Judge: Salvatore Sirna, Case: 23PSCV00230, Date: 2023-04-19 Tentative Ruling
Case Number: 23PSCV00230 Hearing Date: April 19, 2023 Dept: G
Defendant Thomas Ton’s Demurrer
to Plaintiff’s Complaint
Respondent: Plaintiff Bin Yang
Defendant Mercury Insurance Company’s Demurrer to Plaintiff’s Complaint
Respondent: Plaintiff Bin Yang
Defendant Thomas Ton’s Motion to Strike Portions of Plaintiff’s Complaint
Respondent: Plaintiff Bin Yang
Defendant Mercury Insurance Company’s Motion to Strike Portions of Plaintiff’s Complaint
Respondent: Plaintiff Bin Yang
TENTATIVE RULING
Defendant Thomas Ton’s Demurrer to Plaintiff’s Complaint is SUSTAINED without leave to amend.
Defendant Thomas Ton’s Motion to Strike Portions of Plaintiff’s Complaint is deemed MOOT.
Defendant Mercury Insurance Company’s Demurrer to Plaintiff’s Complaint is SUSTAINED without leave to amend.
Defendant Mercury Insurance Company’s Motion to Strike Portions of Plaintiff’s Complaint is deemed MOOT.
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, Plaintiff filed a motion for reconsideration of the court’s rulings that was denied November 16. On December 14, Plaintiff filed a notice of appeal from the court’s rulings (Case No. B317215.)
On December 21, Plaintiff filed a motion to recuse the judge in Plaintiff’s action. The next day, the court struck Plaintiff’s motion pursuant to Code of Civil Procedure section 170.4. On January 7, 2022, Plaintiff filed an amended motion to recuse the same judge. On January 20, the court struck the amended motion for the same reasons the initial motion was stricken. On July 25, Plaintiff filed another motion to recuse the same judge that was stricken on July 27. On August 11, 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, Plaintiff voluntarily dismissed the action without prejudice.
On January 26, 2023, Plaintiff filed 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, 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.
On March 20, 2023, Defendants filed the present demurrers and motions to strike. Prior to filing on March 2, Defendants’ counsel met and conferred telephonically with Plaintiff and was unable to reach a resolution. (Rousier Decl., ¶ 14-15.)
A hearing on the demurrers and motions to strike is set for April 19, 2023. A case management conference is also set for June 8.
ANALYSIS
Defendants demur to Plaintiff’s entire complaint on the ground that (1) it is barred by the doctrine of res judicata, (2) it is barred by the statute of limitations, and (3) fails to plead sufficient facts to a claim. For the following reasons, the court SUSTAINS Defendants’ demurrers without leave to amend.
Legal Standard
A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)
Doctrine of Res Judicata
Defendants argue Plaintiff’s complaint is barred by the doctrine of res judicata on the grounds that the court previously sustained demurrers to Plaintiff’s FAC in the previous action. The court disagrees, as Defendants have failed to demonstrate how Plaintiff’s Complaint compares to the previous FAC.
Legal Standard
The doctrine of res judicata or claim preclusion promotes judicial efficiency by prohibiting parties from raising claims based on the same cause of action in subsequent suits between the same parties. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896-897.) It operates to preclude “piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief.” (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 285.) It applies when “(1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. [Citations.]” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797, quoting People v. Barragan (2004) 32 Cal.4th 236, 252-253.)
“[F]or purposes of applying the doctrine of res judicata, . . . [t]he cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced.” (Id., at p. 798.) “The determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right.” (Ibid.)
Ton
Ton argues Plaintiff’s Complaint is barred because the court previously sustained a demurrer to Plaintiff’s cause of action for insurance fraud and manslaughter against Ton. While the court overruled the demurrer to Plaintiff’s cause of action for personal injury, Ton argues Plaintiff failed to pursue the claim.
As an initial matter, the court notes the previous action was also between Plaintiff and Ton. Furthermore, Plaintiff is essentially alleging the same causes of action for personal injury, insurance fraud, and manslaughter. To determine if res judicata applies, the court now considers whether the previous demurrer constituted a final judgment on the merits.
