Filed 7/31/14 Myles v. Farmers Group CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


TOMMIE L. MYLES,
         Plaintiff and Appellant,
                                                                     A139522
v.
FARMERS GROUP, INC., et al.,                                         (Contra Costa County
                                                                     Super. Ct. No. MSC 12-02784)
         Defendants and Respondents.


         Plaintiff Tommie L. Myles has filed two lawsuits against the insurer of a driver
who caused damage to his vehicle. This appeal arises out of the second lawsuit. On
appeal, Myles claims that res judicata principles do not preclude his second lawsuit and
that his direct action against the negligent party’s insurance company is not barred by
Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287 (Moradi-Shalal).
We affirm.
                              FACTUAL AND PROCEDURAL BACKGROUND
                                                    The Accident
         The underlying action arises out of an automobile accident that damaged a vehicle
owned by Myles. Sandra Sanabria allegedly crashed her vehicle into Myles’s car while it
was parked at his home. Sanabria was insured by defendant Coast National Insurance
Company (Coast National), which is affiliated with defendant Farmers Group, Inc.
(Farmers). Coast National assigned 100 percent of the fault for the accident to its
insured, Sanabria.



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         Myles alleges that Coast National and Farmers mishandled the claim for damage
to his vehicle by declaring the car to be a “[t]otal [l]oss,[s]alvage” on the basis of an
appraisal that that did not account for improvements to the car or use the correct vehicle
for purposes of a comparative market evaluation. According to Myles, Coast National
and Farmers refused to pay the estimated cost of repairing his vehicle and instead made
an inadequate settlement offer based upon the purportedly inaccurate designation of his
vehicle as a total loss. Myles alleges that the cost to repair his vehicle was nearly $4,700
and that Coast National and Farmers only offered a little over $2,000 in settlement of the
claim.
         Myles filed two lawsuits arising out of the accident. The second lawsuit is the
subject of this appeal.
                                        First Lawsuit
         Myles filed the first action in April 2011. As set forth in the second amended
complaint in that action, Myles sued Farmers and Coast National for violations of Fair
Claims Settlement Practices Regulations, which are found in title 10 of the California
Code of Regulations. Myles alleged that Farmers and Coast National failed to settle his
claim in a timely and fair manner, devalued his vehicle by comparing it to a different
model, falsely labeled his vehicle a total loss, and committed other violations of the Fair
Claims Settlement Practices Regulations. He also asserted causes of action for fraud
based upon allegations that Farmers and Coast National deliberately misrepresented the
value of his vehicle and falsely labeled it a total loss. Myles sought damages of over $3.5
million.
         In the first action, Coast National filed a demurrer to the second amended
complaint on the ground that the Supreme Court’s decision in Moradi-Shalal, supra,
46 Cal.3d 287, precludes a private right of action by a third-party claimant against an
insurer for unfair claims handling practices. The trial court sustained the demurrer
without leave to amend and entered a judgment in favor of Coast National in
August 2012.



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       Farmers moved to quash service of the summons in the first action. In a June
2012 order, the trial court granted the motion on the ground that service of the summons
on Farmers and two other individual defendants was defective. Although the court
determined that Farmers had not properly been served in the first action, Farmers
remained a party in that case.
                                      Second Lawsuit
       According to Myles, in order “to avoid the time and expense of appealing” the
judgment in the first action, he filed a second lawsuit against Coast National and Farmers
in November 2012.1 At the time Myles filed his second lawsuit, the first lawsuit was still
pending against Farmers. The factual basis for the second lawsuit was the same as the
first. In the second lawsuit, Myles asserted four causes of action denominated
“intentional tort” as well as a fifth cause of action for fraud. Although the complaint in
the second action refers generally to bad faith, breach of the covenant of good faith and
fair dealing, and a violation of the unfair competition law (Business and Professions Code
section 17200 et seq. (UCL)), the first four causes of action for intentional tort do not
distinguish which legal theory supports each cause of action. Instead, each cause of
action sets forth a different claims practice that Myles contends constitutes a “bad faith
and UCL tort[].” The first four causes of action turn on allegations that Coast National
and Farmers falsely designated Myles’s vehicle as salvage, applied an improper
comparative evaluation of the vehicle’s value in violation of the Fair Claims Settlement
Practices Regulations, devalued the vehicle by refusing to give Myles credit for upgrades
he had made to the vehicle, and conditioned acceptance of the settlement offer on a false
salvage designation. In the fifth cause of action for fraud, Myles alleged that Farmers
and Coast National “fraudulently declared . . . they were in compliance with Fair Claims
Settlement Regulations . . . .” Myles sought damages of over $9.1 million in the second
lawsuit.

       1
       Also named as defendants in the second lawsuit were two Farmers executives and
another insurance company that appears to have some affiliation with Coast National.
They are not parties to this appeal.

