Intri-Plex Technology v. Crest Group, Inc. ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INTRI-PLEX TECHNOLOGIES, INC., 
Plaintiff-Appellant,
v. No. 05-55923
THE CREST GROUP, INCORPORATED, a  D.C. No.
CV-05-00716-AHM
Delaware corporation, e/s/a Crest
Ultrasonics Corporation, d/b/a OPINION
Crest Ultrasonics Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Argued and Submitted
April 10, 2007—Pasadena, California
Filed August 27, 2007
Before: Betty B. Fletcher and M. Margaret McKeown,
Circuit Judges, and Ronald M. Whyte,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
10607
10610 INTRI-PLEX TECHNOLOGIES v. CREST GROUP
COUNSEL
John A. Belcher, Law Offices of John Belcher, Pasadena, Cal-
ifornia, for the plaintiff-appellant.
Marcus J. Kocmur (argued), Douglas B. Large, Archbald &
Spray LLP, Santa Barbara, California, for the defendant-
appellee.
OPINION
B. FLETCHER, Circuit Judge:
Intri-Plex Technologies, Inc. (Intri-Plex) appeals from the
district court’s order granting the defendant Crest Ultrasonics
Corp.’s (Crest)1 motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm.
FACTUAL AND PROCEDURAL HISTORY
Appellant Intri-Plex manufactures computer disk drive
components called “baseplates.”2 Compl. ¶ 1. Intri-Plex sells
finished baseplates to manufacturers of component parts for
computer disk drive assemblies. Appellee Crest manufactures
and sells ultrasonic cleaning equipment, including hot air
1
Sued as “The Crest Group, Inc. dba Crest Ultrasonics Corp.”
2
Because this is an appeal from the dismissal of an action pursuant to
Fed. R. Civ. P. 12(b)(6), we accept as true the facts alleged in Intri-Plex’s
complaint. See Lee v. City of Los Angeles, 250 F.3d 668, 677 (9th Cir.
2001).
INTRI-PLEX TECHNOLOGIES v. CREST GROUP 10611
dryer consoles, which are used by manufacturers in the com-
puter disk drive industry. Intri-Plex purchased hot air dryer
consoles with HEPA air filters and replacement filters from
Crest and installed one of these consoles in its Goleta, Cali-
fornia, facility. Crest warranted to Intri-Plex that the equip-
ment supplied to it would be defect-free.
In May 2002, Intri-Plex’s customers contacted Atlantic
Mutual Insurance Co. (AMI), Intri-Plex’s insurance company,
regarding corrosion problems with the finished baseplates
they received from Intri-Plex in April and May 2002. The cor-
rosion was caused by defective air filters supplied to Intri-
Plex by Crest. KR Precision Public Company Ltd. (KRP) is
an Intri-Plex customer. KRP welded Intri-Plex’s corroded fin-
ished baseplates into its suspension assemblies, and once
attached, it was not possible to repair or replace the corroded
baseplates without damaging the KRP product. This resulted
in the recall of finished baseplates manufactured, distributed,
and shipped by Intri-Plex as well as compensation to KRP for
the damaged suspension assemblies.3
In June 2003, AMI commenced a subrogation action
against Crest by filing a complaint in California superior
court. In its complaint, AMI alleged, “The terms of the
INTRI-PLEX insurance policy assign to plaintiff [AMI], to
the extent of its payment, all rights, claims or causes of action
of its insured against any parties legally or equitably responsi-
ble for these losses. Under California law, plaintiff is subro-
gated to the rights of its insured [Intri-Plex] against the
3
Intri-Plex alleged, “Corroded finished baseplates contaminated by
chlorine being welded into suspension assemblies manufactured by KRP
resulted in the compensation of KRP for losses sustained for damaged
product.” Compl. ¶ 13. Intri-Plex next alleged that it “received partial
indemnity from [AMI] for the identification, recall, and return of finished
baseplates . . . and for suspension assemblies manufactured by KRP . . .
incorporating finished baseplates manufactured by [Intri-Plex].” Compl.
¶ 14.
10612 INTRI-PLEX TECHNOLOGIES v. CREST GROUP
defendants named in this action.” AMI Compl. ¶ 14.4 AMI
also alleged that it compensated its insured, Intri-Plex, for
losses caused by Crest’s defective product:
Under the terms of its insurance policy, plaintiff
compensated its insured [Intri-Plex] for economic
losses and other damages caused by the defendant’s
defective . . . Hot Air Dryer and replacement . . .
