Judge: David Sotelo, Case: 22STCV18311, Date: 2022-10-27 Tentative Ruling
Case Number: 22STCV18311 Hearing Date: October 27, 2022 Dept: 40
MOVING PARTY: Defendant Geico Casualty
Company (Demurrer to the Complaint; Motion to Strike Complaint).
Plaintiff Ida Pettaway (a Self-Represented Litigant) sues Defendant
Geico Casualty Company for (1) Breach of Contract and (2)-(4) Three Common Counts
on the grounds that:
(1) Geico breached the Family Automobile Insurance Policy (the
“Policy”) it issued to Plaintiff Pettaway by refusing to “assist Plaintiff with
the towing or ambulance assistance after … [Plaintiff Pettaway was involved in a]
collision on 6-7-19,” thus constituting “gross negligence,” and causing Pettaway
damages, including “lack of immediate medical attention … [nearly] causing a … stroke,”
“deep vein thrombosis, blood clots and tachycardia”;
(2) Geico owes Plaintiff Pettaway $560,000 under a theory of
Common Counts because Geico engaged in a “bad faith investigation from
6-11-2019 to 8-02-2019” by “not securing the traffic camera footage to prove …
[there] was no[] hit [and] run unknown collision”;
(3) Geico owes Plaintiff Pettaway $3,500 under a theory of
Common Counts because Geico breached the “Uninsured Motorist Property Damage”
section the Pettaway Policy when “the operator of the other vehicle [in the
June 7, 2019 collision with Pettaway] was identified as a member of the Compton
Police Department,” which Pettaway relayed to Geico “at the scene of the
collision” and “during a formal statement hearing on 8-15-2019”; and
(4) Geico owes Plaintiff Pettaway $6,000,000 under a theory
of Common Counts because Geico engaged in a “bad faith use of a fraudulent CHP
… Traffic Collision Report” “created by the Compton Sheriff[’s] Department that
implicates [Ms. Pettaway] in a possible Felony Insurance Fraud Case,” which
amounts to “racism and discriminat[ion] and evil” conduct.
Defendant Geico now brings (1) an unopposed Demurrer to the Complaint’s
Second, Third, and Fourth causes of action for Common Counts based on a lack of
sufficiency of pleading and (2) an unopposed Motion to Strike the Complaint’s attorney’s
fees prayer on the grounds that Plaintiff “has no contractual right to recover attorney[’]s
fees, nor is there any statutory or common law right to fees based on the claims
she asserts” and that in pro per plaintiffs like Plaintiff Pettaway are not
entitled to any attorney’s fees as a matter of law.
After review and as explained infra, the Court: (1) SUSTAINS
Geico’s Demurrer to the Complaint’s second through fourth causes of action for
Common Counts, With Leave to Amend, because none of these three causes of
action is sufficiently alleged within the meaning of Code of Civil Procedure
section 430.10, subdivision (e); and (2) GRANTS, With Leave to Amend, Geico’s
Motion to Strike the Complaint’s attorney’s fees prayer because (a) the
judicially noticed Geico-Pettaway Automobile Insurance Policy does not show
that Pettaway is entitled to attorney’s fees in any litigation between herself
and Geico and (b) in pro per parties are not entitled to such fees.
Per the request of Defendant Geico Casualty Company, the Court
TAKES Judicial Notice of the Family Automobile Insurance Policy issued by Geico
to Plaintiff Ida Pettaway. (Code Civ. Proc., § 452, subd. (h), 453.)
Second through Fourth Causes of Action: SUSTAINED,
With Leave.
The essential elements of any common count are: (1) that defendant
is indebted to plaintiff in a certain sum; (2) for some consideration from plaintiff
(i.e., goods sold, work done, money paid); and (3) defendant’s nonpayment. (Farmers
Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.) Generally, a complaint
that pleads a common count is not subject to demurrer for not alleging sufficient
facts to state a cause of action. (Ibid.) This general rule does not apply,
however, where the common count claim is based on the same facts asserted in a specific
cause of action and the specific cause of action is defective. (Draper v. Patterson
(1958) 156 Cal.App.2d 606, 609.) In that situation, the specific count and the common
count are both subject to demurrer. (Ibid. [“[w]hen common counts are based
on the same cause as the specific count, and the specific count is defective, the
entire complaint is demurrable”].)
