Judge: Peter A. Hernandez, Case: 22PSCV00862, Date: 2023-10-25 Tentative Ruling

Case Number: 22PSCV00862    Hearing Date: October 25, 2023    Dept: K

Defendant Progressive County Mutual Insurance Company’s Demurrer to First Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested and will require an offer of proof if so.

Background   

Plaintiff Kawo Int’l Inc. (“Plaintiff”) alleges as follows:

On December 30, 2021, Plaintiff, through Central Dispatch, entered into a written agreement (“Contract”) with Kings Auto Transportation LLC (“Kings”), whereby Kings agreed to pick up three vehicles on December 30, 2021 from Little Falls, NJ (i.e., a Lexus LX SUV with VIN ending in 4010, a Lexus LX SUV with VIN ending in 4373, and a Lexus LX SUV with VIN ending in 5378; collectively, “Vehicles”), and deliver said Vehicles to Plaintiff in City of Industry, CA by January 5, 2022, in exchange for payment of $4,500.00. On January 5, 2022, Kings delivered the Vehicles but they were all damaged. Progressive County Mutual Insurance Co., Inc. dba Progressive Insurance (“Progressive”) provided Certificates of Insurance to Kings.

On January 19, 2023, Kings’ default was entered.

On July 7, 2023, Plaintiff filed a First Amended Complaint, asserting causes of action against Kings, Progressive and Does 1-10 for:

1.                  Breach of Contract

2.                  Common Counts

3.                  Negligence

4.                  Negligent Entrustment

5.                  Fraud and Fraudulent Inducement Into a Contract

A Case Management Conference and Order to Show Cause Re: Default Judgment are set for October 25, 2023.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Progressive demurs to the fifth cause of action in Plaintiff’s FAC, on the basis that it fails to state facts sufficient to constitute a cause of action.

Progressive contends that Plaintiff’s fifth cause of action has not been pled with particularity. The court agrees. “This particularity requirement [applicable to fraud causes of action] necessitates pleading facts which show how, when, where, to whom, and by what the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [internal quotations and citation omitted; emphasis theirs].)

Here, Plaintiff has alleged that Progressive provided a Certificate of Insurance (“COI”) to Kings (FAC, ¶¶ 3 and 4), that Kings used the COI “to solicit and offer transportation services to customers like Plaintiff through the dispatch network” (Id., ¶ 7) and that King and Progressive, “working in concert” with one another, “wrongfully, fraudulently and illegally denied Plaintiff’s claim for insurance coverage” after Kings damaged Plaintiff’s vehicles (Id., ¶ 31).  

Plaintiff has not identified any false representation, how it was made, when it was made, who made it and to whom it was made.

Progressive’s demurrer to the fifth cause of action is sustained.