Filed 10/11/23 Ellorin v. O’Rear CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BEN B. ELLORIN,

Plaintiff and Appellant,

v.

CHARLES O’REAR et al.,

Defendants and Respondents.

D081135

(Super. Ct. No. 37-2021-

00053188-CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

John S. Meyer, Judge. Affirmed in part; reversed and remanded in part.

Ben B. Ellorin, in pro. per., for Plaintiff and Appellant.

Horton, Oberrecht & Martha, Erin E. Schroeder and Andrew B. Dorr 

for Defendant and Respondent Charles O’Rear.

Davis Wright Tremaine, Spencer Persson and Andrew Row for 

Defendant and Respondent Microsoft Corporation.

Ben B. Ellorin appeals from a judgment of dismissal resulting from an 

order sustaining a demurrer without leave to amend. The trial court’s basis 

for sustaining the demurrer was its conclusion that the complaint was timebarred and that neither the delayed discovery rule nor any amendment could
2

cure this defect. Ellorin contends the trial court erred, not only in sustaining 

the demurrer, but also in failing to consider pertinent evidence, in denying 

him leave to file a brief in response to the court’s tentative ruling, and in 

entering judgment not only for the defendant—Charles O’Rear—who had 

filed the demurrer, but also for O’Rear’s two co-defendants: Microsoft 

Corporation (Microsoft) and William Henry Gates III. For reasons discussed 

post, we agree with the trial court’s conclusion that the complaint was timebarred as to O’Rear and that neither the delayed discovery rule nor any 

amendment could cure this defect. Hence we affirm the judgment as to 

O’Rear. As to Microsoft and Gates, we reverse the judgment and remand the 

case for further proceedings consistent with this opinion.

I. Allegations in the Complaint

Because this appeal is from a judgment based on an order sustaining a 

demurrer, we proceed as though all allegations of material fact pleaded in the 

complaint have been admitted by the defendants. (See Blank v. Kirwan

(1985) 39 Cal.3d 311, 318; Dudek v. Dudek (2019) 34 Cal.App.5th 154, 160, fn. 

4; Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 

23, 26; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 

593, 604 [in considering merits of a demurrer, “the facts alleged in the 

pleading are deemed to be true, however improbable they may be”].) 
3

Proceeding on this basis, we accept as true for purposes of this appeal the 

following factual allegations set forth in the complaint.1

A. Ellorin, the Ranch that He—or He and His Wife Veronica—Used 

to Own, and the Ranch’s Wild Turkey Hill

Ellorin is a retired engineer who, from 1994 to 2003, owned—either 

alone or together with his now-deceased wife, Veronica—a rural property (the 

property or the ranch) located in in the town of Ramona in San Diego 

County.2 The property was named Rancho Ellorin Hacienda Farms, and

Ellorin and Veronica derived much enjoyment from it. 

“We farmed, we raised animals, we enjoyed the vastness of 

the property, and were awed by its country atmosphere, 

beautiful oak[] trees, mature sycamore trees, streams, 

water falls, rock outcroppings, magnificent views and 

rolling hills.” 

These rolling hills included one hill in particular that featured “a 360 Degree 

view of the Ramona Valley as well as the best view of Mount Woodson, a 

1 The complaint, filed by Ellorin proceeding in propria persona, consists 

of 42 pages comprising: six template-type court forms (PLD-PI-001, PLD-PI001(2), PLD-PI-001(3), PLD-PI-001 (6), CM-010, and MC-030) that the 

Judicial Council of California has promulgated and that Ellorin has filled in; 

four attachments on pleading paper (including five pages of what appears 

originally to have been a six-page document titled Plaintiff’s Declaration) 

that Ellorin has incorporated by reference into the filled-in forms; and nine 

exhibits.

2 The complaint includes several discrepancies. For example, it indicates 

in some places that Ellorin alone owned the property and in other places that 

Ellorin’s wife Veronica was a co-owner with Ellorin. As another example, the 

complaint indicates in some places that Ellorin (or Ellorin and Veronica) lost 

the property to foreclosure in 2003 and in other places that his (or their) 

ownership of the property terminated in 2002.
4

famous mountain only 2 Miles away.” Ellorin dubbed this hill “Wild Turkey 

Hill.”

B. The Sequence of Alleged Events Placed at Issue in the 

Complaint

1. 1996-2002: Ellorin Battles Forces Threatening His Plans

to Develop the Ranch, But Loses the Ranch to 

Foreclosure; He and His Family Experience Distress

During the latter part of the 1990s and continuing through and 

including at least 2002, Ellorin had “promising plans for the property” in 

general and for Wild Turkey Hill in particular. The “centerpiece” of these 

plans was to “construct[] a house at the top of [Wild Turkey Hill].” But 

Ellorin’s plans foundered as a result of actions, taken by “radical 

[environmental] groups[,] the County[,] the Courts and the State,” that

prevented him from developing the property in the manner in which he 

desired to develop it. These actions were of sufficient concern to Ellorin that 

he “fought from 1996 through 2002 in and out of the Courts” to overcome 

them. “But [Ellorin’s efforts were] to no avail.” As a consequence of these

circumstances, Ellorin and his family experienced “physical, emotional, and 

financial distress” during the 1996-2002 timeframe.

2. 2002-2018: Ellorin is Confronted with an Image of Wild 

Turkey Hill Whenever He Uses a Computer; He and 

Veronica Puzzle at the Riddle of the Image’s Ubiquity, and 

They Experience Severe Distress

“[H]oping to save the ranch,” Ellorin “travelled abroad [in 2002] to get 

some construction projects going.” But this gambit failed, and Ellorin (or 

Ellorin and Veronica) ended up losing the ranch to foreclosure in 2003..

When Ellorin set out traveling abroad in 2002 in his efforts to save the 

ranch, he “went . . . with limited resources” and “without a personal 

computer.” However, due to the ubiquity of “computer shops,” he had ample 
5

access to computers—and that is how “[t]he nightmare . . . beg[a]n.” For,

beginning close in time to the 2003 foreclosure and continuing for many years 

thereafter, Ellorin began finding that the monitor screen of “[e]very 

computer . . . [he] went to” featured a prominent image of a site that Ellorin

“used to mow, clean[], and maintain[] from 1994 to around 2002” and atop 

which the foreclosure had prevented him from constructing a house: Wild 

Turkey Hill. 

The ubiquity of one specific image on the screen of every computer 

Ellorin encountered is attributable to the fact that Microsoft had adopted 

that image as the “[d]efault [digital] [w]allpaper” for a new operating system,

named Windows XP, that it launched in the early 2000’s.3 But what 

accounted for the existence of this particular image? And how had this image

(the image) become the digital wallpaper of Microsoft XP? 

