Filed 5/22/17 Jones v. Mercury Casualty Co. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THOMAS JONES,

Plaintiff and Appellant,

v.

MERCURY CASUALTY COMPANY,

Defendant and Respondent.


E064184

(Super.Ct.No. CIVRS901992)

OPINION


APPEAL from the Superior Court of San Bernardino County. David Cohn and Janet M. Frangie, Judges. Affirmed.
Thomas Jones, in pro. per., for Plaintiff and Appellant.
O’Connor, Schmeltzer & O’Connor, Lee P. O’Connor and Timothy J. O’Connor, for Defendant and Respondent.
Plaintiffs Thomas Jones (Jones) and Jia Jones were involved in an automobile accident with a motorist who was insured by defendant and respondent Mercury Insurance Company (Mercury). Mercury took responsibility for the damage to plaintiffs’ car, which plaintiffs had repaired, but notified the Department of Motor Vehicles (DMV) that it was a total loss salvage vehicle before reaching a settlement with plaintiffs. As a result of the DMV notification, the plaintiffs could not register their car and temporarily lost the use of it until Mercury informed the DMV of the error. Mr. Jones later suffered a heart attack, which plaintiffs attributed to the stress from the dispute with Mercury and the consequences of the DMV notification.
At trial, Mercury successfully obtained an in limine ruling precluding plaintiffs from introducing evidence that their vehicle was not a total loss on the ground that, prior to suing Mercury, plaintiffs had won a judgment in small claims court against the other motorist alleging the vehicle was a total loss. During trial, the court granted judgment on the pleadings in favor of Mercury with respect to three of plaintiffs’ six asserted causes of action; the remaining three causes of action went to trial, but were dismissed on a defense motion for nonsuit following plaintiffs’ presentation of their case in chief. Plaintiff appealed.
On appeal, plaintiff argues that the trial court erred in (a) excluding evidence that plaintiffs’ vehicle was not a total loss on grounds of judicial estoppel; (b) granting Mercury’s motion for judgment on the pleadings on the claim of negligence per se for violating Vehicle Code section 11515; and (c) granting Mercury’s motion for nonsuit as to the first, fifth, and sixth causes of action. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The present lawsuit arises out of a car accident that occurred in 2006, caused by Mercury’s insured. Mercury assumed liability for damages to plaintiffs’ car. Mercury inspected the car and determined that the cost of repair would be $4,477.55 and that the car had a value of $4,727. Mercury decided on that basis that the car was a “total loss.”
Plaintiffs indicated to Mercury that they wanted Mercury to cover repairs and rental costs and keep the car. On January 16, 2007, Mercury offered to cover the loss for $4,253.72, taking into account plaintiffs’ desire to keep the car. On January 24, 2007, Mercury sent plaintiffs a check for $4,847.22 to cover the loss and rental expenses. Plaintiffs responded on January 27 with a letter rejecting the check, asserting that the car was worth $8,400, and demanding $4,500 in repairs plus depreciation and rental expenses.
On February 6, 2007, Mercury sent notice to the DMV that the car was a total loss and that plaintiffs had retained the car as salvage. On March 3, 2007, Mercury informed plaintiffs that it would not increase its settlement offer.
In August 2007, plaintiffs attempted to complete their annual vehicle registration. On August 20, 2007, the DMV informed plaintiffs that Mercury had declared the car salvage and that it could not be registered. On August 28, 2007, plaintiffs filed a small claims complaint against Mercury’s insured for a total loss value of $7,103. Following a trial on November 15, 2007, plaintiffs obtained a judgment in the amount of $6,000 plus costs.
While the small claims action was pending, plaintiffs contacted the California Department of Insurance to request aid in removing the salvage designation on their car. On October 30, 2007, Mercury responded that it still considered the car to be a total loss and was “not in a position to send any notification to the [DMV].” On June 20, 2008, Jones was hospitalized and required heart surgery.
On January 3, 2008, Mercury reversed its position, notified the DMV that it had made a mistake in declaring the car to be salvage, and offered to indemnify the DMV for restoring the car’s clean title. The DMV removed the salvage designation.
On February 27, 2009, plaintiffs filed a complaint against Mercury. In the operative third amended complaint, plaintiffs asserted six causes of action: (1) general negligence; (2) statutory negligence per se; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) trespass to chattels; and (6) unfair, fraudulent business practices and conduct under Business and Professions Code section 17200.
On October 17, 2011, Mercury filed a motion in limine to exclude evidence that plaintiffs’ car was not a total loss based on the doctrine of judicial estoppel, arguing that plaintiffs sued the insured in a small claims action alleging a total loss of the vehicle. Plaintiffs argued that they did not assert their vehicle was a total loss in the small claims court and that the findings of a small claims court could not legally be grounds for estoppel in superior court.