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       Coast National and Farmers filed separate demurrers to the complaint in the
second lawsuit. In its demurrer, Coast National argued that the judgment it secured in the
first lawsuit was a res judicata bar to the claims in the second lawsuit. Coast National
also contended that the claims in the second lawsuit were subject to dismissal under
Moradi-Shalal, supra, 46 Cal.3d 287, and that Myles lacked standing to sue Coast
National in any event because there was no privity of contract between Myles and Coast
National.
       Farmers premised its demurrer in part on the fact that there was another action
pending between the parties on the same causes of action. (See Code Civ. Proc.,
§ 430.10, subd. (c).) As Farmers explained, although Myles had not accomplished
service on Farmers in the first lawsuit, Farmers had not been dismissed from that pending
action. Farmers also contended that the claims in the second lawsuit were barred under
Moradi-Shalal, supra, 46 Cal.3d 287, and that Myles lacked standing to sue Farmers in
the absence of a contractual relationship.
       The trial court sustained Coast National’s demurrer without leave to amend on the
ground that Myles’s claims in the second lawsuit were barred by the doctrine of res
judicata. The trial court also sustained without leave to amend the demurrer filed by
Farmers, reasoning that the same claims were still pending between Farmers and Myles
in the first lawsuit. The trial court entered judgments in favor of Coast National and
Farmers in July 2013. Myles filed motions for reconsideration and for a new trial. The
trial court denied both motions. This appeal followed.
                                       DISCUSSION
1.     Standard of Review
       On appeal from a judgment after a demurrer is sustained without leave to amend,
we first review the complaint de novo to determine whether it contains facts sufficient to
state a cause of action under any legal theory. (Walgreen Co. v. City and County of San
Francisco (2010) 185 Cal.App.4th 424, 433.) “ ‘We treat the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions of fact or
law. [Citation.] We also consider matters which may be judicially noticed.’ ” (Blank v.


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Kirwan (1985) 39 Cal.3d 311, 318; accord, Zelig v. County of Los Angeles (2002)
27 Cal.4th 1112, 1126.) “We affirm if any ground offered in support of the demurrer was
well taken but find error if the plaintiff has stated a cause of action under any possible
legal theory. [Citations.] We are not bound by the trial court’s stated reasons, if any,
supporting its ruling; we review the ruling, not its rationale.” (Mendoza v. Town of Ross
(2005) 128 Cal.App.4th 625, 631.)
       It is an abuse of discretion to sustain a demurrer if there is a reasonable probability
the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
The burden, however, is on the plaintiff to demonstrate how the complaint can be
amended to state a valid cause of action. (Ibid.)
2.     Res Judicata
       Myles contends that the judgment in favor of Coast National in the first lawsuit
should not act as a res judicata bar to the claims asserted in the second lawsuit against
Coast National. We disagree.
       The doctrine of res judicata gives preclusive effect to a prior, final judgment
involving the same controversy. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th
788, 797.) The doctrine has two distinct aspects: claim preclusion and issue preclusion.
(Ibid.) Claim preclusion, often referred to as res judicata, provides that “a valid, final
judgment on the merits precludes parties or their privies from relitigating the same ‘cause
of action’ in a subsequent suit.” (Le Parc Community Assn. v. Workers’ Comp. Appeals
Bd. (2003) 110 Cal.App.4th 1161, 1169.) Issue preclusion, or collateral estoppel,
“ ‘precludes relitigation of issues argued and decided in prior proceedings.’ ” (Mycogen
Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Under the doctrine of res judicata,
“all claims based on the same cause of action must be decided in a single suit; if not
brought initially, they may not be raised at a later date.” (Id. at p. 897.)
       Three requirements must be met to apply the doctrine of res judicata for purposes
of either issue or claim preclusion: (1) the second lawsuit must involve the same “cause
of action” as the first lawsuit; (2) there must have been a final judgment on the merits of
the first lawsuit; and (3) the parties in the second lawsuit must be the same or in privity