Ellorin’s reaction when he first saw the image was mixed.

“[T]he first time . . . I saw the [image] . . . , I immediately 

recognized . . . Wild Turkey Hill. It brought me mixed 

feelings. I missed my family and my ranch and was happy 

to see it but surprised of how it got there.” 

Ellorin speculated regarding the provenance of the image. But, his 

speculation notwithstanding, Ellorin initially took no action.

“I recalled . . . that several people . . . , including the realtor 

who [had] sold me the property, claimed that the ranch was 

included in the Registry of Film Making Venues. With this 

3 None of the defendants has admitted that the location depicted in the 

image is Wild Turkey Hill, and that among the exhibits to the complaint are 

printouts of Wikipedia entries stating that the image is of a different location 

altogether. Nonetheless, for the reasons noted at the beginning of Section I of 

this opinion, ante, we proceed as though the allegations of material fact that 

Ellorin has pleaded in the complaint have been admitted by the defendants.
6

in mind, I originally did not make the wallpaper sightings 

an issue.”

Then, “[a]s time progressed . . . and the prospect of . . . [obtaining 

construction] projects [abroad] became dimmer . . . the thought of losing the 

ranch was imminent and troubled [Ellorin] considerably.”

“My property was foreclosed in 2003 via a Trustee’s Sale. 

From that time on, viewing the [image of Wild Turkey Hill 

on the Microsoft XP] . . . wallpaper was so distress[ing] and 

seeing it over and over and over again every[] . . . time I 

went to a computer shop was torture and unbearable.” 

The toll that the image and its ubiquity took on Ellorin’s wife, Veronica, 

was even greater than the toll it took on Ellorin.

“[Veronica’s] death was caused partly by experiencing 

emotional distress from 2001 through her death in 2012 by 

her exposure to the [image on the] Microsoft Windows XP 

Default Wallpaper . . . and her unanswered question why 

the picture of our distressed property was all over the 

Internet and was used as a Wallpaper by Microsoft without 

our knowledge and permission.”

For 17 or 18 years—from 2001 or 2002 until the very last day of 2019—

the provenance of the image and the manner in which the image had become 

the Windows XP default wallpaper, visible “all over the Internet,” remained 

an enigma to Ellorin. However,

“I was in a foreign country with limited resources and I 

relied on the thought that the [image] . . . was legitimate, 

and that there was nothing I could do to remove it. I did 

not have any reason to believe otherwise.” 

Thus, despite the distress that the image and its ubiquity were causing him, 

Ellorin took no action to investigate or to otherwise address the matter

during this period of time. 
7

3. 2019-2020: Ellorin Discovers the False and Fraudulent 

Narrative Attending the Image; and He Experiences 

Further Distress

On December 31, 2019, Ellorin, somewhat by happenstance, came 

across the explanation for the enigma of the ubiquitous image of Wild Turkey 

Hill. 

“[O]n December 31, 2019, after . . . [having] just returned 

from abroad after several years, [he] discovered the false 

and fraudulent narrative of the Microsoft Windows XP 

Default Wallpaper.” 

Specifically, while “trying to . . . replace the old image default wallpaper 

[on a] laptop computer,” Ellorin happened upon accounts, published on the 

internet, indicating that the person who had captured the image was a 

photographer named Charles O’Rear; that O’Rear maintained that the year 

in which he had captured the image was 1996; that O’Rear had sold all rights 

in the image to Microsoft (reportedly in exchange for a “low six figure[]” sum);

that Microsoft had named the image “Bliss”; and that “there had been 

considerable speculation” over time as to where the landscape depicted in the 

image was located, or if it was even real. 

The accounts Ellorin encountered on the internet on December 31, 

2019, also revealed what Ellorin refers to as “the false and fraudulent 

narrative of the Microsoft Windows XP Default Wallpaper” (the false 

narrative). That is, an explanation of the image’s provenance in which 

O’Rear falsely asserts (among other things), not that the landscape depicted 

in the image is located in the town of Ramona, in San Diego County, but 

rather that it is located in Sonoma County and that it was while O’Rear was

driving in Sonoma County en route to visit his girlfriend one day that he

(O’Rear) spotted the landscape and captured the image on his camera.
8

In addition to encountering the false narrative, Ellorin also realized, as

a result of O’Rear having claimed that the year in which he captured the 

image was 1996, that O’Rear must have gained access to the ranch, during 

the time that Ellorin or Ellorin and Veronica owned it (1992 to 2002 or 2003), 

without authorization.

“During this time, people of all backgrounds . . . frequently 

visited my ranch. [M]ost of them . . . knocked on my door 

and obtained permission before roaming the property.

They ha[d] the decency to obtain permission first. In the 

case of . . . O’Rear[,] however, it was different. He 

trespassed [o]nto my property beyond my first and second 

gates when he took them pictures and without my 

permission.”

Further, the December 31, 2019, discovery also revealed to Ellorin that 

Microsoft was complicit.

“Defendants publish[ed] an image with a false narrative 

across the Internet to be viewed by Billions of people 

worldwide. Microsoft was a major corporation. The 

organization was large and had all the resources. Microsoft 

should have been the ‘adult’ in the room with . . . O’Rear 

and . . . Gates . . . when they were making the deal [for the 

purchase and sale of the image]. Does anyone expect the 

Plaintiff to believe that Microsoft decided to publish the 

image as part of their major marketing program worldwide 

without vetting or making a background check of the ‘Bliss’ 

location? Where is the property? Who owns the property? 

What is the status of the property? How did you find this 

property? What were you doing on the property? Did you 

have the Owner’s permission to enter the property? These 

are just [a] few of the questions Microsoft should have 

asked . . . O’Rear. These are common sense questions[,]

and they reflect a fairly standard operating procedure 

during a vetting process. Plaintiff believes that Microsoft 

and . . . Gates . . . asked these questions to . . . O’Rear but 

purposely ignored [the answers to] them because they were 

overcome by greed [and other sentiments]. They thought 

that the Owners were naive, ignorant, and helpless.” 
9

In essence, the defendants “were remiss and irresponsible” and either 

“decided to ignore the process or ignore the results of a process of a normal 

due diligence that is a standard operating procedure for a project 

development of this large scale.”

Ellorin’s December 31, 2019, discovery of the false narrative sent him 

into a physical, emotional, and financial tailspin.

“Said discovery triggered an old physical, emotional, and 

financial distress that now resulted in tremendous renewed 

emotional distress like nightmares, anxiety, anger, 

insomnia, bodily pains, mental problems and others. This 

renewed distress is mainly due to the nature and the way 

the false information was gathered, used, published, and 

covered up to the detrement [sic] of the Plaintiff and the 

Billions of people around the world who used the[] Windows 

XP Operating System.” 

