Judge: Anne Hwang, Case: 23STCV07328, Date: 2023-08-10 Tentative Ruling

Case Number: 23STCV07328    Hearing Date: August 10, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

This is a personal injury action stemming from a traffic collision in which Tyrone Singleton (“Plaintiff”) was struck by flying debris which flew off of Walter Raudales’ vehicle when Raudales was involved in a collision on May 11, 2021. Plaintiff alleges several injuries and filed a Complaint on April 4, 2023 alleging three causes of action: (1) Motor Vehicle Negligence, (2) General Negligence, and (3) Products Liability. The Complaint alleges these actions against Raudales. In addition, Plaintiff also sues the moving parties for the instant Demurrer, Progressive West Insurance Company and Freeway Insurance Services America LLC (collectively, “Defendants”.)

The instant Demurrer was filed on July 5, 2023. Plaintiff filed Opposition Papers on July 24, 2023. Defendants filed Reply Papers on August 3, 2023.

LEGAL STANDARD

The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not “read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

            A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted.

            Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

            Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

ANALYSIS

Meet and Confer

Defendants offer the Declaration of Jinny A. Cain (“Cain Dec.”) which states that Defendants contacted Plaintiff with a letter on June 7, 2023. (Cain Dec.,¶ 5.) The parties conferred telephonically on June 21, 2023 but came to no agreement. (Cain Dec.,¶ 6.) Although no agreement was reached, the requirements of CCP § 430.40(a) have been satisfied.

Negligence

Defendants argue that the negligence causes of action fail to state facts sufficient to constitute a cause of action because Defendants are corporate entities and did not owe a duty of care to plaintiff where Plaintiff had no contract or agreement with Defendants.

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”  (Code of Civ. Proc. § 367.) “A party who is not the real party in interest lacks standing to sue because the claim belongs to someone else. …Where someone other than the real party in interest files suit, the complaint is subject to a general demurrer.” (Estate of Bowles (2008) 169 Cal.App.4th 684, 690 (citations omitted).)

“[G]enerally an insurer may not be joined as a party-defendant in the underlying action against the insured by the injured third party. The fact that an insurer has agreed to indemnify the insured for any judgment rendered in the action does not make the insurer a proper party. Liability insurance is not a contract for the benefit of the injured party so as to allow it to sue the insurer directly.” (Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 205.)  “[A] third party who is not in privity of contract with the liability insurer (nor named as an express beneficiary of the policy)…would normally lack standing to sue the insurer to resolve coverage questions about a tortfeasor, such as where there has been a failure to settle a claim under the policy.”  (Id.; Shaolian v. Safeco Ins. Co. (1999) 71 Cal.App.4th 268, 271 (“Because the insurer’s duties flow to its insured alone, a third party claimant may not bring a direct action against an insurance company. As a general rule, a third party may directly sue an insurer only when there has been an assignment of rights by, or a final judgment against, the insured.”)

Plaintiff filed a First Amended Complaint on June 26, 2023.  The FAC alleges that the reason Progressive West Insurance denied liability for Walter A. Raudales was that “the Policy had been cancelled May 9, 2021, two days prior to the collision.”  (FAC at pg. 3.) The FAC further alleges that “the insured must legally be given advance notice before their policy cancellation. …Failure to do so in a timely manner does not relieve the insurer of their obligation to the insured.” (Id. at pg. 4.) In addition, “[a]t the time of the accident on May 11, 2021, according to police information obtained by first responders, the insurance company of record for Walter Raudales was Freeway insurance, Policy #943 480862. However, Freeway has repeatedly confirmed that Progressive West is the actual insurer. In all practicality, the correspondence of record (written, and by phone) between the plaintiff’s former attorney, the plaintiff, and the Progressive West claims adjuster clearly indicates that Progressive West in the insurer for Walter A. Raudales, and is therefore liable for the defendant’s gross negligence, due to his failure to properly attach the camper shell safety and secure onto his vehicle, the 2001 Toyota Tacoma, regardless of who was at fault.” (Id.)

The Court concludes that Plaintiff lacks standing to sue Defendants because Plaintiff was not a party to the insurance contract, and there is no allegation of assignment of rights by, or judgment against, the insured. Moreover, the FAC does not allege any exception to the limitation on a third party claimant’s standing to sue a liability insurer.  In fact, the FAC expressly alleges that Defendants were not Raudales’s insurer at the time of the incident.  At most, the FAC alleges that Raudales had a claim against Progressive West for failing to provide coverage due to lack of advance notice of the policy cancellation. This does not explain Plaintiff’s standing to bring such a claim on Raudales’s behalf.  There is no allegation on information and belief that the insurance contract included a provision that would make Plaintiff a third party beneficiary.

Accordingly, the Court sustains the demurrer as to Counts One and Two.

Products Liability

Defendants argue that the products liability cause of action fails to state facts sufficient to constitute a cause of action because Defendants are corporate entities and did not owe a duty of care to plaintiff where Plaintiff had no contract or agreement with Defendants.

To recover on a strict products liability cause of action, plaintiff must ordinarily show: (1) the product is placed on the market, (2) there is knowledge that it will be used without inspection for defect, (3) the product proves to be defective, and (4) the defect causes injury. (Nelson v. Superior Court (2006) 144 Cal.App.4th 689, 695.)

The FAC alleges that “[b]ut for the unsecured camper shell, which flew off defendant Walter Raudales’s vehicle in addition to other debris, on May 11, 2021, Tyrone Singleton, plaintiff would not have been injured and knocked unconscious.”  (FAC at pg. 4.)

            The FAC does not allege any connection between Defendants and the unsecured camper shell. Accordingly, the Court sustains the demurrer as to Count Three.

Leave to Amend

There is no reasonable possibility of successful amendment and the Court therefore denies leave to amend.

CONCLUSION

The Demurrer is SUSTAINED in its entirety as to Defendants Progressive West Insurance Company and Freeway Insurance Services America, LLC, without leave to amend.

Defendants shall give notice of the Court’s order and file a proof of service of such.