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Filed 10/30/23 Anderson v. Love CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

JOSEPH ANDERSON,

Plaintiff and Appellant,

v.

JULIA LOVE,

Defendant and Respondent.

 A167537

 (Alameda County

 Super. Ct. No. 22CV019475)

Plaintiff Joseph Anderson appeals after the trial court sustained a 

demurrer to his complaint without leave to amend on the ground that the 

action is barred by the applicable statutes of limitations. Plaintiff contends 

the action is timely under continuing-wrong accrual principles based on the 

allegation that defendant Julia Love continued to pose an ongoing threat to 

him during the limitations period. He further contends the court abused its 

discretion in refusing to grant him leave to amend. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We take the following factual allegations from the operative complaint, 

which plaintiff filed on October 12, 2022. 

Plaintiff and defendant were neighbors on the same block of Alcatraz 

Avenue in Oakland. On February 18, 2016, plaintiff’s car was parked near 

defendant’s residence when a yard worker hired by defendant damaged

plaintiff’s vehicle with a rake. Rather than apologize for the incident, 
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defendant falsely accused plaintiff of “ ‘harassing’ and ‘threatening’ her.” 

Later that same day, defendant “either came out of her house and physically 

and verbally confronted” plaintiff or “called the police” on him whenever

plaintiff walked past defendant’s house. Defendant told plaintiff he had no 

right to park near her home because he “ ‘does not live in the neighborhood’ ” 

(even though he does). She also filed a police report falsely accusing plaintiff 

of making direct and specific physical threats and stalking her, and she 

recruited her neighbor, Chaundera Wolfe, to monitor and follow plaintiff. 

Plaintiff was arrested on the evening of February 18, 2016, and charged 

with making criminal threats. (Pen. Code, § 422.) The trial court initially 

imposed a protective order requiring plaintiff to avoid communicating with 

defendant and to stay 50 yards from her. Plaintiff later negotiated a modified 

protective order that permitted him to walk and park his vehicle in the 

neighborhood and required him only to refrain from making personal contact 

with defendant. Although plaintiff complied with the modified protective 

order, on August 15, 2016, defendant filed an application for a “civil 

protective order” against plaintiff. In her supporting application, defendant 

“grossly misrepresented” plaintiff’s acts of parking his car and walking past 

her residence as “ ‘stalking’ her.” The trial court granted defendant’s

application and imposed a restrictive civil protective order on plaintiff. 

On April 28, 2017, the prosecutor “grudgingly dismissed” the criminal 

case and the criminal restraining order. 

The complaint asserts four causes of action against defendant for: 

(1) making a false police report and false statements to the trial court;

(2) harassment; (3) defamation; and (4) racially-based harassment. 

Throughout the complaint, plaintiff emphasizes that he is Black and 
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defendant is White, and he accuses defendant of perpetuating “the so-called 

‘New Jim Crow’ ” by trying to control him on public streets. 

The complaint further alleges that “[t]he harm caused to Plaintiff by 

[defendant] by these actions is ongoing in nature and continues to be a 

threat” because defendant “has repeatedly called the police, made false 

accusations, taken (or had other people take) pictures of Plaintiff and his car, 

and even came out of her house to harass, provoke and confront Plaintiff 

during the course of the events described in this complaint. Plaintiff is 

concerned that she will once again attempt to otherwise harass, provoke and 

intimidate Plaintiff whenever [he] attempts to exercise his right to free 

movement in his own neighborhood. Plaintiff is also concerned that 

Defendant Love will again try to put one of her friends or neighbors up to 

doing the same. This has caused Plaintiff stress and emotional distress, and 

it has caused [him] to fear walking down the public sidewalk in his own 

neighborhood out of concern that if Defendant Love ever sees Plaintiff pass 

(peacefully and harmlessly) by, she will re-initiate criminal charges and/or 

engage in other retaliatory acts.” 

Defendant demurred to the complaint on the multiple grounds that it 

failed to state a cause of action; it was barred under the doctrine of res 

judicata by a prior small claims court judgment in defendant’s favor; and it

was untimely. In support of the demurrer, defendant requested judicial 

notice of: (1) the criminal case files in “the matter of Julia Love and 

Chaundera Wolfe vs. Joseph Anderson [case Nos.] RG16827969 and 

RG16827972”; (2) the case file in the small claims action between plaintiff 

and defendant (case No. RS17869951); (3) the notice of entry of judgment in 

the small claims action; (4) the complaint filed by plaintiff in the small claims 

action on August 2, 2017; (5) the Oakland Police Department crime report, 
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dated February 18, 2016; (6) a “Sign with Criminal Threats which Plaintiff 

posted on trees and neighbors’ doors surrounding [defendant’s] on [sic] home 

for which Plaintiff was arrested on February 18, 2016”; (7) a civil harassment 

restraining order issued in case No. RG16827969, dated September 12, 2016; 

and (8) plaintiff’s response to defendant’s request for a civil harassment 

restraining order. 

