Judge: Kenneth J. Medel, Case: 37-2022-00042182-CU-PO-CTL, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 19, 2023

10/20/2023  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00042182-CU-PO-CTL ADISA VS LIBERTY MUTUAL FIRE INSURANCE COMPANY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 05/09/2023

Defendant LIBERTY MUTUAL FIRE INSURANCE COMPANY's UNOPPOSED Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. The Request for Judicial Notice is GRANTED.

Based on the court file, Plaintiff originally filed an against Defendant Liberty Mutual Fire Insurance Company on October 22, 2022. In the demurrer, Defendant LIBERTY MUTUAL FIRE INSURANCE COMPANY indicates service with Plaintiff's initial 'Complaint for Relief' on October 27, 2022. The Civil Case Cover Sheet identified the type of case as 'Other PI/PD/WD (23).' The complaint did not indicate any specific cause of action.

Near the end of the complaint, plaintiff stated 'attempted Larceny' and sought the amount of '$100 Thousand dollars.' (RJN Exhibit A, p. 2, lns. 16-17.) Based on the demurrers filed with this Court, defense counsel met and conferred with Plaintiff (Pro Per) by email on November 3, 2022.

On November 7, 2022, plaintiff filed a 'MOTION TO AMEND COVER SHEET AND COMPLAINT FOR RELIEF' along with an amended Civil Case Cover Sheet. (Exhibit B) The Civil Case Cover Sheet now identifies the type of case as 'Other non-PI/PD/WD tort (35).' (Id.) The amended complaint is not cast in any cause of action. Defense counsel continued to meet and confer and advised plaintiff that plaintiff needed to specify a cause of action and state facts supporting that cause of action. Defense counsel invited Plaintiff to call her to discuss the Plaintiff's amended pleading.

This Court heard Liberty Mutual's first demurrer on April 14, 2023. The Court SUSTAINED LIBERTY MUTUAL's demurrer finding that Plaintiff's complaint failed to state facts sufficient to constitute a cause of action and was uncertain. The Court gave PLAINTIFF another opportunity to amend. (Exhibit C) At the hearing, the Court explained to PLAINTIFF that her complaint had to state the essential elements of a cause of action that could be legally viable based on the facts alleged.

On or about April 26, 2023, Plaintiff filed and served a First Amended Complaint. (Exhibit D) The First Amended Complaint is entitled 'First Amended Complaint for Relief Due to Negligent Misrepresentation'. Plaintiff now seeks 'One Million Dollars.' Although the title of the FAC says it is for 'Negligent Misrepresentation', it is not clear what the basis for the claim is nor is it clear how plaintiff was damaged in the amount specified in either the Complaint or the First Amended Complaint. While plaintiff alleges misrepresentation, the First Amended Complaint does not allege that LIBERTY MUTUAL made any misrepresentation to her to induce her reliance honestly believing that the representation was true but without reasonable ground for such belief.

Based on the FAC, plaintiff states that she initiated a call to LIBERTY MUTUAL to ask about why the premium 'due' on her account was higher than she expected and she was told by an unidentified 'representative' on an unspecified date in May 2019 that the 'rate increase occurred to offset the cost of Uninsured Motorist.' (FAC, page 1, line 24 – page 2, line 2.) The allegations at this point are uncertain. On the one hand, plaintiff alleges that she asked that the policy be canceled but that the representative did not cancel the policy. (FAC, page 2, lines 3-9.) Calendar No.: Event ID:  TENTATIVE RULINGS

2971649  31 CASE NUMBER: CASE TITLE:  ADISA VS LIBERTY MUTUAL FIRE INSURANCE COMPANY [IMAGED]  37-2022-00042182-CU-PO-CTL However, the FAC also pleads that plaintiff would not have cancelled her policy if the representative had not told her that the increase in premium was to 'offset the cost of Uninsured Motorist.' Even if plaintiff cancelled her policy in reliance on the statement made, it is not clear how the explanation for an increase in premium could logically be intended to induce PLAINTIFF to cancel her policy.

In her prior pleading entitled 'Complaint for Relief' filed October 20, 2022, which is subject to Judicial Notice and is a judicial admission, plaintiff alleged that she first contacted LIBERTY MUTUAL to complain about the increase in premium in June 2019. (Exhibit A to Request for Judicial Notice filed concurrently herewith, page 1, lines 21-23.) In the FAC, she alleges that the call was in May 2019 for a June 2019 premium in her FAC. There can be no justifiable or detrimental reliance on a statement made by a representative for an amount that was already due and payable.

Plaintiff alleges resulting damage to her credit. However, it appears from the facts that this damages was the result of plaintiff's failure to pay the premium that was already due when she 'initiated' a call in June 2019.

In addition, where, as here, misrepresentation is pled against a corporate defendant, the requirement of specific pleading also mandates that a plaintiff ''allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.'' (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 712, p. 128.

Based on the above, the Court SUSTAINS the demurrer. Plaintiff has already amended her complaint twice and has not cured the deficiencies identified by the Court and by opposing counsel in meet and confer efforts. Plaintiff has also failed to oppose this demurrer to explain how she can state a cause of action. The Demurrer is SUSTAINED without leave to amend. Defendant is to provide a judgment of dismissal for the Court's signature.

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