Judge: Peter A. Hernandez, Case: 23PSCV01807, Date: 2023-08-22 Tentative Ruling

Case Number: 23PSCV01807    Hearing Date: August 22, 2023    Dept: K

Defendant Interinsurance Exchange of the Automobile Club’s Motion to Strike Portions of Plaintiff’s Complaint is GRANTED. The court will hear from Plaintiff as to whether leave to amend is requested and will require an offer of proof if so.

Background   

Plaintiff Bin Yang (“Plaintiff”) alleges as follows:

Interinsurance Exchange of the Automobile Club (“Defendant”) has been Plaintiff's auto insurer since February 4, 2023. Plaintiff’s car was vandalized in February 2023 and sustained damages after hitting a pothole in March 2023. Following the vandalism, Defendant paid for a rental vehicle for 18 out of the 30 days granted by Plaintiff’s policy, denied her claim, required Plaintiff to pay for the cost of repair and failed to respond to Plaintiff when she provided further evidence. After the pothole incident, Defendant offered Plaintiff $900 to “total” her car. Defendant wanted to depreciate the value of Plaintiff’s car in part based on Mercury Insurance Company’s (“Mercury”) previous estimate of same. Defendant failed to communicate with Plaintiff by requesting Mercury’s estimate and not returning Plaintiff’s calls. Defendant also failed to extend coverage for her rental car past April 19, 2023.

On June 16, 2023, Plaintiff filed a complaint, asserting causes of action against Defendant for:

1.                  Breach of Contract

2.                  Insurance Bad Faith

A Case Management Conference is set for August 22, 2023.

Legal Standard

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Discussion

Defendant moves the court for an order striking out the following portions of Plaintiff’s complaint:

1.                  Page 2, lines 15-16 (i.e., stating “[t]hen the gate fell on Plaintiff’s feet when Plaintiff tried to close the gate and caused bruise for weeks (Ex. 2)”);

2.                  Page 3, lines 24-27 (i.e., stating “since Mercury Insurance Company (Mercury) had set Plaintiff up in 2020, driven up repair costs, depreciated the car, and totaled the car to end their rental in 5 days. Mercury caused Plaintiff to suffer a heart attack (23PSCV00230)”);

3.                  Page 4, lines 6-7 (i.e., stating, “[i]t is evident that Defendant believes that they are

entitled to do no less that Mercury has”);

4.                  Page 4, lines 20-23 (i.e., stating “[d]efendant wants to follow Mercury's suite [sic], who set Plaintiff up in 2020, driven up repair costs, depreciated her car to total her car to end their rental in 5 days, and caused Plaintiff to suffer a heart attack”);Page 5, line 12 (i.e., stating “[d]efendant wants to follow Mercury’s suite [sic]…”);

5.                  Page 5, lines 14-15 (i.e., stating “…but also follow Mercury’s suite [sic]…”);

6.                  Page 5, line 15 (i.e., stating “…inhuman and mean”);

7.                  Page 5, lines 17-20 (i.e., stating “Mercury set Plaintiff up, driven up repair costs,

depreciated her car, totaled her car in 2020, caused Plaintiff to suffer a heart attack and then knowingly pushed Plaintiff back to hospitals over and over”);

8.                  Page 5, line 24 (i.e., stating “…before she suffers another heart attack.”);

9.                  Page 6, line 19 (i.e., stating “…wanted to follow Mercury’s step to abuse her…”);

10.              Page 6, lines 8-12 (i.e., stating “3. DEFENDANT SHOULD PAY FOR PUNITIVE DAMAGE. It is MALICE, OPPRESSION AND FRAUD to fool Plaintiff, abuse her past loses [sic] and suffering, delay and deny her reasonable benefits, wrongfully total her car, and worsen her losses and suffering in her life and business. Defendant ought to pay for punitive damage”);

11.              Page 6, lines 22-23 (i.e., stating “…but also punitive damage for abusing her past losses and suffering and worsening her losses and suffering”); and

12.              Page 7, lines 2-4, Prayer (i.e., for punitive damages).

Allegations of Bodily Injury (i.e., Page 2, lines 15-16)

Defendant first seeks to strike out Plaintiff’s allegation that “[t]hen the gate fell on Plaintiff’s feet when Plaintiff tried to close the gate and caused bruise for weeks (Ex. 2)” as immaterial. The court agrees. “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense. (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10, subd. (b).) An “’immaterial allegation’ means ‘irrelevant matter’ as that term is used in Section 436.” (Code Civ. Proc., § 431.10, subd. (c).)

Plaintiff’s alleged bodily injury is immaterial to Plaintiff’s allegations that Defendant breached the parties’ insurance contract and unreasonably denied Plaintiff benefits under the policy without proper cause. The court grants Defendant’s motion in this regard.

Allegations Related to Third Parties (i.e., Page 3, lines 24-27; Page 4, lines 6-7; Page 4, lines 20-23; Page 5, line 12; Page 5, lines 14-15; Page 5, lines 17-20; Page 5, line 24 and Page 6, line 19)

Defendant then seeks to strike out Plaintiff’s allegations regarding Mercury, on the basis that Mercury is not a party to the lawsuit or to the parties’ contract and that Plaintiff’s “insinuations that [Defendant] is attempting to behave in a similar fashion is an attempt to attribute an unrelated party’s alleged bad acts to [Defendant][,]. . which can neither prove a breach of contract or bad faith.” (Motion, 6:13-16). The court agrees. The court grants Defendant’s motion in this regard.

Allegations of Punitive Damages (i.e., Page 6, lines 8-12; Page 6, lines 22-23 and Page 7, lines 2-4, Prayer)

Defendant also seeks to strike out Plaintiff’s allegations regarding punitive damages.

Punitive damages may be awarded upon clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).)

“Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294, subd. (c)(1).)

“Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294, subd. (c)(2).) “Fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294, subd. (c)(3).)

Further, “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294, subd. (b).)

In the insurance policy setting, an insured may recover damages not otherwise available in a contract action, such as. . . punitive damages if there has been oppression, fraud, or malice by the insurer.” (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43-44.)

A “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice. . .’” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

Here, Plaintiff has not pled facts supporting oppressive, fraudulent, or malicious conduct, nor has Plaintiff alleged facts establishing Defendant’s knowledge of an employee’s unfitness or ratification of the employee’s conduct. The court grants Defendant’s motion in this regard.