Plaintiff opposed the demurrer and requested judicial notice of “the 

case file in the criminal case filed against Plaintiff at the instigation of 

Defendant.” Attached to the request was a minute order reflecting the 

dismissal of the criminal threats charges and a “Notice of Termination of 

Protective Order in Criminal Proceeding,” both dated April 28, 2017. 

As relevant here, the trial court determined the complaint was 

untimely because “the last date alleged in the Complaint is April 28, 2017, 

which would make the Complaint—filed over 5 years later—untimely under 

even the longest statute of limitations.” The court rejected application of the 

continuing violation doctrine or continuous accrual theory because the 

complaint failed to allege any “ongoing wrongs,” and instead “affirmatively 

alleges that any ongoing conduct occurred ‘during the course of events 

described in this complaint,’ which spans from February 18, 2016 through 

April 28, 2017.” The court further noted that even if the statute of 

limitations was tolled pursuant to the Judicial Council’s emergency rule 9 

during the COVID-19 pandemic,1 “it would not be sufficient to make 

Plaintiff’s claims timely.”

1 “In response to the COVID-19 pandemic, the Judicial Council adopted a 

series of emergency rules effective April 6, 2020.” (People v. Financial 

Casualty & Surety, Inc. (2021) 73 Cal.App.5th 33, 38.) As relevant here, 

emergency rule 9 tolled civil statutes of limitations that exceed 180 days from 

April 6, 2020, until October 1, 2020. (Ibid.)
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In denying leave to amend, the trial court rejected plaintiff’s argument 

that the complaint could be amended to state a timely claim with allegations 

that defendant committed “ ‘continuing’ ” wrongs by refusing to leave the 

neighborhood and/or having friends in the neighborhood that “continued to 

pose a ‘threat’ ” to him.2 The court ordered the complaint dismissed with 

prejudice, and plaintiff timely appealed.

DISCUSSION

“In reviewing a demurrer order, we independently evaluate the 

challenged pleading, construing it liberally, giving it a reasonable 

interpretation, reading it as a whole, and viewing its parts in context. 

[Citation.] We treat the demurrer as admitting all material facts properly 

pleaded, but we do not assume the truth of contentions, deductions or 

conclusions of law. [Citation.] We determine de novo whether the factual 

allegations of the challenged pleading are adequate to state a cause of action 

under any legal theory.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 

41, 51.) “We also consider matters which may be judicially noticed.” 

(Serrano v. Priest (1971) 5 Cal.3d 584, 591.)3

2 In light of its ruling on the statute of limitations, the trial court 

expressly declined to reach the other grounds for the demurrer. 

3 Here, however, we do not consider any matters subject to judicial 

notice. As previously noted, both sides requested judicial notice of various 

court records, and defendant additionally sought judicial notice of the police 

report from the day of plaintiff’s arrest and a “Sign with Criminal Threats” 

that plaintiff purportedly posted on or around defendant’s home. While court 

records are permissible subjects of judicial notice (Evid. Code, § 452, 

subd. (d)), police reports are not (In re Marriage of Brewster & Clevenger

(2020) 45 Cal.App.5th 481, 498), and defendant cites no authority for taking 

judicial notice of the “Sign with Criminal Threats.” Furthermore, there is no 

indication in the record that the trial court granted the parties’ requests, 

either in full or in part, and neither side has filed a motion for judicial notice 

in this court. (See Cal. Rules of Court, rule 8.252(a).) Accordingly, we will 
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“A complaint disclosing on its face that the limitations period has 

expired in connection with one or more counts is subject to demurrer.” 

(Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962.) 

To sustain a demurrer on this ground, “the untimeliness of the lawsuit must 

clearly and affirmatively appear on the face of the complaint and matters 

judicially noticed.” (Coalition for Clean Air v. City of Visalia (2012) 209 

Cal.App.4th 408, 420 (Coalition).) “[W]hen the relevant facts are not clear 

such that the cause of action might be, but is not necessarily, time-barred, 

the demurrer will be overruled.” (Ibid.)

“Generally, a ‘ “cause of action accrues ‘when [it] is complete with all of 

its elements’—those elements being wrongdoing, harm, and causation.” 

[Citation.] This is [called] the “last element” accrual rule: ordinarily, the 

statute of limitations runs from “the occurrence of the last element essential 

to the cause of action.” ’ ” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 

1104, 1124 (Willis).)

