Judge: Anne Richardson, Case: 22STCV12269, Date: 2023-08-24 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 22STCV12269    Hearing Date: August 24, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff Bernardo Vargas sues Defendants The Liberty Company Insurance Brokers Inc. (Liberty), AJ 0706 (employee/agent of Liberty), Doe 1 Brilsilco, Inc. (Brill’s Shoes), and Does 2 to 50 pursuant to an April 7, 2023 Second Amended Complaint (SAC) alleging claims of: (1) Broker Professional Negligence, (2) Breach of Fiduciary Duties, (3) Negligent Misrepresentation, (4) Constructive Fraud, (5) Breach of Contract, (6) Implied Covenant of Good Faith and Fair Dealing, and (7) Unjust Enrichment against Liberty, AJ 0706, and Does 1-50; and (8) Declaratory Judgment Act and (9) Breach of Contract against Brill’s Shoes.

The claims arise in part from allegations that Brill’s Shoes manufactured certain orthotic shoe inserts for Plaintiff’s use, which Brill’s Shoes improperly designed and shaped in a way that caused damage to Plaintiff’s toes and feet, ultimately resulting in the amputation of Plaintiff’s right leg below the knee, with Plaintiff later suing Brill’s Shoes, and Plaintiff ultimately obtaining a $1.5 million arbitration award in his favor. The claims also arise in part from allegations that Brill’s Shoes discovered that its insurance broker, Liberty, had secured Brill’s Shoes an insurance policy with EMCC that excluded coverage for nearly all acts for which Brill’s Shoes could be found liable, after which Brill’s Shoes was involved in a federal District Court declaratory judgment action in which the Central District of California declared Brill’s Shoes’ professional services were subject to the Professional Services Exclusion in its insurance policy with EMCC. (The demurrer before the Court explains that Employers Mutual Casualty Company (EMCC) initiated the declaratory relief action.) Per the SAC, after the arbitration award in favor of Plaintiff, Brill’s Shoes assigned to Plaintiff its legal rights against Liberty and AJ 0706.

On May 26, 2023, Liberty demurred to the SAC in its entirety and to each individual cause of action on sufficiency and uncertainty in pleading grounds.

That same day, Liberty moved to strike 60 portions of the SAC based on lack of relevance, falsity, or impropriety.

On August 11, 2023, Plaintiff filed a combined opposition to the demurrer and motion to strike.

On August 17, 2023, Liberty filed separate replies against the opposition.

The demurrer and motion to strike are now before the Court.

Request for Judicial Notice

Per Defendant Liberty’s request, the Court TAKES judicial notice of the First Amended Complaint in this action, as well as the Court’s ruling on a demurrer by Liberty against that pleading. (See RJN, pp. 1-2, Exs. 1-2; Evid. Code., §§ 452, subd. (d), 453.)

Demurrer

Demurrer Sufficiency Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a [general] 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.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

Uncertainty Legal Standard 

A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, disapproved on other grounds in Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46 [holding claims for unfair business practices need not be pled specifically, impliedly disapproving Khoury].) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825, disapproved on other grounds in Jefferson v. J.E. French Co. (1960) 54 Cal.2d 717, 719-720 [statute of limitations question].) Where complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“A special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

Demurrer, Entire SAC, Statute of Limitations: SUSTAINED, Without Leave to Amend.

Unless a complaint affirmatively discloses on its face that the statute of limitations has run, the general demurrer on these grounds must be overruled. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [“It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred”].) Instead, “[t]he proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment ….’ [Citation.]” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 325.) Generally, a “statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her” (the “discovery rule”). (Bernson v. Browning–Ferris Industries (1994) 7 Cal.4th 926, 932.) However, if the complaint alleges wrongful conduct commencing at a time now barred by the statute of limitations, but continuing until a date not barred, the last overt act supporting the tort controls the trigger date for the statute of limitations. (See Wyatt v. Union Mortg. Co. (1979) 24 Cal.3d 773, 786 [holding that the statute of limitations on continuing tort cause of action does not begin to run until commission of last overt act].)

