Judge: Daniel S. Murphy, Case: 24STCV23330, Date: 2025-01-03 Tentative Ruling

Case Number: 24STCV23330    Hearing Date: January 3, 2025    Dept: 32

BACKGROUND

            On September 10, 2024, Plaintiff Houman Nikbakht filed this action against Defendants First National Insurance Company of America, Terri Anderson, and Infinity Assurance Group. The complaint asserts causes of action for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) negligent misrepresentation, (4) intentional misrepresentation, (5) and negligence/professional negligence.

            Plaintiff purchased a policy from Defendant First National to insure his property located in Los Angeles. In August 2023, the property suffered a power surge which damaged the electrical appliances, outlets, and switches. Plaintiff alleges that First National improperly denied his claim.

            On November 15, 2024, Defendant First National filed the instant demurrer to the fifth cause of action. Plaintiff filed a notice of non-opposition on December 23, 2024.

LEGAL STANDARD

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. (Code Civ. Proc., § 430.30, subd. (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. (Ibid.) 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.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Turnbull Decl.)

DISCUSSION

            “[N]egligence is not among the theories of recovery generally available against insurers.” (Sanchez v. Lindsey Morden Claims Services, Inc. (1999) 72 Cal.App.4th 249, 254.) This is because “conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 551.) “[T]he mere negligent breach of a contract” is insufficient to justify tort liability. (Id. at p. 552.) In the insurance context, courts “rely on the covenant of good faith and fair dealing, implied in every contract, to justify tort liability.” (Ibid.)

            Here, Plaintiff’s negligence claim alleges that Defendant “wrongfully and negligently failed to provide the insurance requested by Plaintiff.” (Compl. ¶ 67.) The alleged wrongful denial of coverage is nothing more than a breach of the insurance contract. (See id., ¶¶ 34-35.) To the extent that Defendant acted in bad faith, Plaintiff has a claim for breach of the implied covenant of good faith and fair dealing. The complaint otherwise alleges no “duty independent of the contract.” (See Erlich, supra, 21 Cal.4th at p. 551.)

            Plaintiff also alleges that Defendant negligently failed “to fully inform and discuss with Plaintiff the adequacy of insurance for the Property.” (Compl. ¶ 67.) Plaintiff cites no authority imposing such a duty on insurers. To the contrary, “[i]t is up to the insured to determine whether he or she has sufficient coverage for his or her needs.” (Everett v. State Farm General Ins. Co. (2008) 162 Cal.App.4th 649, 660.) Therefore, the negligence claim fails as a matter of law. Plaintiff concedes this through his notice of non-opposition to the demurrer.  

CONCLUSION

            Defendant First National’s demurrer is SUSTAINED without leave to amend.