Oct 20, 2014

Friday, October 17, 2014, 10:00 a.m. 
Courtroom 17 – Hon. Gary Nadler
3035 Cleveland Avenue, Suite 200, Santa Rosa


CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. Please contact CourtCall directly at (888) 882-6878.

The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Nadler’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Thursday, October 16, 2014. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


1. MCV-220489, Midland Funding, LLC v. Davis
Appearance required by Defendant Darlyne Davis.

2. SCV-246738, STRS Ohio CA Real Estate Investments I, LLC v. Alcal/Arcade Contracting, Inc.
The unopposed motion to determine good faith settlement is granted.

Although Opus again fails to discuss Plaintiff’s potential total recovery, it was made clear on other prior motions that Plaintiff is apparently claiming a total estimated repair cost of $29 million and at least another $7 million in other damages and expenses for a total of at least $36 million. Opus does show that Plaintiff has made a total demand to non-settling parties of $26,083,418. Satran Dec., ¶ 11.

Opus largely raises the same basic arguments that it raised before claiming that its liability is “zero” because Plaintiff bought the property from Opus “as is” and this expressly governs any latent or parent defects; Plaintiff expressly agreed in the purchase to release any claims against Opus under Civ. Code § 1542; Opus would therefore prevail on Plaintiff’s claims against it, entitling Opus to recover contractual fees and costs; Opus has agreed to waive its claims for fees and costs; each non-settling party/Cross-Defendant has no valid claims against Opus and instead owe Opus a duty to defend and indemnify. Satran Dec., Ex. B, ¶¶ 10.3, 10.4; Linden Dec.; Roberts Dec.; Gilbert Dec.; Fritcher Dec.; Dorfman Dec.; Kreman Dec.; Frazier Dec.; Young Dec. It is also notable that this time, in contrast to the prior motions, nobody opposes this motion reducing the burden on Opus.

Opus claims that its proportionate share of liability, even if it could be liable, would at most be only 3.64% of Plaintiff’s claimed costs of repair, or about $1.273 million, based on evidence from experts; Opus’s settlement has a value of over $3 million when adding the actual payment plus release of settlement funds from other parties, release of claims against Plaintiff for fees and costs, and assignment to Plaintiff of claims Opus holds against Cross-Defendants.

Opus also provides evidence as to its possible share of fault or liability. Its expert purports to estimate the portion of the total cost of repair to which each category of defects amounts (Linden Dec., ¶¶ 10-11); identifies each category which in his opinion Opus could be partly responsible for (Id., ¶¶ 13-14); sets forth his conclusion as to Opus’s percentage of fault for each item (Ibid.); and determines that Opus might be responsible for $1,272,862, about 4.4% of Plaintiff’s cost of repair and 3.64% of the total demand (Id., ¶¶ 13-14). He generally describes his basic approach to determining these various percentages but gives no specific details or explanation. Id., ¶¶ 8-14. He also describes the evidence on which he relied. Id., ¶¶3-7.

With regard to Opus’s possible liability based on indemnification agreements, as discussed previously, the indemnification agreements between Opus and Cross-Defendants appear irrelevant for determining Opus’s liability. First, they obviously have nothing to do directly with Plaintiff’s claims against Opus. Second, as Cross-Defendants point out, Opus’s own evidence demonstrates that the clauses on which it relies only operate to shield Opus from liability for the Cross-Defendants’ fault and expressly state that they do not shield Opus from liability for damages that are determined to have been Opus’s fault. Young Dec., Exs. C-R, Sections 7-8.

A significant issue is the effect of Opus selling the property “as is.” Opus correctly argues, as before, that in general when a party sells property “as is” it shields that party from liability for defects. As stated in Shapiro v. Hu (1986) 188 Cal.App.3d, 324, 333-334, any sale of property “as is” is a sale of the property in its “present or existing condition”; the use of the phrase “as is” relieves a seller of real property from liability for defects in that condition. The only exception to this principle is when a seller, through fraud or misrepresentation, intentionally conceals material defects not otherwise visible or observable to the buyer.

Although not entirely clear, an “as is” sale appears to defeat even those express warranties applying to sellers of new construction. Shapiro, at 332, certainly appears to indicate this.

Opus shows that the PSA, section 10.3, expressly states that the sale is “as is” with all defects, faults, latent or patent. Dorfman Dec., Ex. D. However, as noted before, the seller is specifically The Lakes, not all the Opus entities and this was the key problem which Opus faced on this argument before. Opus again provides no evidence to demonstrate that the “as is” provision protects all of the entities and, indeed, does not even appear to discuss the issue at all. Given that the court expressly explained this problem on the last motion, the failure to cure this defect is perplexing. Further, regarding the recovery and proportionate share of liability, Opus fails to clearly address or cure the key factor regarding the “as is” clause, and has in fact still not bothered to demonstrate expressly potential recovery Plaintiff seeks. However, here this motion is unopposed. The factor is somewhat equivocal, but the presented evidence is sufficient.

Regarding the amount paid and recognition that settlor should pay less in settlement, Opus has now agreed to pay $450,000, release other settlement funds in escrow, waive costs and fees, and assign claims to Plaintiff. Satran Dec., ¶¶ 8-14. This appears to be slightly more than agreed before, since Opus appears previously to have agreed to pay Plaintiff $425,000, but this increase is not great. Opus will release $950,000 in settlement funds and waive fees and costs amounting to just over $600,000. Ibid. Opus states, however, that of the $950,000 in settlement funds it is releasing, only $95,000 will be applied to the defects at issue in this action. Satran Dec., ¶ 12. Opus also asserts that the fees and costs it is paying to Plaintiff are “valued at” just over $150,000 based on the risks involved. Satran Dec., ¶1 3. Opus adds that it and Plaintiff reached the value of the assigned claims against Cross-Defendants to be just over $2 million as a result of negotiation but does not explain the basis for this determination aside from stating this this represents 8% of the total potential value of the claims and that they felt 8% to be a correct valuation. Satran Dec., ¶ 11. Opus claims that the value of its expert work which it is assigning to Plaintiff is just over $558,000, apparently based on the fees charged for the work. Satran Dec., ¶ 14. Of this amount, they assign a value of about $263,000 to the claims on the assumption that some of the work is duplicative. Ibid.

As opponents argued before, Opus is really only paying $425,000, since the other funds are payments from Cross-Defendants, money which is only to be paid to Opus in order to cover its possible liability to Plaintiff, anyway. Opus’s expert fails to explain the bases for his conclusions and some evidence indicates that Opus has a greater share of liability since Opus entities contractually had supervisory responsibility over the entire project, including designing and building it, and over all the subcontractors, not just specific portions of the project. Schneider Dec., ¶ 4, Ex. 3, p. 1; Fritcher Dec., ¶ 4.

With regard to the allocation of settlement proceeds, Opus has assigned an amount to each defect. This factor appears to lean neither for nor against the moving party at this point.

With regard to the parties' financial condition and insurance limits, the Opus Defendants “are no longer viable” and they have no assets. Satran Dec., ¶ 14; Speaker Dec.; Roberts Dec., ¶ 19; Bittner Dec. It thus provides a little more evidence that the entities have no assets and are defunct, but it is not clear if all the parties actually lack assets. Opus shows that only two insurers have accepted tender and of these one insurance policy has a $1 million limit, which Opus admits it has not reached, and another has a $10 million limit that applies after all other applicable insurance policies, including those of the Cross-Defendants, have been exhausted. Satran Dec., ¶ 14; Frazier Dec., ¶ 5; Kreman Dec., ¶¶ 5-6; Gilbert Dec., ¶¶ 4-7. As considered in the last motion, though, the first policy has a total limit of $2 million, for three different claims of which this lawsuit is one, and that it is therefore possible that the coverage could extend to $2 million. Given that there is no opposition, this showing is adequate at this time.

