Filed 1/20/15 Atom Express v. Schuff Steel Co. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


ATOM EXPRESS, INC.,                                                  B253374

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC507411)
         v.

SCHUFF STEEL COMPANY,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Richard
Fruin, Judge. Affirmed.
         Prima Law Group, Naveen Madala and Noah K. McCall, for Plaintiff and
Appellant.
         Gibbs Giden Locher Turner Senet & Wittbrodt, Richard J. Wittbrodt, Christopher
E. Ng, Sara H. Kornblatt and Molly E. Healy for Defendant and Respondent.


                                          _______________________
       Atom Express, Inc. filed suit against Schuff Steel Company as a result of a dispute
arising concerning freight delivery charges. Schuff successfully demurred to the
complaint, and Atom Express appeals. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       In March 2012, Atom Express sued Schuff and others in federal district court to
collect unpaid freight fees for delivering large volume steel pipes to Schuff from April
through June of 2011.1 Schuff moved to dismiss the action based on a lack of subject
matter jurisdiction. Atom Express consented to the dismissal of the action without
prejudice, and the court dismissed the case on March 6, 2013, for lack of subject matter
jurisdiction.
       On April 30, 2013, Atom Express filed a new action in state court against Schuff
and others seeking unpaid freight fees and asserting other claims. Schuff demurred to the
complaint on, inter alia, statute of limitations grounds. The trial court agreed that Atom
Express’s claims against Schuff were barred by the statute of limitations and were
otherwise deficient. The court dismissed the complaint against Schuff. Atom Express
appeals.

                                        DISCUSSION

       Because the dispute between Atom Express and Schuff arises from interstate
shipments and Atom Express seeks to recover interstate freight charges, it is undisputed
that the applicable statute of limitations is set forth in 49 U.S.C. section 14705,
subdivision (a), which provides, “A carrier providing transportation or service subject to
jurisdiction under chapter 135 [49 U.S.C. § 13501 et seq.] must begin a civil action to
recover charges for transportation or service provided by the carrier within 18 months
after the claim accrues.” This provision preempts any state law that would provide a

1      Atom Express has requested judicial notice of the complaint and first amended
complaint in the federal action, Schuff’s motion to dismiss, the order of dismissal, and
two legislative history documents. We take judicial notice of the four documents from
the federal court action, but decline to take judicial notice of the legislative history as it is
unnecessary to the resolution of this matter. (Evid. Code, § 452.)

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longer limitations period for interstate freight charges. (Emmert Indus. Corp. v. Artisan
Associates (9th Cir. 2007) 497 F.3d 982, 988-991.)
       It is also undisputed that the latest possible date the statute of limitations could
have commenced was July 12, 2011, the date of the last delivery that is the subject of the
action. The parties, therefore, agree that under 49 U.S.C. section 14705, the 18-month
statute of limitations expired on January 12, 2013. This action was not filed until April
30, 2013.
       Atom Express argued, however, that the statute of limitations should be equitably
tolled. In ruling on the demurrer, the trial court declined to apply equitable tolling based
on the facts as pleaded in the complaint. We review the ruling on the demurrer de novo.
(Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
       When a complaint shows on its face or on the basis of judicially noticeable facts
that a cause of action is barred by the applicable statute of limitations, the plaintiff must
plead facts that show an excuse, tolling, or some other basis for avoiding the statutory
bar. (Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th
1349, 1359-1360, disapproved on another ground in Lantzy v. Centex Homes (2003) 31
Cal.4th 363, 388.) Here, Atom Express made no effort to plead facts that showed tolling
or any basis for avoiding the statutory bar. The complaint did not mention the now-
dismissed federal action, nor did it assert any facts to support a determination that
equitable tolling applied. Because the facts alleged in the complaint established that the
statute of limitations had run, and Atom Express did not plead facts from which it could
be concluded that the statute of limitations was tolled, the trial court properly sustained
the demurrer.
       “If we see a reasonable possibility that the plaintiff could cure the defect by
amendment, then we conclude that the trial court abused its discretion in denying leave to
amend. If we determine otherwise, then we conclude it did not.” (Campbell v. Regents
of University of California (2005) 35 Cal.4th 311, 320.) “The burden of proving such
reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d
311, 318.) “To satisfy this burden, ‘“a plaintiff ‘must show in what manner he can

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amend his complaint and how that amendment will change the legal effect of his
pleading’”’ by clearly stating not only the legal basis for the amendment, but also the
factual allegations to sufficiently state a cause of action. [Citation.]” (Graham v. Bank of
America (2014) 226 Cal.App.4th 594, 618.) Atom Express requested leave to amend in
its opening brief on appeal, but neither in its opening brief nor in its reply brief did it seek
leave to amend to supply additional factual allegations with respect to the statute of
limitations, and there is no indication in the record that Atom Express sought leave to
amend on this basis in the trial court.2 Accordingly, Atom Express has not demonstrated
a reasonable possibility that the statute of limitations defect can be cured by amendment,
and the trial court did not abuse its discretion in denying leave to amend.

                                       DISPOSITION

       The judgment is affirmed. Respondent shall recover its costs on appeal.




                                                   ZELON, J.




We concur:




       WOODS, Acting P. J.                         FEUER, J.*


2       Atom Express did not waive the issue if it failed to request leave to amend in the
trial court (Code Civ. Proc., § 472c, subd. (a)), but in the absence of a discussion of leave
to amend in the opposition papers and no transcript of the hearing on the demurrer, we
cannot look to the trial court proceedings on the demurrer to determine whether Atom
Express met its burden of proving a reasonable possibility that it could amend the
complaint to state a timely claim.
*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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