Judge: Lynette Gridiron Winston, Case: 23PSCV00230, Date: 2023-10-02 Tentative Ruling

Case Number: 23PSCV00230    Hearing Date: November 6, 2023    Dept: 6

CASE NAME:  Bin Yang v. Thomas Ton, et al.

Motion to Reconsider 

TENTATIVE RULING

            The Court DENIES the motion to reconsider. 

            The Court orders Mercury Insurance to give notice and provide proof of service of same within five calendar days of the Court’s order. The Court further orders Mercury Insurance to submit a proposed judgment of dismissal within 15 calendar days of the Court’s order. 

BACKGROUND

This is an action arising from an automobile accident and the subsequent litigation. On January 31, 2020, Plaintiff Bin Yang was involved in an automobile accident with Defendant Thomas Ton (Ton). After Plaintiff filed a claim with Ton’s insurer, Defendant Mercury Insurance Company (Mercury Insurance), Plaintiff alleges Mercury Insurance determined Plaintiff’s vehicle was totaled and only allowed Plaintiff to rent a replacement vehicle for five days. As a result of Plaintiff’s dealings with Mercury Insurance, Plaintiff allegedly experienced two heart attacks and PTSD.  

On June 25, 2021, Plaintiff filed a personal injury action (Case No. 21STCV23749) against Ton and Mercury Insurance (collectively, Defendants). On June 29, Plaintiff filed a First Amended Complaint (FAC) in that action against the same Defendants alleging (1) personal injuries, (2) insurance fraud, and (3) manslaughter. Defendants both demurred to Plaintiff’s FAC.   

On October 7, 2021, the Court issued a minute order overruling Ton’s demurrer to the first cause of action, sustaining Ton’s demurrer to the second cause of action with 20 days leave to amend, and sustaining Ton’s demurrer to the third cause of action without leave to amend. The Court also sustained Mercury Insurance’s demurrer to the second cause of action with 20 days leave to amend while Mercury Insurance’s demurrer to the first and third causes of action were sustained without leave to amend. Last, the Court granted Defendants’ motion to strike punitive damages from the FAC without leave to amend. On October 18, 2021, Plaintiff filed a motion for reconsideration of the court’s rulings that was denied November 16, 2021. On December 14, 2021, Plaintiff filed a notice of appeal from the court’s rulings (Case No. B317215.)  

On December 21, 2021, Plaintiff filed a motion to recuse the judge in Plaintiff’s action. The next day, the Court struck Plaintiff’s motion under Code of Civil Procedure section 170.4. On January 7, 2022, Plaintiff filed an amended motion to recuse the same judge. On January 20, 2022, the Court struck the amended motion for the same reasons the initial motion was stricken. On July 25, 2022, Plaintiff filed another motion to recuse the same judge that was stricken on July 27. On August 11, 2022, Plaintiff filed a notice of appeal from the court’s order. (Case No. B322927.)  

On September 27, 2022, the Court of Appeal dismissed Plaintiff’s appeal in Case No. B317215 on the grounds that the November 16, 2021 order is not appealable. On December 30, 2022, the Court of Appeal’s order became final.  

On November 23, 2022, Ton filed a motion for terminating sanctions against Plaintiff with a hearing on the motion set for January 23, 2023. On January 12, 2023, Plaintiff voluntarily dismissed the action without prejudice.   

On January 26, 2023, Plaintiff refiled the present action against the same Defendants, alleging the following causes of action: (1) personal injuries, (2) insurance fraud, (3) manslaughter, (4) first degree attempted murder, and (5) first degree attempted murder. On February 2, 2023, the Court of Appeal determined Plaintiff was in default and dismissed Plaintiffs appeal in Case No. B322927. The Court of Appeal’s order became final on April 5, 2023. 

On April 19, 2023, the Court sustained Ton’s demurrer to Plaintiff’s Complaint without leave to amend. The Court also sustained Mercury Insurance’s demurrer to Plaintiff’s second, third, fourth, and fifth causes of action without leave to amend. While the Court had posted a tentative ruling that sustained Mercury Insurance’s demurrer to Plaintiff’s first cause of action for personal injury without leave to amend, the Court declined to adopt the tentative in this regard and instead sustained the demurrer with twenty days’ leave to amend. 

