Demurrer_to_complaintDemurrerCal. Super. - 4th Dist.December 19, 201710 1% 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 J. Eric LeVine, Esq. (SBN 082294) Law Office of J. Eric LeVine 25283 Cabot Road, Suite 116 Laguna Hills, CA 92653-5511 Co un ty of Or an ge 0 1 / 2 4 / 2 0 1 8 at 05 :4 9: 00 Pr d Telephone: (949) 458-2336 Facsimile: , (949) 951-8904 Cl er k of th e Su pe ri or Co ur t E L E C T R O N I C A L L Y FI LE D Su pe ri or Co ur t of Ca li fo rn ia By Wa ry hd Jo hn so n, De pu ty Cl er k Attorney for: Defendant, Duwayne McClendon SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE — CENTRAL JUSTICE CENTER Case No.: 30-2017-00962241-CU-FR-CJC [Before Hon. Walter P. Schwarm, Dept. C19] ELAN COPLIN DEFENDANT DUWAYNE McCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION Plaintiff, DUWAYNE McCLENDON DATE: March 13,2018 TIME: 1:30 PM Defendant. DEPT: C19 RESERVATION NO. 72741964 N o r ’ N e N e N a N a N a N e N a N e N e S a S e N e N e N e ’ N e ” SN Complaint filed: December 19, 2017 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, on March 13, 2018 at 1:30 PM in Department C19 of the above entitled court located at 700 Civic Center Drive West, Santa Ana, California, 92701, Defendant DUWAYNE McCLENDON (“McClendon”), will and hereby moves this Court for an Page 1 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 order sustaining his demurrer to Plaintiffs’ Complaint. Pursuant to California Code of Civil Procedure §430.10, this Demurrer is made on the following grounds: 1) Plaintiffs First Cause of Action for Appropriation of Name and Likeness is barred by the statute of limitations; 2) - Plaintiff's Second Cause of Action for Concealment is barred by the statute of limitations; 3) Plaintiff's Third Cause of Action for Fraud is barred by the statute of limitations; 4) Plaintiff's Fourth Cause of Action for Intentional Misrepresentation is barred by the statute of limitations; 5) Plaintiff s Fifth Cause of Action for Conversion is barred by the statute of limitations; 6) Plaintiff’s Sixth Cause of Action for Unjust Enrichment is barred by the statute of limitations; 7) Plaintiff's Seventh Cause of Action for Intentional Infliction of Emotional Distress is barred by the statute of limitations. Defendant bases his demurrer on the Notice of Demurrer and Demurrer, the accompanying Memorandum of Points and Authorities, matters of which this court may take judicial notice, and the files and records of this action. Date: January 24, 2018 ' { A~_ A Eric pAVAre, attorney for Defendant, Duwayne McClendon Page 2 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 14 12 13 14 is 16 17 18 19 20 21. 22 25 24 25 26 27 28 DEMURRER Defendant demurrers to Plaintiffs’ Complaint on the following grounds: DEMURRER TO THE FIRST CAUSE OF ACTION Plaintiffs’ First Cause of Action for Appropriation of Name and Likeness is barred by the statute of limitations. DEMURRER TO THE SECOND CAUSE OF ACTION * Plaintiffs’ Second Cause of Action for Concealment is barred by the statute of limitations. DEMURRER TO THE THIRD CAUSE OF ACTION Plaintiffs Third Cause of Action for Fraud is barred by the statute of limitations. DEMURRER TO THE FOURTH CAUSE OF ACTION Plaintiffs’ Fourth Cause of Action for Intentional Misrepresentation is barred by the statute of limitations. DEMURRER TO THE FIFTH CAUSE OF ACTION Plaintiffs’ Fifth Cause of Action for Conversion is barred by the statute of limitations. DEMURRER TO THE SIXTH CAUSE OF ACTION Plaintiffs’ Sixth Cause of Action for Unjust Enrichment is barred by the statute of limitations. DEMURRER TO THE SEVENTH CAUSE OF ACTION Plaintiffs’ Seventh Cause of Action for Intentional Infliction of Emotional Distress is barred by the statute of limitations. Date: January 24, 2018 [_ Ecker attofney for Defendant Page 3 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION Plaintiffs’ Complaint sets forth seven causes of action that are the subject of this demurrer. Each cause of - is barred by the applicable statute of imitators, All of the acts alleged in Plaintiff's complaint occurred in 2003 and 2004. There are-no factual allegations of any events that occurred after August, 2004. Furthermore, Plaintiff admits that she knew all the facts necessary for any cause of action in August 2004, and that she actually filed a police report on the alleged incident in 2004. Accordingly, tolling is not applicable