Judge: Barbara M. Scheper, Case: 21STCV47417, Date: 2022-08-26 Tentative Ruling

Case Number: 21STCV47417    Hearing Date: August 26, 2022    Dept: 30

Dept. 30

Calendar No.

Hakak vs. Interinsurance Exchange of the Automobile Club, et. al., Case No. 21STCV47417

Tentative Ruling re:  Defendant’s Demurrer to Complaint; Motion to Strike

Defendant Interinsurance Exchange of the Automobile Club (Defendant) demurs to the Complaint of Plaintiff Lev Hakak (Plaintiff). The demurrer is overruled.  Defendant is ordered to answer within ten (10) days of today’s date.

In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a “demurrer lies only for defects appearing on the face of the complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) “The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)

When ruling on a demurrer, the Court may only consider the complaint’s allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.)

“A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.” (Rules of Court, rule 3.1110.) “[C]ourts generally may consider only the grounds stated in the notice of motion.” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) “The purpose of the notice requirements ‘is to cause the moving party to sufficiently define the issues for the information and attention of the adverse party and the court.’ ” (Ibid.)

“Although only the grounds specified in the notice of motion generally may be considered by the trial court [Citation], a trial court may overlook the failure of a notice of motion to state a ground for relief when the supporting materials discuss and support that ground for relief so that it is clear that relief is sought on that ground. In that situation, the trial court may treat the supporting papers as curing the defective notice. [Citations.]” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1126–1127.)

The Court finds that Defendant’s Notice of Demurrer is fatally defective. Defendant’s Notice of Demurrer represents that Defendant is demurring to the second cause of action for Negligence, the third cause of action for Bad Faith, and the fifth cause of action for Declaratory Relief. First, each cause of action is misnamed. Plaintiff’s second cause of action is for Bad Faith, not Negligence; the third cause of action is for Fraud/Deceit, not Bad Faith; and Plaintiff has not alleged any cause of action for Declaratory Relief – the fifth cause of action is for Negligence.

Defendant’s Notice also misstates the numbers of the causes of action demurred to. The Notice omits that Defendant intends to demur to the first and fourth causes of action. And while Defendant refers to the Second Cause of Action for Bad Faith in its Notice of Demurrer in two respects – once as the “second cause of action for alleged ‘Negligence’” and then as the “third cause of action for alleged ‘Bad Faith’” – as stated in the memorandum, Defendant does not actually intend to demur to the Bad Faith claim.

Given the myriad of errors, Defendant’s Notice of Demurrer does not explain “the nature of the order being sought” (Rules of Court, rule 3.1110) and does not “sufficiently define the issues for the information and attention of the adverse party and the court.” (Kinda, supra, 247 Cal.App.4th at 1277.) Because the degree of error in the Notice is too severe to be cured by the supporting papers, the Court declines to overlook the defective notice.

Accordingly, the demurrer is overruled.

Motion to Strike

            Defendant moves to strike Plaintiff’s prayers for attorney’s fees, as well as Plaintiff’s prayer for attorney’s fees and expert costs pursuant to the first cause of action for Breach of Contract. The motion to strike is granted.

A party is to bear its own attorney’s fees unless a statute or the agreement of the parties provides otherwise. (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504; Code Civ. Proc. § 1021.) Under Civ. Code § 1717, “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party,” such fees and costs shall be awarded to the prevailing party. (Civ. Code § 1717, subd. (a); see Code Civ. Proc. § 1021.)

Plaintiff alleges that on December 12, 2015, he was struck by a vehicle while walking through an intersection. (Comp. ¶ 11.) Plaintiff settled with the driver’s insurer for the sum of $100,000. (Comp. ¶ 14.) The driver of the vehicle, Danielle Otero, was underinsured at the time of the accident. (Comp. ¶ 11.) Plaintiff brought a demand against Defendant, his insurer, for payment of the $1 million policy limit. (Comp. ¶ 31.) Plaintiff did not receive an offer and later demanded arbitration. (Comp. ¶ 34.) Following arbitration conducted in August 2020, Plaintiff was awarded $900,000 against Defendant. (Comp. ¶ 74.)

Plaintiff’s First Cause of Action for Breach of Written Contract is premised upon Defendant’s alleged breach of Plaintiff’s insurance contract. (Comp. ¶ 78.) The contract provides that, in arbitration of a dispute over reimbursement, “each party will . . . pay the expenses incurred by that party.” (RJN Ex. A, pp. 7-8 [21-22].) Plaintiff has not presented any provision of the contract justifying recovery of attorney’s fees.

In opposition, Plaintiff cites Brandt v. Superior Court (1985) 37 Cal.3d 813, wherein the court found that “[w]hen an insurer's tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense.” (Id. at 817.) The court in Brandt was considering a cause of action for breach of implied covenant of good faith and fair dealing; the court’s reasoning does not support the recovery of either attorney’s fees or expert witness fees as proximate damages outside of that context. (Id. at 819 [“When no bad faith has been alleged and proved, Lowell, Patterson, and Carroll preclude the award of attorney's fees incurred in obtaining benefits that the insurer erroneously, but in good faith, withheld from the insured”].)

Similarly, Plaintiff has not pled any agreement between the parties or presented any statutory basis allowing for recovery of attorney’s fees under the third through fifth tort causes of action. “Attorney's fees are not generally available to prevailing parties in tort actions.” (Aozora Bank, Ltd. v. 1333 North California Boulevard (2004) 119 Cal.App.4th 1291, 1294.) While Defendant’s Notice of Motion does not specifically state that Defendant is moving to strike the prayer under the third cause of action, the Court finds that the Notice is sufficient given that Defendant has noticed the motion with respect to the prayer for attorney’s fees “For All Causes of Action.” (Comp. p. 50.)

Accordingly, the motion to strike is granted.