This physical, emotional, and financial distress occasioned by the 

December 31, 2019, discovery of the false narrative was more intense than 

that which had been occasioned by mere exposure to the image prior to 

December 31, 2019.

“Plaintiff and his old family[4] were subjected to distress for 

years when they were involuntarily subjected to viewing 

the ‘Bliss’ image. It was a distressful scenario then, but 

since the NEW discovery of the fraudulent narrative [o]n 

Dec. 31, 2019, it [has] become an unbearable nightmare for 

the Plaintiff and his new family as well. The emotional 

torture of continuously seeing the ‘Bliss’ while abroad was 

aggravated now considerably upon the discovery of the big 

lie that needs to be corrected.” 

4 Although the record is not altogether clear on this topic, it appears 

from the allegations in the complaint that, at some point during the period 

spanning the events alleged in the complaint, Ellorin (perhaps following a 

divorce from Veronica or perhaps following Veronica’s death) remarried.
10

II. Procedural History

A. The Complaint

On December 20, 2021, just shy of two years after having discovered 

the false narrative, Ellorin filed a complaint in the trial court. In the 

complaint, Ellorin pleaded the matters described in the preceding section. 

He also alleged “negligence” and an unspecified “intentional tort.” In 

addition, he referred at least in passing to a variety of other types of actual or 

supposed theories of action, including negligent infliction of emotional 

distress, intentional infliction of emotional distress, fraud, mail fraud, 

“internet fraud,” “unauthorized use of private property,” unjust enrichment, 

and wrongful death.

In the complaint’s prayer for relief, Ellorin requested several different

remedies. These include (among other remedies): compensatory and 

punitive damages in the amount of $27 million, and an order requiring 

Microsoft to cease and desist from using the image as its Microsoft XP 

wallpaper. The relief sought also includes an order requiring all of the

defendants “to publicly apologize to the Plaintiff and his old and new family 

and to all the Billions of Microsoft users around the world”; “to respond to the 

Millions of people who are still seeking and wondering where the real ‘Bliss’ 

hill is located, and to address their desire to save the ‘Bliss’ hill”; “to obtain 

the 25 Acre portion of the property where [Wild Turkey Hill] is located 

and . . . convey said site to the Plaintiff free and clear of any encumbrances, 

to be saved, preserved, and protected in honor of Plaintiff’s Spouse who 

passed away wondering why the image was used and published without her 

permission.”
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B. The Demurrer

On March 21, 2022, O’Rear filed in the trial court and caused to be 

served on Ellorin a “Notice of Demurrer and Demurrer” (original notice) 

along with a brief and other supporting papers. In the brief, O’Rear argued

that the theories of action Ellorin had alleged in the complaint were timebarred and insufficiently pleaded.5 The hearing on O’Rear’s demurrer (the

demurrer) was set for July 15, 2022. 

Thereafter, on June 17, 2022, O’Rear filed and caused to be served on 

Ellorin an “Amended Notice of Demurrer and Demurrer” (amended notice). 

Included in the amended notice was essentially the same information that 

had been included in the original notice, along with several additional lines of 

text, describing the grounds for the demurrer, that were consistent with the 

arguments that had been set forth in the brief O’Rear had caused to be filed 

on March 21. The brief, declaration, and exhibits that the amended notice

identified as furnishing support for the demurrer were the same brief, 

declaration, and exhibits that the original notice had identified as furnishing 

support for the demurrer.

On July 6, 2022, Ellorin filed two briefs in which he argued against the

demurrer. The first of these two opposition briefs targeted what Ellorin 

refers to as the original demurrer, and the second opposition brief targeted

5 We note for the sake of completeness that, contemporaneously with the 

filing and service of his demurrer on March 21, 2022, O’Rear also filed and 

caused to be served a motion to strike certain passages of the complaint and a 

motion for an order requiring Ellorin to submit a $20,000 undertaking. The 

trial court did not rule on either of these two motions. Instead, both motions 

were taken off calendar at the time the court sustained the demurrer.

Inasmuch as neither of these two motions is a subject of this appeal, we do 

not address them further in this opinion.
12

what he refers to as the amended demurrer.6 To this second opposition brief, 

Ellorin appended a copy of the first opposition brief and (as exhibits) copies of

responses by Ellorin to sets of special interrogatories, form interrogatories, 

and requests for production that O’Rear had propounded to him. Neither of 

the two opposition briefs included a request for leave to amend. 

On July 6, 2022 (the same day Ellorin filed his two briefs), O’Rear filed 

a reply brief. Then, on July 14, 2022, the day before the hearing was 

scheduled to occur, the trial court posted a tentative ruling on the demurrer.7

6 The first opposition brief was titled “Plaintiff’s Memorandum of Points 

and Authorities in Support of Overruling Defendant Charles O’Rear’s 

Demurrer.” The second opposition brief was titled “Plaintiff’s Memorandum 

of Points and Authorities in Support of Overruling Defendant Charles 

O’Rear’s Amended Demurrer.” The word opposition does not appear in the 

title of either of these briefs; however, the substance of each of these briefs 

reveals that it is the functional equivalent of an opposition brief, and O’Rear

(in reply) treated each of these briefs as such. Ellorin’s belief that there were 

two demurrers—one original, and the other amended—appears to derive from

his having interpreted the word “amended” in the amended notice as having 

been intended to modify, not just “notice,” but also “demurrer.”

7 Ellorin argues “the Tentative Ruling was based on the original 

demurrer and not on the amended demurrer.” However, as noted ante and 

post, (1) O’Rear filed and served only one demurrer, (2) the brief, declaration, 

and exhibits that the amended notice of demurrer identified as furnishing 

support for O’Rear’s demurrer were the same brief, declaration, and exhibits 

that the first notice of demurrer had identified as furnishing support for that

demurrer, and (3) both sets of opposition papers that Ellorin had filed—the 

set he filed in opposition to what he understood to be O’Rear’s “original 

demurrer” and the set he filed in opposition to what he understood to be 

O’Rear’s “amended demurrer” (see ante text accompanying fn. 6)—were 

before the court.
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C. The Tentative Ruling on the Demurrer

The tentative ruling revealed the trial court’s provisional conclusion 

that the demurrer should be sustained without leave to amend. It also 

revealed the basis for this provisional conclusion, which was a tentative

determination by the trial court that Ellorin’s claims were time barred, as the 

lawsuit had not been filed until “long after the applicable statute of 

limitations had run,” and that “there is no reasonable possibility that the 

complaint [could] be amended to state a timely claim.” Nowhere in the 

tentative ruling was there any reference to the discovery responses that 

Ellorin had included as exhibits to his opposition briefs. 