Finally, the issue of collusion, fraud or tortious conduct is in dispute. Opus shows that it and Plaintiff settled after years of litigation and negotiation and over 22 negotiation-mediation sessions with the help of a third party mediator. Satran Dec. This factor weighs in favor of a finding of good faith.

The motion is granted.

3. SCV-252918, 1955 South Casino Drive Holdings, LLC v. North American Cinemas, Inc.
Motion for assignment order of rents is dropped for failure to demonstrate proper notice.

4. SCV-253553, Neumann v. McMaster
Defendants’ motion for summary judgment is granted.

In substance, Defendants move the court for summary judgment. Defendants assert that Plaintiff owned 50% interest in the property; Plaintiff’s sister owned the other 50%; Plaintiff granted 49% interest in the property to Defendant McMaster and the remaining 1% to Defendant Neumann; and Plaintiff’s sister granted her entire interest to McMaster, so that Defendant McMaster owns 99% and Defendant Neumann owns 1%.

Plaintiff opposes the motion arguing that she owns an interest in the property because, by granting “undivided” interests in the property to McMaster and Doug Neumann, she remained a tenant in common on all the interests which she granted.

Plaintiff seeks judicial notice of the exhibits to the Senn declaration. Exhibits 1-6 are judicially noticeable as recorded instruments. The court will not judicially notice any factual assertions contained in the documents. Exhibit 7 is a deposition transcript and does not appear judicially noticeable.

It is undisputed that Plaintiff transferred all of her interest in the property, except a 1% interest, to McMaster, McMaster obtained the entire 50% interest of Plaintiff’s sister, and Plaintiff transferred her remaining 1% interest in the property to her son, Defendant Doug Neumann. Nothing Plaintiff provides disputes this in any way. Yet, Plaintiff argues that she still owns an interest in the property as “tenant in common,” apparently with both McMaster and Doug. Plaintiff’s position, both factually and legally, is obscure. Plaintiff’s complaint actually admits that “McMaster owns an undivided 99% interest in the … Property” and expressly states that she is only seeking to quiet title as to the remaining 1% interest and not to the 99% interest of McMaster. Complaint, ¶¶ 8-11, 14-18, Prayer ¶ 1.

The authority which Plaintiff cites is no more helpful to her position. She points out that, as explained in Wilson v. S.L. Rey, Inc. (1993) 17 Cal.App.4th 234, 242, in California the ownership of property by several persons is either: (1) of joint interests; (2) of partnership interests; (3) of interests in common; or (4) of community interest. (Civ. Code § 682.) If an estate is conveyed or transferred and it is not expressly declared an estate in joint tenancy (requiring concurrence of the four unities, time, title, interest and possession), or an estate in partnership, for partnership purposes (as determined by the intent of the parties), it will be held by the grantees or transferees as tenants in common. California favors tenancy in common, contrary to the common law favor of joint tenancies. Tenancy in common merely requires, for creation, equal right of possession or unity of possession. This decision is based on Civ. Code § 686, which Plaintiff also cites and which governs “interests in common.” It states, in full, “[e]very interest created in favor of several persons in their own right is an interest in common, unless acquired by them in partnership, for partnership purposes, or unless declared in its creation to be a joint interest, as provided in Section 683, or unless acquired as community property.”

Plaintiff contends that this law means that she became a tenant in common with McMaster and later with Doug. Although it seems certain that Plaintiff was a tenant in common with McMaster because when she transferred her property interests to him she retained a property interest, nothing indicates that she continued to be a tenant in common after transferring the last 1% to Doug. Plaintiff appears to claim that her transfers had the effect of making her and each transferee a tenant in common as to the interest she transferred each time, but this reasoning is utterly obscure, she provides no law or evidence to support it, and she provides no additional explanation as to what she means. As far as the court can tell, she appears to mean that for each transfer she was only transferring some undisclosed portion of the interest transferred but she does not explain this and, as noted, no law or facts could possibly support such an interpretation. Moreover, any claim to the interests of McMaster is not even at issue in this lawsuit, since the complaint expressly states that Plaintiff is only seeking to resolve the interests of the 1% supposedly transferred to Doug and admits that Plaintiff has no interest whatsoever to McMaster’s 99% and that he owns that fully himself.

