Judge: Nathan Vu, Case: 2022-01272273, Date: 2022-11-28 Tentative Ruling
Please Note: The hearing on this matter is scheduled for 8:30 A.M.
Demurrer
Defendant Oregon Mutual Insurance Company’s demurrer is SUSTAINED as to the entirety of the Complaint, with 45 days leave to amend.
Defendant Oregon Mutual Insurance Company’s request for judicial notice is GRANTED. (See Evidence Code, § 452, subd. (d); Securitas Sec. Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 118, fn. 1.)
Defendant Oregon Mutual Insurance Company (Defendant Oregon Mutual), erroneously sued as Oregon Mutual and Oregon Mutual, Inc., demurs to the entirety of the Complaint filed by Plaintiff Homelink Catering.
Standard for Demurrer
In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)
Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)
Although courts should take a liberal view of inartfully drawn complaints, (see Code Civ. Proc., § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)
Direct Causes of Action Against Insurer
Defendant Oregon Mutual argues the demurrer must be sustained because a plaintiff may not directly sue a defendant’s insurer until the plaintiff obtains an assignment of rights from the defendant or a final judgment against the defendant.
Defendant Oregon Mutual is correct:
Because the insurer’s duties flow to its insured alone, a third party claimant may not bring a direct action against an insurance company. As a general rule, a third party may directly sue an insurer only when there has been an assignment of rights by, or a final judgment against, the insured.
(Shaolian v. Safeco Ins. Co. (1999) 71 Cal.App.4th 268, 271–272, citations omitted; see also McKee v. National Union Fire Ins. Co. (1993) 15 Cal.App.4th 282, 287 [“a direct action against the insurer is not allowable until after the claimant shall have secured a final judgment against the insured”]; Biggs v. California Ins. Guarantee Assn. (1981) 126 Cal.App.3d 641, 645 [“In the usual situation a plaintiff in a personal injury action has no direct cause of action against the defendant’s liability insurer”].)
An insured’s liability depends on whether the claims alleged in the underlying action were covered by the policy of the insurance. This is because “it is fundamental that an insurance contract is, by nature, an indemnity contract; no enforceable claim accrues against the insurer until the insured’s liability is in fact established.” (Royal Surplus Lines Ins. Co. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 203, quoting (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 306.)
In Matthias v. United Pac. Ins. Co. (1968) 260 Cal.App.2d 752, the plaintiff filed a premises liability action against the property owner’s insurer. (Matthias v. United Pac. Ins. Co., supra, 260 Cal.App.2d at p. 753.) The trial court sustained the insurer’s demurrer, without leave to amend. (Ibid.) On appeal, the Court of Appeal held, “the mere issuance of the policy, gives rise to no direct cause of action against the insurer under any test.” (Id. at p. 755.) Matthias v. United Pac. Ins. Co. reasoned that the insurer owed no duty to the plaintiff because there was no relationship between the insurer and the plaintiff. (Id. at pp. 755-756.)
While Plaintiff has alleged Defendant Oregon Mutual was Defendant San Young, Inc.’s (Defendant San Young) agent or employee, Plaintiff has not provided any facts to support this conclusory allegation or to explain how Defendant Oregon Mutual was liable for the defective gas stoves. In its opposition to this demurrer filed 10/18/2022, Plaintiff concedes that Defendant Oregon Mutual was sued in its capacity as Defendant San Young’s insurer. (See Opp’n at pp. 12 & 18; see also Compl., General Negligence Cause of Action [“I hold seller and their manufacturer and insurer be liable of the 2 gas stoves I purchased from them.”], emphasis added.)
Plaintiff’s opposition also makes no attempt to address Defendant Oregon Mutual’s argument and cites to no authority to support its position that Defendant Oregon Mutual can be held equally liable as Defendant San Young. Plaintiff has waived its arguments on this issue. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; see In re A.C. (2017) 13 Cal.App.5th 661, 672-673 [when a party “fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)
The court is mindful that Plaintiff may be self-represented. However, “mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. . . . . A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985, citation omitted.)
“A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.’” (Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290, quoting Knapp v. Fleming (1953) 127 Colo. 414, 415.)
Further, the Complaint does not plead whether Plaintiff Homelink Catering is a corporation, limited liability company, or other artificial entity. If that is the case, Plaintiff must be represented by counsel and cannot be represented by its owners or officers who are not attorneys. (See CLD Construction , Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145 [“[U]nder a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney. It must be represented by licensed counsel in proceedings before courts of record.”].)
Finally, the Court reminds Plaintiff that the Rules of Court require that all filings include line numbers and page numbers so that specific passages may be easily identified. (See Cal. Rules of Court, rules 2.108 & 2.109.) In addition, oppositions may not exceed 10 pages. (Cal. Rules of Court, rule 3.1113, subds. (d) & (g).)
A non-conforming filing may be treated in the same manner as a late-filed paper and may be rejected. (See Rancho Mirage Country Club Homeowners Association v. Hazelbaker (2016) 2 Cal.App.5th 252, 261-262 [no abuse of discretion in rejecting late-filed papers where self-represented defendants made no attempt to seek leave to file their opposition late and made no attempt to demonstrate good cause for having failed to adhere to the applicable deadline].)
Defendant Oregon Mutual Insurance Company shall give notice of this ruling.