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This case was last updated from Los Angeles County Superior Courts on 10/13/2017 at 10:27:01 (UTC).

JEHAN ZEB MIR VS MERCURY INSURANCE GROUP ET AL

Case Summary

On 08/10/2017 JEHAN ZEB MIR filed a Personal Injury - Motor Vehicle lawsuit against MERCURY INSURANCE GROUP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DEBRE K. WEINTRAUB and PATRICIA D. NIETO. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1792

  • Filing Date:

    08/10/2017

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DEBRE K. WEINTRAUB

PATRICIA D. NIETO

 

Party Details

Plaintiff and Petitioner

MIR JEHAN ZEB

Defendants and Respondents

CATAMUSA GREGORY JOHN

MERCURY INSURANCE COMPANY

MERCURY INSURANCE GROUP

DOES 1 TO 10

NATIVIDAD TITO

 

Court Documents

Minute Order

9/8/2017: Minute Order

OPPOSITION TO ORDER TO SHOW CAUSE, ETC

10/10/2017: OPPOSITION TO ORDER TO SHOW CAUSE, ETC

SUMMONS

8/10/2017: SUMMONS

GENERAL NEGLIGENCE CAUSING MOTOR VEHICLE ACCIDENT AND PERSONAL INJURIES COMPLAINT FOR MEDICAL RECOVERY FOR PERSONAL INJURIES

8/10/2017: GENERAL NEGLIGENCE CAUSING MOTOR VEHICLE ACCIDENT AND PERSONAL INJURIES COMPLAINT FOR MEDICAL RECOVERY FOR PERSONAL INJURIES

 

Docket Entries

  • 08/10/2017
  • Complaint

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Tentative Rulings

Case Number: BC671792    Hearing Date: April 26, 2021    Dept: 29

CONT FROM 04/06/2021 TO ALLOW ARGUMENT TO BE PRESENTED - REQUESTED BY SELF-REPRESENTED PLTFF.

Mir  vs.  Mercury Insurance Group, et. al.

TENTATIVE

The Court overrules the demurrer to the first cause of action and sustains the demurrer to the second cause of action without leave to amend.

The Court grants the motion to strike without leave to amend.

Defendants are to give notice of this ruling.

Background

This is a personal injury action arising out of a motor vehicle collision on January 7, 2015 whereby Plaintiff Jehan Zeb Mir (“Plaintiff”) was struck by Defendant Tito Natividad (“Tito”), [1] who was insured by Defendant Mercury Insurance Group also known as Mercury Insurance Company (“Mercury”), while driving a vehicle owned by Defendant Gregory John Catamisan Natividad erroneously sued as John Catamusa (“Gregory”). 

On August 10, 2017, Plaintiff filed his operative complaint against Defendants Tito, Gregory, Mercury (collectively “Defendants”) and Does 1 to 10. Plaintiff asserts two causes of action: (1) general negligence against Tito and Gregory; and (2) payment of medical bills under the Medical Recovery Act (42 U.S.C., § 2651, subd. (a)) against all Defendants.

Plaintiff is self-represented.

On October 9, 2020, the Court of Appeal issued remittitur, reversing an order by Hon. Debre K. Weintraub dated October 11, 2017 denying Plaintiff permission to proceed with the present action and dismissing it pursuant to Code of Civil Procedure section 391.7, subdivision (b).

On December 7, 2020, Defendants filed the instant demurrer with motion to strike. Defendants demur to the entire complaint. Defendants move to strike the prayer for punitive damages against Mercury.

On February 1, 2021, the Court granted Plaintiff’s ex parte application to continue the hearing date from February 3, 2021 to April 6, 2021.

On March 25, 2021, Plaintiff opposed.

On March 29, 2021, Defendants filed replies.

Legal Standard

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) However, courts do not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

Motion to Strike

Courts may, upon a motion, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) Courts may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

Discussion

Before addressing the merits, the Court first addresses some preliminary issues.

First, the Court considers Plaintiff’s opposition despite the untimeliness. The Court prefers to reach the merits. Additionally, Defendants opposed on the merits and Defendants do not show prejudice that compels the Court to refuse to consider the opposition.

Next, the Court has discretion to overlook an untimely demurrer with motion to strike. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) For the purposes of this discussion, even if Defendants’ applications are untimely, the Court overlooks the untimeliness because Plaintiff similarly does not identify any prejudice. The Court does not need to address whether Defendants’ appearances in the appellate proceeding constitute a general appearance and whether the remittitur relieved Plaintiff of his obligation to serve the complaint.

Finally, the Court rejects Plaintiff’s arguments regarding an insufficient meet and confer. Defendants filed a meet and confer declaration showing that the parties engaged in a telephone conversation on November 24, 2020, and Plaintiff does not otherwise dispute this fact. (Johnson Decl. ¶ 5.)

