Judge: David Sotelo, Case: 21STCV13962, Date: 2022-08-12 Tentative Ruling
Case Number: 21STCV13962 Hearing Date: August 12, 2022 Dept: 40
MOVING PARTY: Defendant State Farm Mutual
Automobile Insurance Company.
Plaintiff Frederick Pina (“Pina”) sues Defendant State Farm Mutual Automobile
Insurance Company (“State Farm”) on the grounds that Pina was unable to secure a
greater settlement for injuries that Pina sustained as a result of a vehicle
collision with State-Farm-insured drivers in 2012 because the State-Farm-hired
defense counsel in that underlying action filed an evidentiary sanctions motion
that restrained Pina’s ability to properly present evidence supporting his case,
forcing Pina to settle for approximately $75,000.
State Farm now
brings an unopposed Demurrer to the three causes of action alleged in Pina’s
First Amended Complaint (“FAC”):
1. Fraud,
2. Breach of Fiduciary Duty, and
3. Negligent Infliction of Emotional Distress.
State Farm also
brings a Motion to Strike the three claims pleaded in the FAC, as well as all
allegations for attorney’s fees made therein. Plaintiff Pina has not opposed
either the Demurrer or the Motion to Strike.
The Court GRANTS State Farm’s Motion to Strike as to (1) the
FAC’s Fraud and Negligent Infliction of Emotional Distress claims for being
pleaded in contravention of this Court’s November 4, 2021 Demurrer to Complaint
Order (permitting leave to amend only as to Breach of Fiduciary Duty claim) and
(2) the FAC’s attorney’s fees allegations because no proper grounds are pleaded
in the FAC to support such an award. Further, the State Farm Demurrer is (1)
MOOT as to the Fraud and Negligent Infliction of Emotional Distress claims
because these were struck by the Court as discussed ante and (2) SUSTAINED,
Without Leave to Amend, as to the FAC’s Breach of Fiduciary Duty claim because
the FAC fails to plead proper grounds for a fiduciary relationship between
Plaintiff Pina and Defendant State Farm, particularly where Pina sues State
Farm for being the insurer of an insured that caused injuries to Pina in an
automobile collision in 2012.
On June 6, 2012, Pina was involved in a motor vehicle collision
near the intersection of Glendon Ave. and Lindbrook Dr. in the City of Los Angeles,
California, allegedly resulting in permanent bodily injuries to Pina.
Prior/Underlying Action: On May 23, 2014, Pina filed suit
in the matter of Pina v. Miettler, et al., Los Angeles Superior Court
(“LASC”) action number BC546729. Defendant
State Farm Mutual Automobile Insurance Company (“State Farm”) was the automobile
insurer for the defendants in that action—Amanda Mettler, Janelle Hallier, and Laurent
Hallier—and State Farm hired defense counsel to represent these defendants.
On January 5, 2017, through counsel, the BC546729 defendants
moved for evidentiary sanctions against Pina on the grounds that Pina’s refusal
to obey a September 1, 2016 Court Order compelling Pina to further respond to interrogatories
should result in Pina’s inability to call any witnesses, prevent any testimony,
and introduce any documents that were the subject of, but not previously identified
or provided in Pina’s supplemental discovery. Department 91 of the Los Angeles Superior
Court, as overseen by Judge Patricia Nieto, granted this motion on February 9, 2017.
In the end, Pina accepted a settlement of approximately $75,000 in the BC546729
action.
This Action: On April 13, 2021, Pina filed this action
(LASC action number 21STCV13962) against State Farm, alleging six causes of action:
(1) Intentional Interference with Prospective Economic Advantage, (2) Violation
of Business and Professions Code section 17200, et seq., (3) Fraud, (4) Breach of
Fiduciary Duty and Failure to Disclose, (5) Intentional Infliction of Emotional
Distress, and (6) Civil Rights Violation.
This claims revolve around defense counsel in BC546729 filing
the January 5, 2017 evidentiary sanctions motion and Pina’s resulting inability
to properly prove up his injuries in the BC546729 action, forcing him to settle
for approximately $75,000 when a much higher personal injury award was warranted
by his permanent bodily injuries.
