Judge: Kevin C. Brazile, Case: 23STCV03063, Date: 2023-05-04 Tentative Ruling

Hearing Date: May 4, 2023

Case Name: Lamas, et al. v. Accurate Rate Insurance Services, et al.

Case No.: 22STCV39530

Matter: Demurrer

Moving Party: Defendant First-Citizens Bank & Trust Company, successor by merger to 

CIT Bank, N.A. 

Responding Party: Unopposed 

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

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 December 20, 2022, Plaintiffs George Lamas and Claudia Lamas filed the operative Complaint against Defendants Accurate Rate Insurance Services, Palomares Escrow, Inc., and CIT Bank, N.A. for (1) breach of contract, (2) breach of fiduciary duty, (3) negligence, (4) negligence, (5) breach of contract, (6) breach of fiduciary duty, (7) negligence, (8) breach of contract, and (9) breach of fiduciary duty.  Plaintiffs allege that their newly purchased home was damaged in a fire, but that they did not receive insurance coverage for the damage.  Plaintiffs allege that Defendants received a notice that Plaintiffs had not paid for their insurance, but Defendants did not take any action thereafter.  

Defendant First-Citizens Bank & Trust Company, successor by merger to CIT Bank, N.A., demurs to the seventh, eighth, and ninth causes of action for failure to state sufficient facts.  Defendant, the lender for Plaintiffs, argues, “[f]irst, Plaintiffs expressly agreed in the Deed of Trust, which they signed in connection with this loan, that CIT was under no obligation whatsoever to purchase insurance on Plaintiffs’ behalf. . . .Second, even putting aside the contractual agreement between Plaintiffs and CIT, Plaintiffs’ claims would still fail because California law imposes no requirement on a lender to purchase insurance on the borrowers’ behalf. . . .Third, at least one of Plaintiffs’ claims (the seventh cause of action, for negligence) is time barred, as this loan closed in December 2019 and Plaintiffs did not file the case until December 2022 – which is more than a year after the two-year statute of limitations expired.”

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.)

Because there is no opposition, the subject causes of action are deemed abandoned.  (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.)  The Demurrer is sustained, without leave to amend.  The Request for Judicial Notice is granted.  

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.