Fox v. Forster CA1/3 ( 2021 )

Filed 12/23/21 Fox v. Forster 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
PATRICIA FOX,
Plaintiff and Appellant,
A158103
v.
GARDNER FORSTER III, (Contra Costa County
Super. Ct. No. C19-00105)
Defendant and Respondent.
In this action, plaintiff Patricia Fox seeks damages for injuries she
suffered in an automobile accident in 1983. The trial court sustained
defendant Gardner Forster III’s demurrer without leave to amend. We
conclude the trial court properly ruled the action is barred by res judicata,
and we accordingly affirm the judgment.1
The record contains no judgment of dismissal, and plaintiff informs us
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none was entered. We shall order the trial court to enter, nunc pro tunc as of
June 26, 2019, the date of entry of the order sustaining the demurrer, a
judgment of dismissal, and we construe the notice of appeal to refer to that
judgment. (See Bartholomew v. YouTube, LLC (2017) 17 Cal.App.5th 1217,
1226, fn. 4 (Bartholomew); Ulta Salon, Cosmetics & Fragrance, Inc. v.
Travelers Property Casualty Co. of America (2011) 197 Cal.App.4th 424, 426,
fn. 1 (Ulta Salon).)
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STANDARD OF REVIEW
In reviewing an order on a demurrer, “ ‘ “ ‘[w]e 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.’ ” ’ ” (Bartholomew, supra, 17 Cal.App.5th at p. 1225.)
Our review is de novo. (Ulta Salon, supra, 197 Cal.App.4th at p. 431.)
When a demurrer is sustained without leave to amend, we determine
whether there is a reasonable probability the defect can be cured by
amendment; if it can be, we reverse for abuse of discretion. The plaintiff
bears the burden of proving that probability. (Bartholomew, supra, 17
Cal.App.5th at p. 1225.)
FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of an automobile accident that took place in the
state of Alaska almost 30 years ago, on March 1, 1983. Defendant was
driving while intoxicated when he caused the collision, in which plaintiff
suffered permanent injuries. Defendant fled Alaska with criminal charges
pending and never returned.
The Alaska Action
In 1987, plaintiff obtained a default judgment of $445,557.49 against
defendant in the Alaska superior court. (Fox v. Forster (Alaska Super.Ct.,
4th.Jud.Dist., Sept. 9, 1987, No. 4FA-85-0455) (the Alaska action).)2 She did
2 The trial court properly took judicial notice of defendant’s application
for entry of a sister-state judgment in a related case (Fox v. Forster (Super.
Ct. Contra Costa County, 2018, No. MSN18-0147)), which attached a copy of
the default judgment in the Alaska action. (Evid. Code, § 452, subds. (c), (d).)
We likewise take judicial notice of the application and attachment. (Evid.
Code, § 459, subd. (a).) On our own motion, we also take judicial notice of the
files and the opinion issued by this division in plaintiff’s appeal in Fox v.
Forster (Mar. 26, 2020, A154906) [nonpub. opn.] (Fox v. Forster I).
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not discover defendant’s whereabouts for approximately 20 years, when she
learned he was living in Contra Costa County.
Fox v. Forster I—Effort to Enforce Alaska Judgment
In February 2018, plaintiff filed in the Contra Costa County Superior
Court an application for entry of a sister-state judgment, to which she
attached a copy of the default judgment in the Alaska action. As explained
by a different panel of this division in Fox v. Forster I, the trial court there
initially granted plaintiff’s application for entry of the Alaska judgment, but
it later vacated its judgment on the ground that the statute of limitations
barred plaintiff’s application and the limitations period was not delayed or
tolled.
Plaintiff appealed the trial court’s decision in Fox v. Forster I, arguing
that the ten-year statute of limitations for actions on the judgment in another
state (Code Civ. Proc., § 337.5) did not apply, that the discovery rule delayed
the action’s accrual, that defendant should be estopped from asserting the
statute of limitations, that equity superseded any legal bar to enforcement of
the judgment, and that the judgment was enforceable until satisfied despite
the statute of limitations. This court rejected all of plaintiff’s arguments and
affirmed the judgment on March 26, 2020. On July 8, 2020, the California
Supreme Court denied plaintiff’s petition for review, and the remittitur
issued on July 16, 2020. (Fox v. Forster I, supra, review den. July 8, 2020,
S262525.)
The Present Action—A Second Action for Personal Injury
Meanwhile, plaintiff brought the present personal injury action on
January 14, 2019, alleging that defendant caused the injuries she sustained
in the 1983 accident. Defendant demurred on the grounds that the action is
barred by res judicata because plaintiff has already obtained a final judgment
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in the Alaska action and that the complaint is time-barred under the statute
of limitations for personal injury. The trial court sustained the demurrer
without leave to amend, concluding that under either California or Alaska
law, the judgment in the Alaska action bars plaintiff from pursuing the same
claims in a second lawsuit and that no amendment could change that result.
This appeal ensued. In her notice of related cases filed before the
appeal in Fox v. Forster I was decided, plaintiff acknowledged that both this
case and Fox v. Forster I arise from injuries caused by the same car accident,
that they involve the same parties, that they are based on the same or
similar claims, and that they seek the same damages.
DISCUSSION
On appeal, plaintiff contends her claims against defendant are not
dischargeable, do not expire, need not be renewed, and continue until paid in
full. Her arguments are largely irrelevant to whether this action is barred by
res judicata.
It is well settled that a trial court’s judgment is presumed correct and
that the appellant has the burden to show error with reasoned argument and
citation to authority. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609; Allen
v. City of Sacramento (2015) 234 Cal.App.4th 41, 52). Plaintiff has not met
her burden, and it is evident that she cannot.
Res judicata, or claim preclusion, “ ‘prevents relitigation of the same
cause of action in a second suit between the same parties or parties in privity
with them.’ [Citation.] Claim preclusion arises if a second suit involves
(1) the same cause of action (2) between the same parties (3) after a final
judgment on the merits in the first suit. [Citations.] If claim preclusion is
established, it operates to bar relitigation of the claim altogether.” (DKN
Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824; accord, Mycogen Corp. v.
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Monsanto Co. (2002) 28 Cal.4th 888, 904–905 [earlier successful action had
preclusive effect where both suits sought to vindicate same primary right];
see Pister v. State, Dept. of Revenue (Alaska 2015) 354 P.3d 357, 362 [res
judicata bars subsequent action if prior judgment was final and on the
merits, from court of competent jurisdiction, in dispute between same parties
about same cause of action].)
That describes this case perfectly. Plaintiff brought an action in Alaska
and obtained a judgment awarding damages for the same injuries she asserts
now, based on the same accident, against the same defendant. She then
brought an unsuccessful action against the same defendant in California
seeking to enforce the Alaska judgment on the ground her claim was not
time-barred; this division rejected her argument in Fox v. Forster I, and that
case is now final. She cannot get another bite at the apple by filing a new
action against the same defendant for the same damages based on the same
accident, once again arguing her claims are not time-barred. The trial court
correctly so ruled. Plaintiff’s counsel insisted at oral argument that an action
to enforce a nondischargeable debt is not subject to the doctrine of res
judicata, but he has provided no authority to support that proposition.
Plaintiff also contends the trial court abused its discretion in denying
leave to amend her complaint. She has not met her burden to show any
amendment that could avoid the bar of res judicata (see Bartholomew, supra,
17 Cal.App.5th at p. 1225), and we can discern none.
DISPOSITION
The trial court is directed to enter, nunc pro tunc as of June 26, 2019, a
judgment of dismissal. That judgment is affirmed. Defendant shall recover
his costs on appeal.
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TUCHER, P.J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
Fox v. Forster (A158103)
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