Filed 7/15/26 Huang v. Wu CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
CHAORONG HUANG et al.,
Plaintiffs and Appellants, G065200
v. (Super. Ct. No. 30-2023-
01347604)
I-LING WU,
OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County,
Craig L. Griffin, Judge. Affirmed. Request for judicial notice granted in part
and denied in part.
The Chang Firm, Randy Chang; Benedon & Serlin, Gerald M.
Serlin and Judith E. Posner, for Plaintiffs and Appellants.
Klein & Wilson, Mark B. Wilson and Hannah B. Stetson, for
Defendant and Respondent.
Plaintiffs appeal from a judgment entered after the trial court
sustained a demurrer without leave to amend, finding all causes of action
were time-barred. Plaintiffs contend equitable tolling rendered them timely.
We disagree and affirm.
FACTS
Plaintiffs1 allege they invested in a real estate development.
Despite assurance that things were “fine and moving forward,” plaintiffs
subsequently discovered “no signs of any construction,” and that their
business partner “had remitted $3 million to . . . an alleged building
contractor” who “disappeared with the investors’ monies.”
Plaintiffs filed a lawsuit on May 23, 2019. They amended it to
name respondent I-Ling Wu as a doe defendant in February 2022. Though
Wu’s default was entered, the trial court granted her motion to set it aside
due to ineffective service.2
The trial court then granted Wu’s motion to dismiss the lawsuit
because plaintiffs did not serve her within three years of filing their
complaint. (Code Civ. Proc., § 583.250.)3 The minute order stated plaintiffs
could “file another action alleging claims against Defendant if the statute of
limitations has not run.”
1 The plaintiffs are Chaorong Huang, Nanping Luo, and Wenhui
Lin.
2 We grant plaintiffs’ request for judicial notice only as to exhibit
13. We deny the request as to all other exhibits because they are immaterial
to our analysis. (Davis v. CSAA Ins. Exchange (2025) 114 Cal.App.5th 121,
127, fn. 3.)
3 All statutory references are to this code.
2
Plaintiffs then filed this lawsuit on September 5, 2023. They
asserted causes of action against Wu for conversion and related claims. They
alleged they learned in 2022 that Wu, as “a co-conspirator,” received money
from the contractor—Wu’s ex-husband—in 2013.
The trial court sustained Wu’s demurrer to the second amended
complaint without leave to amend. The court found: (1) each cause of action
was subject to a three-year limitations period (§ 338, sub. (c)); (2) each was
time-barred because their elements “were admittedly known to Plaintiffs in
May 2019”; (3) “Delayed discovery as to the identity of and role of Wu in the
alleged misappropriation” did “not suffice to toll the limitations ‘clock’”;4 and
(4) plaintiffs “failed to identify any potential amendment which would
present a viable alternate claim.”
DISCUSSION
Plaintiffs contend the trial court wrongly sustained Wu’s
demurrer because the limitations period was tolled. We accept the parties’
agreement that plaintiffs’ causes of action accrued on May 23, 2019, when
their first lawsuit was filed. Absent tolling, the three-year statute of
limitations lapsed on May 23, 2022, which was 471 days before this lawsuit
was filed.
Plaintiffs contend the statute of limitations was tolled “no less
than 540 days,” until November 14, 2023, based on 362 days tolled under the
doctrine of equitable tolling and 178 days tolled under “Emergency rule 9.”5
4 There was no other tolling analysis stated in the order.
5 The rule, implemented during the COVID-19 pandemic,
provides “the statutes of limitations and repose for civil causes of action that
exceed 180 days are tolled from April 6, 2020, until October 1, 2020.” (Former
Cal. Rules of Court, Appex. I, rule 9, eff. Jan. 21, 2022 to March 10, 2022.) As
3
Plaintiffs acknowledge they need to show grounds for two types of tolling:
“COVID-19 tolling . . . is not enough . . . . But when combined with equitable
tolling . . . it makes all the difference.” We conclude plaintiffs do not carry
their burden on equitable tolling.
