David Matthew Kilrain vs Cynergy Solutions et al

Case Number

23CV05355

Case Type

Hearing Date / Time

Fri, 08/02/2024 - 10:00

Nature of Proceedings

CMC; Demurrers and Motions to Strike

Tentative Ruling

For all reasons discussed herein:

1. Defendant Cynergy Solutions’ demurrer to plaintiff’s complaint is sustained without leave to amend.

2. Defendant Sedgwick Management Services, Inc.’s demurrer to plaintiff’s complaint is sustained without leave to amend.

3. Defendants’ motions to strike portions of plaintiff’s complaint are taken off-calendar as moot.

Background:

This action commenced on December 5, 2023, by the filing of the complaint by plaintiff David Matthew Kilrain (“Kilrain”) against defendants Cynergy Solutions (“Cynergy”) and Sedgwick Management Services, Inc. (“Sedgwick”) setting forth one cause of action for negligence.

As alleged in the complaint:

“On August 4, 2022, Kilrain’s daughter named Carrera was thirteen years old. She was riding her electric bike and saw a delivery van parked in the bike lane. She approached the delivery van at full speed thinking she was going to pass the delivery van that was parked in the bike lane. When she got close she looked back to go onto the road and pass the delivery van that was parked in the bike lane. There was a car coming that did not yield the right of way, which forced the child to run into the back of the delivery van at full speed. The child’s face hit the back windshield of the delivery van with full force and broke out the back windshield. The child also fractured or broke her knee. The delivery van driver was not around and did not render assistance to the injured child when he returned to the scene. Some neighbors seemed concerned and called the police. The police and an ambulance arrived and the child was taken to Cottage Hospital to have her injuries addressed.” (Compl., p. 2, ll. 12-23.)

“Kilrain later called the owner of the Cynergy Solutions and got his insurance information. Sedgwick is the insurance company. Kilrain worked out a deal with the claims adjuster named Tonya Minuski that they would accept $25,000 for compensation of the injuries if they could deliver it before Christmas so that his child would have a nice Christmas. Things started out good and Tonya even got Carrera a lawyer named Cynthia Speagle.” (Compl., p. 2, l. 24 – p. 3, l. 2.)

“They were not able to close the deal before Christmas. Cynthia Speagle said they were going to have to run everything by a judge because Carrera was a child and she would not be able to spend the money until she was eighteen.” (Compl., p. 3, l. 3-5.) Kilrain worked a deal with Tonya Minuski that they would place Kilrain on the claim and pay Kilrain some money for his preexisting emotional health issues that the case was causing to reoccur. Then Kilrain could take some of that money and give it to his child?” (Compl., p. 3, ll. 6-9.)

“Tonya ran the idea by the higher ups and said they could do it. Then Tonya Minuski was replaced by Raquel Gonzales and Raquel Gonzales did not contact Kilrain for several months. It was actually Kilrain that contacted Gonzales. Gonzales was impossible to deal with and many months elapsed without anything getting done. Kilrain got Gonzales to add Kilrain to the claim as an injured party but Kilrain could not get Gonzales to offer him any money for the emotional damages the case was causing to occur.” (Compl., p. 3, ll. 10-16.)

Kilrain further alleges that Cynergy breached its duty by parking the delivery van in the bike lane and leaving it unattended, and that Sedgwick breached its duty by failing to settle the claim in a timely manner. (Compl., p. 3, ll. 23-27.)

Although Carrera Kilrain is not a party to this action, Kilrain seeks monetary compensation on her behalf as well as his own behalf.

Cynergy demurs to the complaint on the grounds that: (1) Kilrain lacks standing to bring this lawsuit; (2) The cause of action for negligence fails to state facts sufficient to constitute a cause of action by Kilrain against Cynergy; and (3) The cause of action for negligent infliction of emotional distress fails to state facts sufficient to constitute a cause of action by Kilrain against Cynergy. (Note: The complaint does not contain a separate cause of action for negligent infliction of emotional distress. However, it can be implied that is what Kilrain is claiming as to his alleged damages.)

Sedgwick demurs to the complaint on the grounds that: (1) The cause of action for negligence fails to state facts sufficient to constitute a cause of action; and (2) Kilrain lacks standing to bring this lawsuit.

Additionally, both defendants separately move to strike portions of Kilrain’s complaint.

Analysis:

            Request for Judicial Notice

Sedgwick requests that the court take judicial notice of the complaint as well as a California State Bar screenshot showing that Kilrain is not a licensed attorney.

A Court may take judicial notice of, “Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy”. (Evid. Code, § 452, subd. (h).)

The court will take judicial notice of the documents. Kilrain freely admits that he is not a licensed attorney. However, it makes little difference because, as noted above, he is the sole plaintiff in this action. His daughter is not a party.

            Standard on Demurrer

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42.)’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

            Standing

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.)

“This is the person who possesses the right to sue under the substantive law involved; anyone other than a real party in interest lacks standing and is subject to a demurrer for the failure to state a cause of action. [Citation.]” (City of Brentwood v. Campbell (2015) 237 Cal.App.4th 488, 504.)

“[Code of Civil Procedure section 367’s] purpose is to “ ‘protect a defendant from harassment from other claimants on the same demand.’ ” [Citation.]” (The Rossdale Group, LLC v. Walton (2017) 12 Cal.App.5th 936, 944.)

“According to the Supreme Court, “ ‘an action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law . . . will not be entertained.’ ” (Golden Gate Bridge etc. Dist. v. Felt (1931) 214 Cal. 308, 316.)” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.)

“The right to sue in tort for personal injury is non-assignable under California law.” (Pony v. County of Los Angeles (2006) 433 F.3d 1138, 1143.)

Assuming the facts contained in the complaint as true, giving it a reasonable interpretation, and reading it as a whole, it is clear that Kilrain is not the real party in interest. Any claims belong to his daughter. She was the one that was allegedly injured by running into the back of the van, owned by Cynergy, that was parked in the bike lane. Likewise, because the underlying claim was never Kilrain’s, any failure by Sedgwick to timely settle the claim would solely belong to his daughter.

To the extent that Kilrain implies that he has a cause of action for emotional distress related to his daughter’s alleged injuries:

“In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

Here, it is clear from the complaint that Kilrain was not present when his daughter was injured. He acknowledges this by way of his oppositions to the demurrers.  

“When [a demurrer] 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.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Although Kilrain argues, by way of his opposition, that he intends to obtain an attorney for his daughter and to file a guardian ad litem, Kilrain is the sole named plaintiff in this action. There is no possibility that the complaint can be amended to state a cause of action, against these defendants, by Kilrain. The demurrers will be sustained without leave to amend.

The motions to strike will be taken off-calendar as moot.