Judge: Kevin C. Brazile, Case: 22STCV25978, Date: 2022-09-28 Tentative Ruling

Hearing Date: September 28, 2022

Case Name: Sarkisyan v. Kemper Insurance Company, et al.

Case No.: 22STCV15692 

Matter: Demurrer; Motion to Strike

Moving Party: Defendant Kemper Insurance Company

Responding Party: Plaintiff Arman Sarkisyan

Notice: OK

Ruling: The Demurrer is sustained.  Leave to amend is to be argued.

The Motion to Strike is denied as moot.

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 June 21, 2022, Plaintiff Arman Sarkisyan filed the operative First Amended Complaint (“FAC”) against Defendant Kemper Insurance Company for (1) breach of the implied covenant of good faith and fair dealing, (2) breach of contract, and (3) declaratory relief.  This is an action relating to Defendant’s alleged failure to pay insurance benefits for Plaintiff’s vehicle accident.

1. Demurrer

Defendant Kemper Insurance Company demurs to all causes of action for uncertainty and 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.)

Defendant first argues that the FAC is uncertain given the omitted Exhibit 2 from the initial Complaint indicating that a different vehicle was at issue.  Further, those documents indicate that Plaintiff was a claimant and not an insured.  

In his Opposition, Plaintiff argues that Exhibit 2 was drafted by Defendant and any mistakes are its fault.

Under the so-called “sham pleading” rule, the Court may take judicial notice of the prior pleadings where “a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings.”  (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384.)  That is, “plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.”  (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.)  “ ‘Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading.  The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.’ ”  (Id. at pp. 425-426.)  

Given that Exhibit 2 to the Complaint indicates a different insured and vehicle, some explanation must be provided why these documents were omitted and what they relate to.  Plaintiff’s explanation that Defendant’s letter is a mistake is not sufficient or credible.  There are also attachments drafted by another entity in which a vehicle with a different vehicle identification number is listed for the accident date.  

As a sufficient explanation was not provided, the Demurrer is sustained.  Leave to amend is to be argued.

2. Motion to Strike 

In light of the ruling on the Demurrer, Defendant’s Motion to Strike is denied as moot.

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.