Citing Goddard v. Security Title Ins. & Guarantee Co. (1939) 14 Cal.2d 47, 51-52 (Goddard), Ton claims “[a] ‘demurrer that sets up the failure of the facts alleged to establish a cause of action’ is a judgment on the merits and a complete bar to a new suit between the same parties on the same causes of action.” However, this law statement only applies when “the same facts are pleaded in the second action” and Goddard goes on to say “even a judgment on general demurrer may not be on the merits, for the defects set up may be technical or formal, and the plaintiff may in such case by a different pleading eliminate them or correct the omissions and allege facts constituting a good cause of action, in proper form. Where such a new and sufficient complaint is filed, the prior judgment on demurrer will not be a bar.” (Id., at p. 52; see also Keidatz v. Albany (1952) 39 Cal.2d 826, 828 [“If . . . new or additional facts are alleged that cure the defects in the original pleading, it is settled that the former judgment is not a bar to the subsequent action whether or not plaintiff had an opportunity to amend [their] complaint.”].)
In this case, Ton does not address the specific allegations or facts pled in Plaintiff’s Complaint beyond stating the causes of action are the same as set forth in the FAC from the previous action. (Demurrer, p. 7:18-23.) While Ton also claims Plaintiff failed “failed to pursue the claim” of personal injury, Ton does not provide any authority that establishes whether such a failure has claim preclusive effect. (Demurrer, p. 7:18-23.) Thus, the court rejects Ton’s claim preclusion argument.
Mercury Insurance
Mercury Insurance also argues Plaintiff’s Complaint is barred because the court previously sustained its demurrer to Plaintiff’s FAC and Plaintiff “is barred from filing a new Complaint arising out of the same January 31, 2020 motor vehicle accident.” (Demurrer, p. 7:12-16.) However, as with Ton’s demurrer, this argument fails to recognize that Plaintiff may file a successive complaint if new or additional facts are alleged that cure the grounds for demurrer. Because Mercury Insurance also fails to address any of the specific allegations or facts pled in Plaintiff’s Complaint, the court rejects their claim preclusion argument as well.
Statute of Limitations
Defendants contend Plaintiff’s Complaint is barred by the statute of limitations. The court agrees with regards to the first cause of action for personal injury against Ton but disagrees as to the rest.
Legal Standard
“A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.” (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)
Ton
Ton contends Plaintiff’s Complaint is barred by the statute of limitations because it alleges personal injuries that occurred more than two years ago. Pursuant to Code of Civil Procedure section 335.1, “[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” must be brought within two years. Here, Plaintiff alleges Ton caused an “accident and various damages to Plaintiff on 1/31/2020 due to recklessness.” (Complaint, p. 3, ¶ 1; p. 4, ¶ 1.)
While the filing of an action tolls the statute of limitations, “a party cannot deduct from the period of the statute of limitations applicable to [their] case the time consumed by the pendency of an action in which [they] sought to have the matter adjudicated, but which was dismissed without prejudice to [them].” (Wood v. Elling Corp. (1977) 20 Cal.3d 353, 359, quoting 51 Am.Jur.2d, Limitation of Actions, § 311, p. 813.) Thus, “such a dismissal includes the very real risk that an applicable statute of limitations will run before the party is in a position to renew the dismissed cause of action.” (Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 445.)
Here, because Plaintiff’s Complaint was not filed within two years of the alleged accident on January 31, 2020, Plaintiff’s Complaint for personal injuries against Ton is barred by the applicable statute of limitations.
Accordingly, Ton’s demurrer to Plaintiff’s first cause of action for personal injuries SUSTAINED without leave to amend. Although Plaintiff alleges other causes of action for insurance fraud/bad faith, manslaughter, and attempted murder, the court finds these allegations appear to only allege facts against Mercury Insurance.
Mercury Insurance
Mercury Insurance contends Plaintiff’s Complaint is barred by the statute of limitations for the same reasons raised by Ton.
