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Filed 10/2/20 Mendez v. Iglesia de Cristo Ministerios Llamada Final, Inc. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CLARA MENDEZ et al.,

Plaintiffs and Appellants,

v.

IGLESIA DE CRISTO MINISTERIOS 

LLAMADA FINAL, INC., et al.,

Defendants and Respondents.

E072536

(Super.Ct.No. CIVDS1827685)

OPINION

APPEAL from the Superior Court of San Bernardino County. Brian S. 

McCarville, Judge. Affirmed.

Brown Associates and Victor H. Jaime for Plaintiffs and Appellants.

McKay, De Lorimier & Acain and Paul A. De Lorimier for Defendants and 

Respondents.

I. INTRODUCTION

On October 24, 2018, Clara Mendez, Esther Buzo De Ramirez, Rosio Favela, Ana

Lemus, and Cristina Madrigal (plaintiffs) filed a civil complaint seeking recovery for 
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personal injuries incurred in a motor vehicle accident on May 22, 2016. Defendants, 

Iglesia de Cristo Ministerios Llamada Final, Inc., and Teresa Dejesus Benitez 

(defendants) demurred to the pleading on the ground that plaintiffs’ claims were timebarred by the two-year statute of limitations set forth in Code of Civil Procedure1

section 335.1. The trial court sustained the demurrer without leave to amend and 

plaintiffs appealed.

On appeal, plaintiffs assert the trial court erred because they alleged defendants’ 

actions violated Vehicle Code sections 26453 and 26454 as well as Civil Code 

section 2100 and as such, their action is governed by the three-year statute of limitations 

for liabilities created by statute set forth in Code of Civil Procedure section 338. After 

conducting our independent review of the complaint, we find no error and affirm the 

judgment.

II. FACTS AND PROCEDURAL HISTORY

On October 24, 2018, plaintiffs filed a civil complaint. The complaint alleged that 

on May 22, 2016, plaintiffs were passengers in a church bus owned, operated, or 

managed by defendants. Plaintiffs incurred personal injuries when the bus collided with 

another vehicle while in operation. The complaint purported to state causes of action for 

1 Undesignated statutory references are to the Code of Civil Procedure.
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(1) “Violation of Vehicle Code §26453 and §26454(a)”2 and (2) “Violation of Civil Code 

§2100”

3 arising out of the incident.

On December 10, 2018, defendants filed a demurrer to the complaint and argued 

that plaintiffs’ claims were time-barred under section 335.1, which provides a two-year 

statute of limitations for an action for injury to, or for the death of, an individual by the 

wrongful act or neglect of another. 

On January 2, 2019, plaintiffs filed an opposition to the demurrer arguing that 

their claims were not time-barred because the claims are governed by section 338, 

subdivision (a), which provides a three-year statute of limitations for liabilities created by 

statute. Plaintiffs further argued that the statute of limitations was an affirmative defense 

that cannot be raised on demurrer.

On January 15, 2019, the trial court sustained defendants’ demurrer to the 

complaint without leave to amend following hearing and oral argument. A judgment of 

dismissal was subsequently entered on March 14, 2019. On April 15, 2019, plaintiffs 

appealed from that judgment.

2 Vehicle Code section 26453 provides: “All brakes and component parts [of a 

vehicle] shall be maintained in good condition and in good working order. The brakes 

shall be so adjusted as to operate as equally as practicable with respect to the wheels on 

opposite sides of the vehicle.” Vehicle Code section 26454, subdivision (a), provides: 

“The service brakes of every motor vehicle or combination of vehicles shall be adequate 

to control the movement of and to stop and hold the vehicle or combination of vehicles 

under all conditions of loading.”

3 Civil Code section 2100 provides: “A carrier of persons for reward must use the 

utmost care and diligence for their safe carriage, must provide everything necessary for 

that purpose, and must exercise to that end a reasonable degree of skill.”
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III. DISCUSSION

There is no dispute that the complaint alleges defendants’ actions caused plaintiffs 

to incur injury on May 22, 2016. Nor do plaintiffs claim any grounds for the tolling of 

the statute of limitations in this case. Instead, the sole issue raised on appeal is which 

statute of limitations applies to the claims asserted in the complaint. We agree with 

respondents that the applicable statute of limitations is two years as set forth in 

section 335.1, and therefore affirm the judgment.

