Judge: Frank M. Tavelman, Case: 22BBCV00305, Date: 2023-02-15 Tentative Ruling

Case Number: 22BBCV00305    Hearing Date: February 15, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

DEMURRER AND MOTION TO STRIKE

ALLEGATIONS: 

Angel Zarate (“Plaintiff”) field suit against Alliance United Insurance (“AUI”), erroneously named in the complaint as Kemper Insurance, and Raymundo Villela dba Alternative Autobody (“Alternative Autobody”) on May 4, 2022. Plaintiff alleges that AUI disbursed $30,000 to Alternative Autobody to repair Plaintiff’s vehicle, and Alternative Autobody went out of business prior to repairing Plaintiff’s vehicle and retained the money.  Plaintiff’s sole cause of action is for Breach of Contract.

HISTORY: 

Alliance filed a Demurrer on October 6, 2022, on December 27, 2022 the hearing was continued to February 17, 2023. No opposition has been filed.

ANALYSIS: 

I.                    LEGAL STANDARD 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters.  (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Ibid.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at p. 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and, or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

II.                 MEET AND CONFER

CCP § 430.41(a) requires that, at least five days before a responsive pleading is due,  the demurring party meet and confer with the party who filed the challenged pleading, by telephone or in person, to determine if the parties can resolve the objections raised in the demurrer. The demurring party must file and serve a declaration detailing the meet and confer efforts. Failure to meet and confer is not grounds to overrule or sustain a demurrer or grant or deny a motion to strike. (CCP §§ 430.41(a)(4), 435.5(a)(4).)

Upon review of the record the Court is satisfied the meet and confer requirements have been met. (Lane Decl. ¶¶ 4-6.)

III.              MERITS

To state a cause of action for breach of contract, Plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Plaintiff’s complaint is a form complaint, containing the following substantive allegations:

“The subject auto body shop agreed to repair plaintiff's vehicle and instead went out of business and never repaired the vehicle after being paid by the insurance carrier. The insurance carrier, Kemper refused to make plaintiff whole on the underlying automobile policy.”

“The body shop accepted paymment [sic] but did not repair the vehicle. The insurance company refused to repair the vehicle or pay plaintiff for his damages.”

(Compl. ¶¶ BC-1 & 2.)

AUI argues that Plaintiff fails to allege facts sufficient state a claim as to breach of contract. AUI asserts that Plaintiff’s complaint puts forth contradictory statements of fact by stating that AUI refused to make him whole, but that AUI also paid out Alternative Autobody to fix his vehicle.

The Judicial Council’s form pleading used by Plaintiff expressly requires that Plaintiff either attach a copy of the agreement (Form PLD-C-001 Section BC-1) or state, “The essential terms of the agreement.”  In response to this, Plaintiff writes: “THE SUBJECT AUTO BODY SHOP AGREED TO REPAIR PLAINTIFF'S VEHICLE AND INSTEAD WENT OUT OF BUSINESS AND NEVER REPAIRED THE VEHICLE AFTER BEING PAID BY THE INSURANCE CARRIER. THE INSURANCE CARRIER, KEMPER REFUSED TO MAKE PLAINTIFF WHOLE ON THE UNDERLYING AUTOMOBILE POLICY.”  This language fails to state the “essential terms of the agreement,” but rather describes the conduct of a third party, Alternative Autobody, and the conduct of the insurance company which Plaintiff is challenging.   It does not discuss the “essential terms.”  "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. [Citation.] In order to plead a contract by its legal effect, plaintiff must 'allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.'" (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489).

The Court finds that Plaintiff has pled insufficient facts as to a breach of contract by AUI. Plaintiff alleges the existence of a contract by his reference to the underlying auto policy, however he does not allege any facts as to how AUI’s refusal to pay him after Alternative Autobody ceased operation is a breach of that policy. Plaintiff may be able to allege facts to this effect but has not done so in his complaint here. As such, the Court SUSTAINS the demurrer with leave to amend.                            

IV.              CONCLUSION

The Court SUSTAINS the demurrer with 20 days’ leave to amend.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Alliance United Insurance’s Demurrer came on regularly for hearing on February 17, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

 THE DEMURRER IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND. 

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE

IT IS SO ORDERED. 

DATE: February 17, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles