Judge: Deborah C. Servino, Case: 30-2022-01285443, Date: 2023-05-19 Tentative Ruling

DEMURRER

Defendant State Farm General Insurance Company’s demurrer to Plaintiff Michael Horner’s Complaint, is sustained with 15 days leave to amend as to the first and second causes of action and is sustained without leave to amend as to the third cause of action. 

A demurrer can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  Limited to the “four corners” as such, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim.  (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413.)

Breach of Contract (First Cause of Action)

The elements of breach of contract are (1) existence of a contract, (2) plaintiff’s performance or excuse from non-performance, (3) breach by defendant, and (4) damages.  (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.)

A contract must be alleged to be written, oral, or implied by conduct.  (Code Civ. Proc., § 430.10, subd. (g).)  A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.  (Holcomb v. Wells Fargo Bank, NA (2007) 155 Cal.App.4th 490, 501.)  An oral contract may be pleaded generally as to its effect because it is rarely possible to allege the exact words. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 6:132.)  In order to plead a contract by its legal effect, plaintiff must “allege the substance of its relevant terms.”  (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)  

Plaintiff has not met these requirements for alleging a contract.  While he alleges he had a renter’s/homeowner’s insurance policy that “provided coverage for, among other things, personal injury as defined in the policy,” he has not alleged any of the terms or definitions in the alleged policy.  He has not attached a copy of the policy to the Complaint.

Because of Plaintiff’s failure to adequately allege the pertinent provisions of the contract, the demurrer to his first cause of action for breach of contract is sustained with 15 days leave to amend.

Breach of the Covenant of Good Faith and Fair Dealing (Second Cause of Action)

To state a claim for breach of the covenant of good faith and fair dealing, a plaintiff must allege all of the following:

1. That plaintiff and defendant entered into a contract;
2. That plaintiff did all, or substantially all of the significant things that the contract required him/her/it to do, or that he/she/it was excused from having to do those things;
3. That all conditions required for defendant 's performance had occurred;
4. That defendant unfairly interfered with plaintiff 's right to receive the benefits of the contract; and
5. That plaintiff was harmed by defendant's conduct.
   
   

(CACI no. 325.)

“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349.)  The implied covenant cannot be extended to create obligations not contemplated by the contract.  (Racine & Laramie v. Department of Parks and Recreation (1992) 11 Cal.App.4th 1026, 1031-1032; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 690.) 

In bad faith insurance cases, a breach of the covenant of good faith and fair dealing permits a tort recovery.  (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43.)  To establish a “bad faith” claim in first party cases, it must be alleged and shown that the insurer's delay or withholding benefits was unreasonable, i.e., without any reasonable basis for the insurer's position or without proper cause.  (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1072–1073.) 

As discussed above, Plaintiff has not alleged contract terms that gave rise to an implied obligation by Defendant to act in a certain way, or not to act in the way it did.  In addition, Plaintiff has not alleged facts to show that Defendant acted without a reasonable basis in withholding further benefits demanded by Plaintiff.

The demurrer as to the second cause of action for breach of the covenant of good faith and fair dealing is therefore sustained with 15 days leave to amend.

Declaratory Relief (Third Cause of Action)

The essential elements of a declaratory-relief cause of action are (1) an actual controversy between the parties regarding contractual or property rights (2) involving continuing acts/omissions or future consequences, (3) which has sufficiently ripened to permit judicial intervention and resolution, but (4) which has not yet blossomed into an actual cause of action.  (Osseous Technologies of America, Inc. v. Discoveryortho Partners LLC (2010) 191 Cal.App.4th 357, 366-369.) 

Plaintiff alleges that a controversy has arisen between the parties, apparently as to the insurance policy.  He seeks a declaration that Defendant “had a duty and obligation to assess plaintiff’s damages with respect to the accident and the sustained injuries, and pay plaintiff policy limit.”  (Complaint, at ¶¶ 23-24.)  In other words, Plaintiff’s declaratory relief cause of action is duplicative and derivative of his breach of contract cause of action. 

Code of Civil Procedure section 1061 provides: “The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.”  Declaratory relief is properly refused with respect to issues that can and are likely to be determined in the main/underlying action.  (See, e.g., General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470–471; California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1623–1624 [“Generally, an action in declaratory relief will not lie to determine an issue which can be determined in the underlying tort action . . . [t]he declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action; [rather] [t]he object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.”].)  Because the issues alleged in the declaratory relief cause of action will be determined with Plaintiff’s first and second causes of action, the demurrer to the third cause of action is sustained without leave to amend.

Lack of Opposition

Moreover, the demurrer can also be sustained on the ground that Plaintiff failed to oppose.  Failure to oppose the demurrer may be construed as having abandoned the claims.  (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20 [“Plaintiffs did not oppose the County’s demurrer to this portion of their seventh cause of action and have submitted no argument on the issue in their briefs on appeal.  Accordingly, we deem plaintiffs to have abandoned the issue.”].)

Litigants who choose to represent themselves must be treated in the same manner as represented parties and must follow the correct rules of procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)  A self-represented litigant is not entitled to any greater consideration than other litigants and attorneys. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594 [self-represented litigants are entitled to same treatment as represented parties]; see Cal. Rules of Court, Rule 1.6(15) [defines “parties” as including both self-represented persons and persons represented by an attorney of record without making any distinction between them].) The fact that Plaintiff is a self-represented litigant does not relieve him of the requirements, law, and procedures applied to all parties who appear in this court.  Self-represented litigants are “held to the same standards as attorneys.”  (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)

MOTION TO STRIKE

The ruling on the demurrer renders Defendant’s motion to strike moot.

Defendant shall give notice of the rulings.

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