Cruz vs Tancos

TENTATIVE RULING(S) FOR August 10, 2026 Department S37 – Judge Winston Keh This court follows California Rules of Court, rule 3.1308(b) for tentative rulings. (See San Bernardino Superior Court Local Emergency Rule 8.) Tentative rulings for each law & motion will be posted on the internet (https://www.sb-court.org) by 3:00 p.m. on the court day immediately before the hearing.

You may appear in person at the hearing although remote appearance by CourtCall is preferred. (See www.sb-court.org/general-information/remote-access).

If you do not have Internet access or if you experience difficulty with the posted tentative ruling, you may obtain the tentative ruling by calling the department (S-37) at (909) 708-8707 or the Administrative Assistant (909) 708-8756, who prepared the ruling.

If you (or both parties) wish to submit on the Tentative, notify the other party and call the department by 4:00 pm the day before and your appearance may be excused unless the Court orders you to appear.

You must appear at the hearing if you are so directed by the court in the tentative ruling. Be prepared to address those issues set forth by the court in its ruling.

UNLESS OTHERWISE NOTED, THE PREVAILING PARTY IS TO GIVE NOTICE OF THE

RULING.

Cruz vs Tancos

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TENTATIVE RULING(S):

Before the Court is the Defendant’s general demurrer to the single cause of action for negligence

under Code of Civil Procedure Section 430.10, subdivision (e). Defendant contends that

Plaintiffs’ negligence cause of action is barred by the statute of limitations. Plaintiffs oppose

arguing equitable estoppel applies. Defendant replies.

Meet and Confer Requirement

Under Section 430.41, subdivision (a), before filing a demurrer, the filing party is required to

meet and confer at least five days before the filing, either by telephone, video conference, or in

person, with the opposing party for the purpose of determining whether an agreement can be

reached to resolve the objections to the pleading. The moving party must file a declaration

stating either the means of the meet and confer or that the other party failed to respond or confer

in good faith. (Code of Civ. Proc. section 430.41, subd. (a)(3).) (Emphasis added.)

On March 20, 2026, Defendant’s counsel e-mailed Plaintiffs’ counsel requesting a 15-day

extension to provide a responsive pleading because his firm was recently assigned the matter.

Plaintiffs’ counsel responded that she would grant the extension only if Defendant agreed to file

an answer. Defendant’s counsel then telephoned Plaintiffs’ counsel the same day and again on

March 23, 2026. Both times he was unable to speak with anyone. He then e-mailed Plaintiffs’

counsel on March 23, 2026, advising her of Defendant’s intentions to file a demurrer. As of the

filing of the demurrer, Defendant’s counsel has not received a response. (Yun Decl. ¶¶ 5-6; Ex.

B.)

The demurrer was filed on March 24, 2026, requiring the meet and confer to have occurred no

later than March 19, 2026. Given what occurred, the meet and confer is not met. Therefore, the

Court could continue the demurrer for a proper meet and confer. But Plaintiffs’ counsel has

motions to be relieved as counsel set to be heard at the same time as the demurrer. Therefore,

the Court will address the merits of this motion.

Judicial Notice

Defendant requests that the Court take judicial notice of Plaintiffs’ complaint filed in this matter,

under Evidence Code Sections 450 and 453. (Yun Decl. ¶ 2; Ex. A.)

The Court DENIES the request as unnecessary. Judicial notice is not required for the Court to

consider the operative pleading.

Analysis

Defendant argues that under Section 335.1, the applicable statute of limitations is two

years. Thus, given Plaintiffs allege that the negligent act that caused their injuries occurred on

December 29, 2023, Plaintiffs were required to file their complaint by December 29, 2025.

Because Plaintiffs filed their complaint on January 2, 2026, their negligence claim is banned by

the statute of limitations.

Plaintiffs oppose the demurrer argue matters outside of the pleadings. They contend there was

extensive pre-litigation conduct from Defendant’s insurance company that supports equitable

estoppel. Specifically, Plaintiffs argue that correspondences reflect that the insurance company

continued investigating Plaintiffs’ claims, requested additional documentation, represented that

its evaluation remained ongoing, and engaged in continued settlement discussions after the

expiration of Plaintiffs’ original demand. Plaintiffs assert that this conduct induced Plaintiffs to

continue pursuing settlement rather than file a lawsuit.

Plaintiff’s counsel does attach a declaration and four exhibits to the opposition. Given that these

documents are outside the pleading, they cannot be considered as part of the complaint (see Del

Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898, 908

[discussing that documents incorporated by reference become part of the complaint.].) Neither

can the Court consider any additional factual allegations contained in Plaintiff’s opposition.

(Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.)

Defendant’s reply correctly points out that Plaintiffs’ complaint does not allege any facts

supporting equitable estoppel and that Plaintiffs cannot defeat a demurrer by asserting new facts

in their opposition.

Nonetheless, Defendant’s statute of limitations argument is only partially correct. As it relates to

Plaintiffs’ bodily injury claims, the complaint was filed more than two years after the date of the

incident.

However, both parties fail to discuss that Plaintiffs’ property damage claim is not subject to the

two-year state of limitation under Section 335.1; instead, it is subject to a three year statute of

limitations under Section 338, subdivision (c)(1).

Given the complaint only asserts one cause of action, the Court cannot sustain a demurrer to

part of a cause of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108

Cal.App.4th 1028, 1047.) The appropriate procedural device is for Defendant to bring a motion to

strike improper allegations directed to portions of a claim. (Caliber Bodyworks, Inc. v. Superior

Court (2005) 134 Cal.App.4th 365, 385, disapproved on other grounds by ZB, N.A. v. Superior

Court (2019) 8 Cal.5th 175, 196 fn.8.)

Therefore, the Court OVERRULES Defendant’s demurrer without prejudice to Defendant filing a

motion to strike after a proper meet and confer.