Finally, there is little probative value to the claim that McMaster transferred an interest of the property to a third party without Plaintiff’s knowledge or consent. Plaintiff fails to explain the import of this, and it seems clear that McMaster may transfer any interest in the property which belongs to him without Plaintiff’s consent, absent some agreement or covenant to the contrary.

The motion for summary judgment is granted.


5. SCV-253987, Doe v. Doe
Defendant’s demurrer is overruled.

Medvedoff seeks judicial notice that Joan died in March 2012, with a copy of her death certificate attached. Judicial notice is granted.

With regard to the statute of limitations, Prob. Code §§ 550-555 govern liabilities of decedent covered by insurance. It is possible, as Plaintiff contends, that insurance could apply. If so, then Plaintiff’s complaint would appear to be timely under Prob. Code § 551. Although nothing shows that there is applicable insurance necessary to invoke section 551, nothing shows that there is no applicable insurance. The result is that it is not clear, as a matter of law, that the complaint is untimely.

Prob. Code §§ 9000, et seq. govern claims against creditors. A party may bring a claim against a creditor within four months after letters of administration are issued. Prob. Code § 9100. Filing such a claim will toll the statute of limitations in CCP § 366.2. Levine v. Levine (2002) 102 Cal.App.4th 1256, 1261. Prob. Code § 9390 states that where a claim against a decedent is covered by insurance, a party may file an action seeking damages within the limits of insurance without first presenting a claim.

Medvedoff contends simply that section 9100 does not toll the statute of limitation in CCP § 366.2. She provides no further discussion or explanation. Plaintiff merely contends that she did not need to present a claim.

Nothing indicates that Plaintiff needed to present a claim and, as Medvedoff argues, nothing indicates that the four month period for presenting a claim tolls or extends the statute of limitations in 366.2. It is apparently only tolled if a party actually presents a claim which Plaintiff here evidently did not do.

The demurrer is overruled.

Defendant shall file an answer to the first amended complaint within 20 days of notice of entry of this order.

6. SCV-254443, Sanchez v. Constellation Brands US Operations, Inc.
DROPPED from calendar pursuant to stipulation and order filed 10/10/14.

7. SCV-254558, Zebulon v. The El Colegio Terrace Homeowners Association
Defendants’ motion to enforce judgment or agreement is granted.

When a party seeks to enforce a stipulated settlement entered in writing or orally before the court, the court “may enter judgment pursuant to the terms of the settlement.” CCP § 664.6. This seems to give the court discretion. In addition, when ruling on a CCP § 664.6 motion, the court is a trier of fact and its ruling will be upheld if based on “substantial evidence.” Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566.

The court in Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 797 emphasized that before “judgment can be entered, two key prerequisites must be satisfied.” These are contract formation and a writing signed by the parties with the material terms. Id. As with other contracts, if there is no meeting of the minds on the material terms, then no contract has been formed. Id., 797. Absent such a contract, there is no settlement agreement which the court may enforce. Id. Section 664.6 only applies to agreements made in writing and signed by the parties, or orally before the court. If the agreement does not meet these requirements, the party cannot enforce it under section 664.6. Weddington, supra, 809-810.

The basis of this motion is the Mediation Agreement into which the parties entered. Defendants contend that the parties entered into the “agreement to settle [this] action,” requiring Plaintiff to enter into a formal written settlement agreement and that instead Plaintiff has refused to sign the agreement or make the payments required. Defendants show that the parties took part in mediation on May 20, 2014, resulting “in an agreement between the parties to resolve this action,” reduced to a written “Mediation Settlement,” the identified “Agreement.” Zimmerman Dec., Ex. A. The parties and their attorneys signed this Agreement, which contains various terms.

It is important to note that, at the mediation, the parties signed an actual written settlement agreement resolving the action, not merely an “agreement to resolve” this action. Therefore, the parties appear to have entered into an actual, enforceable written settlement agreement and Plaintiff does not seriously dispute this.