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with the parties to the first lawsuit. (See Boeken v. Philip Morris USA, Inc., supra, 48
Cal.4th at p. 797; City of Oakland v. Oakland Police & Fire Retirement System (2014)
224 Cal.App.4th 210, 228.)
       A claim raised in a second suit is “based on the same cause of action” as one
asserted in a prior action if they are both premised on the same “primary right.”
(Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 904.) Under the primary right
theory, “a ‘cause of action’ is comprised of a primary right possessed by the plaintiff, a
corresponding duty imposed upon the defendant, and a wrong done by the defendant
which is a breach of such primary right and duty. [Citation.] The primary right is the
plaintiff’s right to be free of the particular injury, regardless of the legal theory on which
liability is premised or the remedy which is sought. [Citations.] Thus, it is the harm
suffered that is the significant factor in defining the primary right at issue.” (City of
Oakland v. Oakland Police & Fire Retirement System, supra, 224 Cal.App.4th at p. 228.)
       In this case, we are concerned with the claim preclusion aspect of res judicata. An
application of the principles outlined above demonstrates that res judicata applies to
preclude the claims asserted in the second lawsuit. First, the claims in the second lawsuit
are premised on the same primary right as those in the first lawsuit. The harm that Myles
allegedly suffered was the same in both lawsuits. He claims he did not receive adequate
compensation for his loss and that Coast National failed to comply with Fair Claims
Settlement Practices Regulations. Relabeling the claims and asserting new legal theories
does not change the fundamental fact that the second lawsuit involves the same primary
right as the first lawsuit filed by Myles.
       Myles contends the second prong of the res judicata analysis is not satisfied
because there has been no decision on the merits of his claims. He argues that the first
lawsuit was not decided on the merits because there was no determination as to whether
his allegations against Coast National were true or false. Myles’s focus on the truth or
falsity of the allegations is misplaced. A general demurrer sustained without leave to
amend may constitute a final determination on the merits, even though the ruling does not
adjudicate the truth of allegations in the complaint. (Goddard v. Security Title Ins. &


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Guar. Co. (1939) 14 Cal.2d 47, 52.) Whereas a general demurrer premised on technical
defects does not constitute a judgment on the merits, a general demurrer premised upon
the substantive ground that there is an absolute defense to a cause of action qualifies as a
judgment on the merits. (Ibid.; see Ojavan Investors, Inc. v. California Coastal Com.
(1997) 54 Cal.App.4th 373, 383–384.)
       Here, the general demurrer in the first lawsuit was based upon the absolute defense
that Myles’s claims were barred under Moradi-Shalal. The ruling was not premised upon
a technical, procedural ground, such as the statute of limitations or lack of subject matter
jurisdiction. (Cf. Finnie v. District No. 1 - Pacific Coast Dist. etc. Assn. (1992)
9 Cal.App.4th 1311, 1319–1320 [lack of subject matter jurisdiction]; Koch v. Rodlin
Enterprises (1990) 223 Cal.App.3d 1591, 1595–1596 [statute of limitations].)
Consequently, the ruling constituted a final determination on the merits for purposes of
applying res judicata.
       Finally, it is undisputed that the parties in the second lawsuit as to which res
judicata applied—Myles and Coast National—are the same as those in the first lawsuit.
Because all three requirements needed to apply res judicata are present, the trial court
correctly sustained Coast National’s demurrer without leave to amend in the second
action based upon the doctrine of res judicata.
3.     Plea in Abatement
       The trial court sustained the demurrer without leave to amend as to Farmers in the
second lawsuit on the ground that there was another action pending between the same
parties on the same causes of action. The trial court relied upon Code of Civil Procedure
section 430.10, subdivision (c), which is a codification of the common law plea in
abatement. (See People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20
Cal.App.4th 760, 770.) The trial court subsequently entered a judgment of dismissal in
favor of Farmers.
       Nowhere in his briefing on appeal does Myles challenge the dismissal premised on
the plea in abatement. He does not claim the court erred in granting the plea in
abatement, and he does not argue it was error to enter judgment on that basis. Instead, his


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argument on appeal is focused on res judicata and on the application of Moradi-Shalal .
However, the trial court’s order sustaining the demurrer as to Farmers was not based
upon those grounds.
        As a general matter, an appellant is deemed to have abandoned or forfeited
contentions of error regarding the dismissal of an action by failing to address the
contentions in the briefing on appeal. (Wall Street Network, Ltd. v. New York Times Co.
(2008) 164 Cal.App.4th 1171, 1177.) This principle is consistent with the fundamental
notion that a judgment is presumed to be correct on appeal, with the burden on the
appellant to “affirmatively demonstrate prejudicial error.” (People v. Garza (2005) 35
Cal.4th 866, 881.) It is not this court’s role to consider undeveloped claims or make
arguments for the parties. (Paterno v. State of California (1999) 74 Cal.App.4th 68,
106.)
        In this case, Myles does not argue that the court erred in sustaining the demurrer
on the basis of a plea in abatement. He also does not challenge the propriety of
dismissing the action against Farmers on the basis of the order sustaining the demurrer.
His failure to address these issues amounts to an abandonment of the claim that the court
erred in entering judgment in favor of Farmers. (See Wall Street Network, Ltd. v. New
York Times Co., supra, 164 Cal.App.4th at p. 1177.) We therefore reject his appellate
challenge to the judgment secured by Farmers.




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                                    DISPOSITION
      The judgments of dismissal are affirmed. Respondents shall be entitled to recover
costs on appeal.



                                              _________________________
                                              McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.




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