On May 10, 2023, Plaintiff filed a First Amended Complaint (FAC) against the same Defendants alleging (1) personal injury and (2) insurance bad faith. Mercury Insurance subsequently demurred, and on July 3, 2023, the Court sustained the demurrer with ten days’ leave to amend as to Plaintiff’s first cause of action for personal injury/negligence. On its own motion, the Court also struck the allegations as to Defendant Ton and the inclusion of the second cause of action for bad faith insurance on the grounds that they violated the Court’s April 19, 2023 order. 

On July 13, 2023, Plaintiff filed the operative Second Amended Complaint (SAC) against Defendant Mercury Insurance. On October 2, 2023, the Court sustained Mercury Insurance’s demurrer to the SAC without leave to amend. 

On October 10, 2023, Plaintiff filed the instant motion to reconsider. On October 23, 2023, Mercury Insurance opposed the motion. Plaintiff has not replied. 

LEGAL STANDARD

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. 

(Code Civ. Proc., § 1008, subd. (a).) 

            “Under Code of Civil Procedure section 1008, a party seeking reconsideration of a prior ruling upon an alleged different set of facts must ‘provide both newly discovered evidence and an explanation for the failure to have produced such evidence earlier. [Citation.]’ [Citation.]” (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1168.) “The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) 

DISCUSSION

            Analysis

            Plaintiff asks the Court to reconsider its order issued on October 2, 2023, in which the Court sustained Mercury Insurance’s demurrer to the SAC without leave to amend. For the reasons set forth below, the Court DENIES the motion. 

            Plaintiff’s motion repeats arguments that she made before, namely that Mercury Insurance allegedly caused Plaintiff to suffer a heart attack in connection with the resolution of her dispute with Defendant Ton vis-à-vis the underlying car accident. The Court finds that Plaintiff has not presented any new or different facts, circumstances, or law that warrant the Court reconsidering its October 2, 2023 order. As Mercury Insurance notes in its opposition, Plaintiff’s declaration contains no statements regarding any facts or newly discovered evidence. (See generally, Yang Decl.) Moreover, even if Plaintiff had presented such evidence – which she has not--, Plaintiff has not presented any explanation for why she purportedly was unable to produce such evidence at an earlier time. 

            Furthermore, even if Plaintiff had otherwise satisfied the requirements for reconsideration of the Court’s prior ruling – which she has not--, Plaintiff has presented nothing to prove that the Court erred in its October 2, 2023 ruling. Many of the legal authorities cited in Plaintiff’s moving papers are either federal cases, cases from other jurisdictions, or law review articles, none of which are binding on this Court. (See People v. Thomas (2023) 14 Cal.5th 327, 404; People v. Beltran (2013) 56 Cal.4th 935, 953; People v. Holmes, McClain, and Newborn (2022) 12 Cal.5th 719, 762; Ammerman v. Callender (2016) 245 Cal.App.4th 1058, 1086.) Plaintiff’s citation to Rush v. Savchuk (1980) 444 U.S. 320 is unavailing because that case addressed issues of due process, not the issue of duty or the lack thereof between an insurer and a third-party claimant like Plaintiff. Furthermore, Goddard v. Security Title Insurance & Guaranty Co. (1939) 14 Cal.2d 47 and Keidatz v. Albany (1952) 39 Cal.2d 826, Civil Code section 3294, and Code of Civil Procedure section 2031.230 have nothing to do with the issue of duty or the lack thereof between an insurer and a third-party claimant like Plaintiff. 

            Based on the foregoing, the Court DENIES the motion to reconsider. 

CONCLUSION

            The Court DENIES the motion to reconsider. 

            The Court orders Mercury Insurance to give notice and provide proof of service of same within five calendar days of the Court’s order. The Court further orders Mercury Insurance to submit a proposed judgment of dismissal within 15 calendar days of the Court’s order.