Filed 10/16/19 Genthner v. Taylor CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DEBBY GENTHNER,

Plaintiff and Appellant,

v.

BARBARA TAYLOR,

Defendant and Respondent.

F076233

(Super. Ct. No. 16CECG00160)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.

Debby Genthner, in pro. per., for Plaintiff and Appellant.

Yempuku, Wetters & McNamara and Daniel T. McNamara for Defendant and Respondent.

-ooOoo-

In January 2016, plaintiff Debby Genthner, in propria persona, filed a complaint for personal injuries she sustained in a January 2014 automobile accident, which she alleged was caused by Liberty Mutual Fire Insurance Company’s (Liberty Mutual) insured, Barbara Taylor (Taylor). Genthner named Liberty Mutual and three of its claims adjustors as defendants, but did not name Taylor or any fictitious defendants. Over a year later, in February 2017, she filed a first amended complaint which added Taylor as a defendant. Taylor demurred on the ground the first amended complaint was time-barred, as it was not filed within the two-year statute of limitations applicable to claims for personal injuries and did not relate back to the original complaint. The trial court sustained the demurrer without leave to amend.

On appeal from the resulting judgment, Genthner contends the trial court erred in sustaining the demurrer because the trial court previously had granted her leave to add Taylor to her first amended complaint and Taylor’s attorney failed to follow court procedures and rules. She also contends she should have been given leave to amend. Finding no merit to Genthner’s arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 12, 2016, Genthner filed a complaint for compensatory and punitive damages arising from a January 9, 2014, automobile accident allegedly caused by Liberty Mutual’s insured. Genthner named as defendants Liberty Mutual, Greg Williams, Ricki Light and John Graham, but did not name any Doe defendants or name Taylor as a defendant. In five causes of action, Genthner essentially alleged Liberty Mutual and its adjustors were not willing to negotiate a fair settlement for her injuries.

On August 19, 2016, Genthner filed a motion to amend the complaint, asking for leave to file a first amended complaint to add Taylor as a defendant. On August 26, 2016, Liberty Mutual and the claims adjustors filed a demurrer to the complaint on the grounds it was barred by the two-year statute of limitations for personal injuries and Genthner, who was not Liberty Mutual’s insured, could not maintain a private right of action against them for third party bad faith. On September 22, 2016, the trial court sustained the demurrer with leave to amend. The trial court concluded the complaint failed to state any cause of action against the named defendants but since it was impossible to tell what causes of action were intended, the court granted Genthner an opportunity to amend. The trial court granted Genthner’s motion for leave to amend the complaint to add Taylor as a defendant, noting “[a] trial court will not ordinarily consider the validity of a proposed amended pleading because grounds for demurrer or motion to strike are premature.”

On January 6, 2017, Genthner filed a motion to extend the time to file an amended complaint, which the trial court granted on February 9. On February 14, Genthner filed her first amended complaint (FAC), which added Taylor as a named defendant. The FAC contains six causes of action for “Intentional Tort,” which are alleged against all defendants. The first through fourth causes of action allege Taylor came out of a side street and hit the side of Genthner’s car, causing Genthner whiplash and a concussion, as well as a cervical neck sprain, other neck and back injuries, and injuries to both knees. The fifth and sixth causes of action set forth claims of insurance bad faith, alleging Liberty Mutual and its claims adjustors (1) did not negotiate fairly with Genthner in settling her claim against Liberty Mutual’s insured, (2) did not offer a settlement that included the full cost of Genthner’s medical treatment, (3) did not return her calls, and (4) did not offer fair value for her automobile.

Genthner had the Fresno County Sheriff’s Department personally serve the FAC on Taylor, which it did on February 22. On March 9, the trial court granted Genthner’s oral motion to dismiss all defendants except Taylor from the action without prejudice.

On March 27, Taylor filed a demurrer to the FAC on the ground it did not state facts sufficient to constitute a cause of action. Taylor argued the original complaint was not filed within the two-year statute of limitations for personal injuries (Code Civ. Proc., §§ 335, 335.1), as Genthner alleged the accident occurred on January 9, 2014, but she filed her complaint more than two years later, on January 12, 2016. Taylor further argued that even if the original complaint was timely filed, it did not name any Doe defendants and the FAC naming Taylor was not filed until February 14, well beyond the statute of limitations. Taylor asserted the FAC was time-barred and should be dismissed with prejudice. Taylor’s attorney filed a declaration in which he stated he called Genthner on February 22 at her last known telephone number and the phone simply rang without picking up. He also emailed her that day, but he received no response to his phone call or email.

