Judge: Ashfaq G. Chowdhury, Case: 24GDCV00150, Date: 2025-02-13 Tentative Ruling
Case Number: 24GDCV00150 Hearing Date: February 13, 2025 Dept: E
Case No: 24GDCV00150
Hearing Date: 02/13/2025 – 8:30am
Trial Date: UNSET
Case Name: ATOM PETROSYAN v. INTERINSURANCE EXCHANGE OF
THE AUTOMOBILE CLUB; and DOES 1-50, inclusive
[TENTATIVE RULING ON
DEMURRER & MOTION TO STRIKE]
PROCEDURAL
Moving Party: Defendant, Interinsurance Exchange of the
Automobile Club (Defendant or Exchange)
Responding Party: Plaintiff, Atom Petrosyan
Moving Papers: Notice/Demurrer; Colin M. Adkins
Declaration
Opposition Papers: Opposition
Reply Papers: Reply
Proof of Service Timely Filed (CRC Rule
3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok
Meet and Confer
A party filing a
demurrer “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
shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.”
(Code Civ. Proc., §430.41, subd. (a)(2).)
Failure to sufficiently
meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ.
Proc., §430.41(a)(4).)
Here, Defendant’s
counsel met and conferred, but an agreement could not be reached. (Adkins Decl.
¶¶ 4-7.)
RELIEF REQUESTED
Defendant, Interinsurance
Exchange of the Automobile Club, will and hereby does generally demur to
Plaintiff, Atom Petrosyan’s, First Amended Complaint pursuant to CCP § 430.10
on the grounds that: both causes of action fail to state a claim against the
Exchange.
BACKGROUND
Plaintiff, Atom
Petrosyan, filed the original Complaint on 1/26/2024.
On 11/26/2024, Plaintiff
filed a First Amended Complaint (FAC) against Defendant, Interinsurance
Exchange of the Automobile Club, alleging two causes of action for: (1) Bad
Faith Breach of Implied Covenant of Good Faith and Fair Dealing, and (2) Breach
of Contract.
Plaintiff alleges that
he operated a 2011 Toyota Yaris (the vehicle) that was insured by
Interinsurance Exchange of the Automobile Club with a policy number
CAA161868392. (FAC ¶ 9.) Plaintiff alleges he got into a collision wherein the
tortfeasor fled the scene, and he could not obtain any identifying information.
(Id.) Plaintiff alleges he sustained personal injury and property
damage. (Id.)
Plaintiff alleges he
submitted his injury claims to the Exchange for payment under the Uninsured
Motorist coverage. (FAC ¶ 10.)
Plaintiff alleges that
the Exchange breached the insurance policy by failing to properly investigate
and pay legitimate claims made by the Plaintiff. (FAC ¶ 29.)
LEGAL STANDARDS FOR DEMURRERS
Demurrer
– Sufficiency
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.) 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.) The
court “treat[s] the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent
on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters; therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The
only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action. (Hahn,
supra, 147 Cal.App.4th at 747.)
The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts. (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550.)
“All that is required of a plaintiff, as a matter of pleading … is that
his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard v. Lockheed
Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727,
734.) Demurrers do not lie as to only parts of causes of action, where some
valid claim is alleged but “must dispose of an entire cause of action to be
sustained.” (Poizner v. Fremont
General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of
discretion to sustain a demurrer without leave to amend if there is any
reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.)
ANALYSIS
First Cause
of Action (Bad Faith Breach of the Implied Covenant of Good Faith and Fair
Dealing) and Second Cause of Action (Breach of Contract)
Defendant quotes Brizuela v.
CalFarm Ins. Co. which states, “An insured’s compliance with a policy
requirement to submit to an examination under oath is a prerequisite to the
right to receive benefits under the policy.” (Brizuela v. CalFarm Ins. Co.
(2004) 116 Cal.App.4th 578, 587.)
Defendant
then argues that the first and second causes of action fail to state a claim
because the FAC admits that Plaintiff functionally refused to sit for an EUO, a
policy condition precedent to payment.
The Court
does not find Defendant’s argument availing.
In a
demurrer proceeding, the defects must be apparent on the face of the pleading
or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters; therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Code Civ. Proc.,
§§ 430.30, 430.70.)
Although
Defendant argues that Plaintiff admitted to refusing to sit for an EUO, this
argument is unavailing and outside the scope of the instant demurrer hearing. Defendant’s
argument relies on Defendant’s subjective interpretation of the alleged facts
in the FAC, and the FAC does not explicitly admit that Plaintiff refused to sit
for an EUO.
Further,
Defendant’s reliance on Brizuela is inapposite. Brizuela was not
at the pleading stage; Brizuela is an appeal from the trial court’s
entry of summary judgment. The instant hearing is a hearing on a demurrer, not
a hearing on a motion for summary judgment.
TENTATIVE
RULING DEMURRER
Defendant’s demurrer to the first
and second causes of action is OVERRULED. Defendant’s argument relied on
matters outside the scope of a hearing on a demurrer. Defendant’s argument
relied on Defendant’s subjective interpretation of Plaintiff’s FAC in an
attempt to construe the FAC as admitting that Plaintiff refused to sit for an
EUO. Defendant relied on the cases of: (1) Brizuela v. CalFarm Ins. Co.
