Judge: Gary I. Micon, Case: 24CHCV00588, Date: 2024-07-10 Tentative Ruling

Case Number: 24CHCV00588    Hearing Date: July 10, 2024    Dept: F43

Dept. F43

Date: 7-10-24

Case #24CHCV00588 , Chinyere Valerie Ibe vs. Bamboo Insurance Services, Inc., et al.

Trial Date: N/A

 

DEMURRER TO FIRST AMENDED COMPLAINT WITH MOTION TO STRIKE

 

MOVING PARTY: Defendant 818 Restoration and Construction, LLC

RESPONDING PARTY: Plaintiff Chinyere Valerie Ibe

 

RELIEF REQUESTED

Demurrer to the Complaint

·         4th Cause of Action for Intentional Misrepresentation

·         5th Cause of Action for Violation of California Business & Professional Code

·         6th Cause of Action for Unjust Enrichment

·         7th Cause of Action for Defamation

 

Motion to Strike

·         Page 24, Paragraph 111 entitled Prayer for Relief, Lines 23-25 [claim for punitive damages]

 

RULING: Defendant’s demurrer is sustained. Defendant’s motion to strike is granted.

 

SUMMARY OF ACTION

Plaintiff Chinyere Valerie Ibe (Plaintiff) filed her First Amended Complaint (FAC), in pro per, on March 25, 2024. Plaintiff’s complaint alleges seven causes of action for (1) Breach of the Duty of Good Faith and Fair Dealing; (2) Bad Faith Denial of Insurance Claim; (3) Breach of the Contractual Duty to Pay a Covered Insurance Claim; (4) Intentional Misrepresentation; (5) Violations of Cal. Bus. & Prof. Code §§ 17200, et. seq.; (6) Unjust Enrichment; and (7) Defamation.

 

The First through Third Causes of Action are only against Defendant Bamboo Insurance Services, Inc. The Fourth through Seventh Causes of Action are against all Defendants. Defendant 818 Restoration and Construction, LLC (818 Restoration) is the demurring Defendant in this instance. 818 Restoration demurs to the Fourth through Seventh Causes of Action.

 

Plaintiff’s FAC alleges that the water heater in the garage of her home burst. This caused the garage to flood, damaging the drywall and items that were stored in the garage. Plaintiff’s FAC alleges that on Marh 24, 2023, Defendant Bamboo Insurance sent out a leak detector from 818 Restoration to take pictures of the damaged drywall in the garage. (FAC, ¶ 21.) She also alleges that water was still trickling out of the water heater when the leak detector from 818 Restoration came out. (FAC, ¶ 25.) She also alleges that 818 Restoration was working with Bamboo to create a story that Plaintiff falsely reported that the water heater flooded the garage. (FAC, ¶ 34.) Plaintiff also alleges that Bamboo, using its contractors, including 818 Restoration, found ways to deny her claim. (FAC, ¶ 61.) The last allegations in Plaintiff’s FAC related to 818 Restoration is that it made one or more defamatory statements about Plaintiff to a person other than Plaintiff. (FAC, ¶¶ 100, 103.) There are no other specific allegations related to 818 Restoration.

 

818 Restoration filed its demurrer on May 28, 2024. Plaintiff filed an opposition on June 26, 2024, with proof of service by mail. On July 1, 2024, 818 Restoration filed a notice of non-opposition to its demurrer, as it apparently had no knowledge of the opposition that was filed by Plaintiff with the Court and had not yet received the opposition in the mail.

 

Plaintiff’s opposition only argues that she was not validly served with the demurrer because she had not consented to service of the demurrer via email, which is how she claimed she received the demurrer. However, the proof of service filed with Defendant’s demurrer indicates that Plaintiff was served via U.S. Mail, so it is unknown why she did not receive the demurrer in the mail. Plaintiff also argues that Defendant did not meet and confer, but Defendant’s demurrer indicates that it attempted to meet and confer with Plaintiff, but Plaintiff did not respond to attempts to meet and confer with her. Plaintiff’s opposition contains no arguments regarding the merits of the demurrer and motion to strike.

 

The Court will address the merits of the demurrer and the motion to strike.

 

ANALYSIS

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law…” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

            Fourth Cause of Action for Intentional Misrepresentation

Defendant 818 Restoration demurs to Plaintiff’s cause of action for intentional misrepresentation on the basis that it fails to plead any specific allegations against 818 Restoration.

 

“The elements of intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245.) Notably, “in California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id.)