D. The Hearing on the Demurrer

The hearing on the demurrer went forward as scheduled on July 15, 

2022,8 the day after the tentative ruling had been posted. Counsel for O’Rear 

8 Ellorin states “[t]here was . . . no formal hearing on the [d]emurrer.”

But this statement is at odds with his description (see post) of what 

transpired on July 15. If and to the extent Ellorin intends this statement as 

an observation that participation in a hearing via telephone or video link is 

less traditional than participation in person, we note that he is correct in this 

regard—but that this observation is of no consequence inasmuch as the 

partially in-person and partially remote nature of a hearing in the trial court 

does not render the hearing any less official than it would be if conducted 

entirely in person. (Cf. Cal. Rules of Court, rules 3.670(a) and 3.672(a).) If 

and to the extent Ellorin intends this statement as an observation relating to 

the sequencing of the hearing on the demurrer and the proceedings on a case 

management conference that had been separately noticed for the same 

morning, we are unable to divine how the sequencing of these two 

proceedings, both scheduled for the same day, would have had any bearing on 

the substantive outcome of the demurrer. Viewed in any light, Ellorin’s 

rendition (see post) of the exchanges that occurred among himself, the court, 

and defense counsel during the July 15 proceedings reveals that a formal

hearing on O’Rear’s demurrer did indeed occur that day. 
14

appeared in person and submitted on the tentative ruling. Counsel for 

Microsoft appeared remotely via video link, and Ellorin appeared remotely 

via telephone or video link.9

No transcript exists of the July 15 proceedings.] However, we 

understand from the rendition of events that Ellorin has set forth in his 

briefs on this appeal10 that, during the proceedings that occurred on July 15, 

defense counsel argued “that the statute of limitations ha[d] expired and that 

the Appellant should have known sooner,” and Ellorin “argued that the 

statute of limitations findings on the tentative ruling was erroneous and not 

based on facts” and that “the date of discovery and the date of filing were well 

within the statute of limitations.” But “[t]he Court dismissed [Ellorin’s]

points.”

We further understand from Ellorin’s rendition that, during the July 15 

proceedings, Ellorin asked the trial court why the discovery responses he had 

appended as exhibits to the second of his two opposition briefs (see ante) had 

9 O’Rear contends Ellorin appeared via video link, but the trial court’s 

minute order confirming the tentative ruling as the order of the court indicates

Ellorin appeared via telephone.

10 All descriptions of the July 15 proceedings that appear in the 

paragraph corresponding to this footnote, and all such descriptions that 

appear in the paragraph that follows, are drawn from the rendition of events 

set forth in Ellorin’s briefs on appeal, rather than from the record. 

Recognizing that the defendants’ recollections or characterizations of the 

proceedings might differ from Ellorin’s (and even from one another’s), and

that no reporter’s transcript of the proceedings is available for corroboration, 

we express no opinion as to the veracity or accuracy of any party’s rendition. 
15

not been filed and considered by the court.11 The court replied to this 

inquiry by saying that the discovery responses “were not of the Court’s 

concern.” Perceiving that he needed more time to analyze the tentative 

ruling, and that he could not adequately address orally during the hearing 

what he considered to be the trial court’s failure to grasp key temporal

elements of the allegations in the complaint and the manner in which the

discovery responses would elucidate those elements, Ellorin asked the court 

for leave to respond in writing to the tentative ruling. The court denied this

request.

Later the same day (July 15), the trial confirmed its tentative ruling as 

the order of the court.

E. Post-hearing Activity

Ellorin states that, notwithstanding the court’s denial of leave to 

submit a written response to the tentative ruling, he “decided to write the 

brief anyway and submitted it to the Court on 07/16/2022 after [he] ha[d]

properly reviewed the tentative ruling.” But (per Ellorin) the court neither 

considered nor acknowledged the brief.

On July 25, 2022, ten days after entry of the trial court’s order 

sustaining O’Rear’s demurrer, Microsoft filed and served on Ellorin a 

demurrer of its own (the Microsoft demurrer), along with a motion to quash 

service of the complaint for lack of personal jurisdiction. However, on August 

1, 2022, before the Microsoft demurrer and motion to quash could be heard, 

the trial court signed a judgment directing that the complaint be dismissed 

11 Ellorin evidently was unaware that (see ante) the discovery responses 

he had appended as exhibits to the second of his two opposition briefs had 

been filed with that brief. At least one of the defendants (Microsoft) likewise 

appears to be unaware that the discovery responses were filed.
16

with prejudice as to all three defendants, and the clerk entered the judgment. 

Thereafter Ellorin timely filed a notice of appeal from the judgment.

III. Standard of Review

In reviewing a judgment predicated on an order sustaining a demurrer, 

we apply a de novo standard. That is, we exercise our independent judgment 

to ascertain whether the properly pleaded material factual allegations in the 

complaint, together with facts that may be judicially noticed, suffice to state a 

cause of action that could entitle the plaintiff to relief under any possible 

legal theory. (Two Jinn, Inc. v. Gov’t Payment Serv., Inc. (2015) 233 

Cal.App.4th 1321, 1344 (Two Jinn); Montclair Parkowners Assn. v. City of 

Montclair (1999) 76 Cal.App.4th 784, 790.) 

If the order includes a denial of leave to amend, then we also review the 

order, and the resulting judgment, for abuse of discretion. The plaintiff may 

establish an abuse of discretion by demonstrating that he could amend the 

complaint to state a cause of action warranting an award of relief. (Goodman 

v. Kennedy (1976) 18 Cal.3d 335, 349; Hayter Trucking, Inc. v. Shell Western 

E&P, Inc. (1993) 18 Cal.App.4th 1, 13.) If the plaintiff does not do so, then 

we will affirm for lack of abuse. (Two Jinn, supra, 233 Cal.App.4th at 

p. 1344, citing G.L. Mezzetta, Inc. v. City of American Canyon (2000) 

78 Cal.App.4th 1087, 1091-1092 and Hernandez v. City of Pomona (1996) 

49 Cal.App.4th 1492, 1497-1498.)

IV. Discussion

A. The Statute of Limitations Defense

As the California Supreme Court has explained: “ ‘Statute of 

limitations’ is the ‘collective term . . . commonly applied to a great number of 

acts,’ or parts of acts, that ‘prescribe the periods beyond which’ a plaintiff 
17

may not bring a cause of action.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 

383, 395 (Norgart).) Among the purposes of a statute of limitations is “to 

protect defendants from the stale claims of dilatory plaintiffs” and “to 

stimulate plaintiffs to assert fresh claims against defendants in a diligent 

fashion.” (Ibid.) The statute of limitations “operates in an action as an 

affirmative defense.” (Id. at p. 396.) 