For the most part, the terms of the proposed written final agreement are identical to the terms in the Mediation Agreement except for a few minor details. The Mediation Agreement lacks the attorney’s fees provision that is in the final agreement and instead states that the parties will enter into such a provision when they sign the final agreement. This has no bearing on the consistency of the two documents or substance of the motion but may affect the request for attorney’s fees. The proposed final agreement, however, also includes a few minor terms in the consideration: paragraphs (1)(a), (c), and (e) are not included in the Mediation Agreement. In (a) and (c), these are the last sentences but in (e) the addition is the word “all” before “late fees.” These are fairly minor but do make substantive changes and it is notable that the addition in (a) was originally included in the Mediation Agreement but the parties crossed it out.

The final agreement seems mostly, but not entirely, to be consistent with the Mediation Agreement. The court should enforce it, if choosing to do so, without the additional terms in the identified sections.

Plaintiff contends that he has made payments. Defendants provide no discussion of Plaintiff’s conduct aside from his refusal to sign the final agreement.

With regard to attorney’s fees sought here by Defendants, the parties so far have not yet signed an agreement with a provision on attorney’s fees; rather, they signed an agreement stating that they will sign a final agreement that does have a fee provision. Thus, the parties have not yet entered into such a fee provision. The court denies an award of attorneys’ fees.

8. SCV-255095, Giusti v. Nationstar Mortgage, LLC
Defendants’ demurrer is overruled. Defendants’ request for judicial notice is granted; Plaintiff’s objections are overruled.

Plaintiff relies on Civ. Code § 2923.6, governing loan modification or workout plans.

Quality Loan Service Corporation (“Quality”) relies in part on Civ. Code § 2924, which governs exercise of power of sale in trust deeds and mortgages. Subdivision (b) states that a trustee cannot be liable if it acts in good faith. Specifically, subdivision (b) states, with emphasis added, that while “performing acts required by this article, the trustee shall incur no liability for any good faith error resulting from reliance on information provided in good faith by the beneficiary regarding the nature and the amount of the default….” This merely insulates a trustee from liability for actions in good faith based on information provided in good faith.

Other relevant language is in subdivision (d), which states that mailing, publication, and delivery of notices, performance of procedures, and performance of necessary functions and procedures “shall constitute privileged communications pursuant to Section 47.” This only makes certain specified acts privileged as communications, making it clear that these acts alone do not in of themselves give rise to liability and it does not shield one from liability for the acts otherwise. Thus, the privilege may bar claims such as malicious prosecution, abuse of process, or the like, but should not bar claims such as breach of contract, or other claims for damages, such as lost property. It also does not state that the absolute privilege applies, which may simply mean that the qualified privilege may apply. The qualified privilege does not bar claims involving malice.

The courts in Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, and Garretson v. Post (2007) 156 Cal.App.4th 1508, provided additional guidance on the application of the privilege under Civ. Code § 2924. The court in Kachlon, at 333 and 344-345, stated that only the qualified common-interest privilege applies to the acts specified in subdivision (d) and that it protects only the trustee, not a beneficiary who pursues foreclosure, except to the extent that the beneficiary is acting as a trustee. Both the decisions clearly state that a non-judicial foreclosure is a private proceeding, not an official proceeding, and that at most therefore only the qualified privilege may apply to the specified acts of trustees.

The court determines that section 2923.6(c) clearly forbids trustees, among others from recording a notice of default or notice of sale or the like pending loan modification and the allegations appear to show that Quality did so pending modification proceedings as set forth in subdivision (f). Quality may be labile if its conduct was intentional or malicious or in bad faith, and not merely an innocent ministerial compliance with orders or instructions. Although the allegations could have been asserted with greater clarity, they may not show that Quality acted in bad faith, maliciously, or intentionally, but they likewise do not indicate that Quality’s conduct was innocent.

Defendants shall file an answer to the complaint within 20 days of notice of entry of this order.