After Mercury Insurance determined Plaintiff’s car to be totaled, Plaintiff went to the emergency room for chest pain on March 2, 2020. (Complaint, p. 4, ¶ 3.) Plaintiff went to the emergency room for chest pain again on March 9 and was admitted to the hospital on March 17. (Complaint, p. 5, ¶ 3.) After Plaintiff’s hospital visits in March 2020, Plaintiff alleges Mercury Insurance aggravated Plaintiff’s PTSD by pushing Plaintiff to accept $3,000 payout for more than a year. (Complaint, p. 6-7; Ex. 6.) Following the filing of the previous action in June 2021, Plaintiff alleges Mercury Insurance further aggravated Plaintiff’s PTSD and either caused or attempted to cause Plaintiff to suffer a heart attack by propounding discovery on Plaintiff and requesting depositions. (Complaint, p. 7-8; p. 9, ¶ 3-4.) Furthermore, while Mercury Insurance originally offered $3,000 as a full and final settlement on August 19, 2020, Mercury Insurance continued to respond to Plaintiff’s requests with the most recent letter being issued on November 23, 2021, although Mercury Insurance did not increase the settlement offer. (Complaint, Ex. 6.)
Mercury Insurance does not address these other allegations and only points to the January 31, 2020 car accident. Because the statute of limitations defect must clearly and affirmatively appear on the face of Plaintiff’s Complaint, the court declines to find the Complaint time barred as it appears some of Mercury Insurance’s alleged misconduct occurred within two years of January 26, 2023.
Personal Injury (First Cause of Action)
Mercury Insurance maintains Plaintiff’s first cause of action for personal injury fails to plead sufficient facts to state a claim. However, the court notes Plaintiff’s cause of action for personal injury only seems to reference Ton and the January 31, 2020 accident. (Complaint, p. 4, ¶ 1.) It does not appear Plaintiff is alleging personal injury against Mercury Insurance. But to the extent Plaintiff is trying to hold Mercury Insurance jointly liable for Ton’s negligence, that claim is barred by the applicable statute of limitations as discussed above.
Accordingly, Mercury Insurance’s demurrer to Plaintiff’s first cause of action is SUSTAINED without leave to amend.
Insurance Fraud or Bad Faith (Second Cause of Action)
Mercury Insurance argues Plaintiff’s second cause of action for insurance bad faith/fraud fails to plead sufficient facts to state a claim. In arguing Plaintiff cannot be pursue a bad faith action against Mercury Insurance, Mercury Insurance appears to suggest that only the insured may bring an action for bad faith against the insurer. (Demurrer, p. 10.) “An insurer is said to act in ‘bad faith’ when it breaches its duty to deal ‘fairly’ and ‘in good faith’ with its insured.” (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1209.) In other cases, the injured party may bring an action against the tortfeasor’s insurer if the insured assigns its rights to the party or if the party has obtained a judgment against the insured. (Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 142-143.)
Here, Plaintiff specifically alleges that Mercury Insurance is Ton’s insurer. (Complaint, p. 3, ¶ 1.) While Plaintiff alleges the settlement offer from Mercury Insurance was unfair, Plaintiff was free to reject the settlement offer and seek compensation in a personal injury action against Ton. Because Ton was the insured, only Ton could bring a bad faith action against Mercury Insurance for allegedly failing to make a fair settlement with Plaintiff. Thus, Plaintiff cannot state a cause of action for insurance fraud or bad faith against Mercury Insurance.
Accordingly, Mercury Insurance’s demurrer to Plaintiff’s second cause of action is SUSTAINED without leave to amend.
Manslaughter and Attempted Murder (Third, Fourth, and Fifth Causes of Action)
Mercury Insurance contends Plaintiff’s third cause of action for manslaughter as well Plaintiff’s fourth and fifth causes of action for first-degree attempted murder fail as a matter of law. The court agrees as manslaughter and first-degree attempted murder are criminal causes of action, not private causes of action that can be asserted by a plaintiff in a civil proceeding. (See Penal Code, §§ 192 [manslaughter], 664, subd. (a) [attempted murder].)
Accordingly, Mercury Insurance’s demurrer to Plaintiff’s third, fourth, and fifth causes of action is SUSTAINED without leave to amend.
CONCLUSION
Based upon the above analysis, Defendants’ motions to strike portions of Plaintiff’s Complaint are MOOT.