In relevant part, Liberty demurs to the entire SAC on the ground that its claims ran their limitations period prior to the filing of this action because (1) Professional Negligence claims are subject to a two-year limitations period, (2) claims that are dependent on the failure to procure insurance (thus supporting Professional Negligence) also are subject to the two-year limitations period, (3) causes of action begin to accrue once the plaintiff sustains damages and discovers or should have discovered the same, (4) all the SAC’s claims are premised on the same grounds, subjecting them to the two-year limitations period, and (5) on October 5, 2018, a District Court granted summary judgment in favor of EMCC, declaring that Brill’s Shoes did not have insurance coverage for the injuries sustained by Plaintiff Vargas, thus triggering the statute of limitations, which expired on April 1, 2021, well before this action was filed on April 12, 2022. (Demurrer, pp. 7-8.)

In opposition, Plaintiff Vargas argues without elaboration that the SAC “alleges more than Professional Negligence”—i.e., “Negligent Misrepresentation, Constructive Fraud, Breach of Fiduciary Duty, Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Unjust Enrichment”—and that the “[t]he statute of limitations concerning Plaintiff’s causes of action for Breach of Contract, Unjust Enrichment, Breach of Fiduciary Duty and Breach of Implied Covenant of Good Faith and Fair Dealing is four years while Negligent Misrepresentation and Constructive Fraud is three years.” (Demurrer Opp’n, p. 4.)

In reply, Liberty makes various arguments. Liberty argues that Plaintiff offers little discussion as to the statute of limitations issues before the Court, and that in any event, Plaintiff’s opposition arguments are incorrect. First, Liberty points out that Plaintiff did not dispute the two-year limitations period on the Professional Negligence claim. (Demurrer Reply, pp. 2-3.) Second, Liberty points out that Plaintiff did not dispute “that the claims accrued no later than October 5, 2018, when Brilsilco learned it had no rights against Employers Mutual Casualty Company and it began incurring its own attorney’s fees with the defense withdrawn.’ (Demurrer Reply, p. 3.) Third, Liberty argues—without citing to the relevant part of the opposition—that Plaintiff “tacitly concedes that even when a plaintiff alleges multiple causes of action, to the extent that they each are dependent on the failure to procure, the two-year limitations period applies.”  (Demurrer Reply, p. 3.) Fourth, Liberty argues that even if a three- and four-year limitations period applies to the SAC’s remaining claims—i.e., Negligent Misrepresentation, Constructive Fraud, Brach of Fiduciary Duty, Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Unjust Enrichment—the latest potential filing date for those claims (based on a four-year limitations period) was April 1, 2023, where the filing date of the SAC was April 7, 2023. (Demurrer Reply, p. 3.) Last, Liberty argues that these remaining claims do not relate back to the filing of the original Complaint in this action on April 12, 2022 because, “if the claims could potentially relate back, that would only be because they were based on the same primary right—the failure to procure—[making the remaining claims] … subject to the two-year limitations period” and “if [the remaining claim] involved a different set of facts and injuries, then the[] [injuries] would not relate back and still be untimely” for not having been filed before April 1, 2022 for the three-year limitations claims and April 1, 2023 for the four-year limitations claims. (Demurrer Reply, pp. 3-4.)

The Court agrees with Liberty.

I. Preliminary Findings

I.A. Incorporation of Past Pleading

Plaintiff can avoid the effect of earlier admissions by including in the complaint a satisfactory explanation why earlier admissions are incorrect. Absent such explanation, however, any self-destructive allegations in the earlier pleading or discovery response are “read into” the complaint, and allegations inconsistent therewith treated as sham and disregarded. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384; Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1061.)

Here, the FAC filed by Plaintiff Vargas—of which the Court has taken judicial notice—had attached to it a copy of Brill’s Shoes assignment agreement with Plaintiff Vargas. (See FAC, Ex. A.) The agreement provides that “[o]n October 5, 2018, the United States District Court granted Employers Mutual Casualty Company’s Motion for Summary Judgment against BRILL’S on th[e] grounds that BRILL’S was providing professional services to Vargas and subject to the ‘Professional Services Exclusion’ of the insurance policy,” for which reason “BRILL’S will [1] not be able to cover any potential judgment entered against it,” including against Plaintiff Vargas, and (2) need to pay its own attorney’s fees. (See FAC, Ex. A, § 1, ¶¶ 3-5.)