In her opposition to the demurrer, filed on April 7, Genthner argued she met the statute of limitations and was allowed extended time to file her amended complaint to add Taylor as a defendant. Genthner declared she did not see the email from Taylor’s attorney on February 22 or receive any calls from him. She asserted opposing counsel should be making an effort to contact her and negotiate a reasonable offer for the damages she suffered due to the accident. She further asserted neither Taylor nor her attorney responded to the summons and complaint within 30 days, and asked why they did not respond by March 22. Genthner stated she asked the Fresno County Sheriff’s Department to serve a statement of damages on Taylor on March 24 and was waiting for that proof of service before filing a request for default. Genthner filed an amended opposition on April 12, which contained the same arguments, but to which was attached a statement of damages that was personally served on Taylor on March 29.

Genthner and Taylor’s attorney appeared at the May 17 hearing on the demurrer. The trial court adopted its tentative ruling to sustain the demurrer without leave to amend as its order. In the ruling, the trial court first discussed the meet and confer process. The trial court noted defense counsel declared he called and emailed Genthner, while Genthner declared she did not receive a phone call or email, but because insufficiency of the meet and confer process is not grounds to overrule or sustain a demurrer (§ 430.41, subd. (a)(4)), it would address the demurrer’s merits.

On the merits, the trial court found the first through fourth causes of action were barred by the statute of limitations because: (1) the statute of limitations as to Taylor was measured as of February 14, the date the amended complaint first naming her was filed, since Genthner failed to name any Doe or fictitiously named defendants in her lawsuit at any time; (2) an action based on personal injury caused by another’s wrongful act must be commenced within two years following accrual of the cause of action, which for a personal injury claim accrued on the date the injury was sustained; (3) since the medical records attached to Genthner’s FAC show she sought medical treatment for her injuries no later than January 16, 2014, she was aware of her injuries by that date; and (4) therefore, the filing of the FAC against Taylor over three years later was untimely and the statute of limitations had run.

As for the fifth and sixth causes of action, the trial court found that while Genthner appeared to be raising claims of breach of the covenant of good faith and fair dealing, or bad faith, Liberty Mutual and its employees did not owe a duty to Genthner, since she was not Liberty Mutual’s insured. The trial court explained that adding Taylor to these causes of action added nothing, as Taylor did not owe Genthner a duty to make her insurance company act in a particular way.

Judgment subsequently was entered in Taylor’s favor on July 19.

DISCUSSION

Standard of Review

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)

Since the function of a demurrer is to test a pleading’s sufficiency as a matter of law, we apply the de novo standard of review. (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) We must affirm the judgment if it is correct on any ground stated in the demurrer, independent of the trial court’s stated reasons. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) However, it is Genthner’s burden to demonstrate the trial court sustained the demurrer erroneously. (Smith v. County of Kern (1993) 20 Cal.App.4th 1826, 1829‒1830.) It is also Genthner’s burden to show that further amendment could cure the complaint’s defects. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

The Statute of Limitations Bars the Negligence Claims

The first through fourth causes of action in the FAC allege negligence claims arising from injuries Genthner sustained in the January 9, 2014, automobile accident. The statute of limitations for injury caused by another’s wrongful act is two years. (§ 335.1.) The two-year limitations period starts to run when the cause of action accrues, which occurs when it “ ‘is complete with all of its elements.’ ” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) Here, that occurred when Genthner was injured on January 9, 2014. Genthner does not contend otherwise. Since the first complaint that named Taylor was filed on February 14, 2017, which is more than two years after Genthner’s January 9, 2014 accident, the FAC against Taylor was filed too late.

Genthner relies on the relation back doctrine. “The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. [Citations.] A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citations.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 (Woo).)

Among the requirements for application of the relation back doctrine under section 474 is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint. (Woo, supra, 75 Cal.App.4th at p. 176.) “[A]mendment after the statute of limitations has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 492.)

Here, Genthner failed to name Taylor in the original complaint and did not designate any Doe or fictitious defendants. Thus, her attempt to amend the complaint to add Taylor as a defendant over three years later, after the cause of action accrued, is improper.

