Judge Upinder S. Kalra, Case Number: 23STCV28750, Date: 2024-03-05 Tentative Ruling

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MOVING PARTY: Defendant Covered California and Defendant Los Angeles County d.b.a. L.A. Care Health Plan, L.A. Care Plan de Salud

1. Covered CA demurrers to the FAC for failure to comply with the Government Claims Act and for failure to plead facts sufficient to constitute a cause of action.

2. L.A. Care demurrer to the FAC for failure to plead facts sufficient to constitute a cause of action.

1. Covered CA’s Demurrer to the FAC is SUSTAINED in its entirety without leave to amend.

2. L.A. Care’s Demurrer to the FAC is SUSTAINED in its entirety without leave to amend.

On November 27, 2023, Plaintiff Dylan Scott Perry (Plaintiff) filed a Verified Complaint against Defendant Covered California and Local Initiative Health Authority for Los Angeles County d.b.a. L.A. Care Health Plan, L.A. Care Plan de Salud (Defendants) with a cause of action for fraud.

On November 28, 2023, Plaintiff filed a Verified First Amended Complaint (FAC) for fraud and deceit. According to the FAC, Defendants cancelled Plaintiff’s medical insurance without contacting Plaintiff.

On December 18, 2023, Plaintiff filed a Notice of Related Case with Case No. 23STCV18928 in Dept. 57 and Case No. 23STCV18511in Dept. 62.

On December 27, 2023, Defendant Covered California (Covered CA) filed a demurrer to the FAC.

On December 28, 2023, Defendant Local Initiative Health Authority for Los Angeles County (L.A. Care) filed a demurrer to the FAC.

On February 9, 2024, Covered California filed a reply in support of its demurrer.

L.A. Care’s reply was due on or before February 27, 2024. As of February 29, 2024, there is no reply on file with the court.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿(Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context.¿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. …. 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¿147 Cal.App.4th at 747.)¿

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). According to the declaration of Michael E. Byerts, Covered CA and Plaintiff met and conferred via telephone on December 4, 2023 but were unable to resolve the issues. (Byerts Decl. ¶ 3.) Similarly, L.A. Care and Plaintiff met and conferred on December 21, 2023 and December 23, 2023. (Friedberg Decl. ¶¶ 3,4.) Accordingly, the meet and confer requirement is met.

The court grants Covered CA’s request for judicial notice as to Exhibit B. (Evid. Code § 452(d), (h); See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)¿The court denies Plaintiff’s request for judicial notice.

Covered CA contends that Plaintiff failed to comply with the Government Claims Act and failed to sufficiently plead fraud. L.A. Care also contends that Plaintiff failed to sufficiently plead fraud and that the FAC is uncertain.[1] Plaintiff argues he did submit a claim to the Department of General Services (DGS) and that he did sufficiently plead fraud.

The Government Tort Claims Act governs tort actions against public entities and public employees. A lawsuit that seeks monetary damages from a public employee or entity must be preceded by the presentation of a claim to the public entity and action on the claim by the Claims Board. (Gov. Code §§ 905, 911.2, 945.4; Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 612.) A plaintiff must allege, as an element of his or her claim against the public entity or employee, that the claim has been presented to the public entity. (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 209.) Presentation of the claim and a Claims Board action on or rejection of the claim are conditions precedent to suit. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1245.)

This rule serves the policy underling the claims statutes by (1) providing public entities with sufficient information to allow them to investigate and evaluate the merits of the claim while the evidence is still fresh and witnesses are available; (2) affording the opportunity to settle claims without the expenditure of public funds on litigation; and (3) informing the public entity of potential liability so it can better prepare for the upcoming fiscal year. (See Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.)

Plaintiff must allege, as an element of his claim against Covered CA, that the claim has been presented to the proper public entity. (Shirk, supra, at p. 209.) The FAC is devoid of any allegation showing that Plaintiff complied with the Government Tort Claims Act by presenting a timely government claim to Covered CA. Plaintiff’s claim to DGS included with his objection/opposition to demurrer indicates he presented the claim on October 12, 2023. However, the court cannot consider extrinsic evidence when ruling on a demurrer. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Even though Plaintiff has not requested that the court take judicial notice of this document, Covered CA has. (Covered CA Request for Judicial Notice, Exhibit B.) It still would not help Plaintiff, though, because the document does not indicate Covered CA included on the claim.

Accordingly, the court SUSTAINS Covered CA’s demurrer to the FAC in its entirety for failure to comply with the Government Claims Act.

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469; Perlas v. GMAC Mort., LLC (2010) 187 Cal.App.4th 429, 434 [requiring plaintiffs who claim fraud against a corporation to allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written.]) Fraud allegations need not be liberally construed, general pleading of the legal conclusion of fraud is insufficient, and every element of the cause of action for fraud must be alleged fully, factually and specifically. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331.)¿

The court has reviewed the operative FAC and it does not sufficiently plead a cause of action for fraud by Covered CA or by L.A. Care. Notably, Plaintiff has not identified who made the representation on behalf of either entity defendant and their authority to speak on behalf of the entity defendant, what the alleged misrepresentation was, or when it occurred.[2] Plaintiff concludes fraudulent conduct but lacks the requisite specificity.

Accordingly, the court SUSTAINS L.A. Care’s demurrer to the FAC in its entirety.[3]

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.¿ (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)¿ The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349).