(2004) 116 Cal.App.4th 578, (2) Globe Indemnity Co. v. Superior Court
(1992) 6 Cal.App.4th 725, and (3) Love v. Fire Ins. Exchange (1990) 221
Cal.App.3d 1136. All three of those cases were not at the pleading stage like
the instant case.
MOTION TO STRIKE
Moving Party: Defendant, Interinsurance Exchange of the Automobile Club
Responding Party: Plaintiff,
Atom Petrosyan
Moving Papers: Notice/Motion
to Strike; Colin M. Adkins Declaration
Opposition Papers: Opposition
Reply Papers: Reply
RELIEF REQUESTED
Defendant
moves to strike the following allegations of punitive damages from the FAC on
the grounds that the pleading fails to state facts sufficient to support an
award of such damages pursuant to CCP §§ 435 and 436:
1. Page 9:5-13: “25. In committing the aforementioned
acts, AAA acted with oppression fraud, and malice with the intent to willfully
injure, harass, vex, and annoy PLAINTIFF with a conscious disregard for its
[sic] rights. All of the aforementioned alleged acts were done or ratified by
AAA’s management-level employees, who acted with the knowledge that the
defendant’s conduct would cause PLAINTIFF harm. PLAINTIFF is, therefore,
entitled to recover punitive damages pursuant to California Civil Code Section
3294.”
2. Page 11: 2-3: “6. … For exemplary and punitive
damages according to proof and in an amount sufficient to punish the Defendant
according to each Defendant’s net worth.”
PROCEDURAL
Meet
and Confer
Before filing a motion to strike pursuant to
this chapter, the moving party shall meet and confer in person or by telephone
with the party who filed the pleading that is subject to the motion to strike
for the purpose of determining if an agreement can be reached that resolves the
objections to be raised in the motion to strike. If an amended pleading is
filed, the responding party shall meet and confer again with the party who
filed the amended pleading before filing a motion to strike the amended
pleading. (CCP § 435.5(a).)
“A determination by the
court that the meet and confer process was insufficient shall not be grounds to
grant or deny the motion to strike.” (CCP § 435.5(a)(4).)
Here, Defendant’s counsel met and conferred, but an agreement was not
able to be reached. (Adkins Decl. ¶¶ 4-7.)
Legal Standard Motion to Strike
The court may, upon a motion, or at any time in
its discretion, and upon terms it deems proper, strike any irrelevant, false,
or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the grounds
that a complaint fails to state facts sufficient to constitute a cause of
action, but instead is properly based on grounds of superfluous or abusive
allegations, or improprieties in form or procedure. (Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509,
528-29.)
The grounds for moving
to strike must appear on the face of the pleading or by way of judicial
notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of
Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read
allegations of a pleading subject to a motion to strike as a whole, all parts
in their context, and assume their truth”].)
Further, CCP § 431.10(a)-(c)
states as follows:
(a) A material allegation in a pleading is one essential
to the claim or defense and which could not be stricken from the pleading
without leaving it insufficient as to that claim or defense.
(b) An immaterial allegation in a pleading is any of the
following:
(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.
(3) A demand for judgment requesting relief not
supported by the allegations of the complaint or cross-complaint.
(c) An “immaterial allegation” means “irrelevant matter”
as that term is used in Section 436.
(CCP § 431.10(a)-(c).)
TENTATIVE
RULING MOTION TO STRIKE
Plaintiff’s
FAC requests punitive damages in ¶ 25 of the FAC. Paragraph twenty five’s
request for punitive damages is located within the first cause of action for
bad faith breach of the implied covenant of good faith and fair dealing. Additionally,
Plaintiff’s Prayer for Relief, with respect to the first cause of action,
requests exemplary and punitive damages. Defendant moves to strike both
requests on the basis that Plaintiff has not alleged any factual behavior on
the part of Defendant that would rise to the level of oppression, fraud, or
malice.
In an action for the breach of an obligation not
arising from contract, where it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud, or malice, the plaintiff,
in addition to the actual damages, may recover damages for the sake of example
by way of punishing the defendant. (Cal. Civ. Code § 3294(a).)
“‘Malice’ means conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others.” (CCP § 3294(c)(1).)
“‘Oppression’ means despicable conduct that subjects a
person to cruel and unjust hardship in conscious disregard of that person’s
rights.” (CCP § 3294(c)(2).)
“‘Fraud’ means an intentional misrepresentation,
deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of
property or legal rights or otherwise causing injury.” (CCP § 3294(c)(3).)
“In order to survive a motion to strike an allegation
of punitive damages, the ultimate facts showing an entitlement to such relief
must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67
Cal. App. 4th 1253, 1255.) Conclusory allegations, devoid of any factual
assertions, are insufficient to support a conclusion that parties acted with
oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App. 4th
1033, 1042.)
Although Defendant argues that Plaintiff has not
alleged any factual behavior on the part of Defendant that would give rise to
the level of oppression, fraud, or malice, the Court does not find Defendant’s
argument availing. Plaintiff has alleged facts that a jury could potentially
find rises to the level of oppression, fraud, or malice for Plaintiff’s cause
of action for bad faith breach of the implied covenant of good faith and fair
dealing.
Further, the Court notes that Plaintiff cited to a
case in which an award of punitive damages was proper for a defendant breaching
its duty to deal reasonably and in good faith with its insured. (See Neal v.
Farmers Ins. Exchange (1978) 21 Cal.3d 910, 922-923.)
Because the instant action is at the pleading stage,
the Court does not find Defendant’s argument availing.
Defendant’s motion to strike is DENIED.