A. General Legal Principles & Standard of Review

“ ‘Because a demurrer both tests the legal sufficiency of the complaint and 

involves the trial court’s discretion, an appellate court employs two separate standards of 

review on appeal. [Citation.] . . . Appellate courts first review the complaint de novo to 

determine whether or not the [] complaint alleges facts sufficient to state a cause of action 

under any legal theory, [citation], or in other words, to determine whether or not the trial 

court erroneously sustained the demurrer as a matter of law. [Citation.]’ [Citation.] 

‘Second, if a trial court sustains a demurrer without leave to amend, appellate courts 

determine whether or not the plaintiff could amend the complaint to state a cause of 

action. [Citation.]’ ” (Total Call Internat. Inc. v. Peerless Ins. Co. (2010) 181 

Cal.App.4th 161, 166 (Total Call Internat. Inc.).)

“Under the first standard of review, ‘we examine the complaint’s factual 

allegations to determine whether they state a cause of action on any available legal 

theory. [Citation.] We treat the demurrer as admitting all material facts which were 
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properly pleaded. [Citation.] However, we will not assume the truth of contentions, 

deductions, or conclusions of fact or law [citation], and we may disregard any allegations 

that are contrary to the law or to a fact of which judicial notice may be taken. [Citation.]’ 

[Citation.]” (Total Call Internat. Inc., supra, 181 Cal.App.4th at p. 166.) “Under the 

second standard of review, the burden falls upon the plaintiff to show what facts he or she 

could plead to cure the existing defects in the complaint. [Citation.] ‘To meet this 

burden a plaintiff must submit a proposed amended complaint or, on appeal, enumerate 

the facts and demonstrate how those facts establish a cause of action.’ [Citation.]” 

(Ibid.)

B. The Trial Court Did Not Err in Concluding Plaintiffs’ Claims Were Time 

Barred

“A defendant may demur to a complaint on the basis of the statute of limitations 

when it is clear from the face of the complaint that the action is time-barred. [Citations.]” 

(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 412

(Carter).) “Where a demurrer raises the bar of the applicable statute of limitations, the 

court assesses whether ‘the complaint shows on its face that the statute bars the action.’ 

[Citation.] Such a defect ‘must clearly and affirmatively appear on the face of the 

complaint; it is not enough that the complaint shows merely that the action may be 

barred.’ [Citation.]” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 

174.)
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Here, the complaint on its face alleged that plaintiffs incurred personal injuries on 

May 22, 2016, as the result of a motor vehicle accident. Plaintiffs alleged defendants 

were liable for these injuries “as a result of improper maintenance and multiple 

mechanical deficiencies and due to driver negligence.” Thus, the complaint on its face 

alleges personal injury arising from the wrongful act or negligence of defendants. A 

claim for injury to an individual “caused by the wrongful act or neglect of another” must 

be brought within two years. (§ 335.1.) Plaintiffs did not file their complaint until 

October 24, 2018, and as such, the complaint shows on its face that the claims are 

untimely. Accordingly, we find no error in the trial court’s decision to sustain 

defendants’ demurrer.

C. The Statutory Violations Alleged Do Not Transform the Claim into a Liability 

Created by Statute

Plaintiffs argue that the applicable statute of limitations should be three years 

under section 338 because they alleged defendants’ actions violated various statutory 

provisions of the Vehicle Code and Civil Code. We disagree.

“ ‘To determine the statute of limitations which applies to a cause of action it is 

necessary to identify the nature of the cause of action, i.e., the “gravamen” of the cause of 

action.’ [Citation.] The nature of the cause of action and the primary right involved, not 

the form or label of the cause of action or the relief demanded, determine which statute of 

limitations applies. [Citations.]” (Carter, supra, 198 Cal.App.4th at p. 412.) Thus, we 
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look not to the labels used by plaintiffs in the pleading, but rather to the nature of the 

underlying right at issue.

Reference to a statutory violation on its own does not determine whether the 

underlying right at issue is a liability created by statute. Generally, “ ‘[a] violation of a 

state statute does not necessarily give rise to a private cause of action.’ ” (Vasquez v. 

Solo 1 Kustoms, Inc. (2018) 27 Cal.App.5th 84, 90.) Instead, “[a] cause of action is 

based upon a liability created by statute ‘only where the liability is embodied in a 

statutory provision and was of a type which did not exist at common law.’ [Citations.]” 

