Financial Casualty &Surety, Inc. (2021) 73 Cal.App.5th 33, 38-39.) Here the statute of limitations ran before Emergency rule 9's tolling provisions took effect, so it does not apply.
Without citation to authority, Plaintiff contends the period was tolled because "during the time of the two-year statute of limitations she was in fact legally insane due to her having been diagnosed with numerous mental illnesses/diseases." We reject plaintiff's argument. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [appellant must supply the reviewing court with cogent analysis and citation to the record].
DISPOSITION
We affirm. Respondent shall recover costs on appeal.
We concur: WILEY, J. VIRAMONTES, J.