HEPA Filters. Under the terms of its insurance pol-
icy, plaintiff paid for the identification, recall, and
return of finished baseplates manufactured, distrib-
uted and shipped by INTRI-PLEX from its Goleta,
Santa Barbara, facility . . . and for suspension assem-
blies manufactured by KRP . . . incorporating fin-
ished baseplates manufactured by INTRI-PLEX.
Id. ¶ 14. AMI asserted eight causes of action: breach of
implied warranty of fitness for a particular purpose, breach of
implied warranty of merchantability, breach of oral and writ-
ten contract, general negligence, negligence-failure to warn,
negligence-concealment of material fact, strict liability in tort,
and equitable indemnity.
In February 2004, Intri-Plex negotiated and filed a stipula-
tion for a protective order relating to use of its proprietary
documents and test results in the litigation between AMI and
Crest. After AMI reached a settlement with Crest, California
superior court dismissed AMI’s action with prejudice on
December 1, 2004.
On January 28, 2005, Intri-Plex filed a complaint against
Crest in the United States District Court for the Central Dis-
trict of California. Intri-Plex asserted the same factual allega-
tions and causes of action against Crest as AMI asserted
against Crest in its state court action. For example, Intri-Plex
4
Intri-Plex’s complaint is referred to as “Compl.” and AMI’s complaint
is referred to as “AMI Compl.”
INTRI-PLEX TECHNOLOGIES v. CREST GROUP 10613
alleged that it “received partial indemnity from [AMI] for the
identification, recall, and return of finished baseplates manu-
factured, distributed and shipped by [Intri-Plex] from its
Goleta . . . facility . . . and for suspension assemblies manu-
factured by KRP . . . incorporating finished baseplates manu-
factured by [Intri-Plex].” Compl. ¶ 14. Intri-Plex also alleged
that it sustained some losses for which it was not insured, “in-
cluding unsaleable inventory, deductibles and other losses,
not covered by the [AMI] policy.” Id.
Crest filed a motion to dismiss for failure to state a claim
upon which relief could be granted, on the basis that Intri-
Plex’s action “improperly attempts to split a cause of action
in pursuit of a claim that has previously been litigated and dis-
missed with prejudice and is, therefore, barred by the doctrine
of res judicata.” Def.s’ Mot. to Dismiss at 1-2. Crest concur-
rently filed a request for judicial notice of (1) AMI’s state
court complaint, (2) Intri-Plex’s stipulation regarding the pro-
tective order in state court, and (3) AMI’s request for dis-
missal of its state court complaint with prejudice. Intri-Plex
opposed the motion to dismiss.
The district court took Crest’s motion to dismiss under sub-
mission without a hearing. On June 1, 2005, the district court
granted Crest’s motion to dismiss on the ground that Intri-
Plex’s complaint was an impermissible splitting of a single
cause of action and therefore barred by res judicata. The dis-
trict court also held that Crest did not waive the splitting
defense because:
nothing before the Court indicates that any party,
besides Intri-Plex itself, had knowledge of the addi-
tional claims that Intri-Plex seeks to raise. The com-
plaint is devoid of any mention of the AMI action
and is similarly devoid of any allegation that Crest
settled the claim with AMI with knowledge of Intri-
Plex’s remaining claims against it.
10614 INTRI-PLEX TECHNOLOGIES v. CREST GROUP
Order Granting Def.’s Mot. to Dismiss at 4.
DISCUSSION
Standard of Review
We review de novo the district court’s dismissal for failure
to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). See
Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th
Cir. 2004). All well-pleaded facts in the complaint are
accepted as true and construed in the light most favorable to
the nonmoving party. See id. at 595. Res judicata claims are
reviewed de novo. Manufactured Home Communities, Inc. v.
City of San Jose, 420 F.3d 1022, 1025 (9th Cir. 2005) (cita-
tion omitted).
Generally, a court may not consider material beyond the
complaint in ruling on a Fed. R. Civ. P. 12(b)(6) motion.5 Lee,
250 F.3d at 688. However, “[a] court may take judicial notice
of ‘matters of public record’ without converting a motion to
dismiss into a motion for summary judgment,” as long as the
facts noticed are not “subject to reasonable dispute.” Lee, 250
F.3d at 689 (citation omitted); see also United States v. Rit-
chie, 342 F.3d 903, 908-09 (9th Cir. 2003).
Since this is a diversity action the law of the forum state,
California, applies. See, e.g., Homedics, Inc. v. Valley Forge
Ins. Co., 315 F.3d 1135, 1138 (9th Cir. 2003).