9. SCV-255316, Prondzinski v. California Casualty Indemnity Exchange
Defendant’s demurrer is sustained without leave to amend for failure to state a cause of action, and as it is the subject of another action pending.

Defendant’s request for judicial notice is granted.

In her first amended complaint (FAC), Plaintiff complains that she filed an uninsured motorist (UIM) claim with Defendant on January 29, 2009 for an accident that took place that very day at the intersection of Hopper Avenue and Coffey Lane, there was “no question of liability” and there were “[n]o issues with coverage”; she tried to settle the claim over the course of two years but Defendant made only an “extremely low settlement offer” which Plaintiff apparently did not accept; Defendant on March 14, 2011 notified Plaintiff that it had failed to inform her of the 2-year statute of limitations and Plaintiff “was forced to settle her claims through binding arbitration”; Plaintiff reluctantly agreed to arbitration in April 2011; then the parties agreed to mediation on January 17, 2012 and Defendant made no effort to settle; 41 months after the accident, arbitration took place on June 29, 2012; 11 days before arbitration, Defendant tacked an “offer to compromise” on Plaintiff’s door; at arbitration, Plaintiff was the prevailing party and on July 18, 2012 was awarded $42,462; Defendant “wanted to deduct $20,500” from Plaintiff’s award; Defendant and Plaintiff both filed cost memos, the arbitrator requested that Defendant provide a copy of the insurance policy but Defendant refused; the arbitrator on September 10, 2012 denied Defendant’s costs; on September 21, 2012 Defendant filed a motion to tax Plaintiff’s costs; then on October 8, 2012 the arbitrator issued the award and Defendant paid the $42,619.

This is a successor case to SCV-253507, also titled Prondzinski v. California Casualty Indemnity Exchange (the Prior Action), in which this court in April 2014 sustained Defendant’s demurrer without leave to amend and entered judgment in Defendant’s favor on May 23, 2014. The court served notice of entry of the judgment on June 10, 2014.

In the Prior Action against the same Defendant, Plaintiff, in an original complaint and a first amended complaint presented allegations that are substantively identical to those in the complaint in this case, the main difference being that the current lawsuit contains longer allegations with greater detail. Otherwise, the substance seems to be identical and many of the allegations from the Prior Action are even used verbatim in the current complaint in this action.

Plaintiff claimed in the Prior Action that she filed her UIM claim with Defendant on January 29, 2009 for an accident that took place that very day, there was “no question of liability” and there were “[n]o issues with coverage”; Defendant on March 14, 2011 notified Plaintiff that it had failed to inform her of the 2-year statute of limitations and Plaintiff “was forced to settle her claims through binding arbitration”; the parties agreed to mediation on January 17, 2012 and Defendant made no effort to settle; 41 months after the accident, arbitration took place on June 29, 2012; 11 days before arbitration, Defendant tacked an “offer to compromise” on Plaintiff’s door; Defendant made a settlement offer of $18,000; at arbitration, Plaintiff was the prevailing party and on July 18, 2012 was awarded $42,462; Defendant and Plaintiff both filed cost memos, the arbitrator requested that Defendant provide a copy of the insurance policy but Defendant refused; the arbitrator on September 10, 2012 denied Defendant’s costs; on September 21, 2012 Defendant filed a motion to tax Plaintiff’s costs; then on October 8, 2012 the claim was settled but Plaintiff does not explain what this entailed.

Plaintiff complained that this conduct was a bad-faith tactic to try to bully Plaintiff and take advantage of her, and that the conduct caused financial and emotional injury. She identified only a cause of action for fraud initially but after several attempts to cure defects in her pleading, she ended up with a third amended complaint (TAC) which pleaded the exact same causes of action presented here: (1) insurance bad faith; (2) breach of the covenant of good faith and fair dealing; (3) intentional misrepresentation; (4) intentional infliction of emotional distress; and (5) fraud.

