Judge: Erick L. Larsh, Case: 2022-01281509, Date: 2023-07-27 Tentative Ruling

Demurrer to First Amended Complaint.

Defendant California Automobile Insurance Company, erroneously sued as Mercury Insurance Services, LLC’s demurrer to the First Amended Complaint [FAC] is OVERRULED. (Code Civ. Proc., § 430.10 [authorizing demurrer].)

Moving defendant shall file an Answer to the FAC within 10 days.

Plaintiff shall give notice.

1st cause of action: breach of contract.

This cause of action states sufficient facts. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements]; FAC, ¶¶ 2, 3, 5, 15 [existence of contract], 17 [performance], 12, 18 [breach], and 19 [proximately caused damages].) Failure to allege a specific dollar amount of damages is not fatal. (Furia v. Helm (2003) 111 Cal.App.4th 945, 957 [specific damages allegations are only necessary when seeking a default judgment; otherwise, “the absence of a specific amount from the complaint is not necessarily fatal as long as the pleaded facts entitle the plaintiff to relief”].)

2nd cause of action: breach of implied covenant of good faith and fair dealing.

This cause of action states sufficient facts. (CACI 325 [elements]; FAC, ¶¶ 2, 3, 5, 15 [underlying contract], 17 [performance], 12, 16, 17 [conditions required for defendant’s performance have occurred], 12, 24-28 [defendant’s unfair interference with plaintiff’s right to receive benefits under the contract], 29 [proximately caused damages].)

The FAC sufficiently alleges that the insured assigned all “rights” and “benefits” “under the property insurance policy,” including the right to “bring appropriate legal action.” (FAC, ¶ 3.) This is sufficient to allege that the Assignment of Benefits [AOB] between the insured and plaintiff included an assignment of the insured’s right to sue for bad faith denial of insurance benefits. The fact that ¶ 3 goes on to allege that the assignment was “up to the amount of the services provided or to be provided by Plaintiff” does not necessarily limit the scope of the AOB, or exclude an inference that the AOB included a bad faith claim. (See Service Employees International Union v. Hollywood Park, Inc. (1983) 149 Cal.App.3d 745, 757 [on demurrer, the court is required to accept the truth of all material facts properly pleaded, as well as all reasonable inferences which can be drawn therefrom].)

Further, as noted above, plaintiff need not allege a specific dollar amount of damages. (Furia v. Helm, supra at 957.)

Motion to Strike.

Defendant California Automobile Insurance Company, erroneously sued as Mercury Insurance Services, LLC’s motion to strike attorney fee allegations in the First Amended Complaint [FAC] is DENIED. (Code Civ. Proc., §§ 435, 436 [authorizing motion].)

First, no point is served in striking attorney fee allegations, as “there was no requirement they be pled at all.” (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497.)

Second, while moving party contends the attorney fee allegations should be stricken because the subject policy does not include an attorney fee provision, the FAC alleges otherwise, and moving party has not requested judicial notice of any document to the contrary. (FAC, ¶ 20 [“Based on information and belief, Plaintiff alleges the subject insurance contract contains a provision for the recovery of attorneys’ fees”]; Code Civ. Proc., § 437, subd. (a) [“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice”].)

Moving defendant shall file an Answer to the FAC within 10 days.

Plaintiff shall give notice.