Muraoka v. Budget Rent-A-Car, Inc.

• Decision Date: 17 September 1984
• Citation: 206 Cal.Rptr. 476,160 Cal.App.3d 107
• Court: California Court of Appeals Court of Appeals
• Parties: John MURAOKA, Plaintiff and Appellant, v. BUDGET RENT A CAR, INC., Defendant and Respondent. Civ. B003038.

Page 476

206 Cal.Rptr. 476

160 Cal.App.3d 107

John MURAOKA, Plaintiff and Appellant, v. BUDGET RENT A CAR, INC., Defendant and Respondent.

Civ. B003038.

Court of Appeal, Second District, Division 4, California.

Sept. 17, 1984.

Kessler & Drasin and Gary Kessler, Los Angeles, for plaintiff and appellant.

Cadoo, Tretheway, McGinn & Serena, C. David Serena and Joseph C. Girard, Marina Del Rey, for defendant and respondent.

McCLOSKY, Associate Justice.

Plaintiff John Muraoka appeals from the judgment of dismissal entered against him after the trial court sustained without leave to amend the demurrer of defendant Budget Rent A Car, Inc. (Budget) to plaintiff's second amended complaint.

FACTS

In substance, the material allegations of plaintiff's second amended complaint are: Plaintiff was injured on July 31, 1980, when the automobile he was driving was struck by an automobile negligently driven by John Nelson Pennington. Mr. Pennington was driving that automobile with the consent of its owner Budget. Plaintiff immediately notified Budget of the accident. On September 4, 1980, Budget sent plaintiff a letter requesting more information from him and stating that " 'upon completion of our investigation, we will immediately contact you further regarding your claim.' " In response to this request, plaintiff sent Budget copies of his medical bills and information regarding his property damage. On October 21, 1980, Budget sent plaintiff the following letter:

"Thank you for forwarding the copies of the draft and medical bills for your property damage and bodily injury claim. We realize that Western Pioneer Insurance Company paid for your vehicle and therefore they are the party to collect for this portion of your claim.

"The bodily injury portion however is collectable by you and in order to do so we need to have you sign the Medical Information form to obtain your doctors [sic ] report on the condition while you were under his car. [sic ]

"Please sign the attached and I will forward to Dr. Sakurai for his report.

"Then we can settle this portion of your claim."

On March 11, 1981, Dr. Sakurai, plaintiff's doctor, released plaintiff from treatment. On April 23, 1981, Budget wrote Dr. Sakurai requesting information regarding plaintiff's medical treatment. On June 15, plaintiff's insurance agent sent Budget the following correspondence at plaintiff's request:

"Mr. Muraoka called us on June 15, 1981 about 2:00 P.M. to inform us that he has not heard from you yet.

"He is quite concerned about it being almost a year since the day of the accident.

"He hopes that a settlement can be made soon without litigation since he is being pressed by his doctor for an outstanding bill.

"Mr. Muraoka requests a letter of intention at once."

On August 14, 1981, plaintiff called Ms. Albergio at Budget and was told that his medical reports had not yet been received. Plaintiff phoned Dr. Sakurai's office and was told that there had been no request for them. On August 14, Ms. Albergio requested those reports from the doctor's office and after the terms for their payment were negotiated, they were sent out On October 22, Budget made plaintiff settlement offers of $1,400 and $1,600. On October 26, plaintiff called Budget to turn down its offer. Budget responded that its offer was final. On November 3, plaintiff told Budget that he wanted to make an equitable settlement or he would bring suit. On November 9, Budget sent plaintiff the following letter:

on September 23. On October 13, 1981, plaintiff called Ms. Albergio but was unable to contact her. The next day, plaintiff contacted Ms. Albergio and was told that the reports had just been received and that upon their review she would contact him.

"Following your recent telephone calls to this office a complete review of your file has been conducted. It appears that the accident in question occurred on July 31, 1980. Since the Statute of Limitations for stating a bodily injury claim is one year in California, we are respectfully closing this file at this time."

On June 30, 1982, plaintiff initiated this action by filing his original complaint. Thereafter, the trial court sustained Budget's demurrers to plaintiff's original and first amended complaints with leave to amend. Plaintiff then filed the subject second amended complaint. Budget interposed general and special demurrers to each cause of action of that complaint which the trial court sustained without leave to amend. This ruling resulted in an order (judgment) of dismissal from which plaintiff appeals.

CONTENTIONS

Plaintiff raises the following contentions on appeal:

"Appellant's first cause of action for negligence is not barred by the statute of limitations.

"Appellant's second cause of action properly pleads a cause of action for intentional misrepresentation.

"The third cause of action properly states a cause of action for negligent misrepresentation.

"The fourth cause of action for breach of Insurance Code § 790.03 properly states a cause of action against respondent Budget.

"Appellant's fifth cause of action for breach of the implied covenant of good faith and fair dealing is properly pled.

"Appellant's sixth cause of action is properly pled.

"The sixth cause of action for intentional infliction of emotional distress is not barred by the statute of limitations because this cause of action did not arise until after October, 1981."

DISCUSSION

Budget interposed both general and special demurrers to each of plaintiff's causes of action. "The court sustained defendants' demurrer without leave to amend in general terms, contrary to Code of Civil Procedure section 472d. Regardless of this error, the court's ruling will be upheld if any of the grounds stated in the demurrer is well taken." (H & M Associates v. City of El Centro (1980) 109 Cal.App.3d 399, 404, 167 Cal.Rptr. 392.)

"[W]hen a demurrer interposed on both general and special grounds is sustained without leave to amend in general terms and without a specification of reasons (see Code Civ.Proc., § 472d), it will be assumed on appeal that the court ruled only in the general demurrer and not on the special demurrer. (Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 544 [93 Cal.Rptr. 866, 483 P.2d 34, 57 A.L.R.3d 1] and cases there cited.) Thus upon remand the parties and the court will not be precluded from further addressing the matter of specificity." (E.L. White Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 504, fn. 1, 146 Cal.Rptr. 614, 579 P.2d 505.)

"Notwithstanding facts unclearly stated, lack of precise form or language, insertion of irrelevant facts and requests for inappropriate relief, the rule is that if, upon consideration of all the facts therein stated, liberally construed, it appears plaintiff is entitled to any judicial relief against defendant, the complaint will withstand the demurrer." (Air Quality Products, Inc. v State of California (1979) 96 Cal.App.3d 340, 347, 157 Cal.Rptr. 791.)

"For purposes of this appeal, those factual allegations of the [second amended] complaint which are properly pleaded are deemed admitted by defendant's demurrer." (Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746, 167 Cal.Rptr. 70, 614 P.2d 728.)

I

Appellant initially contends that his "first cause of action for negligence is not barred by the statute of limitations."

The general demurrers Budget interposed to the first cause of action were that the cause of action was barred by the applicable one year statute of limitations and that it had no duty to notify plaintiff of that statute of limitations. The trial court sustained these demurrers without leave to amend.

Where a complaint shows upon its face that the statute of limitations has run, the plaintiff may anticipate the defense of limitation of action and allege facts to establish an estoppel. (Kunstman v. Mirizzi (1965) 234 Cal.App.2d 753, 755, 44 Cal.Rptr. 707.)

A defendant "cannot escape the consequences of [its] acts or conduct affirmatively engaged in to procure delay for purposes of settlement, or investigation or otherwise, upon which the [plaintiff] has relied and by which he has been induced to delay the filing of a claim until after the expiration of the statutory period. Such conduct, so relied upon, becomes the basis of an estoppel against the party responsible for the delay ...." (Benner v. Industrial Acc. Com. (1945) 26 Cal.2d 346, 350, 159 P.2d 24; see Kupka v. Board of Administration (1981) 122 Cal.App.3d 791, 795, 176 Cal.Rptr. 214; Annot., Statute of Limitations--Negotiations (1971) 39 A.L.R.3d 127.) "Actual fraud in the technical sense, bad faith, or an intent to mislead, are not essential to create such an estoppel." (Industrial Indem. Co. v. Ind. Acc. Com. (1953) 115 Cal.App.2d 684, 690, 252 P.2d 649.)

But "[b]efore an estoppel to assert an applicable statute of limitations may be said to exist, certain conditions must be present: '[T]he party to be estopped must be apprised of the facts; the other party must be ignorant of the true state of facts, the party to be estopped must have intended that its conduct be acted upon, or so act that the other party had a right to believe that it was so intended; and the other party must rely on the conduct to its prejudice.' (California Cigarette Concessions, Inc. v. City of Los Angeles, 53 Cal.2d 865, 869 [3 Cal.Rptr. 675, 350 P.2d 715]; citing Safway Steel Products, Inc. v. Lefever, 117 Cal.App.2d 489, 491 .)" (Sumrall v. City of Cypress (1968) 258 Cal.App.2d 565, 569, 65 Cal.Rptr. 755.)

In his second amended complaint, plaintiff pleads that as a result of Budget's above described conduct he "was lulled into a false sense of security. Plaintiff refrained from commencing a civil action for damages within the statutory time period because he was induced by defendants [sic ] promises and conduct to believe that he would be fully compensated for his damages without litigation. However, these promises...