Sancho v. Ramirez

Filed 10/10/07 Sancho v. Ramirez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph E. Di Loreto, Judge. Affirmed.

Alfredo Masis Sancho, in pro. per., for Plaintiff and Appellant.

Calendo, Puckett, Sheedy & DiCorrado and Christopher M. Sheedy; Morris Polich & Purdy, Dean A. Olson, Richard H. Nakamura, Jr. and Elizabeth Salinas for Defendants and Respondents Kathy Ramirez, Wolfgang Ebner and the Ebner Family Trust.

Law Offices of Linda M. Libertucci and Sarah Yoseloff for Defendant and Respondent Albano Plumbing.

__________________________

In this second appeal of his premises liability case, a tenant claims he was injured by carbon monoxide poisoning due to a faulty heater and thermostat in his apartment in 2000. His first suit resulted in a grant of summary judgment for the landlord and manager, which this court affirmed in 2004. The tenant sought review unsuccessfully in the California and United States Supreme Courts. After remittitur, he refiled the case under a new case number, adding two defendants and one new theory of recovery. Finding the new action untimely and barred by the doctrine of res judicata, the trial court dismissed the suit after sustaining defendants demurrers without leave to amend. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. FactS

On December 1, 1996, plaintiff and appellant Alfredo Sancho rented a Long Beach apartment on a month-to-month basis from defendants and respondents the late Anne Lene Ebner, Wolfgang Ebner and the Ebner Family Trust (the Ebners). Before Sancho took possession, defendant and respondent Kathy Ramirez, the property manager, directed an inspection of the premises and found no problems with the heater.

Nearly four years later, on November 1, 2000, Sancho could not sleep in the middle of the night and went outside to check the cold temperature. Returning to his apartment, he turned on the heat, threw on covers and slept on a recliner. A friend who arrived at noon the next day found the apartment to be overheated. The wall thermometer registered 96 degrees, but the heater thermometer registered only 68 degrees. Awakened by his friend after sleeping 10 hours, Sancho claimed he was unable to walk or talk well, or hold a glass in his hand. He claimed to have a headache, to see dancing lights, and to have urinated on himself. Later, he also claimed a loss in his sense of smell.

One month prior to the incident, Sancho had hit his head on a concrete floor in Costa Rica and was concerned that he had a hematoma. When he told his family about his symptoms following the incident in his apartment, they initially suspected that he had a stroke. Later that month, they also sent Sancho literature on carbon monoxide poisoning. Sancho was unaware of any alleged carbon monoxide problem until then.

Sancho did not seek medical attention for nearly four weeks. On November 28, 2000, and over the next year, physicians at Long Beach Memorial Hospital treated Sancho for high blood pressure, hypertension, headaches from his fall in Costa Rica, back pain and a cough. They found no evidence of brain injury. On February 10, 2003, neurologist Martin D. Levine, M.D., conducted a neurological examination of Sancho and concluded that he was completely normal, manifesting no cognitive dysfunction associated with carbon monoxide toxicity. Sancho also saw a neurologist in Costa Rica, who prescribed medication to treat his basal gland inflammation, seizure-like episodes, involuntary muscle contractions, high blood pressure and nervous system.

Ramirez was previously unaware of any problems with the heater until Sancho informed her after the incident. The day after the incident, Ramirez asked defendant and respondent Albano Plumbing (Albano) to check Sanchos thermostat, which was soon replaced. Again in January 2001, Albano repaired a short in the thermostat and the wall heater worked properly thereafter. Finally, in February 2001, in response to Sanchos further complaints, Ramirez directed Albano to install what Sancho described as a beautiful new heater, which has continued to work properly. According to Albano, there was nothing wrong with the old wall heater that was replaced for cosmetic reasons. Engineer Jeff Colwell, Ph.D., P.E., found the old heater to operate normally and the carbon monoxide fumes in the exhaust system to be much lower than standards set forth by both furnace safety organizations and occupational health entities. On September 29, 2004, a routine inspection by the Long Beach Department of Health and Human Services Bureau of Environmental Health further found the new heater to be properly vented and installed.