While Plaintiff Vargas failed to attach the assignment agreement to the SAC, the SAC does plead that in “October 2018, the United States District Court for the Central District of California issued summary judgment on the basis that Brill’s Shoes was providing professional services to Vargas when the harm occurred, and that Brilsilco’s professional services were subject to the Professional Services Exclusion of the insurance policy.” (SAC, ¶ 8.)

For the purposes of this demurrer, the Court reads the FAC’s attached assignment agreement into the SAC for the purpose of establishing that, in light of the October 5, 2018 summary judgment, Brill’s Shoes was unable to cover any potential judgment against it, including by Plaintiff Vargas. The Court reads this portion of the assignment agreement into the SAC because the SAC does not satisfactorily explain—nor does the demurrer opposition explain—the absence of this relevant factual background in the operative pleading. (Owens v. Kings Supermarket, supra, 198 Cal.App.3d at p. 384; Lockton v. O’Rourke, supra, 184 Cal.App.4th at p. 1061.)

I.B. Primary Rights Involved

The Court notes that the SAC’s causes of action against Liberty arise from Liberty’s alleged failure to broker an insurance policy for Brill’s Shoes that covered Professional Negligence, or, relatedly, arise from Liberty’s representations or omissions and contractual duties to Liberty in securing an appropriate insurance policy covering Professional Negligence. (See SAC, ¶¶ 17-19, 23-25 [Professional Negligence], 30(a)-(d) [Breach of Fiduciary Duties], 34-35 [Negligent Misrepresentation], 42(a)-(c) [Constructive Fraud], 52, 54 [Breach of Contract], 58-59 [Breach of Implied Covenant of Good Faith and Fair Dealing], 63 [Unjust Enrichment].)

The Court finds that the claims relate to the same primary right. A breach of fiduciary duty claim involves the same primary right as a professional negligence claim where the claims are based on a failure to obtain requested insurance coverage and an omission to disclose that failure, thus subjecting both claims to the two-year statute of limitations governing professional negligence. (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1159 (Hydro-Mill), citing to Code Civ. Proc., § 339.) Based on Hydro-Mill, the Court here can reasonably determine that the SAC’s contract and quasi-contract claims (Breach of Fiduciary Duties, Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, Unjust Enrichment) and the SAC’s fraud claims (Negligent Misrepresentation and Constructive Fraud) arise from the same primary right as the Professional Negligence claim because all the claims arise from Liberty’s failure to secure the requested insurance coverage for Brill’s Shoes, Liberty’s misrepresentations or omissions related to that failure, and Liberty’s breach of duties therethrough. (See SAC, 17-19, 23-25, 30(a)-(d), 34-35, 42(a)-(c), 52, 54, 58-59, 63 [grounds for causes of action].)

I.C. Date of Discovery

The Court finds that any injury suffered by Brill’s Shoes arising from Liberty’s failure to properly broker an insurance policy that covered Professional Negligence—e.g., inability to cover any award recovered by Plaintiff Vargas against Brill’s Shoes and the need to pay attorney’s fees (FAC, Ex. A, § 1, ¶¶ 4-5)—existed and should have been discovered no later than October 5, 2018, when a District Court granted summary judgment declaring that the professional services Brill’s Shoes rendered to Plaintiff were not covered in the EMCC insurance policy secured for Plaintiff by Liberty. (See SAC, ¶ 8; see also FAC, Ex. A, § 1, ¶¶ 3-5.) Such injuries to Brill’s Shoes underlie the SAC’s first through seventh causes of action, as pleaded against Liberty and as assigned to Plaintiff Vargas by Brill’s Shoes. (SAC, ¶¶ 11 [assignment], 27, 32, 39, 49-50, 56, 61, 66 [damages based on pleadings discussed in Section I.B. supra].)

