McCray v. Metropolitan Transit System CA4/1 (2013) · DecisionDepot
McCray v. Metropolitan Transit System CA4/1
California Court of Appeal Mar 18, 2013 No. D060802Unpublished
Filed 3/18/13 McCray v. Metropolitan Transit System CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
EMANUEL McCRAY, D060802
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00097606- CU-PA-CTL) METROPOLITAN TRANSIT SYSTEM et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of San Diego County, William R.
Nevitt, Jr., Judge. Affirmed.
Plaintiff, Emanuel McCray, appeals two judgments entered against him after the
trial court sustained without leave to amend the demurrers of defendants, Metropolitan
Transit System (MTS) and USAA Casualty Insurance Company (USAA) and others. 1
1 The first amended complaint (FAC) named dozens of additional individual and entity defendants allegedly associated with MTS and USAA. For convenience, we refer only to MTS and USAA. McCray has represented himself at the trial court and on appeal.
On appeal, McCray contends the court erred because the FAC's allegations were
sufficient to withstand demurrer. We disagree, and thus affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Because we review a demurrer ruling, we recite the facts alleged in the FAC.
(Moe v. Anderson (2012) 207 Cal.App.4th 826, 828.)
On March 28, 2006, McCray was driving an airport shuttle when USAA's insured
against consideration of an issue raised initially in the reply brief of an appellant.' "
(Id. at p. 1477.) McCray is not exempt from appellate rules "because he is representing
himself on appeal in propria persona." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229,
1246.)
In any event, McCray does not cite any allegations in the lengthy FAC that
arguably pertained to estoppel, and he does not assert he could amend the pleading to add
such allegations. Rather, McCray submits that "[b]y arguing the government claim was
filed 19 days beyond the six months allowed by the statute, MTS" has admitted "the
claim was timely filed." The issue, however, is not whether McCray timely submitted his
claim to MTS, but rather whether he commenced his lawsuit within six months of his
receipt of MTS's notice of rejection of the claim.
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McCray also asserts estoppel applies because MTS denied his claim "less than 24
hours upon receipt, making it improbable that an investigation was conducted." McCray,
however, cites no authority for the proposition that the speed of a public agency's claim
response, or the scope of its investigation, can subject it to estoppel on the statute of
limitations issue. "We need not consider an argument for which no authority is
furnished." (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384.) We affirm the
judgment for MTS.3
III
Dismissal of Claims Against USAA
In his opening brief, McCray offers no cogent explanation for why the court's
rulings on USAA's demurrer to the FAC's fifth cause of action, and its motion to strike
the sixth cause of action, were improper. His opening brief merely asserts "the fifth
cause of action . . . incorporated an allegation of agency and was sufficient against a
general and special demurrer," and the sixth cause of action "alleged common law fraud
and intentional misrepresentation involving [USAA's] attempt to conceal from [him] that
he has sustained severe, permanent and disabling injuries," and "also incorporated an
allegation of agency that was sufficient." The brief does not discuss the elements of any
cause of action against USAA, explain why the FAC alleged sufficient facts to constitute
a cause of action, or address the court's finding it had previously sustained a demurrer to
the original complaint's sixth cause of action without leave to amend. " 'We are not
3 Given our holding, we do not consider MTS's alternative arguments that the demurrer was also proper on other grounds. 8
bound to develop appellants' arguments for them. [Citation.] The absence of cogent
legal argument or citation to authority allows this court to treat the contention as
waived.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
In his reply brief, McCray argues the fifth cause of action was viable under the
unfair competition law (UCL), Business and Professions Code section 17200 et seq.
" '[Business and Professions Code] [s]ection 17200 of the UCL defines "unfair
competition" as "any unlawful, unfair or fraudulent business act or practice and unfair,
deceptive, untrue or misleading advertising and any act prohibited by Chapter 1
(commencing with [Business and Professions Code] Section 17500) of Part 3 of Division
7 . . . ." Therefore, an act or practice is "unfair competition" under the UCL if it is
forbidden by law or, even if not specifically prohibited by law, is deemed an unfair act or
practice.' " (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1334-1335.)
" ' "[Business and Professions Code] [s]ection 17200 'borrows' violations from other laws
by making them independently actionable as unfair competitive practices. [Citation.] In
addition, under [Business and Professions Code] section 17200, 'a practice may be
deemed unfair even if not specifically proscribed by some other law.' [Citation.]" . . .
"Under [Business and Professions Code] [section 17204], a private plaintiff may bring a
UCL action even when 'the conduct alleged to constitute unfair competition violates a
statute for the direct enforcement of which there is no private right of action.' " ' " (Id. at
p. 1335.)
The predicate for the fifth cause of action's Business and Professions Code section
17200 claim was title 18 United States Code section 1341, a criminal statute prohibiting
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mail fraud. The FAC alleged that beginning in or about August 2006, USAA falsely
represented to McCray in letters that USAA's insured did not cause him to suffer any
injury or damage, when it knew better, and the representations were designed to cause
him to abandon his claim.
McCray, however, cites no legal authority suggesting an insurer's denial of
liability or lowball settlement of a third party personal injury claim constitutes a "scheme
or artifice to defraud," or an intention to "obtain[] money or property by means of false or
fraudulent pretenses, representations, or promises." (18 U.S.C. § 1341.) McCray was not
USAA's insured, and it was up to him to protect his own interests in negotiating with
USAA. Thus, we affirm the judgment for USAA.
DISPOSITION
The judgments are affirmed. MTS and USAA are entitled to costs on appeal.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the dismissal of the plaintiff's complaint, holding that the claims against the transit agency were barred by the Government Claims Act's statute of limitations and that the plaintiff failed to state a viable cause of action against the insurer.
Issues
Whether the plaintiff's claims against the Metropolitan Transit System were barred by the six-month statute of limitations under the Government Claims Act.
Whether the plaintiff sufficiently alleged causes of action for fraud and unfair competition against the insurer.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the pleadings showed on their face that McCray did not comply with the six-month statute of limitations.”
“The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.”