Because there was no transcript of the small claims trial, the trial court held a hearing pursuant to Evidence Code section 402. The trial court received into evidence a copy of the small claims complaint, a form pleading, which alleged in part that Mercury owed plaintiffs $7,103. The small claims complaint alleged that Mercury refused to repair the car or pay to plaintiffs the full value of the car. In response to a question on the form complaint asking how plaintiffs calculated the amount owed, plaintiffs alleged, capitalization omitted, “Mercury called our car a total loss. Kelly Blue Book retail for our car is $7595 and many ads were greater than $7595. $7595  1025 salvage + 502 tax + 31 misc. = $7103.”
In addition, at the section 402 hearing, the court heard the testimony of a Mercury representative who was present at the small claims trial. That representative, who assisted the insureds in defending the small claims action, testified that plaintiffs did not ask for the cost of repair of the vehicle. In rebuttal, Jones testified that while he never took a total loss position, he could not recall the details of the trial and gave a different calculation of the damage, explaining that the $7,103 figure represented $4,900 for the repair, plus $1,600 for rental cost of a replacement vehicle. He could not explain why all the documents submitted in the small claims action pertained to the car’s value, such as Auto Trader advertisements, as opposed to the cost of repairs.
The trial court found Mercury’s representative was credible and that Jones was not. The court granted the motion in limine to exclude any evidence that the vehicle was not a total loss.
On September 10, 2013, Mercury filed a motion for judgment on the pleadings as to all causes of action. The trial court granted the motion as to the second and fourth causes of action, but denied the motion as to the first, fifth and sixth causes of action. As relevant to the present appeal, the second cause of action was for negligence per se based on a violation of Vehicle Code section 11515, subdivision (a), which requires that an insurer notify the DMV within 10 days after making a total loss settlement with an insured owner. Plaintiffs claimed that the statute was intended to protect owners such as themselves from insurance companies declaring vehicles to be a total loss before reaching a settlement with the vehicle owners. According to plaintiffs, because Mercury sent notice to the DMV even though it had not reached a settlement with plaintiffs, it violated the statute and was responsible for all damages resulting therefrom. The court found that plaintiffs were not members of the class which section 11515 was intended to protect. Instead, section 11515 was intended to protect future buyers.
Trial on the three remaining causes of action began on April 16, 2015. At the close of plaintiffs’ evidence, Mercury filed a motion for judgment of nonsuit as to all three causes of action. The trial court granted the motion in its entirety.
DISCUSSION
I.
The Trial Court Properly Ruled that Plaintiffs Were Judicially
Estopped From Presenting Evidence That Their Vehicle
Was Not a Total Loss
Jones contends that the trial court improperly granted Mercury’s motion in limine to estop plaintiffs from taking a position contrary to their position in the earlier small claims court litigation. Jones challenges the trial court’s determinations that (1) plaintiffs took a total loss position in small claims court; and (2) the small claims court judgment was based on that successful position. We find no error.
Judicial estoppel prevents “ ‘ “a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position.” ’ ” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986.) “ ‘ “The doctrine’s dual goals are to maintain the integrity of the judicial system and to protect parties from opponents’ unfair strategies.” ’ ” (Ibid.) Judicial estoppel is an equitable doctrine and its application is discretionary. (Ibid.)
Our Supreme Court has identified five requirements for judicial estoppel to apply: “ ‘ “(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the [first court] adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” ’ ” (MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422.)
The determination of whether judicial estoppel can apply to the facts is a question of law reviewed de novo and the findings of fact upon which the application of judicial estoppel is based are reviewed for substantial evidence. The lower court’s ultimate decision to apply judicial estoppel as an equitable doctrine is reviewed for abuse of discretion. (Regents of University of California v. Superior Court (2013) 222 Cal.App.4th 383, 408.) A “trial court must have made a ruling which ‘exceeds the bounds of reason’ in order to constitute an abuse of discretion.” (City of Fresno v. California Highway Com. (1981) 118 Cal.App.3d 687, 700.) As to the substantial evidence review, this Court may not reweigh the evidence or reconsider the credibility of witnesses. (E.K. Wood Lumber Co. v. Higgins (1960) 54 Cal.2d 91, 94.) Therefore, if substantial evidence supported the trial court’s findings that (1) plaintiffs took a total loss position in small claims court; and (2) the small claims court judgment was based on that successful position, Jones’s claim fails.