To determine the applicable statute of limitations, we look to the 

nature or “ ‘gravamen’ ” of the cause of action rather than the form of action 

or relief demanded. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22–23.) 

Here, the statute of limitations for the first cause of action for false police 

report/statements—which alleges an infringement of plaintiff’s personal 

rights akin to malicious prosecution—is two years under Code of Civil 

Procedure section 335.1. (See Stravopoulos v. Superior Court (2006) 141 

Cal.App.4th 190, 192.) The applicable limitations period for the third cause 

of action of defamation is one year under Code of Civil Procedure section 340, 

subdivision (c). (See Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246.) As 

focus our attention solely on the allegations of the complaint to determine 

whether it is time-barred.
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for the harassment claims, the trial court applied a three-year limitations 

period under Code of Civil Procedure section 338, which governs actions for 

liability created by statute, and as neither party contends otherwise, we will 

assume for the sake of argument that a three-year statute of limitations 

applies.

Based on these limitations periods and the authorities cited above, we 

conclude the complaint is time-barred. The complaint revolves mainly 

around the events of February 18, 2016 (e.g., when defendant allegedly 

confronted and monitored plaintiff in a harassing manner, falsely accused 

him of threatening and stalking her, and filed a false police report that led to 

his arrest) and August 15, 2016 (e.g., when defendant applied for a civil 

protective order against plaintiff under false pretenses). The one-year 

statute of limitations for defamation and the three-year statute of limitations 

for harassment began to run on or around those dates, for it was at those

times that the claims were complete with all their elements (Fox v. Ethicon 

Endo-Surgery. Inc. (2005) 35 Cal.4th 797, 806 (Fox)), and “ ‘appreciable and 

actual harm’ [was] caused by the wrongful conduct” (County of Santa Clara v. 

Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 317 (Santa Clara)). The 

two-year statute of limitations for the false police report claim began to run 

as of April 28, 2017, when the criminal case was dismissed, for at this time, 

the requisite elements, including the favorable termination element, were 

complete. (See Crowley v. Katleman (1994) 8 Cal.4th 666, 676.) Plaintiff does 

not allege or argue delayed discovery of any of the facts essential to his 

claims. (See Fox, supra, 35 Cal.4th at p. 808.) Accordingly, the untimeliness 

of his complaint, filed on October 12, 2022, clearly and affirmatively appears 

on its face. (Coalition, supra, 209 Cal.App.4th at p. 420.)
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The same conclusion holds true if we account for tolling under 

emergency rule 9. (See fn. 1, ante.) As of April 6, 2020, when tolling under 

emergency rule 9 commenced, plaintiff had just over three weeks before the 

longest limitations period of any of his claims (e.g., three years) ended. 

Tolling ended on October 1, 2020, but plaintiff did not file suit until more 

than two years later.

We acknowledge that in addition to the date-specific events described 

in the complaint, there are more generalized allegations that defendant 

“repeatedly” called the police on plaintiff “every time [he] walked past her 

house after the initial incident earlier that day” and recruited others to 

monitor plaintiff in the neighborhood. Though the complaint does not assign 

specific dates to these incidents, it otherwise describes them as taking place 

“during the course of the events described in this complaint,” which 

apparently references the same time period discussed above (e.g., February 

18, 2016, to April 28, 2017) when the specific “events described in this 

complaint” occurred. As such, the generalized nature of these allegations 

provides no basis to construe the complaint as alleging wrongful conduct 

occurring in the three-year period (or, three-and-a-half-year period, in light of

emergency rule 9) preceding the filing of the complaint. Notably, plaintiff 

has not argued, either below or on appeal, that the complaint alleges 

defendant’s commission of any wrongful conduct during the applicable 

limitations periods. In fact, he acknowledges defendant’s “lack of a reinitiation of criminal charges or renewal of a civil protective order” since the 

initial incidents in 2016 and 2017, but he attributes this to his own avoidance 

of defendant’s residence “out of fear of what [she] might do.” Be that as it 

may, plaintiff still concedes he is not alleging any wrongful conduct by 

defendant during the applicable limitations periods.
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Plaintiff nevertheless contends the complaint is timely under 

continuing-wrong accrual principles because he alleges an “ongoing threat of 

retaliation” by defendant due to her “history of calling the police whenever 

she saw [plaintiff] walk along the street, and her use of a civil restraining 

order procedure to bypass the order of the criminal case judge.” We are not 

persuaded.

