Judge Lynne M. Hobbs, Case Number: 24STCV06744, Date: 2024-08-06 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV06744, Date: 2024-08-06 Tentative Ruling

Case Number: 24STCV06744 Hearing Date: August 6, 2024 Dept: 61

BENHOUR SOLEIMANI, AN INDIVIDUAL vs STATE FARM GENERAL INSURANCE COMPANY, AN ILLINOIS CORPORATION, et al.

TENTATIVE

Defendant State Farm General Insurance Company’s Demurrer to the Complaint is SUSTAINED without leave to amend as to the second cause of action for breach of contractual duty to pay a covered claim, and OVERRULED as to the fourth cause of action for intentional misrepresentation.

Defendant to provide notice.

DISCUSSION

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant State Farm General Insurance Company (Defendant) demurrers to the second cause of action for breach of contract, the fourth cause of action for intentional misrepresentation, and the fifth cause of action for conversion. Since the demurrer was filed, Plaintiff Benhour Soleimani (Plaintiff) has since dismissed the fifth cause of action for conversion, leaving only the second and fourth causes of action to address.

Defendant argues persuasively that the second cause of action, styled “Breach of Contractual Duty to Pay a Covered Claim,” is entirely duplicative of the first cause of action for breach of contract, itself based on Defendant’s alleged failure “to provide coverage for the loss suffered by Plaintiff due to the damage to the Subject Property.” (Demurrer at pp. 5–6; Complaint ¶ 34.)

Plaintiff argues that a separate jury instruction exists for claims for breach of an insurance contract to pay a covered loss. (Opposition at p. 3, citing CACI 303, 2300.) This is of no import. The existence of a separate jury instruction signals not the existence of a distinct claim separate from a breach of contract claim, but a more specific framing of the issue for the benefit of a jury. Plaintiff’s first and second causes of action are identical claims premised on identical facts. (Complaint ¶¶ 34–35, 44–45.) This is a basis to sustain the demurrer to the second cause of action. (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) The demurrer is therefore SUSTAINED without leave to amend as to the second cause of action.

Defendant also argues that the fourth cause of action for intentional misrepresentation fails to allege facts with sufficient particularity. (Demurrer at pp. 6–8.) Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

There is no defect in the allegations concerning the nature of the misrepresentation, as the misrepresentation is alleged to be the promise in the home insurance policy that Defendant would pay for a covered loss, when in fact it had no intention of doing so. (Complaint ¶ 61.) Plaintiff’s claim is therefore one for promissory fraud. (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402–403 [discussing promissory fraud]) Although Defendant argues that no facts are alleged to support the allegation that it lacked the intent to perform, it is not Plaintiff’s burden at the pleading stage to support his allegation of false promise with evidentiary facts. (Demurrer at p. 7; Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292 [“[A] complaint must allege ultimate facts, not evidentiary facts or conclusions of law.”].)

Defendant argues that Plaintiff cannot make a claim for fraud based on the economic loss rule, which prevents parties to a contract from recovering in tort for purely economic losses. (Demurrer at pp. 7–8, citing Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) However, this rule applies to fraud committed in the course of contractual performance; it does not apply “where the contract was fraudulently induced,” such as by a knowingly false promise of performance. (Robinson Helicopter, supra, 34 Cal.4th at p. 990.) The demurrer is therefore OVERRULED as to the fourth cause of action.