to any cause of action because Plaintiff admits she knew all the facts in 2004. In STAN. each of the seve causes of action alleged against MeClendon are subject to demurrer because the statute of limitations for each expired more than ten years ago. For these reasons, Defendant requests that this Court sustain his demurrer to each cause of action in the Complaint without leave to amend. ARGUMENT IL Defendant May Demur to the Complaint Where it Appears From its Face or From Matters of Which the Court May Take Judicial Notice that the Complaint is Defective A demurrer challenges the legal validity of a complaint. The function of the demurrer is to test the legal sufficiency of the pleading. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383.) In considering the grounds raised in the demurrer, the Court will look only to the face of the pleading demurred to or to those facts of which it can take judicial notice. (Nava v. McMillan (1981) 123 Cal.App.3d 262, 264.) A court properly sustains a demurrer where the Complaint “does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure §430.10(a), (e)). The burden of proving that the complaint can be amended is on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). “Leave to amend is properly denied when the facts are not in dispute, the nature of the claim is clear but there is no liability under substantive law.” Page 4 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 13 14 15 16 17 18 - 19 20 21 22 23 24 25 26 27 28 (Johnson v. County of Los Angeles (1983) 143 Cal. App.3d 298, 306; see also Goodman v. Kenney (1976) 18 Cal.3d 335, 349.) To withstand demurrer, the allegations must be sufficiently specific, so the Court may inquire into each cause of action and the required elements. When ruling on a demurrer, the court need only assume the truth of the properly pleaded material facts and disregard contentions; deductions, and conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591; Mirkin v. Wasserman (1993) 5 Cal. 4th 1082.) II. The Statutes of Limitation Bars Each Cause of Action A claim accrues when it is complete with all its elements, which is known as the ‘last element accrual rule”. Ordinarily, the statute of rr runs from the — of the last essential element of the cause of action. (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal. App.5™ 181, 191.) It is also a general rule that a statute of limitations will begin to run, even if the plaintiff is unaware that she has a cause of action. A statute of limitations can be tolled in limited circumstances, and will begin to run from the time the plaintiff discovers the underlying facts that give rise to the cause of action. For example, Code of Civil Procedure section 338, subdivision 4, provides relief on the ground of fraud or mistake. Another exception is based on equitable considerations, and provides relief when the facts giving rise to the cause of action are fraudulently concealed from the plaintiff. (Pashley v. Pacific Elec. Co. (1944) 25 Cal.2d 226, 229-230). To demurrer on the grounds of the statute of limitations, “the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. (See, Committee for Green Foothills v. Santa Clara Bd. Of Supervisors (2010) 48 Cal.4'" 32, 42; Baright v. Willis (1984) 151 Cal.App.3d 303, 311; Czajkowski v. Haskell & White, LLP (2012) 208 Cal. App.4™ 166, 174). “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her [or his] injury was caused by wrongdoing, that someone has Page 5 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {| plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she [or he] must done something wrong to her [or him].” (Citations omitted). In other words, “the limitations period begins once the plaintiff ‘has notice or information of circumstances to put a reasonable person on inquiry.” > (Citations omitted). “A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the decide whether to file suit or sit on her [or his] rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she [or he] cannot wait for the facts to find her [or him].” (Citations omitted). (Nguyen v. W. Digital Corp (2014) 229 Cal. App.4th 1522, 1551, quoting Jolly v. Eli Lilly & Co. (1988) 44 Cal.3 1103, 1110-1111). To the present case, Plaintiff has alleged siffiant facts in her complai, showing that fhe statute of limitations has run on all of her causes of action.! Plaintiff alleged the