Judge: Audra Mori, Case: 21STCV21315, Date: 2022-10-31 Tentative Ruling

Case Number: 21STCV21315    Hearing Date: October 31, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Michael Aisley (“Plaintiff”) filed this action against Defendants Grant M. Uberstine (“Grant”), Gary Uberstine (“Gary”), and State Farm Insurance (“State Farm”) for damages arising out of a motor vehicle accident.  The complaint alleges causes of action for motor vehicle and general negligence.  Plaintiff alleges that Grant negligently operated a vehicle owned by Gary as to cause to to collide with Plaintiff’s vehicle.  Further, Plaintiff alleges that State Farm is liable to Plaintiff because it is the provider of an auto insurance policy to Grant and Gary. 

On December 8, 2021, Plaintiff filed a Request for Dismissal dismissing his complaint.  Thereafter, Plaintiff filed a motion to set aside the December 8, 2021 dismissal providing that Plaintiff intended to dismiss only State Farm, not the entire complaint.  The motion to set aside dismissal was granted on September 6, 2022.  Plaintiff then did not file any a new request for dismissal. 

At this time, State Farm demurs to the complaint arguing it fails to state a claim against it.  State Farm argues that Plaintiff cannot maintain a claim against it as the insurer of Grant and Gary. 

In opposition, Plaintiff provides he is in agreement with State Farm that State Farm should be dismissed.  However, Plaintiffs argues that State Farm did not properly meet and confer prior to filing the demurrer, and that State Farm did not serve the demurrer on Grant and Gary.  Plaintiff argues the demurrer is unnecessary and should be overruled. 

In reply, State Farm argues that the demurrer was properly served, and that it made sufficient efforts to meet and confer.  State Farm asserts that Plaintiff admits the complaint fails to state a claim against it.   

2. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

A demurrer 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; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

a. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).) 

The Court finds Defendant has fulfilled this requirement prior to filing the demurrer.  (Demurrer Van Vo Decl. ¶¶ 2-6.)

b. Analysis

“The elements of negligence are (1) a legal duty to use due care, (2) the breach of such legal duty, and (3) the breach was the proximate or legal cause of injury.”  (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255.)  “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) 

A defendant against whom no cause of action is stated is improperly joined.  (Blodgett v. Trumbull (1927) 83 Cal. App. 566, 570-571.)  Moreover, an insurance company is improperly joined with its insured negligent driver in the same action.  (Geraci v. United Servs. Auto. Ass'n (1987) 188 Cal.App.3d 1245, 1253; Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, 891 [overruled on other grounds by Moradi-Shalal v. Fireman's Fund Ins. Cos. (1988) 46 Cal.3d 287].) 

“ “ ‘[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.’ [Citation.]” “  (Royal Indem. Co. v. United Enters., Inc. (2008) 162 Cal.App.4th 194, 205; see also Geraci, supra, 188 Cal.App.3d at 1253.)  This is because the insurer's duties flow to the insured. (San Diego Housing Com. v. Industrial Indemnity Co. (2002) 95 Cal.App.4th 669, 685; Harper v. Wasau Ins. Co. (1997) 56 Cal.App.4th 1079, 1086 .)  “[E]ven though a third party making a liability claim against an insured will benefit from the insurer's payment under the policy, the benefit is only incidental, and the claimant is not a third party beneficiary of the contract.”  (Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1994) 21 Cal.App.4th 1586, 1600.) 

Here, as an initial matter, to the extent that Plaintiff contends the demurrer was not properly served on all parties, Plaintiff does not dispute being served with and receiving the demurrer.  Further, Grant and Gary have not filed an answer or other responsive pleading in this matter.  Accordingly, Plaintiff fails to show that the demurrer is procedurally defective.

The complaint alleges in relevant part, “defendant State Farm Insurance is liable to Plaintiff as they are the providers of auto insurance policy to the other defendants (Grant M. Uberstine and Gary Uberstine).”  (Compl. at p. 5.)  There are no other allegations made against State Farm to suggest a basis of liability against it for the subject accident.  The sole allegations in the complaint concern the motor vehicle accident involving Grant and Gary, State Farm’s alleged insureds.  The complaint’s allegations against State Farm are thus premised on the contention that State Farm is providing an auto insurance policy to Grant and Gary.  Moreover, Plaintiff agrees State Farm should be dismissed but has failed to file a request for dismissal doing so. 

The complaint fails to allege that State Farm owed a duty to Plaintiff for the accident and fails to state a claim against it.  (See California Insurance Code §11580(b)(2).)  The demurrer to the negligence and motor vehicle causes of action against State Farm is sustained.

c. Leave to Amend

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  

In this case, Plaintiff does not request leave to amend.  Rather, as stated above, Plaintiff agrees State Farm should be dismissed from this action.  As to the request that the dismissal should be without prejudice, Plaintiff fails to offer any reasoning or explanation as to why such is warranted in this matter.

State Farm’s demurrer is sustained as to the claims against it without leave to amend.  The complaint against State Farm is ordered dismissed.]

Moving Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 31^st day of October 2022