Genthner contends her original complaint was timely filed because she submitted it to the superior court, along with her request to file new litigation by a vexatious litigant, on January 6, 2016. Even if the original complaint was timely, however, it did not name either Taylor or a fictitious defendant. Genthner asserts she named Taylor as a fictitious defendant because she alleged in the first cause of action that Liberty Mutual’s “insured” hit her and Taylor’s name appears in some of the exhibits attached to the complaint. Genthner, however, never stated in her complaint that she was “ignorant of the name of a defendant” and never designated that defendant “by any name” as required by section 474. Moreover, no cause of action was stated against Taylor in the original complaint.

Genthner points out the trial court granted her leave to amend to add Taylor as a defendant on September 22, 2016. As the trial court noted in its order, it “will not ordinarily consider the validity of a proposed amended pleading because grounds for demurrer or motion to strike are premature,” citing Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. Thus, merely granting Genthner’s motion for leave to amend the complaint to add Taylor as a defendant did not mean the trial court had decided the validity of such an amendment. Instead, that was left for decision on Taylor’s demurrer to the FAC.

Since the statute of limitations barred the negligence claims against Taylor, the trial court did not err when it sustained the demurrer without leave to amend. Genthner asserts she should have been given leave to amend because she filed her causes of action on incorrect forms labeled “CAUSE OF ACTION—Intentional Tort,” and she should have been given the opportunity to file her claims “under general negligence on the correct claim forms.” Changing the forms, however, would not have saved Genthner’s claims against Taylor, which were untimely. Genthner fails to explain how she could have amended the FAC to avoid the bar of the statute of limitations.

Lateness and Failure to Meet and Confer

Genthner contends Taylor’s attorney did not follow court procedures and court rules. She claims the demurrer was untimely, because it was filed after expiration of the 30-day period set forth in section 430.40. (See § 430.40, subd. (a) [“A person against whom a complaint … has been filed may, within 30 days after service of the complaint …, demur to the complaint.”].) Genthner personally served Taylor with the FAC on February 22 and Taylor demurred to the complaint on March 27, three days after the 30 day time period set forth in section 430.40 expired. The 30-day deadline in section 430.40, subdivision (a), however, is not mandatory. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280.) A trial court, therefore, has discretion to consider an untimely demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.) We review a trial court’s exercise of discretion for abuse of that discretion. “The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) “An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice.” (Ibid.)

Genthner argued in her opposition below that the demurrer was untimely. She stated in her declaration she was in the process of attempting to take Taylor’s default when the demurrer was filed on March 27, as she had asked the sheriff’s department to serve Taylor with a statement of damages and was waiting for the proof of service so she could file her request for default. The trial court presumably read Genthner’s opposition papers, and nevertheless decided to consider the demurrer’s merits. Genthner does not assert the trial court abused its discretion in considering the untimely demurrer (on appeal, she asks only why Taylor did not respond by March 22), and the record does not support a finding the trial court abused its discretion in hearing the demurrer. Since default had not been entered, Taylor still was permitted to file pleadings and motions with the court. (See Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶¶ 5:2 to 5:3, p. 5-1.) Accordingly, the trial court did not abuse its discretion in considering Taylor’s demurrer.

Genthner also contends Taylor’s attorney failed to meet and confer before filing Taylor’s demurrer, as required by section 430.41, subdivision (a). Taylor’s attorney apparently tried to call Genthner and when she did not answer, he emailed her. Genthner, however, denied receiving either a call or email. As the trial court stated in its ruling, any failure to meet and confer is not a basis to overrule or sustain a demurrer. (§ 430.41, subd. (a)(4) [“Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”] Thus, it was not error for the trial court to decline to overrule the demurrer because Taylor’s attorney’s meet-and-confer efforts did not meet the specific requirements of section 430.41, subdivision (a).

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Taylor.

Parties and Attorneys
Genthner v. Taylor
Case Number F076233
Party Attorney

Debby Genthner : Plaintiff and Appellant
P.O. Box 1915
Bucksport, ME 04416 Pro Per

Barbara Taylor : Defendant and Respondent
Daniel Thomas McNamara
Harris & Yempuku
2180 Harvard St Ste 375
Sacramento, CA 95815