following: . ° “On May 31, 2002, an account was opened with Cardservice International in the name of ELC Motorsports” (Complaint, paragraph 5). ° “On or about December, 2003, Cardservices International made a first attempt to file a complaint against Plaintiff in reference to an ELC Motorsports balance in the amount of $9,113.82 remaining due. Plaintiff had never heard of ELC Motorsports before she received the summons and complaint.” (Complaint, paragraph 13). ° “On or about February 2004, Plaintiff met with Defendant to discuss the matter. Defendant wrote a note to Plaintiff stating that he was the owner of ELC Motorsports and that he would take full responsibility for the $9,113.82 debt.” (Complaint, paragraph 14). ® “On or about February, 2004, Plaintiff discovered a checkbook from Toyota Federal Credit Union in the name of Defendant Duwayne McClendon, DBA ELC Motorsports.” (Complaint, paragraph 15). 1 Plaintiff attached an unsigned declaration to her complaint, which echoes the allegations regarding the dates that her causes of action accrued, thus providing additional confirmation that the alleged dates are unambiguous. Page 6 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 13 14 i5 16 1% 18 19 20 21 22 23 24 25 26 27 28 ° “On July 7, 2004, Plaintiff filed an incident report with the Police Department of San Rafael, California.” (Complaint, paragraph 17). ° “On or about July 2004, Cardservives International successfully served Plaintiff | with a summons and complaint.” (Complaint, paragraph 18). ® - “Since August of 2004, Plaintiff has been plagued by the financial and emotional ramifications of Defendant’s actions and the Cardservices International lawsuit.” (Complaint, paragraph 19). Plaintiff's complaint is devoid of any factual allegations of any events that occurred after August, 2004. Plaintiff admits through her allegations, that she knew about the alleged debt since December, 2003, and that she spoke with Defendant about the debt in February, 2004. Debtor also alleged that she filed a police report in July, 2004. As will be discussed, below, all of Plaintiff's potential causes of action accrued in 2004, at the latest. Each of the applicable statutes of limitation expired at least ten years before the filing of Plaintiff’s Complaint in this action. There is no conceivable theory that would toll any of the statutes of limitations for ten years. Plaintiff's allegations concerning the dates of discovery are unambiguous and clear on their face. Accordingly, Defendant asks that this Court sustain his demurrer without leave to amend as to all causes of action. III. Amendment Could Not Cure the Bar of the Statute of Limitations “[L]eave to amend should not be granted where ... amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685, 22 Cal.Rptr.2d 807; see generally Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal. App.4th 365, 373-374, 36 Cal.Rptr.3d 31.” (Ivanoff'v. Bank of America (2017) 9 Cal.App.5" 719, 726). In Ivanoff, defendants demurrer to plaintiff's complaint was sustained without leave to amend, because the complaint disclosed on its face that it was barred by the statute of limitations. (/d. at 735). By August 2004, Plaintiff admits that she had all the facts needed to pursue any claim she may have had against Defendant. Even if Plaintiff were granted leave to amend her Complaint, Page 7 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 13 14 5 16 17 18 HO 20 21 22 23 24 25 26 27 28 the unambiguous allegations already set forth are fatal to all of her causes of action, and Defendant’s demurrer should be sustained without leave to amend.? IV. Plaintiff’s First Cause of Action for Appropriation of Name and Likeness is Barred by the Statute of Limitations | The applicable statute of limitations for a cause of action for Appropriation of Name and Likeness is two years pursuant to Code of Civil Procedure § 339, subdivision 1. (Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 831). If Plaintiff's allegations are accepted on their face, she would have discovered the alleged appropriation in or about February 2004, when she met with Defendant to discuss the debt. Accordingly, the statute of limitations accrued and began to run at that time, and would have expired around February 2006. The statute of limitations is long expired. Defendant requests that the court sustain his demurrer to the first cause of