Case Name: Janet King v. Bryan Shisler dba VIP Motors, et al.
Case No.: 1-13-CV-256780
Motions by Defendant Bryan Shisler for Judgment on the Pleadings and to Withdraw Case from Economic Litigation or [sic] in the Alternative, to Conduct Additional Discovery
On or about April 16, 2013, plaintiff Janet King purchased a used 1989 Cadillac Seville (“Vehicle”) from defendant Bryan Shisler dba VIP Motors. (Complaint, ¶5.) Shisler failed to disclose the mileage of the Vehicle on the contract, vehicle/vessel title transfer form, or on the title. (Complaint, ¶6.) Shisler’s omission devalued the Vehicle by making the mileage uncertain. (Complaint, ¶7.) On November 26, 2013, King filed a limited jurisdiction complaint against Shisler asserting claims for:
(1) Violation of the Consumer Legal Remedies Act
(2) Violation of the Federal Odometer Act
On January 21, 2014, Shisler filed an answer.
On July 3, 2014, Shisler filed a motion for judgment on the pleadings, and on July 23, 2014, a “motion to withdraw case from economic litigation or [sic], in the alternative, to conduct additional discovery.” The oppositions filed by King on August 11, 2014, and the reply filed by Shisler on August 18, 2014, were both untimely. To determine these matters on the merits, the court has considered the untimely papers.
- Motion for Judgment on the Pleadings
A. Request for Judicial Notice
In support of his motion for judgment on the pleadings, Shisler requests judicial notice of (1) small claims complaint filed on May 16, 2013, King v. Shisler, Santa Clara County Superior Court case number 1-13-SC-052935; (2) small claims judgment, King v. Shisler, Santa Clara County Superior Court case number 1-13-SC-052935; and (3) certified vehicle/ vessel transfer form filed with California Department of Motor Vehicles.
Shisler’s request for judicial notice of the small claims complaint and small claims judgment is GRANTED. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)
Under Evidence Code section 452, subdivision (c), a court may take judicial notice of “[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” Official acts include records, reports and orders of administrative agencies.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.) Although DMV records may be an official act, the contents thereof are not necessarily reasonably free from dispute. Therefore, Shisler’s request for judicial notice of the DMV vehicle/vessel transfer form is GRANTED, but only as to the existence of the form, but not the truth of its contents. (See Conlan v. Shewry (2005) 131 Cal.App.4th 1354, 1364; see also Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 – 1064 (overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257)—“[T]he taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.”)
B. Res Judicata/ Collateral Estoppel
The doctrine of res judicata may be raised on demurrer. (See Lincoln Property Co. v. Travelers Indemnity Co. (2006) 137 Cal.App.4th 905.) “‘The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Public policy and the interest of litigants alike require that there be an end to litigation.’ [Citation.] ‘[R]es judicata benefits both the parties and the courts because it “seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration.” ’ [Citation.]” (Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575 (Villacres).) “Under the doctrine of res judicata, a valid, final judgment on the merits is a bar to a subsequent action by parties or their privies on the same cause of action.” (Villacres, supra, 189 Cal.App.4th at p. 575.)
“The doctrine is applicable ‘if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.’ [Citation.] ‘[R]es judicata will not be applied “if injustice would result or if the public interest requires that relitigation not be foreclosed.” ’ [Citation.]” (Id. at p. 577.)
“Collateral estoppel is a doctrine which prevents relitigation of issues previously argued and resolved in a prior proceeding. [Citation.] In order to apply this principle: (1) the issue must be identical to that decided in the prior proceeding; (2) the issue must have been actually litigated in the prior proceeding; (3) the issue must have been necessarily decided in the prior proceeding; (4) the decision must have been final and on the merits; and (5) preclusion must be sought against a person who was a party or in privity with a party to the prior proceeding. [Citation.]” (Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1233 (Alvarez).) “In deciding whether to apply collateral estoppel, the court must balance the rights of the party to be estopped against the need for applying collateral estoppel in the particular case, in order to promote judicial economy by minimizing repetitive litigation, to prevent inconsistent judgments which undermine the integrity of the judicial system, or to protect against vexatious litigation.” (Alvarez, supra, 143 Cal.App.4th at p. 1233.)
