Stratim Capital Growth Fund, LLC et al. v. Altierre Corporation et al.

Spread Your Wings, LLC (2023) 88 Cal.App.5th 243, 253.) Extrinsic evidence cannot be considered. As with a demurrer, a motion for judgment on the pleadings cannot be granted as to only part of a cause of action. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167, overruled in part on other grounds by Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905.)

The court has considered the form declaration from Abrams counsel J. Craig Crawford in support of the motion only to the extent it discloses the meet and confer efforts required by statute. The court has considered the declaration from Kline Hill counsel Joseph Addagio filed 6

with the opposition only to the extent it authenticates copies of documents submitted for judicial notice. The court has not considered exhibit 6 to the Addagio declaration or any argument based on this extrinsic evidence. The court has also not considered any portion of the declaration from J. Craig Crawford submitted with the reply. The request for judicial notice submitted with the reply is denied as irrelevant to the material issue before the court. Both of these documents impermissibly attempt to introduce a new argument with the reply. (Tellez v. Rich Voss Trucking Inc. (2015) 240 Cal.App.4th 1052, 1066 [courts do not consider points raised for the first time in a reply brief].)

DISCUSSION

Request for Judicial Notice

Kline Hill requests judicial notice of five documents (exhibits 1-5 to the Addagio declaration) in support of the opposition. “Judicial notice may not be taken of any matter unless authorized or required by law.” (Evid. Code, § 450.) A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307.) Evidence Code section 453, subdivision (b), requires a party seeking notice to “[furnish] the court with sufficient information to enable it to take judicial notice of the matter.”

The request is granted in part and denied in part. Evidence Code section 452, subdivision (h) does not apply to any of the submitted documents. Judicial notice of exhibits 1-4 is denied as irrelevant to the material issue before the court on this motion. Judicial notice of exhibit 5, a copy of the answer to the FACI jointly filed by Abrams and the Stratim entities, is granted under Evidence Code section 452, subdivision (d) only.

Abrams’s Motion for Judgment on the Pleadings Must Be Denied

Abrams’s notice of motion for judgment on the pleadings contends that the FACI’s claim for declaratory relief is time-barred as brought against him by an unidentified statute of limitations. (See Sept. 4. 2025 notice of motion.) That is the only basis for the motion, and the only material issue before the court. In the supporting memorandum, the statute is identified as Code of Civil Procedure section 337. (See memorandum at p. 3:25-26.) Where a declaratory relief claim concerns obligations or liabilities founded upon an instrument in writing, within the meaning of section 337, a four-year statute of limitations applies. (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 883.)

Abrams’s motion must be denied for three reasons. First, Abrams waived the statute of limitations defense by not specifying the applicable statute of limitations in his answer. An answer that fails to specify the applicable statute (and subdivision, if applicable) raises no issue and presents no defense. (Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 172-173 [reversing grant of anti-SLAPP motion in part based on waiver].) “Stated differently, where the defendant fails to comply with [Code of Civil Procedure] section 458’s strict pleading requirements, the defendant ‘waives the defense’ of the bar of the applicable statute of limitations.” (Ibid.) “This section ‘has been strictly construed as requiring that the relevant statute and subdivision, if applicable, be pleaded, otherwise the answer fails to raise

the statute of limitations defense.’ ” (Southern California Edison Co. v. Severns (2019) 39 Cal.App.5th 815, 827.)

The July 2025 answer to the FACI jointly filed by Abrams and the Stratim entities asserts, as its second affirmative defense, that “the FACI discloses that each cause of action therein is barred by the applicable statute of limitations.” (See Answer to FACI at p. 2:20-21.) That is inadequate under Code of Civil Procedure section 458. Abrams waived any statute of limitations defense.

Second, even assuming the defense was not waived, Abrams’s motion fails because any alleged defect as to timing does not appear on the face of the FACI. As with a demurrer, a claimed affirmative defense is not a basis for granting a motion for judgment on the pleadings unless the defect appears on the face of the complaint. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 726 [a general demurrer does not ordinarily reach affirmative defenses; a demurrer will only lie where an affirmative defense is clearly raised by the face of the complaint, such as a statute of limitations].)

The running of the statute must appear clearly and affirmatively from the dates alleged in the pleading; it is not enough that the complaint might be barred. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42.) “Generally, the limitations period starts running when the last element of a cause of action is complete.” (NBCUniversal Media, LLC v. Super. Ct. (2014) 225 Cal.App.4th 1222, 1231.)

The FACI’s declaratory relief cause of action seeks a declaration that the secured note purchase agreements are void and a declaration as to Altierre’s rights. It does not seek any declaration specifically as to Abrams. (See FACI at ¶¶ 73-80.) Abrams’s motion targets only a part of the declaratory relief cause of action. Abrams contends that Kline Hill knew of his alleged wrongdoing “by no later than March 2020,” and “must have filed the FACI by March 2024 for it to be timely.” (Id. at pp. 3:23-4:1.) But it does not appear clearly and affirmatively from the dates alleged in the FACI that Kline Hill knew of Abrams’s alleged wrongdoing “by no later than March 2020.” Because the declaratory relief cause of action is not time-barred on its face as brought against Abrams, the motion must be denied.

Third, Abrams’s motion failed to account for the tolling that automatically applied under former Emergency Rule 9, implemented by the Judicial Council of California during the Covid-19 pandemic. That rule provides, in relevant part: “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020 to October 1, 2020.” (Cal. Rules of Court, Appx., Emergency Rule 9, amended effective May 29, 2020.) Generally, the effect of tolling is that the limitations period stops running during the tolling event, and begins to run when the tolling event has concluded. (Lantzy v.

Centex Homes (2003) 31 Cal.4th 363, 370.) “As a consequence, the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of time during which the tolling event previously occurred.” (Id. at 370-371.)

The time during which Rule 9 stopped the running of the statute of limitations, April 6, 2020 to October 1, 2020, is 178 days. If, as Abrams claims, Kline Hill became aware of his alleged wrongdoing by March of 2020, the full period covered by Rule 9 applies. Adding 178 days to March 29, 2024 leads to a deadline of September 23, 2024, well after the court granted

Kline Hill leave to intervene in July 2024. The original complaint-in-intervention named Abrams as a defendant-in-intervention and described his alleged wrongdoing.

CONCLUSION

Kline Hill’s request for judicial notice submitted with the opposition is granted in part and denied in part.

Abrams’s request for judicial notice submitted with his reply is denied.

Abrams’s motion for judgment on the pleadings based solely on the statute of limitations is denied.

The court will prepare the order.

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