Here, there is no question as to whether the positions asserted by plaintiffs were offered in judicial or quasi-judicial proceedings, so we do not need to address that issue. Additionally, there is no dispute that plaintiffs were successful in the small claims action. The only questions are whether (1) plaintiffs took two different positions; (2) the positions were totally inconsistent with each other; and (3) whether the first position was taken as a result of fraud, mistake, or excusable neglect.
On this record, substantial evidence supports the trial court’s findings that plaintiffs took a position of total loss in the small claims court and that the small claims court judgment was based upon that successful position. The small claims complaint does not seek damages for cost of repair. Instead, it seeks damages for total value of the vehicle.
The record also supports a finding that the position taken by plaintiffs in small claims court and in superior court were totally inconsistent with each other. Mercury’s representative testified that before the small claims trial, the plaintiffs disputed the amount being offered for replacement and did not dispute whether to calculate reimbursement by repair costs instead of replacement value. However, at the small claims trial itself, plaintiffs only presented evidence of replacement value and produced no evidence at all regarding repair costs. The trial court explicitly found that Jones’s testimony to the contrary was not credible.
The final consideration is whether the first position was the product of fraud, mistake, or excusable neglect. However, no evidence was presented on this point and the court’s findings as to plaintiffs’ credibility suggests that the final consideration was not a factor.
Because this Court does not reweigh the evidence or consider the credibility of witnesses, the trial court’s findings of fact must stand. (St. Paul Mercury Ins. Co. v. Mountain West Farm Bureau Mutual Ins. Co. (2012) 210 Cal.App.4th 645, 659.) As a consequence, there is substantial evidence that plaintiffs took an inconsistent position in the small claims court, arguing there that the vehicle was a total loss. The trial court correctly applied the doctrine of judicial estoppel to exclude evidence that the plaintiffs’ vehicle was not a total loss.
II.
The Trial Court Correctly Granted Mercury’s Motion
For Judgment on the Pleadings as to the Cause of Action
For Negligence Per Se in Violating Vehicle Code section 11515
Jones contends that the trial court improperly granted a motion for judgment on the pleadings as to the second cause of action for negligence per se under Vehicle Code section 11515. Specifically, he argues that Mercury violated the statute by sending notice to the DMV before it reached a settlement with plaintiffs. We disagree.
A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).) Review on appeal is de novo. (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777.)
Negligence per se is codified in Evidence Code section 669, subdivision (a). Negligence is presumed if: (1) the defendant violated a statute; (2) the violation proximately caused injury to person or property; (3) the injury resulted from the very thing which the statute was intended to prevent; and (4) the person suffering the injury was one of the class of persons for whose protection the statute was intended. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.)
Under the negligence per se doctrine codified in Evidence Code section 669, violation of a statute gives rise to a presumption of negligence in the absence of justification or excuse, provided that the person suffering injury was a member of the class of persons for whose protection the statute was adopted. (Ramirez v. Nelson (2008) 44 Cal.4th 908, 918.) In addition, the harm must have been one the statute was designed to prevent. (Stafford v. United Farm Workers (1983) 33 Cal.3d 319, 324.)
“ ‘[I]n negligence per se actions, the plaintiff must produce evidence of a violation of a statute and a substantial probability that the plaintiff’s injury was caused by the violation of the statute before the burden of proof shifts to the defendant to prove the violation of the statute did not cause the plaintiff’s injury.’ ” (Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362, 371, citing National Council Against Health Fraud, Inc. v. King Bio Pharmaceuticals, Inc. (2003) 107 Cal.App.4th 1336, 1347.) Vehicle Code section 11515 sets out the duties of the insurers and owners of vehicles where a vehicle is calculated to be a total loss. Subdivision (a)(1) provides that whenever an insurance company makes a total loss settlement on a total loss salvage vehicle, the insurance company, an occupational licensee of the department authorized by the insurance company, or a salvage pool authorized by the insurance company, within 10 days from the settlement of the loss, shall forward the properly endorsed certificate of ownership or other evidence of ownership acceptable to the DMV. If the insurance company is unable to obtain the certificate of ownership to surrender to the DMV within 30 days of the owner’s acceptance of the settlement, the insurance company must request a salvage certificate from the DMV. (Veh. Code, § 11515, subd. (a)(2).) Whenever the owner retains possession of the vehicle, the insurer is required to notify the DMV on a specific form, and to notify the owner that he or she is required to comply with the section.