5
Fed. R. Civ. P. 12(b) provides, “If, on a motion asserting the . . .
defense to dismiss for failure of the pleading to state a claim upon which
relief can be granted, matters outside the pleading are presented to and not
excluded by the court, the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all parties shall be
given reasonable opportunity to present all material made pertinent to such
a motion by Rule 56.”
INTRI-PLEX TECHNOLOGIES v. CREST GROUP 10615
I. The district court properly dismissed Intri-Plex’s suit
as an impermissible attempt to split a cause of action
barred by res judicata.
A. Splitting the cause of action
[1] To determine the preclusive effect of a state court judg-
ment, federal courts look to state law. Palomar Mobilehome
Park Ass’n v. City of San Marcos, 989 F.2d 362, 364 (9th Cir.
1993). Res judicata “precludes parties or their privies from
relitigating a cause of action that has been finally determined
by a court of competent jurisdiction.” Rice v. Crow, 81 Cal.
App. 4th 725, 734 (2000) (internal quotation marks omitted).
Since an insured—here, Intri-Plex—and its subrogated insurer
—AMI—are privies, see Ferraro v. S. Cal. Gas Co., 102 Cal.
App. 3d 33, 42 (1980), the privity requirement is met here.
AMI’s dismissal of its California superior court complaint
with prejudice is a final judgment on the merits. Rice, 81 Cal.
App. 4th at 733-34. The only disputed issue is whether Intri-
Plex’s action against Crest is the same cause of action—
seeking to vindicate the same “primary right”—as AMI’s
action against Crest in state court.
The district court properly dismissed Intri-Plex’s suit as an
impermissible attempt to split a single cause of action. Intri-
Plex partially subrogated its rights to AMI. Intri-Plex disputes
this and claims that AMI “was acting as a partial subrogee
of KR Precision, which was the only entity which received
Atlantic Mutual funds.” Pl.’s Br. at 6 (emphasis in original).
Not only is this a misunderstanding of subrogation,6 but it
contradicts Intri-Plex’s own complaint, which alleged that
6
“Under the doctrine of subrogation, when an insurer pays money to its
insured for a loss caused by a third party, the insurer succeeds to its
insured’s rights against the third party in the amount the insurer paid.
Upon subrogation, the insurer steps into the shoes of its insured.” Hodge
v. Kirkpatrick Dev., Inc., 130 Cal. App. 4th 540, 548 (2005) (internal cita-
tions omitted).
10616 INTRI-PLEX TECHNOLOGIES v. CREST GROUP
AMI was its insurance carrier and that “Plaintiff received par-
tial indemnity from [AMI] for the identification, recall, and
return of finished baseplates manufactured, distributed and
shipped by Plaintiff . . . and for suspension assemblies manu-
factured by KRP . . . incorporating finished baseplates manu-
factured by Plaintiff.” Compl. ¶ 14.
Thus, it is clear that (1) Intri-Plex had an insurance policy
with AMI and (2) pursuant to the insurance policy, AMI paid
for loss that Intri-Plex sustained as a result of Crest’s defec-
tive air dryers and filters, and loss that KRP sustained as a
result of receiving defective baseplates from Intri-Plex. We
are persuaded by Crest’s argument that:
when an insurer settles a claim brought against its
insured, it becomes subrogated to the rights that its
insured may have against third parties. It does not
become subrogated to the rights of the insured’s
third party claimant. This is no less true when the
“benefit” that the insured receives from its insurer is
a payment directly to a third party to avoid the third
party’s claim. Atlantic Mutual settled KRP’s claim
on behalf of Intri-Plex, because it was Intri-Plex’s
insurer. It then became subrogated to Intri-Plex’s
rights against Crest.
Def.’s Br. at 17. Both Allstate Ins. Co. v. Mel Rapton, Inc., 77
Cal. App. 4th 901 (2000), and Ferraro, 102 Cal. App. 3d 33,
are directly on point.
In Allstate, the tortfeasor, Mel Rapton, Inc., caused damage
to Katie Gallagher’s car when it negligently repaired her ciga-
rette lighter and the lighter caused a fire. 77 Cal. App. 4th at
905. Gallagher tendered a claim to Allstate Insurance Co.
(Allstate). Id. Allstate paid Gallagher pursuant to her insur-
ance policy, and Gallagher subrogated to Allstate her claim
against Mel Rapton, Inc. Id. Allstate demanded that Mel Rap-
ton’s insurance company, Farmers Insurance Group (Farm-
INTRI-PLEX TECHNOLOGIES v. CREST GROUP 10617
ers), reimburse Allstate for the sum it paid to Gallagher, but
Farmers denied responsibility for the loss. Id. Gallagher
sought reimbursement from Mel Rapton for losses not cov-
ered by her insurance policy, such as pain and suffering and
personal items inside the car that were destroyed by the fire.
