Judge: Linda S. Marks, Case: 2021-01178554, Date: 2022-10-24 Tentative Ruling

1. Demurrer to Complaint
2. Motion to Strike
3. Motion for Severance filed by Daniel Lim on 6/15/22
3. Case Management Conference

Defendant Daniel Lim (sued as Doe 2) (“Defendant”) seeks the following: (1) an order severing the third-party liability claims from the insurance coverage claims in Plaintiffs’ Complaint;  (2) an order sustaining the Demurrer on the ground that the first through third causes of action fail to state facts sufficient to constitute a cause of action against Defendant as the owner of the premises; and (3) an order striking all allegations regarding punitive damages and attorney’s fees.

Motion to Sever

Code of Civil Procedure section 1048 provides that: “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” Section 598, on the other hand, provides that the court may make an order “that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case.” (See Code Civ. Proc., §§ 1048, subd. (b), 598.)

Evidence Code Section 1155 prohibits the admission of insurance to prove negligence or other wrongdoing. Courts have routinely found that it violates both the spirit and letter of Evidence Code section 1155 to join an insurer in the same negligence action against the insured. (See, e.g., (See Royal Globe Ins. Co. v. Super. Ct. (1979) 23 Cal.3d 880, 891; Geraci v. United Services Automobile Assn. (1987) 188 Cal.App.3d 1245, 1249 [quoting Royal Globe Ins. Co. v. Super. Ct. (1979) 23 Cal.3d 880 (overruled on other grounds by Moradi-Shalal v. Fireman’s Fund Ins. Co. (1988) 46 Cal.3d 287)]; see also Industrial Indemnity Co. v. Mazon (1984) 158 Cal.App.3d 862, 865-866.) Thus, where an insured and insurer are joined in the same suit, the appropriate remedy is to sever claims against the insurer. (See Royal Globe Ins. Co., 23 Cal.3d at p. 891; see also State Farm Mut. Auto Ins. Co. v. Super. Ct. (1956) 47 Cal.2d 428, 432 [holding that disclosure of liability insurance to a jury determining issues involved in personal injury actions is generally held a matter of prejudice].)

Here, there is no dispute that Plaintiffs have joined the insurer in the same action as their negligence action against Defendant.

Tentative Ruling: The Motion to Sever is GRANTED.

Demurrer

As an initial matter, the Court notes that the parties failed to meet and confer, pursuant to Code of Civil Procedure Section 430.41.

Defendant’s counsel attempted to reach Plaintiffs’ counsel in May and June 2022 but was unsuccessful. (Declaration of Charles J. Schmitt, ¶ 2.) Because Defendants made attempts to meet and confer that went ignored, the Court will exercise its discretion to consider the Demurrer, which has merit and is unopposed.

Plaintiffs’ failure to oppose the Demurrer can be treated as an implied concession to the merits of the same. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Additionally, the Court may construe the absence of a memorandum as waiver of all grounds not supported. (CRC 3.1113(a).) The Court could sustain the Demurrer on this ground alone.

Moreover, the Demurrer has merit. Exhibit 1 to the Complaint is a copy of the policy between State Farm and Plaintiff Jesus Hernandez, which does not show Defendant as a signatory. Thus, Plaintiffs’ breach of contract causes of action against Defendant are unsupported.

Tentative Ruling:  The unopposed Demurrer is SUSTAINED with 20 days’ leave to amend.

Motion to Strike

In light of the Court’s SUSTAINING of the Demurrer, the only remaining cause of action against Defendant is for negligence. A claim for punitive damages for negligence, as alleged here, is insufficient to support punitive damages. When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. [Citation.]” (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) Conduct that may be found to be negligent, overzealous, legally erroneous, and callous is not enough to show that conduct that is evil, criminal, recklessly indifferent, or with a vexatious intention to injure to support punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.)

Moreover, the Complaint alleges no facts showing that Plaintiffs would be entitled to attorney’s fees against Defendant.

Tentative Ruling: The unopposed Motion to Strike is GRANTED with 20 days’ leave to amend.

Defendant to give notice.