Vehicle Code section 544, subdivision (a), defines “ ‘[t]otal loss salvage vehicle’ ” as “ ‘A vehicle, other than a nonrepairable vehicle, of a type subject to registration that has been wrecked, destroyed, or damaged, to the extent that the owner, leasing company, financial institution, or the insurance company that insured or is responsible for repair of the vehicle, considers it uneconomical to repair the vehicle and because of this, the vehicle is not repaired by or for the person who owned the vehicle at the time of the event resulting in damage.’ ” (Martinez v. Enterprise Rent-A-Car Co. (2004) 119 Cal.App.4th 46, 53.)
The record establishes that at no time was there a settlement. Plaintiffs had rejected Mercury’s offer to pay prior to Mercury’s decision to notify the DMV of the owner’s acceptance of a settlement for total loss salvage value of the vehicle. However, this does not resolve the issue of whether the plaintiffs stated a cause of action for negligence per se.
Vehicle Code section 11515 “imposes reporting and licensing requirements when there has been a total loss settlement.” (Moran v. Department of Motor Vehicles (2006) 139 Cal.App.4th 688, 692.) Although no published decisions have explained the legislative intent behind the enactment of this statute, it appears to be directed at notifying the DMV that a particular vehicle is no longer drivable. As to the class of persons intended to be protected by the statute, it was not apparently aimed at protecting people from stress-related medical conditions brought about by a disagreement between an insurer and a vehicle owner as to the value of the damaged vehicle or the decision whether or not to pay for repairs. Thus, as the trial court found, plaintiffs were not a member of the class of persons intended to be protected by the statute.
In addition, the record includes no evidence (nor does plaintiff argue on appeal) that the violation of the statute proximately caused plaintiff’s heart attack, where such a result is not reasonably foreseeable from the ministerial omission of sending an erroneous notification of total loss salvage settlement to the DMV. Therefore, while Mercury may have violated its duty to report to the DMV only total loss salvage vehicles where settlement has been accepted, the erroneous notification is not actionable pursuant to a theory of negligence per se.
The trial court correctly entered judgment on the pleadings in favor of Mercury on the negligence per se cause of action.
III.
The Trial Court Properly Granted Nonsuit on the First, Fifth,
And Sixth Causes of Action
Jones contends that the trial court improperly granted Mercury’s motion for judgment of nonsuit as to the first, fifth, and sixth causes of action for general negligence, trespass to chattels, and unfair, fraudulent business practices and conduct under Business and Professions Code section 17200. We disagree.
“We review a grant of nonsuit de novo, applying the same standard governing the trial court.” (Brand v. Hyundai Motor America (2014) 226 Cal.App.4th 1538, 1544.) “A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] ‘In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.’ ” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
Here, each of the three causes of action at issue in the motion for nonsuit required a showing of damages. (Bus. & Prof. Code, § 17204; Nelson v. Pearson Ford Co. (2010) 186 Cal.App.4th 983, 1013 [unfair business practices; disapproved on a different point in Raceway Ford Cases (2016) 2 Cal.5th 161, 179]; Melton v. Boustred (2010) 183 Cal.App.4th 521, 529 [negligence]; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1351 [trespass to chattels].)
Once the trial court determined, following the motion in limine, that plaintiffs were bound by their successful assertion in small claims court that the car was a total loss, their suit was limited to damages stemming from Mercury’s act of notifying the DMV without their knowledge that the vehicle was a total loss salvage vehicle. In other words, plaintiffs needed to show damages suffered during the four months that Jones knew the car had a salvage title from the end of August 2007 to the beginning of January 2008. But nothing in the record on appeal demonstrates plaintiffs suffered any damages, and the record does not include evidence linking Jones’s heart attack to any stress caused by the temporary salvage designation.
Additionally, Jones admitted at trial that plaintiffs had not tried to sell the car while it was temporarily designated salvage, so he did not suffer economic damage from the inability to register the vehicle. On appeal, Jones does not discuss damages in his briefing.
The lack of evidence of damages is not the only fatal deficiency in Jones’s claims. However, because plaintiffs failed to prove damages, we need not discuss the remaining elements of the respective causes of action. (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 618.) On that basis alone, the trial court properly granted the motion for judgment of nonsuit as all three remaining causes of action.
DISPOSITION
The judgment is affirmed. Mercury is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:



HOLLENHORST
J.



CODRINGTON
J.