Defendant demurs to the instant complaint, attacking each cause of action on the ground that it fails to state facts sufficient to constitute a cause of action and is the subject of another action pending. It argues that the Prior Action raised all of these claims and that either res judicata or collateral estoppel, or both, bar all of Plaintiff’s claims.

The doctrine of res judicata gives conclusive effect to a former judgment in later litigation over the same controversy. 7 Witkin, Cal.Proc. (5th Ed.2008), Judgment, section 334, et seq.; 7 Witkin, Cal.Proc (4th Ed.1997) Judgment, section 280; see also CCP § 1908. In a new action on the same cause of action, the prior judgment is a complete bar. Edmonds v. Glenn-Colusa Irr. Dist. (1933) 217 Cal.436, 445; see also 7 Witkin, Cal.Proc. (5th Ed.2008), Judgment, sections 334-335, 402. The doctrine applies only between the same parties or where there is “substantial identity” of the parties. CCP §§ 1908 and 1910; French v. Rishell (1953) 40 Cal.2d 477, 481; see also 7 Witkin, Cal.Proc. (5th Ed.2008) Judgment, sections 452, et seq.

Res judicata, or claim preclusion, and collateral estoppel, or issue preclusion, are different aspects of the same doctrine and have the same prerequisites only varying depending on whether one is dealing with a cause of action or an issue. Brinton v. Banker’s Pension Services, Inc. (1999) 76 Cal. App.4th 550, 556. They apply 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.” Brinton v. Banker’s Pension Services, Inc. (1999) 76 Cal. App.4th 550, 556.

To qualify for res judicata, the prior judgment must be a final judgment on the merits, free from direct attack. See Goddard v. Security Title Ins. & Guarantee Co. (1939) 14 Cal.2d 47, 51; see also 7 Witkin, Cal.Proc. (5th Ed.2008) Judgment, section 363, et seq. As stated in Beverly Hills Nat. Bank v. Glynn (1971) 16 Cal.App.3d 274, at 286, quoting Witkin, a judgment is “on the merits if the substance of the claim is tried and determined, no matter how wrongly it is decided. In other words a judgment is binding and conclusive against collateral attack though it is harsh and unjust, contrary to the evidence, or based upon errors of law. [Citations.]”

When a judgment is not yet final in the sense of being free from direct attack, such as where an appeal may still be filed or is pending, the proper defense to another action raising the same claims or issues as a prior action is a plea in abatement such as a demurrer on the ground that another action is pending. 7 Witkin, Cal.Proc. (5th Ed.2008) Judgment, section 364.

The claims and issues here appear to be identical to those raised in the Prior Action. Plaintiff here expressly articulates essentially the same causes of action with only the first having a different name and all having the same allegations and elements. All of these causes of action involve the exact same claims based on the same conduct in the same events and transactions over the same insurance dispute arising from the same accident, and between the same parties with the same facts.

The judgment in the Prior Action was after a demurrer, which may or may not be a “judgment on the merits,” depending on the circumstances. Goddard v. Security Title Insurance & Guarantee Co. (1939) 14 Cal.2d 47, 52; 7 Witkin, Cal.Proc. (5th Ed.2008), Judgment, sections 375-377. The Supreme Court established long ago in Goddard, supra, a judgment on a special demurrer is not a “judgment on the merits” for purposes of res judicata but a judgment on a general demurrer may be. As the court there explained,

“[a] judgment given after the sustaining of a general demurrer on a ground of substance, for example, that an absolute defense is disclosed by the allegations of the complaint, may be deemed a judgment on the merits, and conclusive in a subsequent suit; and the same is true where the demurrer sets up the failure of the facts alleged to establish a cause of action, and the same facts are pleaded in the second action.”

In the Prior Action, Plaintiff had several chances to amend and cure defects, this court ultimately sustaining a general demurrer to the third amended complaint on the ground that it fails to state facts sufficient to constitute a cause of action. Plaintiff had not alleged any facts necessary to set forth a prima facie case for any cause of action alleged therein. Here, Plaintiff reasserts the same causes of action with the same facts and allegations.

This unopposed demurrer is sustained without leave to amend.


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