| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
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Demurrer to First Amended Complaint
12. 25CV04499 Feng, Zhu v. Xie, John et al.
EVENT: Demurrer to First Amended Complaint
Defendants’ demurrer is overruled. Preliminarily, in conjunction with the reply, Defendants have filed a supplemental request for judicial notice which attaches two exhibits not included in the moving papers. The general rule of motion practice is that new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537) If permitted, the other party should be given an opportunity to respond. (Id) Technically, the initial request for judicial notice should have included the judgment signed on 3/5/26. However, because the opposition substantively addresses the judgment signed on 3/5/26, there is no due process concern in proceeding. Both Defendants’ initial request for judicial notice and the supplemental request for judicial notice is granted.
The parties do not dispute that under both claim preclusion and issue preclusion principles the previous case must have resulted in a final judgment on the merits. Here, the judgment in 23CV02654 dated 3/5/26 indicated Defendants’ motion nonsuit pursuant to CCP 581(c) (CCP 581(c) is obviously a typo, it should have read CCP 581c(c)) was granted and that the judgment was entered on the merits. Importantly, the basis of the judgment was CCP 339, the applicable statute of limitations period for oral contracts.
Dispositions on statute of limitations grounds are not merit based rulings. (See Koch v. Rodlin Enters. (1990) 223 Cal.App.3d 1591, 1595) [“Termination of an action by a statute of limitations is deemed a technical or procedural, rather than a substantive, termination. Thus the purpose served by dismissal on limitations grounds is in no way dependent on nor reflective of the merits -- or lack thereof -- in the underlying action."]
The circumstances in Koch are similar (although certainly not identical) to the instant circumstances. In Koch, the contract recission claim was dismissed on summary judgment based on statute of limitations for recission actions and the plaintiff filed a new case alleging recission, this time based on fraud. Here, the previous case was dismissed based on CCP 339, which is the statute of limitations for oral contracts. The complaint in the previous case made no allegations of fraud – all of the causes of action were contract based. The Court notes that Plaintiff did attempt to add fraud to the 23CV02654 case but the motion was denied on notice grounds.
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Plaintiff relies on the express language that the judgment was on the merits. As noted in Koch, a statute of limitations disposition is procedural, not substantive. Therefore, regardless of how the judgment is titled, a disposition based on statute of limitations grounds is not on the merits according to case law. Further, the previous judgment was based on CCP 339, the statute of limitations for oral contracts. Obviously CCP 339 would not be grounds to dismiss a fraud cause of action, therefore it stands to reason that the previous judgment could not be a merits determination with respect to Plaintiff’s fraud claims. 4|Page
Plaintiff also relies on the statutory language of CCP 581c(c) which provides that unless otherwise stated the judgment operates as an adjudication on the merits. In the Court’s view, the language in 581c(c) does not alter long standing case law that statute of limitations is not a merits based adjudication. There are numerous published decisions affirming that principle. CCP 581c(c) is a general rule that the disposition was on the merits. Conversely, this case law is a specific rule that statute of limitations dispositions are not on the merits. The particular provision is a nearer and more exact view of the subject than the general, of which it may be regarded as a correction. (Gardena Hospital, L.P. v. Baass (2024) 99 Cal.App.5th 678, 683)
Because the Court finds the previous judgment does not constitute a merits based ruling for res judicata and collateral estoppel purposes, the demurrer is overruled. The Court declines ruling on other issues, including whether the claims involve the same primary rights, and whether Plaintiff has sufficiently pled delayed discovery for purposes of CCP 338. Defendants shall file an answer within 20 days’ notice of this order. The Court will prepare the order.
13. 25CV04780 Stepp, Kylie v. Kalkat, Jasdeep
EVENT: Defendant’s Demurrer to Plaintiff’s Complaint
The demurrer is overruled with respect to all causes of action. Defendant’s Request for Judicial Notice is granted. In order for the [statute of limitations] bar to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658)
Paragraph 13 of the complaint states: “Despite repeated assurances, Defendant never fulfilled his promise to legally marry Plaintiff or share the assets and income that were to be jointly owned.” The court, trial and appellate, accepts all facts alleged in the complaint as true, and draws all reasonable inferences from those facts in favor of the plaintiff. (Kruss v. Booth (2010) 185 Cal.App.4th 699, 713) Here, making inferences in favor of Plaintiff, the promise to legally marry and the promise to share in assets are separate promises. Unlike the promise to legally marry (which had a 90 day time window after the ceremony), the Complaint does not identify a specific time in which the more general promise to share in assets was to be performed.
Defendant relies on the allegation that in 2022 he abruptly left the residence to argue that the statute of limitations accrued in 2022. While that may be a viable argument down the road, it is not sufficient on demurrer because the 2022 allegations do not necessarily demonstrate the action is time barred. A demurrer based on a statute of limitations defense will not lie where the action may be, but is not necessarily, barred. (Richtek USA, Inc., supra, at p. 658)
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