Judge: Kevin C. Brazile, Case: 22STCV15692, Date: 2022-09-28 Tentative Ruling

Hearing Date: September 28, 2022

Case Name: Spicer, et al. v. State Farm General Insurance Company, et al.

Case No.: 22STCV05116

Matter: Demurrer; Motion to Strike

Moving Party: Defendant State Farm General Insurance Company

Responding Party: Plaintiffs Darren Spicer and Cristina Salvato

Notice: OK

Ruling: The Demurrer is sustained, without leave to amend.

The Motion to Strike is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On May 9, 2022, Plaintiffs Darren Spicer and Cristina Salvato filed the operative First Amended Complaint (“FAC”) against Defendant State Farm General Insurance Company for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, and (3) negligence.  Plaintiffs allege that Defendant improperly denied insurance coverage for remediation relating to Plaintiffs’ attic insulation, which made Plaintiffs’ home uninhabitable.

1. Demurrer

Defendant State Farm General Insurance Company demurs to the FAC’s negligence cause of action for failure to state sufficient facts.

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

As Defendant points out, “negligence is not among the theories of recovery generally available against insurers . . . .”  (Sanchez v. Lindsey Morden Claims Servs., Inc. (1999) 72 Cal.App.4th 249, 254.)  Rather, the proper method is for Plaintiffs to pursue claims for breach of contract and bad faith conduct by an insurer.

Thus, the Demurrer is sustained, without leave to amend.

2. Motion to Strike 

Defendant seeks to strike the FAC’s request for punitive damages for failure to plead malicious, oppressive, or fraudulent conduct.

While the allegations are not robust, the FAC does plead that Plaintiffs’ claim was intentionally denied due to a lack of resources stemming from winter storms in Texas.  This might suggest malicious conduct.  Whether this has any merit is to be determined in discovery.  

The Motion to Strike is denied.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.