Judge: Douglas W. Stern, Case: 22STCV29094, Date: 2023-05-24 Tentative Ruling
Case Number: 22STCV29094 Hearing Date: August 21, 2023 Dept: 68
Salar Benshian, et al. vs.
Metropolitan Direct Property and Casualty Insurance Company, et al.; Case
No. 22STCV29094
MOVING PARTY: Defendant Farmers Direct
Property and Casualty Insurance Company (fka Metropolitan Direct Property and Casualty
Insurance Company)
Demurrer to First Amended Complaint
I.
BACKGROUND
Plaintiffs Salar Benshian, Albert
Benshian, and Elham Zarabi (Plaintiffs) filed this suit after Defendant Farmers
(Defendant) denied Plaintiffs’ insurance claim after their home was
burglarized. Defendant has demurred on the basis that Plaintiffs’ claims fail
to allege facts sufficient to maintain causes of action against Defendant and
because Plaintiffs’ claims are contractually time-barred. Plaintiffs have
alleged seven causes of action for (1) breach of contract; (2) breach of the
implied covenant of good faith and fair dealing; (3) Unfair Business Practices
violation; (4) negligent infliction of emotional distress; (5) Bad Faith Denial
of Insurance Coverage; (6) violation of Civil Code Section 51; and (7)
violation of Business and Professions Code Section 17200. The last three causes
of action were added in Plaintiffs’ First Amended Complaint (FAC). Defendant
has demurred to all of Plaintiffs’ causes of action.
The theft at Plaintiffs’ home occurred on September 3, 2019. (FAC, ¶ 20.)
Plaintiffs submitted a claim to Farmers for the theft, and Farmers denied the
claim in a letter dated March 19, 2021. (FAC, ¶ 32.) Farmers argues that the
denial letter would have started the contractual twelve month time period to
bring suit that is in the insurance coverage contract, meaning that the suit
would have to have been filed no later than March 19, 2022. Plaintiffs filed
their original Complaint on September 7, 2022.
Defendant filed its demurrer to the FAC on July 10, 2023. No opposition
has been filed by Plaintiff. Defendant filed a supplemental points and
authorities in lieu of a reply that discusses a Court of Appeal case that was
published after Defendant filed its demurrer.
II. ANALYSIS
A. The Demurrer
As a
general matter, in a demurrer proceeding, the defects must be apparent on the
face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleading alone, and not the evidence or facts
alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a
demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the
plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
1. First
Cause of Action for Breach of Contract, Second Cause of Action for Breach of
the Implied Covenant of Good Faith and Fair Dealing, and Fifth Cause of Action
for Bad Faith Denial of Insurance Coverage
Defendant
demurs to these three causes of action on the basis that the FAC fails to state
facts sufficient to constitute causes of action against Defendant, and the
causes of action are contractually time-barred.
The Farmers Policy provides as follows:
Lawsuits Against Us. No suit or
action may be brought against us by you unless there has been full compliance
with all of the policy terms. Under Section I of this policy, any suit or
action seeking coverage must be brought within twelve months of the loss.
(Comp., Ex. A, Form
HP7000 0902, p. M-1.)
This time-bar conforms with
Insurance Code sections 2070 and 2071, in that it requires any suit concerning
the Farmers Policy to be brought within one year after the loss occurs. (Ins.
Code §§2070-2071.) Such time limitation provisions are valid and enforced by
the courts. (See Prudential-LMI Com. Ins. v. Sup. Ct. (Lundberg) (1990)
51 Cal.3d 674, 683-684.) Moreover, because the clause is authorized by statute,
it is deemed consistent with public policy and it “must be construed to
implement the intent of the Legislature and should not be construed strictly
against the insurer (unlike ambiguous or uncertain policy language).” (Id.
at 684; and see Ashou v. Liberty Mutual Fire Ins. Co. (2006) 138
Cal.App.4th 748, 756 (one-year time limit to sue is statutory in origin and is
akin to a statute of limitations).) The one-year time limitation is tolled
while the insurer investigates the claim. (Prudential-LMI Com. Ins., supra,
51 Cal.3d at 693; Ashou, supra, 138 Cal.App.4th at 756.) Thus,
the time to bring suit is extended by whatever time the insurer spent
investigating the particular claim in issue. (Marselis v. Allstate Ins. Co.
(2004) 121 Cal.App.4th 122, 126.)
The theft at
Plaintiffs’ home occurred on September 3, 2019. (FAC, ¶ 20.) Plaintiffs
submitted a claim to Farmers for the theft, and Farmers denied the claim in a
letter dated March 19, 2021. (FAC, ¶ 32.) The denial letter would have started
the contractual twelve month time period to bring suit, meaning that the suit
would have to have been filed no later than March 19, 2022. Plaintiffs filed
their original Complaint on September 7, 2022. This means that Plaintiffs’
contract-related causes of action against Farmers are time-barred.
In Plaintiffs’ FAC, Plaintiffs
attempt to plead around the time bar by citing the COVID-19 emergency and rules
and claiming that these would have tolled the time bar for filing suit. (FAC,
¶¶ 13-16.) However, Plaintiffs cite the original rule which tolled all statutes
of limitations for civil cation until 90 days after the Governor declared that
the state of emergency was lifted, but the rule was later amended to say that
the statutes of limitations were only tolled from April 6, 2020, until October
1, 2020. (Demurrer at p. 4.) The rule was not amended after that.
Plaintiffs’ claim was denied on
March 19, 2021, after the tolling period had ended. Defendant’s demurrer to
Plaintiffs’ First, Second, and Fifth Causes of Action is sustained without
leave to amend.