“Under the statute of limitations, a plaintiff must bring a cause of 

action within the limitations period applicable thereto after accrual of the 

cause of action.” (Norgart, supra, 21 Cal.4th at p. 397; see also Code Civ. 

Proc., § 312.) Consequently, we must determine both the applicable 

limitations period(s) and the date of accrual for the cause of action pleaded in

the complaint.

1. The Applicable Limitations Periods

The defendants argue, and Ellorin does not dispute, that the 

limitations period set forth in Code of Civil Procedure section 335.112 applies 

to the legal theories pleaded in the complaint. This section, coupled with 

companion section 335, provides that an action for “injury to, or for the death 

of, an individual caused by the wrongful act or neglect of another” must be 

commenced within two years of such injury or death.

We agree this limitations period applies to at least one of the legal 

theories pleaded in the complaint; however, it is not the only limitations 

period that applies. In this regard, it is the law in California that an 

“appellate court[] reviewing a general demurrer [must] make a de novo 

determination of whether the complaint alleges ‘facts sufficient to state a 

cause of action under any possible legal theory,’ ” including even “legal 

12 All further statutory references are to the Code of Civil Procedure.
18

theories first raised by the reviewing court.” (Gutierrez v. Carmax Auto 

Superstores California (2018) 19 Cal.App.5th 1234, 1244-1245.) 

As noted ante, the complaint includes reference to a variety of different 

legal theories. Several of these—for example, negligence, negligent infliction 

of emotional distress, intentional infliction of emotional distress, and 

wrongful death—come within the two-year ambit of section 335.1. But others 

do not. By way of example, trespass upon real property, fraud, and unjust 

enrichment arising from mistake (as opposed to contract) generally are 

governed by the three-year statutes of limitations set forth in section 338. 

(See Code Civ. Proc., § 338, subd. (b) [trespass upon real property]; id., subd. 

(d) [mistake]; and Federal Deposit Ins. Corp. v. Dintino (2008) 167 

Cal.App.4th 333, 348 [unjust enrichment arising from mistake].) For these 

reasons, we apply both the two-and three-year limitation periods to Ellorin’s 

cause of action. Hence his cause of action ordinarily would have to have 

accrued no later than December 21, 2018—the date three years before the 

filing of the complaint—in order for the complaint, at least in part, to have 

been timely.

2. The General Rule for Defining the Accrual of a Cause of 

Action, and the Delayed Discovery Exception to the 

General Rule

“The general rule for defining the accrual of a cause of action sets the 

date as the time ‘when, under the substantive law, the wrongful act is done,’ 

or the wrongful result occurs, and the consequent ‘liability arises.’ ” (Norgart, 

supra, 21 Cal.4th at p. 397.) “In other words, it sets the date as the time 

when the cause of action is complete with all of its elements [citations]—the 

elements being generically referred to by sets of terms such as ‘wrongdoing’ 

or ‘wrongful conduct,’ ‘cause’ or ‘causation,’ and ‘harm’ or ‘injury.’ ” (Ibid.) 
19

However, there is an important exception to this general rule. That 

exception, known as the delayed discovery rule, or simply the discovery rule, 

“postpones accrual of a cause of action until the plaintiff discovers, or has 

reason to discover, the cause of action.” (Norgart, supra, 21 Cal.4th at 

p. 397.) Explaining the operation of the discovery rule, our Supreme Court 

has stated that: “[T]he plaintiff discovers the cause of action when he at least 

suspects a factual basis, as opposed to a legal theory, for its elements, even if 

he lacks knowledge thereof—when, simply put, he at least ‘suspects . . . that 

someone has done something wrong’ to him [citation], ‘wrong’ being used, not 

in any technical sense, but rather in accordance with its ‘lay understanding’ 

[citation]. He has reason to discover the cause of action when he has reason 

at least to suspect a factual basis for its elements. [Citation.] He has reason 

to suspect when he has ‘ “ ‘ “ ‘notice or information of circumstances to put a 

reasonable person on inquiry’ ” ’ ” ’ [citation]; he need not know the ‘specific 

“facts” necessary to establish’ the cause of action; rather, he may seek to 

learn such facts through the ‘process contemplated by pretrial discovery’; but, 

within the applicable limitations period, he must indeed seek to learn the 

facts necessary to bring the cause of action in the first place—he ‘cannot wait 

for’ them ‘to find’ him and ‘sit on’ his ‘rights’; he ‘must go find’ them himself if 

he can and ‘file suit’ if he does. (Id. at pp. 397-398, fn. omitted.) 

“[U]nder the delayed discovery rule, a cause of action accrues and the 

statute of limitations begins to run when the plaintiff has reason to suspect 

an injury and some wrongful cause, unless the plaintiff pleads and proves 

that a reasonable investigation at that time would not have revealed a 

factual basis for that particular cause of action.” (Fox v. Ethicon EndoSurgery, Inc. (2005) 35 Cal.4th 797, 803 (Fox).) “[P]laintiffs are required to 

conduct a reasonable investigation after becoming aware of an injury, and are 
20

charged with knowledge of the information that would have been revealed by 

such an investigation.” (Id. at p. 808; see also Nguyen v. Western Digital 

Corp. (2014) 229 Cal.App.4th 1522, 1552 (2014).) The standard is an 

objective one. A court’s inquiry is not “hypertechnical,” but rather asks 

whether a plaintiff has reason “to at least suspect that a type of wrongdoing 

has injured them.” (Fox, at p. 807.) 

Citing the general rule and the delayed discovery rule, the defendants 

argue Ellorin’s cause of action accrued in 2002 because Ellorin has made the 

following allegations in the complaint: that 2002 is the year in which he 

began suffering as a result of the image; that Ellorin knew immediately that 

this suffering (which he says, by 2003, had become unbearable torture) was 

attributable to the image; and that the further suffering he experienced later, 

after becoming aware of the false narrative, was merely a “renew[al]” of the

distress he had experienced previously and/or of the aspects of such distress 

that had persisted unabated. Ellorin, by contrast, contends his cause of 

action did not accrue until December 31, 2019, because it was not until that 

date that he became aware of the false narrative and that he could not, 
21

through reasonable diligence, have discovered the false narrative earlier.13

As discussed post, we do not agree with either of these contentions. 