 As a result, Brill’s Shoes would have been aware as of October 5, 2018 that (1) Liberty did not secure for Brill’s Shoes the type of insurance that Brill’s Shoes needed for coverage against Professional Negligence, (2) any representations or omissions made by Liberty relating to the extent of Brill’s Shoes insurance coverage through EMCC were false, and (3) Liberty breached its contract or other duties to secure for Brill’s Shoes the type of insurance Brill’s Shoes needed for coverage against professional negligence claims, thus unjustly enriching Liberty through Plaintiff’s payments for a type of insurance not actually secured by Liberty or through payments in excess of what other insurance carriers would have charged for the insurance coverage that Liberty actually secured for Brill’s Shoes.

II. Dispositive Findings

II.A. Limitations Period Has Run on Professional Negligence Claim

The Court finds that the SAC affirmatively pleads on its face that the limitations period ran on the FAC’s Professional Negligence claim. The SAC pleads sufficient facts for this Court to determine that any injuries arising from Liberty’s failure to secure proper insurance coverage for Brill’s Shoes accrued/was discovered no later than October 5, 2018. (See SAC, ¶ 8; see also Section I.C. supra; FAC, Ex. A, § 1, ¶¶ 3-5.) The limitations period on that claim is two years. (Code Civ. Proc., § 339, subd. (1); see also Hydro-Mill, supra, 115 Cal.App.4th at p. 1154.) As argued by Liberty, the two-year limitations period would have run as of April 1, 2021, taking into account Emergency Rule 9, with 549 days elapsing between October 5, 2018 and April 6, 2020 (operative date on which Rule 9 took effect) and 181 days elapsing between October 1, 2020 (operative date on which tolling by Rule 9 expired) and March 31, 2021 (the two-year mark). (Cal. Rules of Court, appen. I, Emergency rule 9, subd. (a).) This action was not filed until April 12, 2022, well beyond that limitations period. Moreover, Plaintiff’s opposition fails to provide any arguments for extending the limitations period on the SAC’s first cause of action for Professional Negligence. Instead, Plaintiff merely argues that his remaining claims should survive based on different limitations periods. (See Demurrer Opp’n, p. 4.) The Professional Negligence claim therefore cannot survive Liberty’s demurrer or be cured.

II.B. Limitations Period Has Run on Remaining Claims

The Court also finds that the SAC affirmatively pleads on its face that the limitations period ran on the FAC’s remaining six claims against Liberty because the seven causes of action stated in the SAC against Liberty share the limitations period of the Professional Negligence claim. Where multiple claims are dependent on a failure to obtain the requested insurance coverage and failure to disclose that failure, the limitations period on those claims is the two years prescribed by Code of Civil Procedure section 339, and a plaintiff cannot prolong the limitations period by invoking different theories of liability with different limitations periods. (See Hydro-Mill, supra, 115 Cal.App.4th at p. 1159 [“The statement of decision indicates that liability on both of those causes of action [professional negligence and breach of fiduciary duty] is based on the same findings: Hayward failed to obtain the requested insurance coverage and did not disclose that failure,” for which reason “Hydro-Mill’s causes of action … amount to a claim of professional negligence,” and “[b]ecause a two-year statute of limitations governs that type of claim (§ 339), Hydro-Mill cannot prolong the limitations period by invoking a fiduciary theory of liability”].)

Here, as discussed in Section I.B., the SAC’s claims arise from a failure to obtain the requested insurance coverage and misrepresentations, omissions, or breaches of contract or other duties arising from the same primary right. As such, all seven claims stated against Liberty—Professional Negligence, Negligent Misrepresentation, Constructive Fraud, Breach of Fiduciary Duty, Breach of Contract, Breach of Implied Covenant of Good Faith and Fair Dealing, and Unjust Enrichment—share the same limitations period (see ibid.), with the limitations period having begun on October 5, 2018 and run out on April 1, 2021, before this action was filed on April 12, 2022, as discussed in Section II.A. The SAC’s second through seventh causes of action therefore cannot survive Liberty’s demurrer or be cured.

