Judge: Matthew C. Braner, Case: 37-2023-00002177-CU-IC-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Insurance Coverage Demurrer / Motion to Strike 37-2023-00002177-CU-IC-CTL GENERAL INSURANCE COMPANY OF AMERICA VS HANSEN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/29/2023

Defendant Gene Hansen's demurrer is OVERRULED.

A demurrer may be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) It is not necessary to 'plead evidentiary facts supporting [an] allegation of ultimate fact,' and a pleading 'is adequate so long as it apprises the defendant of the factual basis for the claim.' (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1549.) In considering whether the complaint adequately states a claim, the court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, Defendant demurs to Plaintiff General Insurance Company of America's single cause of action for subrogation on the basis that it is barred by the two-year statute of limitations under Code of Civil Procedure section 339, fails to adequately allege every element for a subrogation claim, and is uncertain because it does not specify when Defendant performed the service that allegedly caused the (presumably) subsequent loss on December 19, 2020. The court rejects these arguments.

First, the applicable statute of limitations is three years, not two, as the subrogation claim is founded on negligence, not breach of contract. (Complaint, ¶ 10; Code Civ. Proc., § 338; see also Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1150 [subrogee's claims for negligence and strict products liability, based on theory that a defect in workmanship caused damage to a home and personal property, 'are therefore governed by the three-year limitations period applicable to actions for injury to real and personal property.'].) Defendant's arguments concerning accrual and the discovery rule are nonsensical; the last fact essential to Plaintiff's subrogation claim was the damage caused to Plaintiff's insured by Defendant's allegedly negligent conduct. (See Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112, 120 ['A cause of action ordinarily accrues when, under the substantive law, the wrongful act is done and liability arises, i.e., upon the occurrence of the last fact essential to the cause of action.'].) Thus, on the face of the complaint, accrual was no earlier than December 19, 2020, the date of loss (i.e., when the allegedly over-tightened toilet bolt resulted in water damage). Plaintiff filed within three years of that date; its claim is timely.

Second, Plaintiff has sufficiently pled each element of its subrogation claim: Calendar No.: Event ID:  TENTATIVE RULINGS

3075822  10 CASE NUMBER: CASE TITLE:  GENERAL INSURANCE COMPANY OF AMERICA VS HANSEN [IMAGED]  37-2023-00002177-CU-IC-CTL The essential elements of an insurer's cause of action for equitable subrogation are as follows: (a) the insured suffered a loss for which the defendant is liable, either as the wrongdoer whose act or omission caused the loss or because the defendant is legally responsible to the insured for the loss caused by the wrongdoer; (b) the claimed loss was one for which the insurer was not primarily liable; (c) the insurer has compensated the insured in whole or in part for the same loss for which the defendant is primarily liable; (d) the insurer has paid the claim of its insured to protect its own interest and not as a volunteer; (e) the insured has an existing, assignable cause of action against the defendant which the insured could have asserted for its own benefit had it not been compensated for its loss by the insurer; (f) the insurer has suffered damages caused by the act or omission upon which the liability of the defendant depends; (g) justice requires that the loss be entirely shifted from the insurer to the defendant, whose equitable position is inferior to that of the insurer; and (h) the insurer's damages are in a liquidated sum, generally the amount paid to the insured.

Plaintiff has alleged that its insured suffered a loss due to the negligent conduct of Defendant, (Complaint, ¶¶ 2-5, 10), Plaintiff was not primarily liable for this loss but was obligated to, and did, reimburse its insured for the loss (Complaint, ¶¶ 7, 10-11), Plaintiff's insured had a viable claim against Defendant that could have been asserted but for compensation from Plaintiff (Complaint, ¶¶ 10, 12), and Plaintiff suffered loss by having to reimburse its insured in the liquidated sum of $166,277.88.

(Complaint, ¶¶ 11-12.) Equity also requires the loss be shifted to Defendant, the alleged wrongdoer.

(Fireman's Fund Ins. Co. v. Maryland Cas. Co. (1998) 65 Cal.App.4th 1279, 1296 ['The aim of equitable subrogation is to place the burden for a loss on the party ultimately liable or responsible for it and by whom it should have been discharged, and to relieve entirely the insurer or surety who indemnified the loss and who in equity was not primarily liable therefor.'].) Nothing more is required at this stage.

Finally, the complaint is not uncertain. Plaintiff's claim is not grounded in fraud, where greater specificity is required, and thus Plaintiff need not allege all 'evidentiary facts supporting [an] allegation of ultimate fact.' (Birke v. Oakwood Worldwide, supra, 169 Cal.App.4th at p. 1549.) Accordingly, Defendant's demurrer is overruled.

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