We do not agree with the defendants’ contention because, according to 

the allegations in the complaint, Ellorin did not suspect in 2002 or 2003 that 

anyone had done anything wrong to him. As noted ante, Ellorin alleges in 

the complaint that, at or about the time in 2002 that he was first exposed to 

the image, he recalled having been told by the realtor through whom he, or 

13 The dominant theme of Ellorin’s accrual argument is the discovery 

rule. However, also discernable in Ellorin’s briefs is a muted suggestion that 

the defendants’ conduct has resulted in the existence of two independent 

causes of action: one rooted in the defendants’ capture and publication of the 

image itself, and the other rooted in their publication of a false narrative 

about their capture and publication of the image. Distinguishing between 

these two concepts, Ellorin states:

“They could have used the true narrative based on the real 

location of the property in Ramona and that would have 

been fine. Plaintiff could have just swallowed the pain 

from the exposure to the image. It was this big lie that 

they have perpetuated up to this time that really affected 

the Plaintiff.”

To draw an admittedly imperfect analogy, it is as though a person 

alleging that his classic car had been stolen were to contend that he had been

injured, not only by the theft itself and by seeing the thief drive his car 

around the block every day, but also by his discovery that the thief had been 

telling others a false story about how he had come into possession of the car. 

If the false story could reasonably be interpreted in some fashion as 

denigrating the victim, then perhaps it would result in a cause of action—

supporting a theory of defamation—that would be separate and apart from 

the cause of action arising from the original theft. But in the circumstances 

presented here, in which no aspersion is being cast on the person claiming to 

be aggrieved, we fail to see how the injuries Ellorin is attributing to the false 

narrative discovered in 2019 can reasonably be cleaved off and disassociated 

from the injuries being attributed to his having been continuously exposed to 

the image dating as far back as 2001 or 2002. 
22

he and Veronica, had purchased the property in 1994 that the ranch had been 

included on a registry of film making venues; and there is nothing in the 

complaint to suggest that Ellorin had reason at that time to suspect that the 

image might have been captured during the period of his ownership. As 

Ellorin argues in his opening brief, “[his] distress [at that time] was purely on 

the viewing of the image and [his and his family’s] disgust that they’[d] lost 

the family ranch and not on any suspicion of fraud.”

We do not agree with Ellorin’s contention because, per the allegations 

in the complaint, it was long before December 31, 2019, that he had reason to 

suspect that he had been wronged and to investigate. In the words of the 

trial court:

“Ellorin ‘suffered’ and was ‘subjected to distress’ and 

‘emotional torture’ over the . . . decade [spanning 2001 or 

2002 to 2012]. Ellorin’s wife allegedly passed away in 2012 

due, in part, to the emotional distress associated with ‘her 

unanswered question why the picture of [their] distressed 

property was all over the Internet and was used as a 

Wallpaper by Microsoft without [their] knowledge or 

permission.’ No later than that point [i.e., 2012], the facts 

and circumstances were sufficient to raise a suspicion of 

wrongdoing. The complaint was not filed until nine years 

later—long after the applicable statute of limitations had 

run.” (Italics added.) 
23

We agree with the trial court.14

Moreover, it is the law in California that, “ ‘ “[a] plaintiff whose 

complaint shows on its face that his claim would be barred without the 

benefit of the discovery rule must specifically plead facts to show (1) the time 

and manner of discovery and (2) the inability to have made earlier discovery 

despite reasonable diligence.” [Citation.] In assessing the sufficiency of the 

allegations of delayed discovery, the court places the burden on the plaintiff 

to “show diligence”; “conclusory allegations will not withstand demurrer.” ’ ” 

(Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 638; accord 

NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 

1232.) Ellorin arguably has shouldered this burden as to requirement

number one inasmuch as he has alleged in the complaint that he discovered 

the false narrative while “trying to change and replace the old image default 

wallpaper of [his] current wife’s laptop computer” on December 31, 2021. 

But, as to requirement number two, he has not shouldered his burden 

at all. To the contrary, he does not allege an inability to have made earlier 

discovery, and he effectively concedes he was not diligent at all. That is—

notwithstanding his allegation in the complaint that, “[f]rom [2003] 

on[ward], . . . seeing [the image] over and over again everytime [he] went to a 

computer shop was torture and unbearable”—Ellorin nonetheless forthrightly

14 The trial court also premised its ruling in part on a discrepancy 

between (1) Ellorin’s allegation that he had first learned of the false narrative 

on December 31, 2019, and (2) the court’s conclusion (which Ellorin contends 

is erroneous) that certain information set forth in printouts of web pages 

included among the exhibits to the complaint reveal that Ellorin first learned 

of the false narrative on an earlier date. However, because we conclude 

without resorting to those printouts that the allegations in the complaint 

defeat Ellorin’s invocation of the delayed discovery rule, we find it 

unnecessary to consider this aspect of the trial court’s ruling in our analysis.
24

states in his opening brief that “[t]here was no reasonable diligence until

. . . 2019” (italics added) because, prior to that time, he was abroad, had 

limited means, and prioritized other matters.

“Appellant . . . was abroad with limited resources, limited 

means and limited access to the internet and a computer.”

“The family and Appellant endured the distress [occasioned 

by the image] because they were in a different Country and 

they had limited resources. There was no reasonable 

diligence until Appellant was back in the United States in 

2019. In addition, upon arrival in the US, Appellant’s 

priority was not to investigate the . . . issue [of the image of 

Wild Turkey Hill] but instead to do the following due to the 

family’s recent arrival to the US from living abroad for a 

long time.

“1) Obtain the much-needed surgery for the reoccurrence of 

cancer which has metastasized.

“2) Obtain housing for the family.

“3) Enroll the four minor children in school.

“4) Obtain medical insurance and medical checkups for the 

Appellant’s spouse and children.

“5) Purchase a vehicle for the whole family’s use.

“As a result, discovery was delayed until December 31, 

2019.”

(Italics added.)

The importance of each of the afore-listed tasks notwithstanding, it 

does not excuse, nor does it convert into reasonable diligence, Ellorin’s manyyears-long delay in investigating a matter that he alleges caused him and his 

family so great a level of distress; and it does not rise to the level of 

demonstrating an inability to have made earlier discovery despite reasonable 

diligence. Indeed, long before 2019, Ellorin or someone acting on his behalf 

could easily have visited one of what he alleges in the complaint were
25

“computer shops which were plenty all around” to perform a simple internet 

search in an effort to gather information with which to answer what he has 

referred to as the “unanswered question,” dating at least as far back as 2012, 

of “why the picture of our distressed property was all over the Internet and 

was used as a Wallpaper by Microsoft without our knowledge and 

permission.”