(Jackson v. Cedars-Sinai Medical Center (1990) 220 Cal.App.3d 1315, 1320, italics 

omitted.) 

California courts have long held that “[a]n owner or operator of a motor vehicle 

has both a statutory and common law duty to use reasonable and ordinary care, by 

properly maintaining the motor vehicle, to prevent an increase in the chances of inflicting 

injury on others by use of the vehicle. [Citations.]” (Yamaha Motor Corp. v. Paseman

(1990) 219 Cal.App.3d 958, 965.) However, the statutory basis for such duty arises from 

the general negligence principles embodied in Civil Code section 1714. (See Cabral v. 

Ralphs Grocery Co. (2011) 51 Cal.4th 764, 774 [“the general duty to take ordinary care 

in the conduct of one’s activities . . . indisputably applies to the operation of a motor 

vehicle”].) As our Supreme Court has repeatedly explained, Civil Code section 1714 was 

merely a codification of common law principles. (Li v. Yellow Cab Co. (1975) 13 Cal.3d

804, 814 [Civil Code section 1714 is “declarative of the common law”]; Goonewardene 
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v. ADP, LLC (2019) 6 Cal.5th 817, 827 [Civil Code as originally enacted codified “thenexisting common law rules”].) 

Here, the gravamen of plaintiffs’ claim is the right to be free from injury caused by 

the negligence of defendants in the operation and maintenance of the church bus. 

California authorities make clear that defendants’ duty to use reasonable care in the 

maintenance or operation of their church bus to avoid injury to another is a duty that 

arises from the common law. As such, plaintiffs’ claim is not a liability created by 

statute. While subsequent statutes which regulate defendants’ conduct in the use, 

maintenance, or operation of a motor vehicle may implicate the standard of care 

applicable to determine the reasonableness of defendants’ actions, these statutes do not 

create any new liability. Instead, these statutes guide the determination of whether the 

defendants failed to use reasonable care with respect to an already existing duty.

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Plaintiffs’ reference to such statutes do not transform the gravamen of their action into a 

“liability created by statute” entitled to the longer statute of limitations period set forth in 

section 338.

D. Plaintiffs Have Not Met Their Burden to Show an Abuse of Discretion

Finally, plaintiffs contend the trial court abused its discretion in sustaining the 

demurrer without leave to amend. We find no abuse of discretion on this record. 

4 See Alcala v. Vazmar Corp. (2008) 167 Cal.App.4th 747, 755-756 [Vehicle 

Code is relevant to the doctrine of negligence per se which “ ‘means that the court has 

adopted the conduct prescribed by the statute as the standard of care for a reasonable 

person in the circumstances’ ”]. See also Webster v. Ebright (1992) 3 Cal.App.4th 784, 

787 [Civil Code section 2100 codifies previous common law principles imposing a 

heightened duty of care for common carriers]. 
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“[N]otwithstanding the liberal policy favoring amendment of complaints, upon 

sustaining a demurrer to a first amended complaint, the court may deny leave to amend 

when the plaintiff fails to demonstrate the possibility of amendments curing the first 

amended complaint’s defects. [Citation.]” (Hedwall v. PCMV, LLC (2018) 22 

Cal.App.5th 564, 579.) “ ‘To satisfy that burden on appeal, a plaintiff “must show in 

what manner he can amend his complaint and how that amendment will change the legal 

effect of his pleading.” [Citation.] The assertion of an abstract right to amend does not 

satisfy this burden. . . . Allegations must be factual and specific, not vague or 

conclusionary. . . . Where the appellant offers no allegations to support the possibility of 

amendment . . . there is no basis for finding the trial court abused its discretion when it 

sustained the demurrer without leave to amend. [Citations.]’ ” (Ibid., citing Rakestraw v. 

California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.)

Here, plaintiffs have not set forth in their opening brief any specific facts which 

they claim can be added to the complaint to overcome the statute of limitations defense to 

their cause of action. Nor have plaintiffs attached a proposed amended complaint for our 

consideration. This is not surprising considering the trial court specifically asked 

plaintiffs at the time of oral argument to provide any additional facts they believed could 

be added to cure the defect and plaintiffs were unable to articulate any specific facts they 

desired to add. Plaintiffs have not met their burden to show an abuse of discretion in the 

trial court’s denial of leave to amend, and we see no reason to reverse the judgment on 

this ground.
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IV. DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

MENETREZ

J.