16-CIV-02467 CHRISTINE MCKEON VS. ELIZABETH M. RISNER, ET AL

CHRISTINE MCKEON ELIZABETH M. RISNER
KEVIN D. TAGUCHI JOHN J. MOURA

ELIZABETH M. RISNER’S DEMURER TO PLAINTIFF’S FOURTH AMENDED COMPLAINT TENTATIVE RULING:

A. First Cause of Action (personal injury)

Demurrer to the first cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. The pleading fails to allege facts to support an estoppel against Defendants’ asserting the statute of limitations.

A defendant’s false statement that he/she does not have auto insurance, with the intent that the plaintiff rely on the statement and not file suit, can be a basis for pleading that the defendant is estopped from asserting a statute of limitations defense. (See Casey v. Anschutz (1967) 252 Cal. App. 2d 9.) An allegation of false statements, by itself, is insufficient to estop the statute of limitations. (Hesse v. Vinatieri (1956) 145 Cal. App. 2d 448, 451-52 [failure to allege that defendant knew statements were false and that defendant intended plaintiff to rely on them].) Further, “Mere nondisclosure is not concealment in the absence of a fiduciary relationship; there must be some affirmative act calculated to obscure the existence of a cause of action and it must be factually alleged.” (Id.) Finally, in contrast with the defendant in Hesse, Defendant Risner’s alleged misrepresentation was about insurance, not liability.

The 4AC also alleges that Defendant failed to file her insurance information with the DMV, as statutorily required. (4AC ¶ 21.) However, Plaintiff did not discover this fact until after the statute of limitations had already run. Any information obtained from the DMV cannot be a basis for estoppel against the statute of limitations, since the claim was time-barred before Plaintiff inquired with the DMV.

The issue is whether Defendant is estopped from asserting the statute of limitations. The question is whether Defendant did any act designed to induce Plaintiff to refrain from filing suit. Plaintiff alleges that Defendant failed to inform the CHP officer about Plaintiff’s insurance with GEICO and Plaintiff also withheld that information from Plaintiff’s daughter, who had been driving the vehicle Plaintiff was a passenger in. The complaint does not allege that Defendant intentionally withheld the information in order to induce Plaintiff not to file suit. Instead, Plaintiff alleges that the nondisclosure was for the purpose of inducing Plaintiff to “pursu[e] Plaintiff’s claim only with Hartford Insurance” (para. 16). Nothing is alleged to suggest that Defendant intended to induce Plaintiff not to file suit.

Plaintiff also alleges that she relied on Defendant’s misrepresentation (para. 18), but does not allege any facts to explain why a plaintiff’s reliance on an adversary’s representation was reasonable. There is no allegation that Plaintiff propounded the Form Interrogatory seeking insurance information, which Defendant would have had to answer under oath.

The complaint alleges that Defendant intended to induce Plaintiff to negotiate only with Hartford, but it does not allege any facts designed to induce Plaintiff not to file suit within the statute of limitations. Therefore, the 4AC fails to allege facts which, if proven, would establish that Defendant is estopped from pleading the statute of limitations.

B. Second Cause of Action (Rescission).

Demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. The 2nd cause of action alleges that the settlement agreement should be rescinded because Defendant induced it by fraud. (4AC para. 25 & 26.) The allegations are insufficient to allege fraudulent inducement. The pleading does not allege that Defendant made any statements to Plaintiff about insurance, and it does not allege that Defendant owed a duty, absent a request from Plaintiff, to disclose the existence of insurance.

Fraud must be pleaded with specificity. The allegations in the second cause of action do not show that (1) Defendant made any misrepresentation to Plaintiff or (2) after Plaintiff’s inquiry, Defendant concealed from Plaintiff any information about insurance. Plaintiff argues that representations to a third person may support fraud, when “the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct.” The 4AC lacks any allegation along these lines. It alleges only that Plaintiff “with intent to deceive Plaintiff,” “fraudulently withheld” from Plaintiff’s daughter the existence of Defendant’s Geico policy. It does not allege that Plaintiff intended or expected that Plaintiff’s daughter would communicate the information to Plaintiff.

The cases cited by Plaintiff (Grinnell and Toole) are not applicable. The communication in those cases was from drug manufacturers to physicians by way of inserts in the packaging of medicines. Since only the physician had seen the insert, the representation was not to the plaintiff patient. Nonetheless, courts held that representations to the physicians are sufficient, since the physician is acting as the patient’s agent for purposes of administering the medicine. In the present case, Plaintiff alleges a conclusion that her daughter was acting as her agent, but no facts are pleaded to support the conclusion.

C. Leave to Amend Is not Granted. A plaintiff is allowed only three opportunities to amend following a sustained demurrer, absent an offer of new facts. (Code of Civ. Proc. § 430.41, subd. (e)(1).) This is Defendant’s fourth demurrer to Plaintiff’s amended complaints. Risner’s Opposition offers no showing of new facts that could state a cause of action and avoid the statute of limitations. The additions from the third amended complaint to the fourth amended complaint are inconsequential. (See para. 16, 19, 21.)

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, DEMURRING PARTY is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.