Judge: Mark E. Windham, Case: 21STCV02462, Date: 2022-09-01 Tentative Ruling
Case Number: 21STCV02462 Hearing Date: September 1, 2022 Dept: 26
PROCEEDINGS:
DEMURRER TO FIRST AMENDED COMPLAINT
MOVING
PARTY: Defendant
American Family Mutual Insurance Company
RESP.
PARTY: None
DEMURRER
(CCP § 430.10, et seq.)
TENTATIVE RULING:
Defendant American Family Mutual Insurance
Company’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO
AMEND.
SERVICE OF MOTION:
[X] Proof
of Service Timely Filed (CRC 3.1300) OK
[X]
Correct Address (CCP 1013, 1013a) OK
[X] 16/21
Day Lapse (CCP 12c and 1005 (b)) OK
SUMMARY OF COMPLAINT: Action for insurance bad
faith and negligenc.
REQUEST FOR RELIEF: Sustain demurrer to the First Amended Complaint
for failure to allege facts sufficient to state a cause of action. The first
cause of action for insurance bad faith cannot be alleged against Defendant
American Family because Plaintiff was never insured by Defendant American
Family, nor in privity of contract with any insured, nor a third-party
beneficiary of the insurance policy. To the extent this cause of action is
based on violation of the Insurance Code, there is no private right of action
under that statute. The second cause of action for negligence fails to allege the
existence of a duty of care owed by Defendant American Family to Plaintiff, nor
can such a duty be alleged without a contractual relationship.
OPPOSITION: None filed as
of August 29, 2022.
REPLY: None filed as
of August 29, 2022.
ANALYSIS:
On January 21, 2021, Plaintiff Louis Ashodian (“Plaintiff”) filed the Complaint in this action against Defendants
Addison Culley and American Family Mutual Insurance Company (“Defendant
American Family”). On April 21, 2021, Plaintiff filed the First Amended
Complaint.
The
case was reclassified from the unlimited jurisdiction civil department to the
limited jurisdiction civil department on May 4, 2021. (Notice of
Reclassification, 05/04/21.) It was not until June 14, 2022 that proof of
service of the Summons and Complaint on Defendant American Family was filed. On
June 23, 2022, Defendant American Family filed a declaration for extension of
time to respond.
Defendant American Family filed the instant Demurrer to the
First Amended Complaint on July 22, 2022. No opposition has been filed to date.
Discussion
Defendant American Family demurs
to the First Amended Complaint for
failure to allege sufficient facts to state a cause of action. (Code
Civ. Proc., § 430.10, subd. (e).) The Demurrer is accompanied by a meet and
confer declaration as required by Code of Civil Procedure section 430.41.
(Demurrer, Ross Decl., ¶¶3-8.)
The First Amended Complaint asserts
causes of action for (1) insurance bad faith; and (2) negligence.
1st Cause of Action for Insurance Bad Faith
Plaintiff was allegedly in a motor vehicle accident with
Defendant Culley on January 24, 2019, who was insured at the time by Defendant
American Family. (FAC, ¶¶MV-1, MV-2(f).) Plaintiff alleges that Defendants are
liable to him for the loss of the use of his vehicle and out of pocket expenses
for transportation from January 24, 2019 to August 6, 2019. (Ibid.) Defendant
American Family is also allegedly liable for bad faith denial of loss of use
claims pursuant to Insurance Code section 790.03(h). (Id. at ¶MV-2(f).)
Under California law, an insurance company’s duty of good
faith and fair dealing is owed only to its insured. (Austero v. Nat’l Cas.
Co. (1976) 62 Cal.App.3d 511, 517; Wexler v. California Fair Plan
Association (2021) 63 Cal.App.5th 55, 55-61.) As the First Amended
Complaint does not allege the existence of a contractual relationship between
Plaintiff and Defendant American Family, it has not stated a claim for
insurance bad faith. Nor does the allegation that Defendant American Family
violated Insurance Code section 790.03(f) support this cause of action. There
is no private right of action for an alleged violation of the Insurance Code. (Moradi-Shalal
v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 303-304; Coleman
v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 415.)
Therefore, the Demurrer is sustained as to the first cause
of action for insurance bad faith.
2nd Cause of Action for Negligence
The elements of a negligence cause of action are duty,
breach, causation, and damages. (County of Santa Clara v. Atlantic Richfield
Co. (2006) 137 Cal. App. 4th 292, 318.) An insurer that does not owe a duty
of good faith and fair dealing to a party, however, also owes no duty to that
party that gives rise to a negligence cause of action. (Coleman, supra, 132
Cal.App.4th at 415 [citing Taylor v. California State Auto. Assn. Inter-Ins.
Bureau (1987) 194 Cal.App.3d 1214, 1223].)
Given that the First Amended Complaint has not alleged facts
supporting cause of action for insurance bad faith against Defendant American
Family, it also lacks facts to support the existence of a duty of care that
gives rise to a negligence cause of action.
The Demurrer is also sustained as to the second cause of
action for negligence.
Leave to Amend
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to
show the Court that a pleading can be amended successfully. (Id.) Here, Plaintiff has filed no
opposition to the Demurrer and the facts alleged suggest no possibility of
amendment, such as Plaintiff was insured by Defendant American Family, or in
some other contractual relationship that would give rise to a duty of good
faith and fair dealing, or a duty of care.
Conclusion
Therefore, Defendant American
Family Mutual Insurance Company’s Demurrer to the First Amended Complaint is
SUSTAINED WITHOUT LEAVE TO AMEND.
Moving party to give notice.