Demurrer to Amended Complaint
(20) Tentative Ruling
Re: Denham v. Powell Superior Court Case No. 21CECG00731
Hearing Date: June 3, 2026 (Dept. 403)
Motion: Demurrer to Amended Complaint
Tentative Ruling:
To deny.
Explanation:
Defendants demur to the Amended Complaint on the ground that plaintiff has failed to bring the action to trial within five years. While a demurrer is not the proper procedural vehicle for raising this issue, the court will treat the demurrer as a motion to dismiss pursuant to Code of Civil Procedure section 583.360, as it is brought pursuant to the relevant statutory scheme.
"An action shall be brought to trial within five years after the action is commenced against the defendant." (Code Civ. Proc., § 583.310.) The five-year period prescribed by this section commences to run from the filing of the original complaint. (Kowalski v. Cohen (1967) 252 Cal.App.2d 977; De Roode v. Placer County (1952) 112 Cal.App.2d 859.) If the five-year deadline is not met, the action "shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties." (Code Civ. Proc., § 583.360, subd. (a).)
The five-year dismissal statute is mandatory unless the plaintiff can bring the action within one of the statutory exceptions (Gaines v. Fidelity Nat. Title Ins. Co. (2016) 62 Cal.4th 1081, 1100), such as where (a) the trial court’s jurisdiction was suspended, (b) prosecution of the action was stayed or enjoined, or (c) bringing the action to trial was impossible, impracticable or futile. (
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The Complaint in this matter was filed on August 14, 2020. According to defendants, depending on how tolling periods are counted, the five year statute expired on either March 18, 2026 or November 19, 2025. Plaintiff, an incarcerated individual, contends that the five year statute should be tolled an additional 18 months because prison officials delayed proceedings by denying plaintiff access to his legal files, rendering plaintiff unable to oppose defendants’ demurrer to the complaint, and to obtain rulings on his discovery motions.
As shown in plaintiff’s requests for judicial notice, which defendants do not oppose, plaintiff many times in filings with the court and letters to defense counsel raised the issue of his inability to proceed without his files. Defendants in their reply do not dispute plaintiff’s characterization of plaintiff’s lost access to his files, the time duration thereof (June 7, 2021 to December 2022), or the delays caused thereby.
The delays have indeed been substantial. Defendants’ demurrer to plaintiff’s original complaint was filed on March 19, 2021, and was not finally ruled upon until 3
December 14, 2025. Plaintiff’s discovery motions were filed on May 10, 2021, and the ruling was issued on February 3, 2025. Plaintiff attributes these delays in part to the approximate 18 months in which he was denied access to his case files, and defendants in the reply do not dispute this.
Given the unusually long time it has taken to bring these matters to ruling, and undisputed loss of access to court files despite frequent requests for restored access, the court finds that the five-year period should be tolled an additional 18 months due to impossibility and/or impracticability under Code of Civil Procedure section 583.340, subdivision (c).
“The statutory right of access to the courts, which has constitutional foundations, is more important that the procedural requirement established for the efficient operation of the courts.” (Crane v. Dolihite (2021) 70 Cal.App.5th 772, 792.) Where an indigent prisoner litigant is denied this access to the courts through actions of prison officials, such time is considered impossible, impracticable or futile for purposes of the requirement of service of summons within three years. (Ibid.) The same principle applies to dismissal for failure to prosecute. The court finds that plaintiff being deprived of access to his case files rendered it impossible or impracticable to bring the case to trial within five years, warranting extension of the five-year period for the time of denied access. Accordingly, the motion is denied.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: lmg on 6-2-26. (Judge’s initials) (Date)
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