There are “two main branches” of the continuing-wrong accrual 

principles: the continuing violation doctrine and the theory of continuous 

accrual. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 

1197 (Aryeh).) “ ‘The continuing violation doctrine aggregates a series of 

wrongs or injuries for purposes of the statute of limitations, treating the 

limitations period as accruing for all of them upon commission or sufferance 

of the last of them.’ [Citations.] Consequently, the continuing violation 

doctrine ‘allows liability for unlawful . . . conduct occurring outside the 

statute of limitations if it is sufficiently connected to unlawful conduct within 

the limitations period.’ [Citations.] For the continuing violation doctrine to 

apply, a plaintiff must show the defendant engaged in ‘a pattern of 

reasonably frequent and similar acts [that] may, in a given case, justify 

treating the acts as an indivisible course of conduct actionable in its entirety, 

notwithstanding that the conduct occurred partially outside and partially 

inside the limitations period.’ ” (Willis, supra, 48 Cal.App.5th at p. 1124.)

Nothing in the complaint warrants application of the continuing 

violation doctrine. Plaintiff does not allege that defendant engaged in 

frequent and similar acts partially outside and partially inside the 

limitations period. (Willis, supra, 48 Cal.App.5th at p. 1124.) Rather, he 

alleges acts occurring only outside the limitations period in or around 2016 

and 2017. His alleged “concern” of an “ongoing” “threat” of retaliation during 
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the limitations period due to defendant’s past conduct is insufficient to invoke 

the continuing violation doctrine because it is not based on “at least one act 

[that] occurred within the filing period.” (Morgan v. Regents of the University 

of California (2000) 88 Cal.App.4th 52, 64 (Morgan).)

Plaintiff’s reliance on the continuous accrual theory fares no better. 

This theory applies when there is “a continuing or recurring obligation” and

supports recovery only for damages arising from breaches occurring within 

the limitations period. (Aryeh, supra, 55 Cal.4th at p. 1199.) “ ‘When an 

obligation or liability arises on a recurring basis, a cause of action accrues 

each time a wrongful act occurs, triggering a new limitations period.’ 

[Citation.] Because each new breach of such an obligation provides all the 

elements of a claim—wrongdoing, harm, and causation [citation]—each may 

be treated as an independently actionable wrong with its own time limit for 

recovery.” (Ibid. [unfair competition claim not categorically time-barred 

where defendant’s monthly bills contained unfair or fraudulent charges, some 

of which allegedly fell within the limitations period]; see Howard Jarvis 

Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 820 [taxpayers 

challenging validity of utility tax ordinance properly invoked continuing 

accrual theory by alleging new injuries whenever city collected taxes without 

valid legal authority].) Here, however, the complaint fails to allege any 

independently actionable breaches by defendant of a “continuing or recurring 

obligation” within the limitations period. (Aryeh, at p. 1199.) As discussed, 

the complaint alleges acts occurring only outside the limitations period.

As a public policy matter, statutes of limitations serve “to give 

defendants reasonable repose, thereby protecting parties from ‘defending 

stale claims, where factual obscurity through the loss of time, memory or 

supporting documentation may present unfair handicaps.’ [Citations.] A 
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statute of limitations also stimulates plaintiffs to pursue their claims 

diligently.” (Fox, supra, 35 Cal.4th at p. 806.) Plaintiff does not allege or 

argue delayed discovery of the facts essential to his claims (id. at p. 808), and 

there appears no dispute he knew about the alleged wrongful conduct and 

resulting harm either as they occurred or shortly thereafter. On this record, 

defendant is entitled to reasonable repose from plaintiff’s now stale claims 

arising out of incidents that occurred in 2016 and 2017.

Based on the foregoing, we conclude the trial court correctly sustained 

the demurrer to plaintiff’s complaint on the ground that it is barred by the 

applicable statutes of limitations.

When a demurrer is sustained without leave to amend, “we decide 

whether there is a reasonable possibility that the defect can be cured by 

amendment: if it can be, the trial court has abused its discretion and we 

reverse; if not, there has been no abuse of discretion and we affirm. 

[Citations.] The burden of proving such reasonable possibility is squarely on 

the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) On the 

record before us, we see no abuse of discretion.

