Judge: Joseph Lipner, Case: 20STCV12977, Date: 2023-09-19 Tentative Ruling


Case Number: 20STCV12977    Hearing Date: September 19, 2023    Dept: 72

 

DEMURRER

 

Calendar:        8                                 

Date:                                                                                       9/19/23 (9:30 AM)                 

Case No:                                                                                 20STCV12977                       

Case Name:                                                                            Marlon Mora v. Haul Away Rubbish Service, Co. et al.        

                                     

Defendants Morris M. Beliakoff (Doe 1) and John Beliakoff (Doe 2) (collectively, “Defendants”) demur to the Frist Amended Complaint of Plaintiff Marlon Mora (“Plaintiff”). 

 

The Court OVERRULES the demurrer.  The Court will, however, stay this case pending the resolution of Appeal No. B325296.  Defendants need not answer the First Amended Complaint until the stay is lifted.  The Court sets a hearing regarding the status of Appeal No. B325296 for May 8, 2024 at 8:30 a.m.

 

RELEVANT ALLEGATIONS:

This action arises from a multi-vehicle collision on March 13, 2019 at or near the intersection of 7th Street and Wilson Street in Los Angeles. Plaintiff Marlon Mora was travelling eastbound on 7th Street. While travelling westbound on 7th Street, defendant Beliakoff lost consciousness and collided with plaintiff’s vehicle. Plaintiff’s vehicle spun, changed direction in a counterclockwise manner, and collided with the vehicle driven by defendant Oscar Garcia, who was going the wrong way on 7th Street.

 

At the time of collision, Beliakoff was acting in the scope of his employment with defendant Haul Away Rubbish Service Co. Plaintiff also sued Juan Juarez and his employer Un Bug Me Pest Control, Inc., who were allegedly involved in the collision.

 

On December 1, 2021, the Court granted defendants Juarez and Un Bug Me Pest Control’s motion for summary judgment.

 

On August 29, 2022, plaintiff added Morris M Beliakoff Jr in place of Doe 1 and John Beliakoff in place of Doe 2.

 

Haul-Away Rubbish Service, Co. and David Beliakoff each filed Cross-Complaints for indemnification, apportionment of fault, and declaratory relief against Roes 1 through 20.

 

            On October 18, 2022, the Court granted defendants Haul-Away Rubbish Service, Co. and David Beliakoff’s motion for summary judgment.

 

            On March 14, 2023, the court sustained a previous demurrer by Morris Beliakoff and John Beliakoff with leave to amend.

 

            On March 24, 2024, Plaintiff filed the First Amended Complaint.

 

 

 

ANALYSIS:

           

Defendants demur to the sole cause of action for negligence on the ground that FAC fails to state facts sufficient to constitute a cause of action against the Doe Defendants. Specifically, Defendants contend that Plaintiff’s claims are barred by the doctrine of res judicata.

 

            Defendants were named in place of Does 1 and 2. (See 8/29/22 Amendments to Complaint.) In the FAC, Plaintiff alleges that Defendant David Beliakoff  (“David”) lost consciousness while driving a truck in the immediate seconds before the accident.  (The Court uses David’s first name for clarity; no disrespect is intended.)  David had been diagnosed with multiple sclerosis before the accident and was known to experience seizures, numbness or weakness in limbs; tingling; electric shock sensations; lack of coordination; inability to walk; partial or complete loss of vision; blurry vision; vertigo; and/or cognitive problems. Plaintiff thus alleges that that Defendants were negligent in the hiring, supervision, and/or retention of David.

 

Defendants maintain that any claims against them are barred by res judicata. Defendants maintain that they are owners of defendant Haul-Away Rubbish Service, Co. and that any claim of vicarious liability is negated by the granting of summary judgment in favor of David and of Haul-Away.

 

On March 14, 2023, the Court found that this issue was premature, as plaintiff had not filed an FAC and thus had not sufficiently defined the claims against Defendants such that the Court could determine whether such claims are identical to the claims litigated against Haul-Away and David.  (See Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [element of res judicata includes whether a “claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding”].)

 

The doctrine of res judicata precludes the re-litigation of certain matters which have been resolved in a prior proceeding under certain circumstances.  (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 556.)  “Res judicata, or claim preclusion, prevents re-litigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.)  “Collateral estoppel, or issue preclusion, precludes re-litigation of issues argued and decided in prior proceedings.”  (Ibid.)  “Res judicata applies if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.”  (Fed'n of Hillside & Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.)  “Full faith and credit must be given to a final order or judgment of a federal court. Such an order or judgment has the same effect in the courts of this state as it would have in a federal court.”  (Levy v. Cohen (1977) 19¿Cal.3d 165, 172-173.)  “A judgment is on the merits for purposes of res judicata, ‘if the substance of the claim is tried and determined…’ This may include a judgment of dismissal following a general demurrer or a dismissal motion if the disposition was plainly reached ‘on the ground of substance’.” (Association of Irritated Residents v. Dept. of Conservation (2017) 11 Cal.App.5th 1202, 1220.)  The reasoning for this doctrine is that the parties have already had a fair opportunity to present and litigate their cases.  (Ibid. at 1219.)  However, if the prior judgment was not on the merits, then res judicata does not apply and does not bar the new action.  (Goddard v. Security Title Ins. & Guar. Co. (1939) 14 Cal.2d 47, 52.) 

 

            Here, Defendants contend that the FAC is barred by the court’s October 11, 2022 ruling in favor of Haul Away and David on their motion for summary judgment based on their defense of sudden incapacitation. That motion was based on the ground that immediately before the subject incident, David suffered an unforeseeable loss of consciousness, which is an absolute defense to negligence. The Court found that the cause of the subject collision was David suddenly suffering a seizure and that David had no reason to anticipate that he was at risk of a seizure. Plaintiff failed to demonstrate a triable issue of material fact concerning the sudden incapacitation defense and the Court entered summary judgment.

 

            Plaintiff in opposition contends that the doctrine of res judicata does not apply because, since Plaintiff has timely filed a notice of appeal, the court’s decision on the summary judgment motion was not final. Plaintiff filed a Notice of Appeal on December 14, 2022. (Cassandra Decl. Ex. A.) The Court agrees with Plaintiff that the October 11, 2022 order was not a final decision capable of preclusive effect so long as Appeal No. B325296 is pending.

 

            The demurrer is therefore OVERRULED. However, it makes little sense to actively litigate this case when all or some of the issues will be resolved in a currently-pending appeal.  For this reason, the Court stays the case pending the resolution of Appeal No. B25296.