Judge: Melvin D. Sandvig, Case: 23CHCV01552, Date: 2024-02-15 Tentative Ruling

Case Number: 23CHCV01552    Hearing Date: February 15, 2024    Dept: F47

Dept. F47

Date: 2/15/24

Case #23CHCV01552

 

DEMURRER TO THE ORIGINAL COMPLAINT

 

Demurrer filed on 1/16/24.

 

MOVING PARTY: Defendant Topa Insurance

RESPONDING PARTY: Plaintiff Zuolin Cao

NOTICE: ok

 

Demurrer is to the entire complaint:

1.      Breach of Contract

2.      Failed Defense/Rejected to Defend Plaintiff

3.      Policy Did Not Comply With the Law

4.      Failed to Comply With the Code of Insurance Procedure

5.      Fiduciary Duty

6.      Insurance Provided by Defendant to Plaintiff Was Defective

 

RULING: The demurrer is sustained without leave to amend. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of Plaintiff Zuolin Cao’s (Plaintiff) dissatisfaction with Defendant Topa Insurance’s (Defendant) handling and denial of the claim for her defense in an underlying action. 

 

Since 2015, Plaintiff had an insurance policy issued by Defendant for Plaintiff’s real property located at 10500 Alabama Ave. in Chatsworth, California 91311 (the Property).  (Complaint, Attachment Item 8 ¶1).  On 6/26/18, a third-party’s mother’s body was found in the swimming pool of Plaintiff’s property.  Id. 

 

The third-party sued Plaintiff for wrongful death (Underlying Action).  The insurance policy issued by Defendant to Plaintiff for the Property did not include liability insurance.  Therefore, Defendant declined to extend coverage for Plaintiff’s defense in the Underlying Action.  (Id. at ¶¶1-2).  Plaintiff alleges that it was Defendant’s  fault that she did not have liability coverage for the Property.  Id.  Plaintiff did not retain counsel to represent her in the Underlying Action.  (Id. ¶6).  Ultimately, the Underlying Action was voluntarily dismissed. 

 

On 5/30/23, Plaintiff, representing herself, filed this action against Defendant alleging claims for: (1) Breach of Contract, (2) Failed Defense/Rejected to Defend Plaintiff; (3) Policy Did Not Comply With the Law; (4) Failed to Comply With the Code of Insurance Procedure;

(5) Fiduciary Duty and (6) Insurance Provided by Defendant to Plaintiff Was Defective.  After meet and confer efforts failed to resolve the issues Defendant had with the complaint, on 1/16/24, Defendant filed and served the instant demurrer to the entire complaint on the grounds that it fails to state sufficient facts to constitute a cause of action and is uncertain.  CCP 430.10(e), (f).  Plaintiff has opposed the demurrer and Defendant has filed a reply to the opposition. 

 

ANALYSIS

 

Defendant’s Request for Judicial Notice (RJN) is granted. 

 

Defendant’s objections (numbers 1-6) to evidence submitted in support of opposition are sustained.

 

Breach of Contract

 

The elements of a breach of contract cause of action are: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) breach by defendant and (4) resulting damage to plaintiff.  Lortz (1969) 273 CA2d 286, 290.  When pleading a breach of written contract claim, the terms of the contract must be set out verbatim in the complaint, the contract must be pled according to legal effect or a copy of the contract must be attached and incorporated by reference.  Heritage Pacific Financial, LLC (2013) 215 CA4th 972, 993.  Plaintiff has done none of the foregoing in the complaint.  Additionally, Plaintiff has failed to plead facts showing how Defendant breached the insurance policy, especially when the evidence provided with the opposition establishes that the insurance policy issued by Defendant for the period of 8/14/17 to 8/14/18 did not include liability coverage.  (See Opposition, Ex.1).

 

“Failed Defense”/“Rejected to Defend Plaintiff”

 

It is not clear what claim Plaintiff is attempting to assert in this cause of action.  Therefore, it is uncertain, ambiguous and unintelligible.  To the extent the claim is another attempt to plead a breach of the insurance contract, it is duplicative of the inadequate breach of contract cause of action. 

 

“Policy Did Not Comply With the Law”

 

This cause of action also fails for uncertainty.  Plaintiff’s reference to Insurance Code sections regarding fire and liability policies does not show that Plaintiff’s policy should have included or was otherwise required to include liability coverage.     

 

“Failed to Comply With the Code of Insurance Procedure”

 

It is also unclear what cause of action Plaintiff is attempting to assert.  As such, the cause of action fails for uncertainty.  To the extent that Plaintiff is attempting to state a claim under the unfair competition law, the claim fails.  Business and Professions Code 17200 borrows violations from other laws and treats them as unlawful and/or unfair business practices which are independently actionable under the unfair competition law.  Cel-Tech Communications, Inc. (1999) 20 C4th 163, 180, 186-187. 

 

Here, Plaintiff generally references the Insurance Code.  However, policyholders are deemed to have knowledge of their own policy terms, including insurance limits.  Insurance Code 335; Sarchett (1987) 43 C3d 1, 15.  Therefore, the fact that Plaintiff may not have read or understood her insurance policy is irrelevant.  Id.; Atlas Assurance Co. (1983) 146 CA3d 135, 144; Ray (1999) 77 CA4th 1039, 1049.

 

As noted above, the evidence Plaintiff provided with her opposition, shows that the policy issued by Defendant for 8/14/17 to 8/14/18 did not include liability coverage.  (See Opposition, Ex.1).

 

“Fiduciary Duty”

 

In California, there is no fiduciary relationship between an insurer and its insured.  Love (1990) 221 CA3d 1136; Henry (1990) 217 CA3d 1405; Vu (2001) 26 C4th 1142, 1150-1151.  Defendant did not owe Plaintiff a duty to advise of the availability of insurance beyond what was requested.  See Shultz Steel Co. (1986) 187 CA3d 513, 522; Ray (1999) 77 CA4th 1039, 1049.

 

“Insurance Provided by the Defendant to the Plaintiff Was Defective”

 

This cause of action also fails for uncertainty.  Plaintiff has not pled how the policy was defective.  To the extent Plaintiff intended to assert a bad faith claim, the claim fails.  To state a claim for bad faith, a plaintiff must allege facts showing: (1) the insurer withheld benefits due under the policy and (2) the withholding of such benefits was unreasonable or without proper cause.  Major (2009) 169 CA4th 1197, 1209.  There can be no claim for bad faith without a breach of contract.  Waller (1995) 11 C4th 1, 35.  As noted above, Plaintiff has failed to establish that Defendant breached the insurance contract. 

 

To the extent that Plaintiff is attempting to state a claim for violation of Insurance Code 790.03, the claim fails as the statute does not provide for a private cause of action.  See Moradi-Shalal (1988) 46 C3d 287, 304; Rattan (2000) 84 CA4th 715, 724; Zephyr Park (1989) 213 CA3d 833,  834-837.

 

CONCLUSION

 

The demurrer is sustained.  Plaintiff’s own allegations, arguments and evidence establish that there was no liability coverage under the applicable policy for the claim made in the Underlying  Action.  Additionally, Plaintiff gives no indication that she can cure the defects in her complaint by amendment.  Therefore, the demurrer is sustained without leave to amend.