She filed a claim in small claims court and judgment was
entered in her favor. Id.
Over one year later, Allstate filed a complaint in municipal
court against Mel Rapton, alleging that it had negligently ser-
viced the car, thereby causing the fire. Id. at 905-06. Allstate
sought the sum it paid Gallagher minus the salvage value of
the car. Id. at 906. Mel Rapton moved for summary judgment
on the ground that Allstate’s action was barred by res judicata
and the rule against splitting causes of action. Id.
The California Court of Appeal, Third District, held that
Allstate’s action was barred because its claim was derived
solely from the subrogation of Gallagher’s rights against Mel
Rapton. Id. at 909. It also held that Mel Rapton did not waive
the defense of impermissible splitting, even though it was
aware of Allstate’s claim. Id. at 910. The court explained:
When, as often happens, the insured is only partially
compensated by the insurer for a loss . . . , operation
of the subrogation doctrine “results in two or more
parties having a right of action for recovery of dam-
ages based upon the same underlying cause of
action.” The insured retains the right to sue the
responsible party for any loss not fully compensated
by insurance, and the insurer has the right to sue the
responsible party for the insurer’s loss in paying on
the insurance policy. . . . Although the insurer may
bring a separate action against the tortfeasor, the
rule against splitting a cause of action is violated
where both the insurer and the insured pursue sepa-
rate actions.
10618 INTRI-PLEX TECHNOLOGIES v. CREST GROUP
Id. at 908 (internal citation omitted) (emphasis added).
In Ferraro, plaintiffs whose property was damaged by a
gas company settled their claims with their insurance com-
pany, Safeco. 102 Cal. App. 3d at 37. As part of their settle-
ment, the plaintiffs subrogated their claims “to the amount of
such payment” to Safeco. Id. at 38. Safeco filed a complaint
against the gas company. Several months later, the plaintiffs
also filed a complaint against the gas company. Id. They
alleged in their complaint that they had received insurance
benefits from Safeco, but they did not attempt to join Safeco,
and Safeco did not intervene. Id. The gas company did not
raise the issue of impermissible claim-splitting until the trial
was over and the plaintiffs appealed. Id. at 40.
The California Court of Appeal, Second District, held that
the appellants impermissibly split the claim:
the subrogation clause resulted in a partial subroga-
tion to Safeco, that is, subrogation in the amount of
the insurance proceeds only. Therefore, appellants
could still maintain a cause of action against the tort-
feasors for those losses beyond such insurance pro-
ceeds. Nonetheless, failure of appellants to join
Safeco or of Safeco to intervene did result in a split-
ting of the cause of action . . . .”
Id. at 43 (emphasis added). However, since the gas company
did not raise this objection in the trial court, it waived the
defense. Id. at 43-44.
[2] Here, AMI paid the claims of KRP against Intri-Plex for
the defective baseplates and the suspension assemblies pursu-
ant to Intri-Plex’s insurance policy. Because Intri-Plex par-
tially subrogated its rights to AMI, AMI filed an action
against Crest, the tortfeasor, to recover the benefit AMI paid
INTRI-PLEX TECHNOLOGIES v. CREST GROUP 10619
to its insured. Thus, AMI acted as a partial subrogee of Intri-
Plex.7
[3] As Ferraro and Allstate make clear, although Intri-Plex
was only partially compensated for its loss because its insur-
ance policy with AMI did not cover all of its losses, Intri-Plex
should have pursued its claims in a single action along with
AMI. The fact that Intri-Plex was aware of AMI’s complaint
in state court against Crest is not subject to reasonable dis-
pute, because it filed a stipulation regarding a protective order
in California superior court on February 22, 2004. Intri-Plex
did not intervene in that action. Intri-Plex argues instead that
Crest could have joined Intri-Plex in that litigation, but it was
Intri-Plex’s duty to intervene to protect its own rights.8 As the
district court put it, “nothing before the Court indicates that
any party, besides Intri-Plex itself, had knowledge of the addi-
tional claims that Intri-Plex seeks to raise.” Order at 3.9
7
As the district court correctly noted, Intri-Plex confuses equitable
indemnity with equitable subrogation. “According to California law, equi-
table indemnity permits ‘a concurrent tortfeasor to obtain partial indem-
nity from another concurrent tortfeasor on a comparative fault basis.’ ”
Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (citing
Am. Motorcycle Ass’n v. Superior Court of Los Angeles County, 20 Cal.3d
578, 598 (1978)). This is not a situation involving concurrent tortfeasors,
with one seeking to recover on a comparative fault basis from the other.