3. Ellorin’s Interrogatory Responses, and the Denial of His 

Request for Leave to File a Brief in Response to the 

Tentative Ruling

Ellorin argues that the trial court erred because it “did not file, read, 

and consider” his discovery responses, because it denied him leave to file a 

brief in response to the tentative ruling, and because it did not file or 

acknowledge the responsive brief that—the court’s denial of leave 

notwithstanding—he went ahead and attempted to file “anyway.” Of course, 

the inference intended to be drawn from these arguments is that, if only the 

court had considered Ellorin’s discovery responses or his further brief, it 
26

would have overruled the demurrer—or perhaps granted him leave to amend

the complaint.15 But we are not persuaded.

First, it should be noted that (as discussed ante) the discovery 

responses that Ellorin says were not filed were in fact filed, and made a part 

of the record, because they were among the items Ellorin included as exhibits 

to the second of the two opposition briefs he filed on July 6, 2022.16 

15 The defendants correctly point out that the purpose of a demurrer is to 

test the sufficiency of the allegations that are pleaded in a complaint, not the 

sufficiency of averments that appear in discovery responses. However, this is 

not to say that such averments have no place in proceedings attendant to a 

demurrer. After all, it often is based on such averments that courts decide 

whether leave to amend should be granted. In this case, Ellorin did not ask 

the trial court for leave to amend, nor has he requested such leave from this 

court. Nonetheless, this court is vested with authority to consider granting 

leave to amend on its own motion. (See City of Stockton v. Superior Court

(2007) 42 Cal.4th 730, 746 [“[t]he issue of leave to amend is always open on 

appeal, even if not raised by the plaintiff”].) But, even in the exercise of this 

authority, we conclude that a grant of leave to amend in this case would be 

futile because, for the reasons stated ante and post, we see no basis upon 

which Ellorin can argue that he exercised reasonable diligence or that a 

reasonable person would not have discovered the cause of action he alleges at 

the time it occurred. (See generally Honig v. San Francisco Planning Dept.

(2005) 127 Cal.App.4th 520, 524 [holding “[a] demurrer is properly sustained 

without leave to amend where the pleading discloses on its face that the 

action is barred by the applicable statute of limitations”]; Foxborough v. Van 

Atta (1994) 26 Cal.App.4th 217, 231 [affirming denial of leave to amend in 

circumstances in which “proposed amendment would have been futile 

because it was barred by the statute of limitations”]). 

16 We have considered Ellorin’s motion to augment the record, and have 

accepted for filing the reply brief that he submitted in support of that motion. 

However, because the discovery responses already are a part of the record 

before this court, we deny the portion of the motion to augment in which he 

seeks to place the discovery responses before this court.
27

Second, and more fundamentally, the discovery responses that are the 

focus of Ellorin’s argument do not appear to advance Ellorin’s cause. Instead, 

to the contrary, they appear to undercut it. This they do, for example, by 

contradicting allegations in the complaint that relate to Ellorin’s 

whereabouts and his access to computers during 2018 and 201917 and by 

revealing that many of the types of injuries Ellorin alleges he experienced as 

a result of discovering the false narrative in 2019 are of a kind with the types 

of injuries he alleges having experienced previously as a result of viewing the 

17 Ellorin alleges in the complaint that he discovered the false narrative 

on December 31, 2019, having “just returned from abroad after several 

years,” and he insinuates in his briefs on appeal that his failure to discover 

the false narrative before that date is in significant measure attributable to 

the fact that, prior to December 31, 2019, he had been “abroad with limited 

resources, limited means and limited access to the internet and a computer.” 

But his responses to Form Interrogatory Nos. 2.5(b) and 2.5(c), requiring him 

to “[s]tate [his] residence addresses for the past five years” and “the dates you 

lived at each address,” reveal that he resided continuously at addresses in the 

United States (in California and Nevada) from some time in 2018 through at 

least May 1, 2022.
28

image.18 Thus the materials Ellorin argues the trial court should have 

considered in ruling on the demurrer serve only to reinforce—not rebut—the 

trial court’s conclusion that “there is no reasonable possibility that the 

complaint can be amended to state a timely claim.”

As for the denial of Ellorin’s request for leave to file a brief in response 

to the tentative ruling, we are aware of no rule of court requiring a trial court 

in the jurisdiction in which this case was venued either to post a tentative 

18 Ellorin’s responses to Special Interrogatory Nos. 16 and 17, requiring 

him to “state the type of health problems sustained by you upon which you 

base your claim in this case” and “the date you first started to experience 

[those] health problems,” list ten “health problems . . . [that Ellorin says he] 

sustained after [his] Initial Exposure to the Bliss Image on or around 2003.” 

These 10 health problems that Ellorin attributes to his “initial exposure to 

the . . . image” are “insomnia, depression, anxiety, nightmares, bodily pains, 

back spasms, headaches, papilliary [sic] thyroid cancer, psoriatic arthritis, 

[and] flare up of previous PTSD from Vietnam war experience.” The same 

two discovery responses list nine of the same ten health problems, plus 12 

additional health problems, that Ellorin says he “sustained after [his] 