Defendant Geico demurs to the Complaint’s Second through Fourth
causes of action on the grounds that these claims fail to sufficiently state
Common Counts claims insofar as:
The Second cause of action for Common Counts is grounded in allegations
that Geico “is guilty of ‘bad faith’ claims handling because [Geico] was
confused about the date of the accident for a few weeks and it did not take
steps to secure traffic camera video footage of the intersection at the time of
the collision,” which fails to properly state a Common Claims claim because “there
is no allegation explaining what contractual policy benefits were denied in bad
faith as a result of GEICO Casualty being initially confused about the date or
as a result of GEICO Casualty not hunting down and securing camera footage”
(Demurrer, 6:20-25, 7:4-7);
The Third cause of action for Common Counts is grounded in
allegations that Geico “refused to pay plaintiff [Pettaway] for damage to her
auto under the uninsured motorist property damage coverage of her policy,” thus
failing to sufficiently state a Common Counts claim because the collision at
issue involved a Compton Sheriff’s vehicle, which, pursuant to the judicially
noticed Policy issued by Geico to Plaintiff Pettaway, does not involve an
uninsured motor vehicle where the Policy contains a clause indicating that a
State-owned vehicle cannot contractually be considered an ‘uninsured motor
vehicle’ as stated in the third cause of action (Demurrer, 9:8-9, 10:15-21);
and
The Fourth cause of action for Common Counts is grounded in
allegations that Geico “should have recognized the Traffic Collision Report as
fraudulent, should have ignored it, should have believed [Pettaway] when she
said she thought she had been struck by a Sheriff’s vehicle, and should not
have paid her the $20,000 policy limits in settlement of her uninsured motorist
bodily injury claim,” which fails to sufficiently state a Common Counts claim
because “there simply is no authority under California law to support a cause
of action for a bad faith payment of policy benefits that were not really due”
(Demurrer, 10:27-11:10).
Plaintiff Pettaway has failed to file an Opposition to Geico’s
Demurrer. (See Docket generally.)
After review, the Court SUSTAINS Geico’s Demurrer on its
stated grounds, With Leave to Amend.
Attorney’s Fees: GRANTED.
Defendant Geico moves to strike the attorney’s fees prayer
from the Complaint on the grounds that “Plaintiff Ida Pettaway has no contractual
right to recover attorney[’]s fees, nor is there any statutory or common law
right to fees based on the claims she asserts” and that “[a]s a pro per party, [Plaintiff
Pettaway] has no right to recover attorney fees” as a matter of law pursuant to
precedent in “Trope v. Katz, 11 Cal.4th 274, 292 (1995)” and “Taheri Law Group
v. Evans, 160 Cal.App.4th 482, 494 (2008).” (Strike Mot., 3:11-14, 4:1-7).
The Court agrees with both positions and thus GRANTS the
Motion to Strike. A review of the judicially noticed Policy shows a lack of
contractual language entitling Plaintiff Pettaway to attorney’s fees as a
prevailing party in litigation between herself and Geico. Further, an in pro
per party is not entitled to attorney’s fees. (See Trope v. Katz (1995)
11 Cal.4th 274, 292 [“[A]n attorney who chooses to litigate in propria persona
and therefore does not pay or become liable to pay consideration in exchange
for legal representation cannot recover ‘reasonable attorney's fees’ under
section 1717 as compensation for the time and effort he expends on his own
behalf or for the professional business opportunities he forgoes as a result of
his decision”].)
Defendant Geico Casualty Company’s Demurrer to the Complaint
is SUSTAINED as to the Complaint’s second through fourth causes of action for
Common Counts, With Leave to Amend, because none of these three causes of
action is sufficiently alleged within the meaning of Code of Civil Procedure
section 430.10, subdivision (e).
Defendant Geico Casualty Company’s Motion to Strike Complaint
is GRANTED, With No Leave to Amend, because (a) the judicially noticed
Geico-Pettaway Automobile Insurance Policy does not show that Pettaway is
entitled to attorney’s fees in any litigation between herself and Geico and (b)
in pro per parties are not entitled to such fees.