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Earnest A. Davis sued an auto repair shop, its manager, and his auto insurance company, alleging that they engaged in a ruse to damage his convertible Porsche so that he could not afford to repair it and another customer of the garage could buy it. On appeal, he challenges the judge’s decision upholding the defendants’ pretext and dismissing his case in its entirety.
IN Earnest A. Davis v. Government Employees Insurance Company et al.E074317, California Court of Appeals, Fourth District, Second Division (August 15, 2022), the trial court gave the plaintiff four chances to plead a cause of action against the defendants, even though he conceded that he had collected and a suit was filed after the statute of limitations had expired. of limitations.
Before his claims were dismissed on payment notes, Davis filed four complaints over the course of his litigation. For a short time—to defend himself against the first round of demurrers—Davis was represented by counsel. During the remainder of the trial, he represented himself, as he does on appeal.
The basis of Davis’ lawsuit is his allegation that defendant and defendant Walter’s Auto Sales and Service, Inc. and their service manager Conrad Castillon (together with Walters) intentionally vandalized his 1998 Porsche 993 Series 911 Carrera Cabriolet so they could pressure him into selling it to another customer. Later in the lawsuit, Davis added his auto insurance company, Government Employees Insurance Company (GEICO), as a defendant, alleging that they conspired with Walters to declare his car a total loss.
Davis claimed that after Walter’s installed a new passenger compartment master harness (essentially fixing the problem), they engaged in the following ploy to get him to sell his car to another customer for a salvage price. Walters then told GEICO that the car was beyond repair and GEICO issued a total loss declaration, resulting in the Department of Motor Vehicles (DMV) issuing the car a salvage designation.
The First Amended Complaint (FAC)
The FAC, filed on July 2, 2018, makes the same basic allegations of misconduct against Walters but asserts a total of 12 causes of action. Like the original complaint, the FAC did not name GEICO as a defendant or make any allegations of wrongdoing against the insurance company. Rather, Davis merely claimed that GEICO had authorized and paid for the repairs, and had later declared the car a total loss with the DMV due to misinformation provided by Walters.
The Second Amended Complaint (SAC)
The SAC, filed on November 30, 2018, asserted 16 causes of action against Walters and is 90 pages long with over 170 pages of appendices. This time, Davis named GEICO as a defendant because, as he explained in his motion for leave to amend, GEICO was the only entity that could restore his car’s status with the DMV.
Davis repeated the claim that he knew, based on his experience as a mechanical engineer, that Walters was lying when they told him on November 6, 2014, that parts of the top harness had melted. Regarding Davis’ allegations against GEICO, at one point in the SAC he alleged “GEICO conspired with Walter’s using incorrect information to incorrectly judge [his car] a total loss,” but in several other places he simply claims that GEICO deemed his car a total loss based on the misinformation provided by Walters.
Walter’s filed a cross-complaint against Davis, seeking $4,320 for unpaid work on the car plus daily storage fees.
Walter’s detractors argued, among other things, that Davis’ claims were barred by the applicable three-year statute of limitations because his allegations showed he knew of the alleged wrongdoing by Jan. 27, 2015, but did not file his lawsuit until April 2018 — nearly three months after the deadline to file suit lawsuit.
GEICO’s advocates argued that Davis’ claims against them failed as a matter of law and were time-barred. Walter’s and GEICO requested oral argument on the preliminary ruling, but Davis did not. At the hearing, his then-counsel was silent during the discussion of GEICO’s motions and, when asked by the judge, said he had nothing to add. The judge entered his preliminary ruling, explaining that he was giving Davis “one more opportunity” in the claims against Walters “to see if [he] can plead the issue of delayed discovery.”
The Third Amended Complaint (TAC)
The TAC was eight pages long, asserted only two causes of action against Walters for trespass to chattels and negligence — and alleged a different theory of wrongdoing than the three previous complaints. Instead, under the heading of “Delayed Discovery,” the TAC argued that Davis did not learn that the removal of the damaged harness was negligent until over a year and a half later, in July 2016, contradicting his earlier objections to avoid the statute of limitations.
The judge concluded that the pleadings showed that the claims against Walters arose no later than January 27, 2015, and he sustained the motion with prejudice.
Davis forfeited all opposition to GEICO’s Demurrer
Davis did not object to GEICO’s dismissal (even after GEICO asked if he planned to do so), nor did he request oral argument after receiving the judge’s preliminary ruling. And when asked directly if he had anything to add at the hearing about GEICO’s attorney, Davis’ attorney said no, thereby accepting the judge’s decision to uphold the payment obligation.
The forfeiture rule applies with particular force when the appealing party has received the judge’s preliminary ruling and has made no objections to it. Because courts must hold self-represented litigants to the same standards as attorneys, it does not matter that he is no longer represented by counsel and represents himself on appeal. A doctrine generally requiring or permitting exceptional treatment of self-represented parties would create a quagmire in the trial courts and would be unfair to the other litigants.
Davis’ challenge to GEICO’s abandonment would fail even if the Court were to consider its merits. This is because all of his claims against GEICO are based on fraud, which requires an intentional misrepresentation by GEICO. To be liable for fraud, the defendant must have made a misrepresentation with knowledge of its falsity and the intent to induce another’s reliance on the misrepresentation. Davis failed to allege that GEICO intentionally misrepresented the condition of his car to the DMV. Instead, he alleged that GEICO relied on misrepresentations made by Walter. Therefore, because the only intentional misrepresentations alleged were those Walters made to GEICO, Davis’s claim against the insurer fails as a matter of law.
The claims against Walters are time-barred
Unless the discovery rule is applicable, a claim arises on the date of the claim. The triggering event is not when Davis knew or reasonably should have suspected that he could succeed against Walters in court—that is, when he suspected Walters of ultimate responsibility. Rather, his claim arose when he suspected or reasonably should have suspected that Walter had done something wrong to him and caused him injury.
The statute of limitations for both trespass to chattels and negligence resulting in damage to personal property is three years. And without a doubt, the allegations in Davis’ first three complaints — which we assume are true — reveal that he suspected wrongdoing from Walters as early as November 2014, when they told him the top harness had melted in spots. The allegations in the first three complaints show Davis knew Walter had wronged him by January 27, 2015. That’s the day he claimed he inspected his car and discovered they had “vandalized” it by removing the new wiring harness they had just installed. had installed. According to Davis’ own accusations, that “act of sabotage” made future repairs much more expensive.
Davis attempted to avoid the significance of these allegations when he drafted the TAC by simply deleting them, but a party may not avoid the defects of a prior complaint either by omitting the facts that made the complaint defective or by pleading facts inconsistent with the claims from previous submissions. In such cases, a judge has the right to treat the earlier pleadings as true and disregard the subsequent, contrary claims.
Davis had several opportunities to amend his pleadings to explain why his claim was not time-barred. Therefore, the judgment was upheld
It is strange to see a plaintiff who claims to have been the victim of a fraud in order to try to save a time-barred lawsuit, in his fourth attempt to file suit, fraudulently change the vesting date of his claim. The California Court of Appeal refused to fall for his plan.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to serving as an insurance consultant specializing in insurance coverage, insurance claims management, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims attorney and more than 54 years in the insurance industry. He can be reached at http://www.zalma.com and email@example.com.
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