We agree with Wu that “equitable tolling does not apply” because
“the trial court dismissed the first action for plaintiff[s’] failure to serve the
same defendant within three years of commencement of the action.” Where
section 583.250 “operate[s] to bring about a dismissal, the applicability of the
pertinent statute of limitations is restored as if no action had been brought.”
(Wood v. Elling Corp. (1977) 20 Cal.3d 353, 359 (Wood) [construing former
§ 581a, subd. (a)]; see Alpha Media Resort Investment Cases (2019) 39
Cal.App.5th 1121, 1130, fn. 9 [former § 581a, subd. (a) reenacted as
§ 583.250].) Generally, “‘“a party cannot deduct from the period of the statute
of limitations applicable to his case the time consumed by the pendency of an
action in which he sought to have the matter adjudicated, but which was
dismissed without prejudice to him.”’” (Thomas v. Gilliland (2002) 95
Cal.App.4th 427, 433 (Thomas).)
We reject plaintiffs’ assertion that “whether the dismissal of” the
first lawsuit “was ‘correct’ is immaterial to the application of equitable tolling
here.” On the contrary, it is dispositive—absent an incorrect dismissal, Wood
“totally refutes” the contention that the limitations period for a second action
was tolled by the first. (Thomas, supra, 95 Cal.App.4th at p. 433.)
to plaintiffs’ equitable tolling contention, they calculate the days between
August 26, 2022, when Wu moved “to set aside the default entered against
her” and “August 23, 2023, when she successfully secured her ‘prevailing
party’ status and defeated the investors’ motion to file an amended complaint
against her.”
4
We also reject plaintiffs’ assertion that Wu relies on “outdated
authority” like Wood. To be sure, the California Supreme Court has since
offered general guidance on equitable tolling. (Saint Francis Memorial
Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710 (Saint Francis).)
That case held that a miscalculated deadline for a writ petition challenging
an administrative agency decision wasn’t “necessarily fatal” for the
“possibility” of tolling. (Id. at pp. 724, 726.) The high court emphasized it is a
“narrow remedy” that “doesn’t mean it will apply in every—or even most—
cases.” (Id. at p. 724.) It reiterated “that mistake or neglect alone doesn’t
excuse a late-filed petition.” (Id. at p. 726.)
Most importantly, Saint Francis did not mention section 583.250
or Wood or discuss a failure to serve. In fact, Saint Francis acknowledged
that “equitable tolling” is “a judicially created doctrine” and a “court may
conclude that explicit statutory language or a manifest policy underlying a
statute simply cannot be reconciled with permitting equitable tolling.” (Saint
Francis, supra, 9 Cal.5th at pp. 717, 720.)
More than five years after Saint Francis was decided, a leading
treatise still cautions counsel that dismissal for failure to serve will not toll
the time bar: “The statutes governing dismissal (CCP § 583.110 et seq.)
mandate diligent prosecution of pending actions. Therefore, if an action is
dismissed, the statute of limitations is not tolled for the time the action was
pending. Otherwise, plaintiffs could start and stop an action at will, without
regard for the expense, delay and frustration such conduct would impose on
the court and the defendants.” (Banke & Segal, Cal. Practice Guide: Civil
Procedure Before Trial Statutes of Limitations (The Rutter Group 2026)¶
6:19.)
5
Plaintiffs’ other arguments are thus immaterial. For example, it
makes no difference whether Emergency rule 9 was intended to apply
“‘“broadly”’” because the 178 days it tolls are insufficient. And while plaintiffs
contend more “facts could be added to the operative complaint,” they do not
identify any new allegation that would change the conclusion that the second
lawsuit was commenced “as if no action had been brought” earlier. (Wood,
supra, 20 Cal.3d at p. 359.)
DISPOSITION
The judgment is affirmed. Respondent shall recover her costs on
appeal.
SCOTT, J.
WE CONCUR:
SANCHEZ, ACTING P. J.
GOODING, J.
6