On July 20, 2021, Defendant State Farm demurred (1) Complaint
in its entirety based on the litigation privilege as codified in Civil Code section
47, (2) to all the Complaint’s individual causes of action for failure to plead
sufficient facts to plead a proper legal claim, and (3) the Complaint’s Second and Sixth causes of action based
on uncertainty in pleading grounds.
This Court Sustained the Demurrer, with Leave to Amend as to
the Fourth Cause of Action for Breach of Fiduciary Duty and Without Leave
to Amend as to the remaining causes of action alleged in the Complaint.
On December 1, 2021, Pina filed a First Amended Complaint alleging
three causes of action: a Third Cause of Action for Fraud; a Fourth Cause of Action
for Breach of Fiduciary Duty; and a Fifth Cause of Action for Negligent Infliction
of Emotional Distress (“NIED”).
Pina provided Exhibits for the First Amended Complaint (“FAC”)
on December 7, 2021, including the relevant Motion for Evidence Sanctions filed
on January 5, 2017 and the ruling by Judge Patricia Nieto of Department 91 that
followed on February 9, 2017.
State Farm Demurrers to (1) the FAC’s Fraud, Breach of Fiduciary
Duty, and NIED claims based on the litigation privilege as codified in Civil Code
section 47, (2) the FAC’s Fraud and Breach of Fiduciary Duty causes of action based
on the statute of limitations barring these claims, (3) the FAC’s Fraud, Breach
of Fiduciary Duty, and NIED claim based on insufficient pleading within the meaning
of Code of Civil Procedure section 430.10, subdivision (e).
State Farm also made a Motion to Strike (1) the FAC’s three
causes of action on various grounds and (2) the FAC’s attorney’s fees
allegations for lack of supportive pleadings.
Plaintiff Pina has completely failed to oppose the Demurrer
and Motion to Strike.
Legal Standard: Any party, within the time allowed
to respond to a pleading may serve and file a notice of motion to strike the whole
or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court,
rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion
and upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any pleading
not drawn or filed in conformity with the laws of California, a court rule, or an
order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz¿(1954)
42 Cal.2d 767, 782.)
Fraud & Negligent Infliction of Emotional Distress:
GRANTED.
Defendant State Farm moves to strike the FAC’s Fraud and NIED
claims because “the FAC does not comply with the court’s November 4, 2021 order
sustaining the demurrer to the original complaint without leave to amend as to
all causes of action except breach of fiduciary duty, including for fraud,” for
which reason “[b]oth causes of action should … be stricken.” (Strike Mot.,
5:3-5.) This position is correct.
“Following an order sustaining a demurrer or a motion for
judgment on the pleadings with leave to amend, the plaintiff may amend his or
her complaint only as authorized by the court’s order.” (Harris v. Wachovia
Mortgage, FSB (2010) 185 Cal.App.4th 1018 [citing to People ex rel.
Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785 (leave to amend
complaint did not constitute leave to amend to add new defendant)].)
The record clearly reflects that the Court’s November 4,
2021 Order only permits Leave to Amend as to the Complaint’s Breach of
Fiduciary Duty cause of action. (See Nov. 4 Demurrer Minute Order, p. 1.) The
FAC is thus clearly not pleaded in conformity with the Court’s November 4, 2021
because the FAC improperly alleges two causes of action beyond the Breach of
Fiduciary claim: Fraud and Negligent Infliction of Emotional Distress.
Pina failed to file any Opposition to this Motion. (See
docket generally.) These claims thus fail on Motion to Strike.
Attorney’s Fees: GRANTED.
State Farm moves to strike attorney’s fees allegations
from the FAC because “attorneys’ fees cannot be recovered by a self-represented
party, even if he or she is an attorney. Trope v. Katz, 11 Cal.4th 274,
280 (1995).” This position is correct.
The record reflects that Pina filed his Complaint without
counsel and that Pina has filed his FAC without the assistance of counsel. (See
Complaint, FAC p. 1; see also Docket generally.) No valid basis for attorney’s
fees is therefore pleaded in the FAC.
FAC, Fraud and NIED: MOOT.