Plaintiff maintains he should have been granted leave to amend 

because the record shows he was subject to the civil restraining order 

wrongfully obtained by defendant up until September 12, 2019, and “[i]f this 

date is used as the trigger for the running of the statute of limitations, and 

given that Emergency Rule 9 tolled statutes of limitations from April 6, 2020 

to October 1, 2020 [citation], [plaintiff’s] claim for harassment would be 

timely.” We cannot agree. As previously noted, a cause of action accrues 

when it is complete with all of its elements (Fox, supra, 35 Cal.4th at p. 806), 

or when “ ‘appreciable and actual harm’ is caused by the wrongful conduct” 

(Santa Clara, supra, 137 Cal.App.4th at p. 317). Here, to the extent the 
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harassment claims are based on defendant’s false statements in support of 

the civil harassment restraining order, the claims accrued on or around the 

time the restraining order was issued in 2016, for it was then that plaintiff 

suffered appreciable and actual harm caused by the alleged wrongful 

conduct. Plaintiff cites no authority suggesting the statute of limitations on a 

claim related to a wrongfully-obtained civil harassment restraining order is 

tolled throughout the entire duration of the restraining order.

Plaintiff next contends leave to amend was wrongfully denied because 

defendant continued to make “false representations” about him during the 

trial court proceedings. His sole example is a statement by defendant’s 

attorney that referenced an exhibit filed in support of the demurrer that was 

offered to show plaintiff posted a handwritten sign containing threats around 

defendant’s house. Plaintiff claims the statement accompanying the exhibit

was defamatory because defendant “neglected to mention” that the criminal 

case was dismissed without any “legal determination” that plaintiff made 

criminal threats. Again, we are unpersuaded.

Even assuming the attorney’s statement could be attributed to 

defendant for purposes of defamation law, the alleged defamatory statement

merely states in full that defendant requests judicial notice of: “6. Sign with 

Criminal Threats which Plaintiff posted on trees and neighbors’ doors 

surrounding [defendant’s] home for which Plaintiff was arrested on February, 

18, 2016, a copy of which is attached as Exhibit D.” This statement does not 

have the defamatory meaning that plaintiff suggests. “ ‘[A] defamatory 

meaning must be found, if at all, in a reading of the publication as a whole.’ ” 

(Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1337–

1338.) “ ‘[I]t is not the literal truth or falsity of each word or detail used in a 

statement which determines whether or not it is defamatory; rather, the 
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determinative question is whether the “gist or sting” of the statement is true 

or false, benign or defamatory, in substance.’ ” (Issa v. Applegate (2019) 31 

Cal.App.5th 689, 702.) Here, the gist of the challenged statement, viewed as 

a whole, is that the attached exhibit was a document that plaintiff posted on 

or around defendant’s home, and that it was the basis “for which Plaintiff 

was arrested” on February 18, 2016. The statement contains no suggestion

that a legal determination of plaintiff’s guilt for the crime of criminal threats

had been made; nor does plaintiff dispute that he posted the sign or that it 

led to his arrest.

Finally, even assuming (generously) that the statement is both 

defamatory and attributable to defendant, we see no reasonable possibility 

that amending the complaint to allege this single statement would cure the 

statute of limitations defect. The continuing violation doctrine applies only 

where the conduct inside and outside the limitations period constitutes 

“frequent and similar acts” that justify treating them as “an indivisible 

course of conduct actionable in its entirety.” (Aryeh, supra, 55 Cal.5th at 

p. 1198.) As such, the act occurring within the filing period cannot be an 

“ ‘isolated, intermittent act[]’ ” but must be part of “ ‘a persistent, on-going 

pattern.’ ” (Morgan, supra, 88 Cal.App.4th at p. 64.) Here, plaintiff fails to 

persuade us that the single statement in question, made in a December 2022

request for judicial notice, is appropriately treated as part of an indivisible, 

persistent, and ongoing course of frequent and similar conduct that defendant 

has maintained since 2016 and 2017, particularly as plaintiff concedes 

defendant committed no wrongful conduct during the applicable limitations 

periods preceding the filing of the complaint. Nor does plaintiff provide any 

argument or authority that the statement in question constitutes an 

independently actionable breach of a continuing or recurring obligation of 
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defendant for purposes of the continuous accrual theory. (Aryeh, supra, 55 

Cal.4th at p. 1199.)4

In sum, plaintiff fails to carry his burden of proving a reasonable 

possibility of curing the statute of limitations defect appearing clearly and 

affirmatively on the face of his complaint. Accordingly, leave to amend was 

properly denied. (Blank, supra, 39 Cal.3d at p. 318.)

DISPOSITION

The judgment is affirmed. In the interests of justice, each party shall 

bear its own costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(5).)

_________________________

Fujisaki, Acting P.J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Rodríguez, J.

Anderson v. Love (A167537)

4 Though not briefed by the parties, the statement in the request for 

judicial notice appears protected and nonactionable pursuant to the litigation 

privilege (Civ. Code, § 47, subd. (b)), which is absolute and applies to any 

communication that is made in a judicial proceeding to achieve the objects of 

the litigation and that has some connection or logical relation to the action. 

(Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)