Here, leave to amend is not warranted. First, Plaintiff filed substantively similar, if not identical, complaints arising from the same underlying facts against the same parties in different departments that have been voluntarily dismissed. (See 23STCV18511 (voluntarily dismissed) and 23STCV18928 (voluntarily dismissed).) Plaintiff has filed similar lawsuits against different parties that were dismissed after demurrer or voluntarily. (See 22STCV03956 (demurrer sustained), 22STCV27904 (demurrer sustained), and 23STCV16396 (plaintiff’s oral motion to dismiss).) Second, Plaintiff has not requested leave to amend and has not indicated specific allegations that would cure the deficiencies in his pleadings. Finally, Plaintiff indicated he could not cure the fraud allegations because he stated in his Verified Objection to L.A. Care’s Demurrer that he is “not claiming an injury was caused by an intentional misrepresentation by an employee.” (Plaintiff’s Verified Objection to Opponents (Local Initiative’s) Demurrer, 4:14-17.)

1.Covered CA’s Demurrer to the FAC is SUSTAINED in its entirety without leave to amend.

2. L.A. Care’s Demurrer to the FAC is SUSTAINED in its entirety without leave to amend.

Pursuant to CCP § 581d, this written order of dismissal constitutes a judgment and shall be effective for all purposes. The Clerk shall note this judgment in the register of actions in this case.¿

[1] L.A. Care also contends it is absolutely immune from liability for alleged false representations under Gov. Code § 818.8 but did not include this in their notice of demurrer. The court declines to analyze this argument at this time because it would be a duplicative means of sustaining the demurrer.

[2] Indeed, Plaintiff states: “I am not claiming that an injury was caused by an intentional misrepresentation by an employee. I am claiming that an injury was caused by the Government of the State of California i.e. Covered California and Local Initiative Health Authority as a whole, or failure of the elected governing boards of the companies.” (Plaintiff’s Verified Objection to Opponents (Local Initiative’s) Demurrer, 4:14-17.) “To be considered a binding judicial admission, the declaration or utterance must be one of fact and not a legal conclusion, contention, or argument.” (Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance Company (2021) 70 Cal.App.5th 341, 360-361.) In light of this statement, the court does not see how Plaintiff could allege his claim for fraud in good faith.

[3] The court could also sustain Covered CA’s demurrer on this ground.

ORDER TO SHOW CAUSE RE: WHY PLAINTIFF DYLAN SCOTT PERRY SHOULD NOT BE DECLARED A VEXATIOUS LITIGANT AND BE SUBJECT TO A PRE-FILING ORDER UNDER CODE OF CIVIL PROCEDURE SECTION 391.7

On December 18, 2023, Plaintiff filed a Notice of Related Case with Case No. 23STCV18928 in Dept. 57 and Case No. 23STCV18511in Dept. 62.

On December 27, 2023, Defendant Covered California (Covered CA) filed a demurrer to the FAC.

On December 28, 2023, Defendant Local Initiative Health Authority for Los Angeles County (L.A. Care) filed a demurrer to the FAC.

On February 9, 2024, the Court continued a previously-set OSC hearing to March 5, 2024 concerning whether Plaintiff should be declared a vexatious litigant.

“The vexatious litigant statute (§§ 391-391.7) was enacted in 1963 to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues. Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts.” (In re Bittaker¿(1997) 55 Cal.App.4th 1004, 1008.)

(1) within the last seven years has “commenced, prosecuted, or maintained in propria persona at least five litigations … that have been finally determined adversely to the person;

(2) repeatedly litigates, in propria persona, the validity of an action, or refiles litigation based on substantially the same issues and facts, against the same defendants after the matter has been finally determined adversely to the person;

(3) “[i]n any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay[;]” or

(4) has been determined to be a vexatious litigant in another court, state or federal.

"Litigation," for purposes of determining vexatious litigant status, means "any civil action or proceeding, commenced, maintained or pending in any state or federal court." (CCP § 391, subd. (a), emphasis added.) The term includes appeals and writ petitions. (McColm v. Westwood Park Association (1998) 62 Cal.App.4th 1211, emphasis added.)

Plaintiff has not provided any evidence indicating he should not be considered a vexatious litigant.

Here, the court has evidence of two prior actions against the same defendants in the instant action that were previously dismissed. (CCP § 391(b)(2).) Those matters are: Los Angeles County Superior Court Case Nos. 23STCV18511 and 23STCV18928. The complaints are also factually identical, meaning, they concern the same underlying insurance (or lack of insurance) claim.

The court also has evidence of at least give litigations . . . that have been finally determined adversely to the person. (CCP § 391(b)(1).) Indeed, each of the five prior cases were either voluntarily dismissed or dismissed after demurrers were sustained without leave to amend. Those matters are: Los Angeles County Superior Court Case Nos. 22STCV03956, 22STCV27904, and 23STCV16396. A¿particular litigation is finally determined when avenues for direct review (appeal) have been exhausted or the time for appeal has expired. (Childs v. PaineWebber Incorporated¿(1994) 29 Cal.App.4th 982, 993–994, emphasis added.) For the matters sustained without leave, the time for appeal has passed. Additionally, any actions the pro per plaintiff has filed and dismissed counts for the purpose of the vexatious litigant statute, even if the dismissal is voluntary and without prejudice, as they still burden the judicial system and the target of the litigation. (Tokerud v. Capitol Bank Sacramento (1995) 38 Cal.App.4th 775, 779, emphasis added).

The court finds that a prefiling order pursuant to Code of Civil Procedure section 391.7 is warranted. Plaintiff Dylan Scott Perry may not file any new litigation in the courts of the State of California in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where litigation is proposed to be filed, pursuant to Code of Civil Procedure section 391.7, subdivision (a). Disobedience of the order may be punished by a contempt of court.