Demurrer

As a preliminary matter, the Court overrules any demurrer based on uncertainty. The claims are not so uncertain, notwithstanding there are few allegations, to make the pleading unintelligible. To the extent there is some uncertainty, Defendants can address that issue in discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

The Court next addresses the first cause of action. The complaint states sufficient facts for a claim of negligence against Tito, who was the driver of a vehicle that was involved in the incident. Regarding Gregory, the complaint states insufficient facts if Plaintiff was pursuing a negligence cause of action on a theory of negligent entrustment because Plaintiff failed to allege facts showing Gregory knew or should have known Tito was incompetent or unfit to drive the car and they permitted him to use the vehicle anyway. (See Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864; see also CACI 724.) However, Plaintiff is making a negligence claim based on statutory vicarious liability authorized by Vehicle Code section 17150,[2] though there are certain damage limits pursuant to Vehicle Code section 17151, subdivision (a). 

Accordingly, the Court overrules the demurrer to the first cause of action.

The Court next addresses the second cause of action. Defendants first contend that Plaintiff cannot make a claim against Mercury because there is no underlying tort liability alleged. The Court disagrees. When taken in context, the tort liability is Tito’s liability, Mercury is Tito’s insurer, and the complaint alleges that Mercury has conceded liability. This is sufficient to show how Mercury can be liable under this claim. Defendants next contend that Plaintiff does not have standing to assert this claim because he did not have authorization to make this claim. The Court agrees. 42 United States Code section 2651 provides for recovery by the United States. Plaintiff cites no controlling supporting authority that he can invoke the United States’ right to recover these expenses. Plaintiff otherwise misreads the Centers for Medicare & Medicaid Services’ letter, which does not provide an express authorization. (Complaint Ex. F) [“Medicare acknowledges that you may file a claim and/ or a civil action against a third party on your client’s behalf, seeking damages for injuries he/she received and medical expenses he/she incurred as a result of the above illness/ injury.”].)

Accordingly, the Court sustains the demurrer to the second cause of action.

Plaintiff is unable to remedy this defect with any additional allegations. Therefore, the Court does not grant leave to amend.

Motion to Strike

As a preliminary matter, because the Court sustains the demurrer to the second cause of action, there are no remaining claims upon which Plaintiff can base a prayer for punitive damages against Mercury. Therefore, the Court grants Defendants’ motion as to Mercury.

Regarding Tito and Gregory, this is a simple negligence case. There are insufficient facts showing culpable conduct of oppression, malice, or fraud under Civil Code section 3294. Additionally, Plaintiff cannot pursue punitive damages against Gregory under his theory of permissive use liability because Vehicle Code section 17151, subdivision (b) expressly prohibits such award.

Finally, Plaintiff’s request for punitive damages in a specific amount is prohibited by Code of Civil Procedure section 425.10. 

Accordingly, the Court grants the motion to strike the prayer for punitive damages without leave to amend.

Moving party to give notice.

[1] “The parties and relevant individuals share a last name. For clarity, convenience, and in order to avoid confusion, we refer to them by their first names and intend no disrespect.” (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)

[2] “Every owner of a motor vehicle is liable and responsible for death or injury to persons or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.”

Case Number: BC671792    Hearing Date: April 6, 2021    Dept: 29

Mir  vs.  Mercury Insurance Group, et. al.

TENTATIVE

The Court overrules the demurrer to the first cause of action and sustains the demurrer to the second cause of action without leave to amend.

The Court grants the motion to strike without leave to amend.

Defendants are to give notice of this ruling.

Background

This is a personal injury action arising out of a motor vehicle collision on January 7, 2015 whereby Plaintiff Jehan Zeb Mir (“Plaintiff”) was struck by Defendant Tito Natividad (“Tito”), [1] who was insured by Defendant Mercury Insurance Group also known as Mercury Insurance Company (“Mercury”), while driving a vehicle owned by Defendant Gregory John Catamisan Natividad erroneously sued as John Catamusa (“Gregory”). 

On August 10, 2017, Plaintiff filed his operative complaint against Defendants Tito, Gregory, Mercury (collectively “Defendants”) and Does 1 to 10. Plaintiff asserts two causes of action: (1) general negligence against Tito and Gregory; and (2) payment of medical bills under the Medical Recovery Act (42 U.S.C., § 2651, subd. (a)) against all Defendants.

Plaintiff is self-represented.

On October 9, 2020, the Court of Appeal issued remittitur, reversing an order by Hon. Debre K. Weintraub dated October 11, 2017 denying Plaintiff permission to proceed with the present action and dismissing it pursuant to Code of Civil Procedure section 391.7, subdivision (b).

