Judge: Daniel M. Crowley, Case: 21STCV43669, Date: 2022-09-30 Tentative Ruling

Case Number: 21STCV43669    Hearing Date: September 30, 2022    Dept: 28

Defendant Seguros Amigos Insurance, Inc’s Demurrer with Motion to Strike

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On November 30, 2021, Plaintiff Allie Rose Weinstein (“Allie”) and Jeremy Weinstein (“Jeremy”) filed this action against Defendant Francisco Barrer (“Barrera”), Anali Manzanares Teodoro (“Teodoro”), Seguros Amigos Insurance, Inc. (“Seguros”) and Infinity Insurance Company (“Infinity”) for negligence per se, conspiracy, aiding and abetting, and four causes of actions for negligence.

On January 25, 2022, Plaintiffs filed the First Amended Complaint, adding Defendants Base Builders, Inc. (“BB”), Base Construction, Inc. (“BC”), Go Construction, Inc. (“GC”), Go Construction & Design, Inc. (“GCD”), Gilad Avidor Incorporated (“GA”) and Gilad Avidor (“Avidor”). It also added one additional cause of action for negligence.

On July 1, 2022, Plaintiffs filed the SAC, removing the cause of action for conspiracy.

On April 1, 2022, the Court dismissed BB, BC, and GC pursuant to Plaintiff’s request. On May 5, 2022, Barrera and Teodoro filed this answer.

On August 22, 2022, Seguros filed a Demurrer with Motion to Strike to be heard on September 30, 2022. On September 16, 2022, Plaintiffs filed an opposition. On September 22, 2022, Seguros filed a reply.

Trial is scheduled for May 30, 2023.

PARTY’S REQUESTS

Seguros requests the Court grant the demurrer to the fifth through seventh causes of action on the basis that the causes of action fail to state facts sufficient to constitute a claim. Seguros also requests that the Court strike any references to punitive damages.

Plaintiff requests the Court overrule the demurrer and deny the motion to strike.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

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.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  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, 147 Cal.App.4th at 747.)

Following the sustaining of a demurrer, with leave to amend, Plaintiff is only allowed to amend the cause of action in the pleading to which the demurrer was sustained; the Plaintiff must obtain permission to add a new cause of action in an amended pleading. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.)

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) 

“The act of conspiracy requires two or more persons agreeing to commit intentionally a wrongful act. [Citation.] This court is unaware of California decisional law imposing liability for conspiring to commit negligence.” (Koehler v. Pulvers (S.D. Cal. 1985), 606 F.Supp. 164, 173, n. 10.)

“...For purposes joint liability under a concert of action theory, it suffices that [defendant] assist or encourage [a] breach of duty...” (Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1290, opining on the application to a cause of action for negligence.) However, Navarette holds that the act encouraged must still be known to be tortious to be considered aiding and abetting. (Id. at 1286.)

DISCUSSION

Meet and Confer

Prior to filling the demurrer, Seguros' counsel met and conferred with Plaintiffs’ counsel in an attempt to have Plaintiffs dismiss Seguros prior to filling the demurrer. Parties were unable to reach an agreement. Seguros has satisfied this requirement.

Negligence

Plaintiffs’ complaint alleges that Barrera was driving Teodoro’s car, with permission, when he hit and injured Allie. Plaintiffs allege that Seguros and Infinity negligently provided insurance to Barrera to operate the subject vehicle without investigating if he had a valid driver’s license, breaching Seguros' duty of care to the general public. Plaintiffs allege that Seguro marketed insurance to drivers who had their licenses suspended or revoked; there are no specific facts alleged supporting this claim.

Seguros argues that it owes no duty to Plaintiffs, as the parties were not in privity nor was there a relationship between the two. As an insurance broker, Seguros claims its duties only run to its client and not third parties, such as Plaintiff. Case law supports this assertion. (Pacific Rim Mechanical Contractors, Inc. v. Aon Risk Ins. Services West, Inc. (2012) 203 Cal.App.4th 1278, 1290.) In addition, Seguros argues that there is no law in California establishing that an insurance broker has a duty to investigate or verify an applicant’s drive licenses, as provided in Nipper v. California Auto. Assigned Risk Plan (1977) 19 Cal.3d 35, 47.

Aiding and Abetting

Plaintiffs still have not pled facts that substantiate a cause of action for aiding and abetting against Seguros. Plaintiffs’ allegations against Seguros all stem from the idea that in acting as insurance brokers, Seguros endorsed or was a factor in Barrera’s drive that night. In order to be liable for aiding and abetting, Plaintiffs need to allege that Seguros knew that it was encouraging tortious behavior; the allegations in the complaint do not provide a sufficient basis to make that claim as there is no underlying tort claim. There, the Court sustains the demurrer to the cause of action for aiding and abetting.

Plaintiffs’ Opposition

Plaintiffs allege that Seguros acted negligently in issuing a policy to both Barrera and Teodoro, causing Teodoro to loan her vehicle to Barrera and ultimately resulting in injuries to Plaintiffs. Plaintiffs allege that this is based on a general duty of care owed by individuals to all people. However, Plaintiffs do not cite any cases that would demonstrate that Seguros, as an insurance brokerage company, would have a duty that was breached to Plaintiffs in procuring an insurance policy.

Plaintiffs cites Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771, which found that a Ralphs, as the owner of the truck Decedent hit, was partially liable for the accident, as everyone has a general duty of care to “use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” However, this is just a general assessment of duty; it does not provide any analysis that Seguros breached any general duty of care in procuring insurance that covered Barrera. Plaintiffs do not provide one case in support of their argument, only arguing minute differences in the case law cited by Seguros. This is not sufficient to overcome the heightened burden placed on Plaintiff; there is no legal basis to assert that Seguros had a duty to Plaintiffs to not supply insurance that covered Barrera.

As Plaintiffs have not met their shifted burden, the Court sustains the demurrer. The motion to strike is moot as all causes of action against Seguros have been subject to demurrer.

CONCLUSION

Defendant Seguros Amigos Insurance, Inc’s Demurrer is SUSTAINED, without leave to amend.

Defendant Seguros Amigos Insurance, Inc’s Motion to Strike is MOOT.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.