Analysis: Having struck the FAC’s Fraud and NIED
claims, the Demurrer to the same causes of action is MOOT.
FAC, Breach of Fiduciary Duty: SUSTAINED,
Without Leave to Amend.
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; see Code Civ. Proc., § 430.10, subd. (e).) This
device 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
[general] 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.) In 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,
966-67.) A demurrer, however, “does not admit contentions, deductions or
conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d
695, 713.) 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, disapproved on other grounds, Jones v.
Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face
of the complaint includes exhibits attached to the complaint. (Frantz v.
Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits
contradict those alleged, the facts in the exhibits take precedence. (Holland
v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)
Analysis: In relevant part, State Farm demurs to
the FAC’s Breach of Fiduciary claim on the grounds that it is insufficiently
pled within the meaning of Code of Civil Procedure section 430.10, subdivision
(e) because the FAC fails to plead proper grounds for a fiduciary relationship
from State Farm to Pina and citing to various relevant cases for this
proposition. (Demurrer, 18:1-19:22.) The Court agrees.
As explained by the California Supreme Court:
The
insurer-insured relationship … is not a true “fiduciary relationship” in the
same sense as the relationship between trustee and beneficiary, or attorney and
client. [Citation.] It is, rather, a relationship often characterized by
unequal bargaining power [citations] in which the insured must depend on the
good faith and performance of the insurer [citations]. This characteristic has
led the courts to impose “special and heightened” duties, but “[w]hile these ‘special’
duties are akin to, and often resemble, duties which are also owed by
fiduciaries, the fiduciary-like duties arise because of the unique nature of
the insurance contract, not because the insurer is a fiduciary.
(Vu v. Prudential Property & Casualty Ins. Co.
(2001) 26 Cal.4th 1142, 1150-51; see also Demurrer, 18:7-13 [citation to Vu].)
Therefore, while “[c]ases have referred to the relationship
between insurer and insured as a limited fiduciary relationship (see Gibson
v. Government Employees Ins. Co. (1984) 162 Cal.App.3d 441, 449–450, 208
Cal.Rptr. 511),” “‘akin to a fiduciary relationship’ (State Farm Fire &
Casualty Co. v. Superior Court (1989) 216 Cal.App.3d 1222, 1226, 265
Cal.Rptr. 372),” “or as one involving the ‘qualities of decency and humanity
inherent in the responsibility of a fiduciary’ (Frommoethelydo v. Fire Ins.
Exchange (1986) 42 Cal.3d 208, 215, 228 Cal.Rptr. 160, 721 P.2d 41)” (Vu,
supra, 26 Cal.4th at p. 1150), California case law is clear: an
insurer-insured relationship does not connote a fiduciary relationship. (Ibid.
at pp. 1150-51.)
It therefore follows that the relationship between an
insurer and a third-party injured by the insurer’s insured also do not have a
fiduciary relationship. As Pina has failed to file an Opposition to this
Demurrer, the Court does not have any grounds to conclude otherwise. The Breach
of Fiduciary Duty claim thus fails as pleaded.
Defendant State Farm Mutual Automobile Insurance Company’s
Motion to Strike Portions of First Amended Complaint is GRANTED as to (1) the
FAC’s Fraud and Negligent Infliction of Emotional Distress claims because these
were plead by Pina in the FAC without proper court authorization after the
Court sustained demur against the original Complaint on November 11, 2021, only
permitting leave to amend for the original Complaint’s Breach of Fiduciary Duty
claim and (2) the FAC’s attorney’s fees allegations because no proper grounds
are pleaded in the FAC to support such an award.
Defendant State Farm Mutual Automobile Insurance Company’s
Demurrer to First Amended Complaint is (1) MOOT as to the Fraud and Negligent
Infliction of Emotional Distress claims because these were struck by the Court
as discussed ante and (2) SUSTAINED, Without Leave to Amend, as to the FAC’s
Breach of Fiduciary Duty claim because the FAC fails to plead proper grounds
for a fiduciary relationship between Plaintiff Pina and Defendant State Farm,
particularly where Pina sues State Farm for being the insurer of an insured
that caused injuries to Pina in an automobile collision.