The claim asserted by King in the small claims action is Shisler’s failure to transfer title and failure to complete a smog test, while the claim in this action is Shisler’s failure to report the Vehicle’s mileage. Shisler contends this claim is barred nonetheless because King could have asserted this claim in her small claims complaint. “Res judicata bars the litigation not only of issues that were actually litigated in the prior proceeding, but also issues that could have been litigated in that proceeding.” (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82.)
In opposition, King cites Sanders v. Walsh (2013) 219 Cal.App.4th 855, 865 – 871 (Sanders) where the court held, “collateral estoppel does not apply to a small claims action.” Inasmuch as Shisler’s res judicata/ collateral estoppel argument relies upon an underlying small claims action, the Sanders court makes clear that res judicata/ collateral estoppel will not apply.
- Truthful Pleading
As a second argument, Shisler contends the allegations of the complaint conflict with a judicially noticed document: namely, the vessel/vehicle transfer form. The complaint alleges, in relevant part, that Shisler failed to disclose the mileage of the Vehicle in three places: on the contract, vehicle/vessel title transfer form, and on the title. (Complaint, ¶6.)
Shisler’s argument fails with respect to the alleged nondisclosure in the contract. Shisler directs the court to a copy of the contract as attached to his answer. However, for purposes of a motion for judgment on the pleadings, the court cannot consider such extrinsic evidence. “A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. [¶] No other extrinsic evidence can be considered.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2014) ¶7:8, pp. 7(I)-7 to 7(I)-8 citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318, Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881, et al.)
- Failure to attach sales contract
As a final argument, Shisler contends the complaint fails because King has not attached a copy of the sales contract. Shisler relies on Austin v. Southern Pacific Co. (1942) 50 Cal.App.2d 292, 296 (Austin), for the proposition that a complaint must set forth the contract with sufficient certainty to show plaintiff’s right to defendant’s performance. Shisler’s reliance on Austin is misplaced as Austin addresses the adequacy of claims for breach of contract and/or violation of labor laws. Here, King is asserting the violation of the Consumer Legal Remedies Act and Federal Odometer Act. Shisler cites to no requirement in either of those statutory schemes which requires the pleading of a contract.
Accordingly, Shisler’s motion for judgment on the pleadings is DENIED.
II. Motion to Withdraw Case from Economic Litigation or [sic], in the Alternative, to Conduct Additional Discovery
A. Motion to Withdraw Case from Economic Litigation
Shisler cites Code of Civil Procedure section 91, subdivision (c) which states, “Any action may, upon noticed motion, be withdrawn from the provisions of this article, upon a showing that it is impractical to prosecute or defend the action within the limitations of these provisions.” The “article” refers to Article 2, “Economic Litigation for Limited Civil Cases.”
Shisler contends that it is impractical to defend this limited civil case because King’s claims are false, King avoids producing information, and Shisler cannot determine King’s damages. (See ¶8 of the Declaration of Bryan Shisler.) The first contention has been addressed on the motion for judgment on the pleadings. The second and third contentions are based on the restrictions in conducting discovery. (See generally, Code Civ. Proc., §94, subd. (a)—limiting discovery to any combination of 35 interrogatories, inspection demands, and requests for admission.) Shisler propounded form interrogatories, inspection demands, and requests for admission on King. (See ¶¶2 – 3 of the Declaration of Bryan Shisler.) King responded to only three requests for admission, but otherwise objected including an objection on the basis that the discovery exceeded that which is allowed for limited civil cases. (See ¶¶4 – 7 of the Declaration of Bryan Shisler.)
Shisler’s evidence does not establish that it is impractical to defend against King’s limited action. Accordingly, defendant Shisler’s motion to withdraw case from economic litigation is DENIED.
B. Motion to Conduct Additional Discovery
In the alternative, Shisler asks the court for authority to conduct additional discovery. Code of Civil Procedure section 95, subdivision (a) states, “The court may, on noticed motion and subject to such terms and conditions as are just, authorize a party to conduct additional discovery, but only upon a showing that the moving party will be unable to prosecute or defend the action effectively without the additional discovery. In making a determination under this section, the court shall take into account whether the moving party has used all applicable discovery in good faith, and whether the party has attempted to secure the additional discovery by stipulation or by means other than formal discovery.”
Based on the same declaration above, Shisler contends he is unable to defend the action effectively without additional discovery. Shisler’s showing is insufficient. Accordingly, defendant Shisler’s alternative motion to conduct additional discovery is DENIED.
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