Judge: Colin Leis, Case: 22AHCV00273, Date: 2022-08-03 Tentative Ruling

Case Number: 22AHCV00273    Hearing Date: August 3, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendant United Services Automobile Association

RESPONDING PARTY:       Plaintiff Osazonamen Igbinosun

Defendant United Services Automobile Association’s Demurrer to Plaintiff’s Complaint

The court considered the moving papers, opposition, and reply filed in connection with this motion.

BACKGROUND

            Plaintiff Osazonamen J. Igbinosun filed this action on May 12, 2022 against Defendant United Services Automobile Association. The complaint asserts causes of action for (1) breach of contract and (2) breach of the implied covenant of good faith and fair dealing. Plaintiff alleges that as an insured under a renter’s insurance policy issued by Defendant, she was entitled to defense coverage when she was sued over a dispute with a neighbor (Train v. Igbinosun, Case No. 22STCV02661). However, Defendant denied Plaintiff’s tender and has refused to defend Plaintiff in the underlying lawsuit.   

            Defendant now demurs to each cause of action on the basis that each fails to state facts sufficient to constitute a cause of action.

LEGAL STANDARD

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.) “To survive a 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.) For the purpose of 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, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

DISCUSSION

“An insurance company has a duty to defend a lawsuit against its insured if there is a potential for coverage. The insured need only show the underlying claim may fall within the policy coverage. [Citation.] When there is no potential for coverage, there is no duty to defend.” (Turner v. State Farm Fire and Cas. Co. (2001) 92 Cal.App.4th 681, 686.)

Here, Defendant argues that there was no potential for coverage based on the facts alleged in the Train action. In that complaint, Plaintiff is alleged to have played loud music in a harassing manner and to have pushed and introduced a noxious and foul-smelling substance into holes in the wall connecting Plaintiff’s unit with that of the complaining neighbors. (Train Compl., ¶¶ 11-40.) Under the terms of the policy, Defendant’s defense obligations are triggered “[i]f a claim is made or a suit is brought against [Plaintiff] for damages because of bodily injury or property damage caused by an occurrence….” (Compl., ¶ 1, Ex. A, p. 15.) The term “occurrence” means “an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: (a) bodily injury; or (b) property damage.” (Compl., ¶ 1, Ex. A, p. 15.) Defendant contends that because the Train complaint alleges conduct on the part of Plaintiff that is “necessarily nonaccidental”, there is no potential for coverage. But both playing music loudly and pushing noxious substances into holes in the wall can be done accidentally. As set forth in a case cited by Defendant, the term “accident” refers “to the nature of the insured’s conduct, not his state of mind.” (Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 596 [emphasis removed].) In Quan, the conduct at issue was “serving alcohol to, touching, kissing, embracing, fondling or having sex with the claimant.” (Ibid.) The Court of Appeal reasoned that this conduct was “necessarily nonaccidental, not because any ‘harm’ was intended, but simply because the conduct could not be engaged in by ‘accident.’” (Ibid.) In contrast, the court cannot conclude, as a matter of law, that the conduct alleged in the Train complaint could not be engaged in by accident.

As a separate basis for denying coverage, Defendant contends that two policy exclusions apply. First, there is an exclusion for bodily injury or property damage “caused by the intentional or purposeful acts of any insured, including conduct that would reasonably be expected to result in bodily injury to any person or property damage to any property.” (Compl., ¶ 1, Ex. A, p. 16.) Second, there is an exclusion for bodily injury or property damage “arising out of the actual, alleged, or threatened discharge, dispersal, release, escape, seepage, or migration of pollutants however caused and whenever occurring.” (Compl., ¶ 1, Ex. A, p. 16.) Pollutants are defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste.” (Compl., ¶ 1, Ex. A, p. 17.)

As to the intentional conduct exclusion, the court finds that it does not apply because the Train complaint alleges a cause of action for negligence. And as to the pollution exclusion, the court finds that it does not apply because the Train complaint contains allegations of harm arising from non-pollutants (i.e., loud music). Accordingly, the demurrer is overruled as to the first cause of action.

Defendant contends that the second cause of action for breach of the implied covenant of good faith and fair dealing must fail if there is no potential for coverage. But because the court finds that there is a potential for coverage, the demurrer to the second cause of action is also overruled.

CONCLUSION

Based on the foregoing, the court overrules Defendant’s demurrer to the complaint in its entirety.

The court orders Defendant to file and serve an answer to the complaint within 10 days of the date of this order.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 3, 2022

_____________________________

Colin Leis

Judge of the Superior Court