On December 7, 2020, Defendants filed the instant demurrer with motion to strike. Defendants demur to the entire complaint. Defendants move to strike the prayer for punitive damages against Mercury.

On February 1, 2021, the Court granted Plaintiff’s ex parte application to continue the hearing date from February 3, 2021 to April 6, 2021.

On March 25, 2021, Plaintiff opposed.

On March 29, 2021, Defendants filed replies.

Legal Standard

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) However, courts do not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

Motion to Strike

Courts may, upon a motion, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) Courts may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

Discussion

Before addressing the merits, the Court first addresses some preliminary issues.

First, the Court considers Plaintiff’s opposition despite the untimeliness. The Court prefers to reach the merits. Additionally, Defendants opposed on the merits and Defendants do not show prejudice that compels the Court to refuse to consider the opposition.

Next, the Court has discretion to overlook an untimely demurrer with motion to strike. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) For the purposes of this discussion, even if Defendants’ applications are untimely, the Court overlooks the untimeliness because Plaintiff similarly does not identify any prejudice. The Court does not need to address whether Defendants’ appearances in the appellate proceeding constitute a general appearance and whether the remittitur relieved Plaintiff of his obligation to serve the complaint.

Finally, the Court rejects Plaintiff’s arguments regarding an insufficient meet and confer. Defendants filed a meet and confer declaration showing that the parties engaged in a telephone conversation on November 24, 2020, and Plaintiff does not otherwise dispute this fact. (Johnson Decl. ¶ 5.)

Demurrer

As a preliminary matter, the Court overrules any demurrer based on uncertainty. The claims are not so uncertain, notwithstanding there are few allegations, to make the pleading unintelligible. To the extent there is some uncertainty, Defendants can address that issue in discovery. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

The Court next addresses the first cause of action. The complaint states sufficient facts for a claim of negligence against Tito, who was the driver of a vehicle that was involved in the incident. Regarding Gregory, the complaint states insufficient facts if Plaintiff was pursuing a negligence cause of action on a theory of negligent entrustment because Plaintiff failed to allege facts showing Gregory knew or should have known Tito was incompetent or unfit to drive the car and they permitted him to use the vehicle anyway. (See Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864; see also CACI 724.) However, Plaintiff is making a negligence claim based on statutory vicarious liability authorized by Vehicle Code section 17150,[2] though there are certain damage limits pursuant to Vehicle Code section 17151, subdivision (a). 

Accordingly, the Court overrules the demurrer to the first cause of action.

The Court next addresses the second cause of action. Defendants first contend that Plaintiff cannot make a claim against Mercury because there is no underlying tort liability alleged. The Court disagrees. When taken in context, the tort liability is Tito’s liability, Mercury is Tito’s insurer, and the complaint alleges that Mercury has conceded liability. This is sufficient to show how Mercury can be liable under this claim. Defendants next contend that Plaintiff does not have standing to assert this claim because he did not have authorization to make this claim. The Court agrees. 42 United States Code section 2651 provides for recovery by the United States. Plaintiff cites no controlling supporting authority that he can invoke the United States’ right to recover these expenses. Plaintiff otherwise misreads the Centers for Medicare & Medicaid Services’ letter, which does not provide an express authorization. (Complaint Ex. F) [“Medicare acknowledges that you may file a claim and/ or a civil action against a third party on your client’s behalf, seeking damages for injuries he/she received and medical expenses he/she incurred as a result of the above illness/ injury.”].)

Accordingly, the Court sustains the demurrer to the second cause of action.

Plaintiff is unable to remedy this defect with any additional allegations. Therefore, the Court does not grant leave to amend.

Motion to Strike

As a preliminary matter, because the Court sustains the demurrer to the second cause of action, there are no remaining claims upon which Plaintiff can base a prayer for punitive damages against Mercury. Therefore, the Court grants Defendants’ motion as to Mercury.

Regarding Tito and Gregory, this is a simple negligence case. There are insufficient facts showing culpable conduct of oppression, malice, or fraud under Civil Code section 3294. Additionally, Plaintiff cannot pursue punitive damages against Gregory under his theory of permissive use liability because Vehicle Code section 17151, subdivision (b) expressly prohibits such award.

Finally, Plaintiff’s request for punitive damages in a specific amount is prohibited by Code of Civil Procedure section 425.10. 

Accordingly, the Court grants the motion to strike the prayer for punitive damages without leave to amend.

Moving party to give notice.

[1] “The parties and relevant individuals share a last name. For clarity, convenience, and in order to avoid confusion, we refer to them by their first names and intend no disrespect.” (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)

[2] “Every owner of a motor vehicle is liable and responsible for death or injury to persons or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.”

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