8
Intri-Plex had the right to intervene under Cal. Civ. Proc. Code
§ 387(b), which provides, “if the person seeking intervention claims an
interest relating to the property or transaction which is the subject of the
action and that person is so situated that the disposition of the action may
as a practical matter impair or impede that person’s ability to protect that
interest, unless that person’s interest is adequately represented by existing
parties, the court shall, upon timely application, permit that person to
intervene.” Cf. Hodge, 130 Cal. App. 4th at 550-52 (holding that interven-
tion was the best way for the insurance company to protect its subrogation
rights).
9
As discussed above, even if Intri-Plex amended the complaint to allege
these facts, its action would still be barred by the rule against splitting
claims.
10620 INTRI-PLEX TECHNOLOGIES v. CREST GROUP
[4] Intri-Plex argues that its claim for injury to reputation
and damage to inventory were not covered by AMI, and that
these constitute separate “primary rights.” Intri-Plex, how-
ever, did not allege injury to reputation; it has only alleged
damage to property not covered by insurance, such as damage
to inventory. The right to recover for damage to property
arises from one primary right—the right not to have your
property damaged by another. Here, the district court cor-
rectly held that “the AMI action and this action grow from the
violation of a single primary right stemming from a single
harm suffered: corrosion of the baseplate allegedly caused by
Crest’s faulty products.” Order at 2.
B. Waiver
[5] Under the principles articulated in Allstate and Ferraro,
Crest did not waive the splitting defense. Crest raised the
issue in its motion to dismiss, and Intri-Plex’s action was not
filed until after AMI’s. In Allstate, the court held there was no
waiver because “[u]ntil Allstate filed its action, there was no
impermissible splitting; Gallagher simply had sued Mel Rap-
ton for less than the full amount of her damages.” 77 Cal.
App. 4th at 910. The same principle applies here.
Allstate holds that a tortfeasor with knowledge of an insur-
er’s subrogation claim may not settle the entire cause of
action by settling only with the insured and thereby foreclose
a subsequent action by the insurer. Id. at 912. Intri-Plex
argues that this permits it to bring a subsequent action where
Crest settled with AMI knowing that Intri-Plex had claims.
This is not so because even if Intri-Plex amended its com-
plaint to allege that Crest settled with AMI with knowledge
of Intri-Plex’s remaining claims, this rule exists to protect the
insurer from fraud. See id. Intri-Plex is the insured, not the
insurer, and it does not have subrogation rights to protect.
INTRI-PLEX TECHNOLOGIES v. CREST GROUP 10621
II. The district court properly dismissed Intri-Plex’s
complaint without leave to amend.
[6] “Dismissal without leave to amend is improper unless
it is clear, upon de novo review, that the complaint could not
be saved by any amendment.” In re Daou Sys., Inc., 411 F.3d
1006, 1013 (9th Cir. 2005) (internal quotation marks and cita-
tion omitted); Ascon Properties, Inc. v. Mobil Oil Co., 866
F.2d 1149, 1160 (9th Cir. 1989) (“Leave need not be granted
where the amendment of the complaint . . . constitutes an
exercise in futility . . . .”).
[7] Intri-Plex argues that it could amend its complaint to
allege that Crest settled with AMI with knowledge of Intri-
Plex’s unsatisfied claims. But as discussed, Intri-Plex cannot
benefit from the rule that a tortfeasor with knowledge of an
insurer’s subrogation claim may not settle the entire cause of
action by settling only with the insured and thereby foreclose
a subsequent action by the insurer. See Allstate, 77 Cal. App.
4th at 912; see also Griffin v. Calistro, 229 Cal. App. 3d 193,
196 (1991). Because this rule “involves an insured’s and tort-
feasor’s voluntary settlement and release of all claims with
knowledge of an insurer’s subrogation rights,” Allstate, 77
Cal. App. 4th at 912 (second emphasis added), it exists to pro-
tect the insurer, not the insured. The insurer succeeds to the
rights of the insured, and the tortfeasor cannot prevent the
insurer from exercising those rights. Here, Intri-Plex did not
succeed to the rights of AMI, so Intri-Plex did not have any
subrogation rights to protect.
CONCLUSION
The district court’s grant of defendant’s motion to dismiss
is
AFFIRMED.