 

There are no specific allegations against 818 Restoration under this cause of action. Instead, Plaintiff just alleges that “Defendants” made misrepresentations regarding what would be covered by Plaintiff’s insurance policy. (FAC, ¶ 78.) 818 Restoration was not Plaintiff’s insurance provider. It was simply an inspector hired by Plaintiff’s provider, Bamboo Insurance. There are no allegations under this cause of action for any misrepresentations made specifically by 818 Restoration.

 

Defendant’s demurrer to Plaintiff’s Fourth Cause of Action is sustained with leave to amend.

 

            Fifth Cause of Action for Violation of Cal. Bus. & Prof. Code §§ 17200 et. seq.

818 Restoration demurs to this cause of action on the basis that there are insufficient facts against 818 Restoration to support this cause of action.

 

Cal. Business & Professions Code § 17200 et seq. includes the California Unfair Competition Law and provides consumers with remedies when businesses engage in unfair or fraudulent practices.

 

Plaintiff’s FAC does not contain any allegations indicating that 818 Restoration violated the Business and Professions Code. The only specific allegation against 818 Restoration under this cause of action is that Bamboo used it to find ways to deny Plaintiff’s claims. This is not sufficient to indicate that 818 Restoration itself engaged any acts that would constitute a violation of the Business and Professions Code.

 

Defendant’s demurrer to Plaintiff’s Fifth Cause of Action is sustained with leave to amend.

 

            Sixth Cause of Action for Unjust Enrichment

818 Restoration demurs to this cause of action on the basis that it does not allege sufficient facts to constitute a cause of action against 818 Restoration.

 

The theory of unjust enrichment requires one who acquires a benefit at the expense of another to either return the thing or its equivalent to the aggrieved party so as not to be unjustly enriched. (Lyles v. Sangadeo-Patel (2014) 255 Cal.App. 4th 759.)

 

Though Defendant does not raise this argument, the Court will note that there is no cause of action for unjust enrichment in California. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 785, 793 (“unjust enrichment is not a valid cause of action under California law”).)

 

Unjust enrichment is not a valid cause of action. Furthermore, Plaintiff’s FAC contains no allegations indicating how 818 Restoration was unjustly enriched.

 

Because unjust enrichment is not a valid cause of action, Defendant’s demurrer to Plaintiff’s Sixth Cause of Action is sustained without leave to amend.

 

            Seventh Cause of Action for Defamation

818 Restoration demurs to this cause of action on the basis that it does not allege facts sufficient to constitute a cause of action for defamation.

 

Defamation is an intentional tort that requires proof that the defendant intended to publish the defamatory statement. (Stellar v. State Farm General Ins. Co. (2007) 157 Cal.App 4th 1498.) California law requires that any words constituting an alleged defamation must be specifically identified, if not pleaded verbatim, in the complaint. (ZL Technologies, Inc. v Does 1 – 17 (2017) 13 Cal.App. 5th 603.)

 

The only allegations that Plaintiff has against 818 Restoration under this cause of action is that it “noted that a potential slab leak had occurred in the garage as the water did not reflect a failed water heater” in the April 14, 2023, denial of benefits letter to Plaintiff, and that “818 Restoration made one or more of the states to a person other than Ms. Ibe.” (FAC, ¶¶ 100, 103.) There is nothing in Plaintiff’s FAC to indicate how 818 Restoration defamed Plaintiff, as the letter would have been issued by Plaintiff’s insurance provider, nor does Plaintiff specifically identify the alleged defamation.

 

Defendant’s demurrer to Plaintiff’s Seventh Cause of Action is sustained with leave to amend.

 

Motion to Strike

Defendant had moved to strike Plaintiff’s request for punitive damages.

 

This Court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” Under CCP § 436(a), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading.” 

 

Punitive damages are governed by Civ. Code § 3294: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code § 3294(a).) 

 

To state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in Civ. Code § 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id. at 725.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) Fraud is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294(c)(3).)¿ 

¿ 

Plaintiff has requested punitive damages as part of her prayer for relief, but nowhere in her FAC does she allege that 818 Restoration acted with malice, fraud, or oppression. Because she has not alleged that it acted with malice, fraud, or oppression, she cannot maintain a claim for punitive damages against 818 Restoration.

 

Defendant’s motion to strike Plaintiff’s request for punitive damages is granted for 818 Restoration only. It could still apply to other Defendants.

 

CONCLUSION

Defendant’s demurrer to Plaintiff’s Fourth, Fifth, and Seventh Causes of Action is sustained with leave to amend. Defendant’s demurrer to Plaintiff’s Sixth Cause of Action is sustained without leave to amend.

 

Defendant’s motion to strike is granted.

 

Moving party to give notice to all parties.