action without leave to amend. Vv. Plaintiff’s Second Cause of Action for Concealment is Barred by the Statute of Limitations Plaintiff has alleged three separate causes of action sounding in fraud, and each is subject to the same statute of limitations governing fraud actions. Concealment does not appear to be recognized as a separate cause of action, but rather is related to a cause of action for fraud. A cause of action for fraud has a three-year statute of limitations pursuant o Code of Civil Procedure § 338, subdivision d. (Snow v. A.H. Robins Co. Inc. (1985) 165 CalApp.3d 120, 127- 28). A cause of action for fraud is tolled when a plaintiff can show that the defendant prevented plaintiff from discovering facts that would have led her to discover that she had a potential cause of action. (Snow, at 128). 2 Even if Plaintiff has mislabeled certain causes of action (such as concealment and appropriation), Code of Civil Procedure §343 provides a four- year statute of limitations for miscellaneous actions that are not governed under any other statute. Even if this “catch-all” statute were applied, each cause of action would have still expired at least 8 years before Plaintiff filed her complaint. Page 8 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff alleges that she had all the necessary facts by August 2004. She even alleges that she met with Defendant to discuss the allegations, and filed a police report in 2004. There are no allegations that would give rise to any possible tolling argument. Accordingly, based on the three-year statute of limitations for fraud, Plaintiff’s cause of action accrued in August 2004 at the latest, and the statute would have expired in August 2007 at the latest. Defendant therefore requests that the Court sustain his demurrer without leave to amend. IV. Plaintiff’s Third Cause of Action for Fraud is Barred by the Statute of Limitations A cause of action for fraud has a three-year statute of limitations pursuant to Code of Civil Procedure §338, subdivision (d). (Snow v. A.H. Robins Co. Inc. (1985) 165 CalApp.3d 120, 127-28). As set forth above, there is no possible tolling argument that would apply, since Plaintiff has admitted that she had all the facts by August 2004 at the latest. Accordingly, based on the three-year statute of limitations for fraud, Plaintiff’s cause of action accrued in August 2004 at the latest, and the statute would have expired in August 2007 at the latest. Defendant therefore requests that the Court sustain his demurrer without leave to amend. V. Plaintiff’s Fourth Cause of Action for Intentional Misrepresentation is Barred by the Statute of Limitations A cause of action for intentional misrepresentation (also known as “fraud”™) has a three- year statute of limitations pursuant to Code of Civil Procedure § 338, subdivision d. (Snow v. A.H. Robins Co. Inc. (1985) 165 CalApp.3d 120, 127-28). As set forth above, there is no possible tolling argument that would apply, since Plaintiff has admitted that she had all the facts by August 2004 at the latest. Accordingly, based on the three-year statute of limitations for fraud, Plaintiff's cause of action accrued in August 2004 at the latest, and the statute would have expired in August 2007 at the latest. Defendant therefore requests that the Court sustain his demurrer without leave to amend. Page 9 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. Plaintiff’s Fifth Cause of Action for Conversion is Barred by the Statute of Limitations A cause of action for conversion is subject to the three-year statute of limitations set forth in Code of Civil Procedure §338, subdivision (¢). (Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 561; Maheu v. CBS, Inc. (Ct. App. 1988) 201 Cal.App.3d 662, 673). As set forth above, there is no possible tolling argument that would apply, since Plaintiff has admitted that she had all the facts by August 2004 at the latest. Accordingly, based on the three-year statute of limitations for conversion, Plaintiff’s cause of action accrued in August 2004 at the latest, and the statute would have expired in August 2007 at the latest. Defendant hierefore requests that the Court sustain his derinrres without lem to amend. | VII. Plaintiff’s Sixth Cause of Action for Unjust Enrichment is Barred by the Statute of Limitations The statute of limitations for unjust enrichment is three-years based on Code of Civil Procedure §338, subdivision (d). (F.D.LC v. Dintino (2008) 167 Cal.App.4'" 333, 348). There is no possible tolling argument that would apply, since Plaintiff has admitted that she had all the facts by August 2004 at the latest. Accordingly, based on the three-year statute of limitations for unjust enrichment, Plaintiff’s cause of action accrued in August 2004 at the latest, and the statute would have expired in August 2007 at the latest. Defendant therefore requests that the Court sustain his demurrer without leave to amend. VIII. Plaintiff’s Seventh Cause of Action for Intentional Infliction of Emotional Distress is Barred by the Statute of Limitations Causes of action for intentional infliction of emotional distress are governed by the two- year statute of limitations set forth in Code of Civil Procedure §335.1. (Pugliese v. Superior Court (2007) 146 Cal. App.4™ 1444, 1450). Accordingly, based on the two-year statute of limitations for intentional infliction of emotional distress, Plaintiff’s cause of action accrued in August 2004 at the latest, and the statute would have expired in August 2006 at the latest. Defendant therefore requests that the Court Page 10 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 217 28 sustain his demurrer without leave to amend. CONCLUSION Plaintiff’s Complaint discloses on its face, that all of the causes of action are barred by their applicable statutes of limitation. Furthermore, none of the causes of action can be cured by amendment. For these reasons, Defendant McClendon respectfully requests that this Court sustain his demurrer to each cause of action, without leave to amend, and grant his concurrently { si . Eric&e¥ine, attorney for Defendant, Duwayne McClendon filed motion to strike. Date: January 24, 2018 DECLARATION OF J. ERIC LEVINE I, J. Eric LeVine, declare: 1: I am attorney of record for defendant Duwayne McClendon in this action. I am licensed to practice law before the courts of this state. I have personal knowledge of the facts set forth herein and am competent to testify with respect thereto. 2. This declaration is submitted pursuant to CCP §430.41(a)(2). Yesterday I submitted for filing with this court a Declaration of Demurring Party in Support of Automatic Extension prior to the filing of this demurrer because I had been unable to have a telephone conversation with opposing counsel. Today, opposing counsel, Avner Sofer called me. I discussed with him the issues raised in the foregoing demurrer and specifically my position that each and every one of the causes of action set forth in his complaint are barred by the applicable statutes of limitation. I further indicated to him that the reason was that it is clear from the allegations of his client’s complaint that the plaintiff was aware of facts which, if true, would have warranted the filing of legal action as late as 2004. I pointed out to Mr. Sofer that plaintiff alleges that she was sued in 2004 for things that she is claiming the defendant is responsible. Page 11 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Mr. Sofer responded by stating that it was not until most recently that his client knew what the full nature and extent of the damages were. He further indicated that I should proceed with the demurrer to allow the court to rule on these contentions. I declare under penalty of perjury that the foregoing is true and correct. Executed on Chlal J. Bic LeVine January-24, 2018 in Laguna Hills, California. Page 12 of 12 DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION aN NO 0 ~ ON wn 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I, J. ERIC LEVINE, am over the age of 18 and not a party to the within action. My business address is 25283 Cabot Rd., Ste. 116, Laguna Hills, CA 92653-5511. On January 24, 2018, I served the foregoing document(s) described as: DEFENDANT DUWAYNE MCCLENDON’S NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; MEET AND CONFER DECLARATION - __original/_X_ a true copy thereof enclosed in a sealed envelope addressed as follows: Avner D. Sofer, Esq. Sofer Law 4040 Civic Center Dr., Ste. 200 San Rafael, CA 94903 ~X_ By U.S. Mail. By Facsimile Transmission. By Overnight Next Day Delivery. By Hand-Delivery/Personal Service. Executed this 24th day of January, 2018 at Laguna Hills, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 3 — / - Be ine Page 1 of | Proof of Service