discovery of the Fraudulent Bliss Narrative [o]n December 31, 2019.” The 21 

health problems that Ellorin attributes to his discovery of “the fraudulent 

Bliss narrative” were: “insomnia, depression, anxiety, anger, mental health 

disorder, nightmares, bodily pains, increase in cholesterol level, testicular 

cysts, back spasms, headaches, dizziness, loss of balance, enlarged prostate, 

urology problems, vision problems, flare up of psoriatic arthritis and joint 

inflammation, proliferation of lipomas, [and] flare up of previous PTSD from 

Vietnam war experience.” Explaining this overlap, Ellorin states in response 

to Special Interrogatory No. 4 that: “The recent discovery by the Plaintiff in 

December 31, 2019, triggered the old distress that the Plaintiff and his family 

have suffered as a result of their initial exposure to the image abroad.” This 

statement, coupled with the overlap in alleged harms, tends to reinforce

allegations in the complaint that refer to the harm Ellorin allegedly 

experienced on and after December 31, 2019, as an “aggravat[ion],” “[re-

]trigger[ing],” “renewal,” or other form of intensification or extension or 

recurrence of harm previously caused or exacerbated during prior years as a 

result of viewing the image.
29

ruling or to permit a litigant to respond in writing to a tentative ruling. Rule 

3.1308 of the California Rules of Court, which regulates procedures

applicable to tentative rulings, states that it “does not require any judge to 

issue tentative rulings” (Cal. Rules of Court, rule 3.1308(e)); and rule 2.1.19 

of the local rules of the Superior Court in San Diego County states that a civil 

trial court “may issue a tentative ruling in a law and motion matter” and 

defers the decision whether or not to do so to “the sole discretion of the 

assigned judge” (Super. Ct. S.D. County, Local Rules, rule 2.1.19(C), italics 

added). Ellorin was afforded the opportunity—to which all litigants or their 

counsel desiring to respond to a tentative ruling issued in response to a 

demurrer are afforded—to present oral argument at the hearing on the 

demurrer. (See Cal. Rules of Court, rule 3.1308(a)(1) [following issuance of a 

tentative ruling, “oral argument must be permitted . . . if a party [gives 

proper] noti[ce];” italics added].) Indeed, rather than being unfairly 

disadvantaged by not being afforded an opportunity to respond in writing to 

an advance revelation of the court’s tentative reasoning that many courts do 

not offer at all, Ellorin (and the defendants) instead were advantaged by 

being exposed in advance of the hearing to how the court was inclined to 
30

rule.19 The trial court did not abuse its discretion in denying Ellorin leave to 

file a written response to its tentative ruling.20 

B. Entry of Judgment, Not Only for O’Rear, but Also for Microsoft 

and Gates

As noted above, after sustaining O’Rear’s demurrer, the court entered 

judgment, not only for O’Rear, but also for Microsoft and Gates. Ellorin asserts 

the trial court should not have entered judgment for Microsoft or Gates because 

(he says) each of these defendants had failed to timely respond to the complaint 

and thus was in default.. As discussed post, we conclude that Ellorin is correct 

19 Although Ellorin acknowledges having read the tentative ruling two 

and a half hours before the hearing commenced, he intimates—without 

explicitly asserting among the grounds for his appeal—that he was impeded 

in his efforts to communicate with the court during the July 15 proceedings. 

He states, for example that, “[b]ecause of the COVID-19 pandemic, the Court 

required . . . hearings [to] be done remotely” and that he “is disabled.” 

However, the in-person appearance at the hearing by two attorneys for 

O’Rear refutes the notion that remote appearances were required and 

indicates instead that Ellorin had the option to appear in person, and Ellorin 

does not state that any disability prevented him from attending and 

participating in the proceedings in person. As another example, Ellorin 

states that he “ha[s] a hearing problem” and had a “hard [time] . . .

communicat[ing] with the Court[,] especially when speaking on the telephone 

and [repeatedly] getting interrupted by . . . Microsoft’s Counsel.” But

Ellorin’s rendition of statements made by counsel during the proceedings, 

and of exchanges in which he engaged with the court during the July 15

proceedings, demonstrate that Ellorin had an opportunity, and availed 

himself of the opportunity, to meaningfully participate in the hearing—even 

if not to the extent, or in the manner, he might have preferred.

20 As noted ante, we have considered Ellorin’s motion to augment the 

record, and have accepted for filing the reply brief that he submitted in 

support of that motion. However, for the reasons set forth ante, we deny the 

portion of the motion to augment in which he seeks to place before this court 

the brief he attempted to file in response to the trial court’s tentative ruling.
31

in asserting that judgment should not have been entered for Microsoft and 

Gates. But the grounds on which we so conclude are not those espoused by 

Ellorin.

Focusing first on the grounds espoused by Ellorin, we note those grounds 

find no support in the record. Specifically, the record reveals no indication that 

a default was entered, or even requested, at any time as to any defendant. 

Indeed, far from indicating that Microsoft or Gates was ever in default, the 

record instead reveals that Microsoft was actively defending, (see ante) and 

that Gates had not been served,21 as of the date of entry of judgment.

Despite the absence of support for Ellorin’s assertion that Microsoft 

and Gates were in default, we nonetheless are mindful of case law to the 

effect that a California trial court, having entered an order sustaining a 

demurrer, must not enter judgment of dismissal on that order in favor of a 

defendant who did not join in the demurrer—even when doing so might be 

prudent as a matter of judicial economy or to avoid additional expense to the 

parties. (See Kennedy v. Bank of America (1965) 237 Cal.App.2d 637, 642 

[“Since the only vehicle before the trial court upon which it could act was the 

demurrer of the [demurring defendant], the judgment of dismissal exceeds 

the scope of the court’s ruling thereon insofar as it purports to . . . dismiss . . . 

nondemurring defendants.”]; but cf. Pierce v. San Mateo County Sheriff’s 

21 The record reveals that Ellorin caused a Civil Proof of Service form to 

be filed on February 3, 2022 and again on February 16, 2022. But this form 

did not include the summons among the documents it listed as having been 

served, nor did it indicate that the individual who took delivery of the listed 

documents was authorized to accept service on behalf of Gates. Rather, to 

the contrary, it indicated that that individual had “confirmed [to the process 

server that] he [wa]s authorized to accept [service] on behalf of The Bill and 

Melinda Gates Foundation [which is not a party to this case] and not

[on] . . . Gates . . . personally” (italics added).
32

Dept. (2014) 232 Cal.App.4th 995, 1021 [“where the basis for the successful 

demurrer applies equally to . . . Doe defendants,” dismissal of claims against 

them may be appropriate].) On the basis of this authority, we conclude that 

the trial court erred in including Microsoft and Gates in the judgment.

Our conclusion in this regard notwithstanding, we note that the views 

we express in this opinion—including our views regarding the statute of 

limitations issues—constitute law of the case governing all further 

proceedings in the trial court. (See Morales v. 22nd Dist. Agricultural Assoc.

(2018) 25 Cal.App.5th 85, 98–99 [“ ‘ “[q]uestions presented and decided by 

[an] appellate court upon appeal from a judgment on demurrer become the 

law of the case, and are not open to question on a subsequent appeal” unless 

the evidence “ ‘is substantially different in a material respect” ’ ”]; see also 

Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 169 [when issue 

has been decided on appeal, parties are estopped from relitigating the same 

case].) This circumstance, coupled with our observation that all three 

defendants appear to be similarly (if not identically) situated insofar as the 

statute of limitations is concerned,22 suggest that, when this case returns to 

the trial court, the views we express with regard to statute of limitations 

issues here may be as dispositive of Ellorin’s claims against Microsoft and

against Gates (if and when he is properly served) as they are of his claims 

against O’Rear.

22 We note Microsoft has argued in support of its demurrer that “the 

[trial] [c]ourt need only apply its prior ruling [on O’Rear’s demurrer in order 

to be able] to sustain [Microsoft’s] demurrer.”
33

V. Disposition

The judgment is affirmed as to O’Rear, and reversed and remanded for 

further proceedings as to Microsoft and Gates. As between Ellorin and 

O’Rear, O’Rear is entitled to costs on appeal. As among Ellorin, Microsoft, 

and Gates, each side shall bear its own costs on appeal.

KELETY, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DATO, J.