Judge: Robert B. Broadbelt, Case: 21STCV37002, Date: 2023-05-16 Tentative Ruling

Case Number: 21STCV37002    Hearing Date: May 16, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Benveniste & Francke Insurance Services and Daniel Francke a/k/a Dan Francke

RESPONDING PARTY:       Unopposed

(1)   Demurrer to Second Amended Complaint

(2)   Motion to Strike Portions of Second Amended Complaint

MOVING PARTY:                Defendant Navigators Specialty Insurance Company

RESPONDING PARTY:       Unopposed

(4)   Ex Parte Application to Dismiss Action

The court considered the moving papers filed in connection with the demurrer and motion to strike.  No opposition papers were filed.  

The court considered the moving papers filed in connection with the ex parte application to dismiss action.  No opposition papers were filed.

DEMURRER

Plaintiff RIFM Properties, LLC (“Plaintiff”) filed the operative Second Amended Complaint in this action against, inter alia, defendants Benveniste & Francke Insurance Services and Daniel Francke a/k/a Dan Francke (“Defendants”) on October 6, 2022, alleging two causes of action for (1) negligence, and (2) intentional misrepresentation.

Defendants now move the court for an order sustaining their demurrer to Plaintiff’s second cause of action for intentional misrepresentation.

The court overrules Defendants’ demurrer to the second cause of action for intentional misrepresentation because it states facts sufficient to constitute a cause of action since Plaintiff has alleged facts establishing that (1) Defendants misrepresented to Plaintiff that it had been named as an additional insured under US Home Pros’ policy on June 1, 2018, when it issued a Certificate of Liability Insurance to Plaintiff; (2) Defendants knew that the misrepresentation was false; (3) Defendants intended Plaintiff to rely on the misrepresentation; (4) Plaintiff relied on the misrepresentation that it was added as an additional insured; and (5) Plaintiff was damaged in the amount of $113,000.  (Code Civ. Proc., § 430.10, subd. (e); SAC ¶¶ 15, 29-31, 33-37; Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231 [“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of its falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage”].)  The court further finds that Plaintiff has pleaded these facts with sufficient specificity.  (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 242 [“ ‘ “[T]he courts should not . . . seek to absolve the defendant from liability on highly technical requirements of form in pleading.  Pleading facts in ordinary and concise language is as permissible in fraud cases as in any others, and liberal construction of the pleading is as much a duty of the court in these as in other cases.”  [Citations.]’ ”].)

MOTION TO STRIKE

Defendants move the court for an order striking from the Second Amended Complaint (1) Plaintiff’s prayer for punitive damages, and (2) the allegation that “Defendants’ conduct was malicious, oppressive, and fraudulent, warranting an award of punitive and exemplary damages.”  (SAC Prayer, ¶ 2; SAC ¶ 38.)

The court denies Defendants’ motion to strike because Plaintiff has alleged facts establishing that both Defendants were guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a); Code Civ. Proc., § 436.)

EX PARTE APPLICATION TO DISMISS ACTION

Defendant Navigators Specialty Insurance Company (“Navigators”) moves the court for an order dismissing Plaintiff’s action against Navigators on the ground that Plaintiff failed to amend its complaint against Navigators within the time authorized by the court.

The court issued its order sustaining Navigators’ demurrer and granting its motion to strike directed to the First Amended Complaint on September 9, 2022, and granted Plaintiff 20 days leave to file a Second Amended Complaint.  Plaintiff filed its Second Amended Complaint on October 6, 2022, “against Defendants Benveniste & Francke Insurance Services, Daniel Francke, and DOES 1-10, inclusive[.]”  (SAC p. 2:1-3.)  Although Navigators was included in the caption and referenced in the Second Amended Complaint, the body of the pleading did not identify Navigators as a defendant.  (SAC ¶¶ 5-9 [defining parties].)  Plaintiff filed a Request for Dismissal of defendant Navigators without prejudice on December 14, 2022.  Dismissal of defendant Navigators without prejudice was entered pursuant to Plaintiff’s request on December 19, 2022.

“Upon the proper filing of a request to voluntarily dismiss a matter, the trial court loses jurisdiction to act in the case, ‘except for the limited purpose of awarding costs and statutory attorney fees.’”  (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876.)  However, “‘once a general demurrer is sustained with leave to amend and the plaintiff does not so amend within the time authorized by the court or otherwise extended by stipulation or appropriate order, he [or she] can no longer voluntarily dismiss his [or her] action pursuant to [Code of Civil Procedure section 581], even if the trial court has yet to enter a judgment of dismissal on the sustained demurrer.’”  (Id. at p. 877.)

Here, