Fox v. Forster CA1/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 1

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).)

1

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