Baker v. Lackey

Filed 5/16/07 Baker v. Lackey CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

In November 2005, plaintiff and appellant Baker filed a complaint accusing defendant and respondent Lackey of fraud and deceit in making a claim against Bakers insurance carrier based on minor automobile accident occurring on San Pablo Avenue in Berkeley almost a year earlier. After a court trial which must have lasted no more than an hour or so, and featured only the in pro per parties appearing as witnesses, the trial court ruled in favor of Lackey. It found both that Baker had not proven that Lackey had committed any fraud nor that Baker personallyas distinguished from his insurance companyhad suffered any loss. We strongly agree with both conclusions and hence affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On November 23, 2004, both plaintiff Baker and defendant Lackey were driving on San Pablo Avenue in Berkeley. Baker was driving his 1984 Audi and Lackey, who was just ahead of him, a 1987 Ford Ranger truck. Because of heavy traffic (it was early afternoon a few days before Thanksgiving), Baker slightly bumped into the back of Lackeys truck. Both parties got out and exchanged personal and insurance information. At the time, Lackey did not assert to Baker that he felt any injury nor did Lackeys truck show much damage. Indeed, Lackey himself testified that, at the time, he said my truck is really not damaged that bad, you know. There was, however, damage to the grill of Bakers Audi, at least per Bakers testimony.

The parties had, apparently, no further direct contact, but within the next couple of days Baker learned that Lackey had filed a claim for both damage to his truck (in the total appraised amount of $679.96) and unspecified damages for personal injury. This claim was filed with Bakers insurer, Liberty Mutual Insurance Company,^[1]which, shortly thereafter, paid Lackey the noted sum for the truck damage. Although an adjuster for that insurer also offered to pay Lackey for nine massages to his allegedly sore neck, he declined that offer, paid for those massages himself, and testified at trial that [m]y neck is fine to this date. Im totally o.k.

Bakers version, on the other hand, was that there was no visible damage to Lackeys truck either at the scene of the November 23, 2004, accident, nor from photographs taken by the insurer thereafter. He also strongly implied that Lackey may have been responsible for somebody [running] into my car, the front of my car, while it was sitting in the driveway of his house around the 1st of January 2005. More specifically, Baker stated to the trial court that I feel that Mr. Lackey or someone that he hired to do that did that, you know. . . . Baker also strongly implied, in his closing argument to the court, that there may have been something by way of a conspiracy between Lackey and his insurer because, unlike Lackey, I didnt have to go to a coffee shop to do business with that insurer.^[2]

The only personal damage or injury that Baker was able to cite to the court was that his automobile insurance premiums had increased from $300 per year to 2500 per year. But when the trial court asked him if he any proof of that increase, Baker responded that I dont have it with me here today.

Baker filed his complaint for fraud and deceit one day short of a year from the relevant accident, i.e., November 22, 2005. That complaint named only Lackey as a defendant. But it clearly alleged that Lackey and unnamed Agents of the Insurer (i.e., Bakers insurer) had jointly misrepresented to that insurer that significant damage had occurred to the rear of Lackeys truck.

Two days before the scheduled trial date of May 5, 2006, Baker requested a continuance both because of an alleged medical condition and a need for relevant discovery. This request was denied on May 4, 2006, and the case was tried to the court, sitting without a jury, the following day. As noted above, only Baker and Lackey appeared and testified; that testimony is summarized above.

On May 19, 2006, that court issued both a memorandum of decision and a judgment in favor of Lackey. In the former, it ruled that Baker had failed to show either that Lackey had committed fraud or deceit or that he had been damaged in any way. Per the judgment, Lackey was awarded costs. Baker filed both objections to the trial courts memorandum of decision and a timely notice of appeal.

III. DISCUSSION

This appeal frankly borders on the frivolous. In the first place, and as the trial court noted in its memorandum of decision, Baker presented no plausibleor even implausible, for that matterevidence at trial of any fraud or deceit on the part of Lackey in making a minor (i.e., a few cents less than $680) claim for damage to the rear of his truck after Baker admittedly ran into that truck in November 2004. As the trial court suggested, Bakers theory of the fraud committed by Lackey was pure, unadulterated speculation. Second, Baker also presented no evidence of damage or loss to himself, other than an unsubstantiated claim that his insurance premiums had increased as a result of the accident. Third, both Bakers complaint and testimony at trial is rife with, frankly, very troubling conspiracy theories, i.e., that Lackey (1) was somehow responsible for early January 2005 substantial damage to the front of Bakers Audi while it was parked in the latters driveway and (2) had conspired with agents of Bakers insurer with respect to evidence of damage to the rear of his truck from the November 2004 accident.

We will have none of such nonsense.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

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^[1]In his complaint and brief to us, Baker labels this insurer as a Real Party in Interest. While possibly that is so in the reality of the automobile insurance world, it is not in the world of litigation.

^[2]Lackey had testified earlier that his truck damage settlement with Bakers insurer was worked out with an insurance company representative over a cup of coffee at the coffee house I go to.