II. PROCEDURE

A. Sancho I[1]

On October 17, 2001, Sancho sued Ramirez and the Ebners for premises liability and negligence, claiming he suffered intoxication from carbon monoxide due to the defective heater and thermostat on the premises.

On May 9, 2003, Ramirez and the Ebners moved for summary judgment, contending that Sancho failed to give them actual or constructive notice of the alleged dangerous defect until after the date of the alleged incident, nearly four years into his occupancy of the apartment. On July 28, 2003, finding Sanchos declaration insufficient to create a triable issue regarding timely notice of a dangerous condition, the court granted the motion for summary judgment in favor of Ramirez and the Ebners.

On September 13, 2004, we affirmed, concluding that Sancho failed to raise a triable issue of fact as to notice of the alleged defect on the premises. The California Supreme Court denied review on December 1, 2004; and the United States Supreme Court denied certiorari on May 2, 2005. On December 22, 2004, the remittitur issued in Sancho I.

B. Sancho II

On October 13, 2005, Sancho filed this action (Sancho II)under a new case number.Based on the same facts from the November 2000 incident, Sancho again alleged that he suffered from intoxication from carbon monoxide due to the defective heater and thermostat on the premises. This time, he also named California Coast Property Management (CCPM)[2]and Albano as defendants and added a cause of action for intentional tort.

On November 17, 2005, Ramirez and the Ebners demurred, asserting that the complaint failed to state a cause of action because it was time-barred under the applicable statute of limitations. On November 18, 2005, Albano separately demurred on the same ground.

On January 6, 2006, the trial court sustained both demurrers without leave to amend and dismissed the action. The court found the action was barred as a matter of law because: 1) the statute of limitations had run as to all defendants; and 2) the matter had been adjudicated under the doctrine of res judicata as to Ramirez and the Ebners.

Sancho timely appealed.

DISCUSSION

Sanchos opening and reply briefs on appeal do not contain clear statements of either the law or the facts. We discern, however, Sanchos contention to be that the trial court erred in finding the action was barred under the statute of limitations and the doctrine of res judicata.

I. STANDARD OF REVIEW

On appeal from a judgment of dismissal following a demurrer sustained without leave to amend, we assume the truth of all well-pleaded facts, as well as those that are judicially noticeable. (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

In determining whether a plaintiff has properly stated a claim for relief, our standard of review is clear: 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. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citations.] (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Our review is de novo. (Ibid.)

II. THE DemurrerS wERE Properly Sustained

A. The Action is Barred by the Statute of Limitations

A complaint fails to state a cause of action where the dates alleged establish that the claim is barred by the statute of limitations. (Anderson v. McNally (1957) 150 Cal.App.2d 778, 783 784.)

When Sancho allegedly sustained his injuries on November 1, 2000, the statute of limitations then in effect for personal injuries was one year. (Former Code Civ. Proc.,[3] 340, subd. (3); Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1028 (Krupnick).) Effective January 1, 2003, the statute of limitations was expanded to two years. ( 335.1; former 340, subd. (3), as amended by Stats. 1982, ch. 517, 97, pp. 2334-2335; Krupnick, supra, 115 Cal.App.4th at p. 1028.)

When Sancho filed this action on October 13, 2005, the one-year statute of limitations had run before the two-year statute of limitations became effective. [T]he two-year statute of limitations for personal injuries actions in section 335.1 applies to actions not already time-barred by the one-year statute of limitations in former section 340, subdivision (3) when section 335.1 became effective on January 1, 2003. . . . (Andonagui v. May Dept. Stores Co. (2005) 128 Cal.App.4th 435, 438]; Krupnick, supra, 115 Cal.App.4th at p. 1028 [Section 335.1 does not apply retroactively to claims already time-barred unless by victims of September 11].) Thus, Sanchos action is governed by the one-year statute of limitations in effect when he filed his action.[4]

Accordingly, as to all parties, Sanchos action is time-barred. Because the defect cannot be cured by amendment, leave to amend is not warranted.