2. Third Cause of Action for Unfair
Business Practices Violation and Seventh Cause of Action for Violation of
Business and Profession Code Section 17200
Defendant demurs to this cause of
action on the basis that it fails to state facts sufficient to constitute a
cause of action against Defendant.
A UCL
plaintiff must plead and prove the defendant engaged in a business practice
which was either 1) unlawful (i.e., is forbidden by law); 2) unfair (i.e., harm
to victim outweighs any benefit); or 3) fraudulent (i.e., is likely to deceive
members of the public). (Albillo v. Intermodal Container Services, Inc.
(2003) 114 Cal.App.4th 190, 206.) As a statutory cause of action, allegations
of unfair business practices must state with reasonable particularity the facts
supporting the statutory elements of the violation. (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 619.)
“An
unlawful business practice or act within the meaning of the UCL is an act or
practice, committed pursuant to business activity, that is at the same time
forbidden by law.” (Bernardo v. Planned Parenthood Federation of America
(2004) 115 Cal.App.4th 322, 351.) The UCL statue “borrows” violations of other
laws and treats them as unlawful practices that the unfair competition law
makes independently actionable. (Ibid.) To state a claim based on an
“unlawful” business act or practice, plaintiff must allege: 1) the specific
unlawful conduct; 2) that the unlawful conduct is a “business practice” of
defendants; and 3) as a result of that practice defendant has received
ill-gotten gains, including plaintiff’s money or property. (Bus. & Prof.
Code §§17200, 17204.)
For the
Third Cause of Action, which remains unchanged from Plaintiffs’ original
Complaint, Plaintiffs’ FAC simply alleges that “Defendant’s unlawful, unfair,
and/or fraudulent conduct as stated in the foregoing is a violation of the
provisions set for under California Business and Professional Code.” (FAC, ¶ 51.)
The only conduct to which Plaintiffs’ FAC refers is Defendant allegedly failing
to promptly pay the full benefits due to Plaintiffs under the insurance policy
and furthering its own economic interests. (FAC, ¶ 57.) However, Plaintiffs’
FAC fails to state how this conduct is unlawful, unfair, or fraudulent. Without
more information, Plaintiffs cannot maintain this cause of action.
Plaintiffs’
Seventh Cause of Action (mislabeled Sixth Cause of Action) alleges that
Defendant referred Plaintiffs’ claim to the Special Investigation Unit based on
Plaintiffs’ national origin. (FAC, ¶ 82.) However, Plaintiffs offer no facts to
back up this conclusory allegation, or how it reflects a business practice of
Defendant.
Further,
based on a recent Court of Appeal decision, these two causes of action would be
time barred because an insured cannot plead around the one-year limitations
provision by labeling a cause of action something different than breach of
contract. (Rosenberg-Wohl v. State Farm Fire & Cas. Co. (2023) 93
Cal.App.5th 436.) That case is directly on point because the Court of Appeal was
specifically addressing a UCL claim.
Defendant’s
demurrer to Plaintiffs’ Third and Seventh Causes of Action is sustained without
leave to amend because the causes of action are time-barred.
3. Fourth Cause of Action for
Negligent Infliction of Emotional Distress
Defendant demurs to this cause of
action on the basis that it fails to state facts sufficient to constitute a
cause of action against Defendant.
Negligent
infliction of emotional distress is a species of negligence. (Marlene F. v.
Affiliated Psychiatric Med. Clinic, Inc. (1989) 48 Cal. 3d 583, 588.) Thus,
the traditional elements of duty, breach of duty, causation, and damages apply.
(Burgess v. Sup.Ct. (Gupta) (1992) 2 Cal. 4th 1064, 1072.)
This cause of action, which remains
unchanged since Plaintiffs’ original Complaint, fails to allege that Defendant
breached a duty to Plaintiffs, and it fails to state what emotional distress
Plaintiffs have suffered such that Defendant breached a duty to Plaintiffs.
Their Complaint states that “Defendants knew or should have known that their
actions, or failure to act, would cause Plaintiffs severe emotional distress” (FAC,
¶ 59), but it does not expand upon what the emotional distress was.
Defendant’s demurrer to Plaintiffs’
Fourth Cause of Action is sustained without leave to amend, as it is
time-barred because it is related to the breach of contract claim.
4. Sixth Cause of
Action for Violation of Civil Code Section 51
Defendant demurs to this cause of
action on the basis that it fails to state facts sufficient to constitute a
cause of action against Defendant.
A plaintiff
asserting violation of the Unruh Act must plead and prove intentional
discrimination in public accommodations in violation of the terms of the Act (Harris
v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175), except,
alleged violations based on violations of ADA is not required to prove
intentional discrimination. (Munson v. Del Taco, Inc. (2009) 46 Cal. 4th
661, 672.)
Other
than a conclusory allegation that Plaintiffs are “informed and believed that Metlife
has flagged this said claim and referred the claim to its Special Investigation
Unit based on the national origin and being recent immigrant to the US” (FAC, ¶
74), Plaintiffs’ FAC provides no specific allegations to back up this claim.
The reason given by Defendant in its denial letter was that Plaintiffs did not
cooperate in the investigation of the claim. Plaintiffs’ FAC does not allege
any unequal treatment.
This
cause of action, being that it is related to the breach of contract claim, is time-barred.
As such, Defendant’s demurrer to Plaintiffs’ Sixth Cause of Action is sustained
without leave to amend.
III. ORDER
1.
Defendant’s demurrer to Plaintiffs’ entire
FAC is SUSTAINED WITHOUT LEAVE TO AMEND.