II.C. Limitations Period Has Run Even if Primary Rights Differ (No Relation Back)

In the alternative, to the extent that any of the SAC’s claims allege a primary right that was separate and apart from Professional Negligence and do not relate back to the date of the original Complaint (April 12, 2022), the Court finds that the statute of limitations has run on those claims as well because, even assuming the limitations period was three or four years, the trigger date for the limitations period was October 5, 2018, as discussed in Section I.C. above. A two-year limitations period starting from October 5, 2018 ran by April 1, 2021. Consequently, three- and four-year limitations periods measured from the same starting point ran by April 1, 2022 and April 1, 2023. Here, all claims in the SAC but for the Professional Negligence claim were first alleged in the April 7, 2023 SAC. Therefore, even if the SAC’s second through seventh causes of action have three- or four-year limitations periods, the limitations period was triggered, per the pleadings, on October 5, 2018, and expired by April 1, 2022 for the three-year limitations period claims—Negligent Misrepresentation and Constructive Fraud (Code Civ. Proc., § 338, subd. (d))—and by April 1, 2023 for the four-year limitations period claims—Breach of Contract, Unjust Enrichment, Breach of Fiduciary Duty and Breach of Implied Covenant of Good Faith and Fair Dealing (Code Civ. Proc., § 337, subd. (a)). These determinations would put the second and seventh causes of action affirmatively beyond their limitations period, subjecting these claims to demurrer, and rendering them incapable of curing.

II.D. Limitations Period Has Run Even if Relation Back Applies

To the extent that the second to seventh causes of action do relate back to the filing of the original Complaint, such relation does not save the second through seventh causes of action.

First, the Court finds that, even if the Negligent Misrepresentation and Constructive Fraud claims do not arise from the same primary right as the Professional Negligence claim but relate back to the date of the original Complaint—April 12, 2022—the three-year statute of limitations on such claims (Code Civ. Proc., § 338, subd. (d)) would have run by April 1, 2022, i.e., 11 days before the original Complaint was filed on April 12, 2022, with a limitations trigger date of October 5, 2018. (See Sections I.C. and II.C. supra [calculation of October 5, 2018 and April 1, 2022 dates].) The claim is thus subject to demurrer and incapable of curing on any grounds.

Second, the Court notes that if the contract and quasi-contract claims alleged in the SAC—Breach of Contract, Unjust Enrichment, Breach of Fiduciary Duty and Breach of Implied Covenant of Good Faith and Fair Dealing—relate back to the filing of the original complaint, even with a limitations trigger date of October 5, 2018, the four-year statute of limitations would not have run until April 1, 2023, i.e., before the action was filed on April 12, 2022. (See Sections I.C. and II.C. supra [calculation of October 5, 2018 and April 1, 2023 dates].) However, here, the Court adopts its discussion in Section I.B. above to find that even if the contract and quasi-contract claims relate back to the date on which the original Complaint was filed, those claims arise from the same primary rights as the Professional Negligence claim, for which reason they must fail on demurrer and are incapable of curing. (See Section II.A. supra.)

III.

Liberty’s demurrer is thus SUSTAINED, Without Leave to Amend, because the pleadings affirmatively show that the claims stated therein against Liberty ran their respective limitations periods by April 1, 2022, 11 days before this action was commenced by Plaintiff on April 12, 2022, an uncurable defect.

Motion to Strike

Legal Standard

the court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” generally means a demurrer, answer, complaint, or cross-complaint, (Code Civ. Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3), (c)).  

Order Striking 60 Passages in SAC: MOOT.

In light of the Court’s ruling on the demurrer, the motion to strike is MOOT. 

Conclusion

Defendant The Liberty Company Insurance Brokers Inc.’s Demurrer to Second Amended Complaint is SUSTAINED, Without Leave to Amend.

Defendant The Liberty Company Insurance Brokers Inc.’s Motion to Strike Portions of Second Amended Complaint is MOOT.