B. The Action is Barred by the Doctrine of Res Judicata as to Ramirez and

The Ebners

When the demurrers were argued in Sancho II, the following colloquy occurred:

MR. SANCHO: . . . This is no[t] a new case, I dont get intoxicated again of carbon monoxide; its the old case, try to go in the right way in different court with different number with different judge. THE COURT: Okay. You cant start all over again in a different court. Thats not the way it works.

The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Public policy and the interest of litigants alike require that there be an end to litigation. (Citizens for Open Access Etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.) Thus, [a] party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigible. [Citations.] (Avery v. Avery (1970) 10 Cal.App.3d 525, 529-530.)

Californias res judicata doctrine is based upon the primary right theory. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.) It provides that a cause of action is comprised of a primary right of the plaintiff, a corresponding primary duty of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.] The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. [Citation.] A pleading that states the violation of one primary right in two causes of action contravenes the rule against splitting a cause of action. [Citation.] (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) A primary right is simply the plaintiffs right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. [Citation.] The primary right must also be distinguished from the remedy sought: The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other. [Citation.] (Id. at pp. 681-682.)

Res judicata applies when: (1) the party against whom the plea is raised was a party or was in privity with a party to the prior adjudication; (2) there was a final judgment on the merits in the prior action; and (3) the issues decided in the prior adjudication are identical with those presented in the later action. (Citizens for Open Access Etc. Tide, Inc. v. Seadrift Assn., supra, 60 Cal.App.4th at p. 1065; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1015.) Even if these threshold requirements are established, res judicata will not be applied if injustice would result or if the public interest requires that relitigation not be foreclosed. [Citations.] (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902.)

All the threshold requirements of res judicata are met here. First, Ramirez and the Ebners are the same parties against whom the claim was raised in Sancho I. Second, upon denial of review by the California and United States Supreme Court, our affirmance of the trial courts grant of summary judgment in Sancho I was a final judgment on the merits. Third, the premises liability and negligence causes of action are identical in Sancho I and II. That Sancho II also pled a cause of action for intentional tort does not take it outside of the res judicata doctrine, because it comprises the same primary right at issue in Sancho I.

As Sancho has conceded, the below action is the old case in a different court with a different number and a different judge. Indeed, in his notice of appeal, Sancho referenced the trial court case numbers in both Sancho I and Sancho II. In addition to appealing from the order of dismissal following the sustaining of demurrers in Sancho II, he also indicated he was appealing the judgment after the order granting summary judgment in Sancho I. Likewise, in his notice designating the record on appeal, Sancho requested documents from both the prior and current cases. Finally, Sancho has neither pled nor do we find that injustice would result or public interest would be jeopardized if relitigation is foreclosed.

Because the defects cannot be cured by amendment, leave to amend is not warranted. Accordingly, the trial court did not err in sustaining the demurrers.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J. WOODS, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

[1]Sancho v. Ramirez (Sept. 13, 2004, B172227) [nonpub. opn.], review denied December 1, 2004, S128707, certiorari denied May 2, 2005, No. 04-8843 (Sancho I).

[2] CCPM was never served with the summons and complaint in Sancho II. Nor did it file an answer in the action. It is, therefore, not a defendant and respondent on this appeal.

[3] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[4] Albano is correct that, under these facts, the one-year statute of limitations applies under former section 340, subdivision (3). Ramirez and the Ebners contend in error that the two-year statute of limitations applies under section 335.1. However, even assuming arguendo that the two-year statute of limitations were to apply, the action would still be untimely, because it was filed nearly five years from the date of Sanchos alleged injury.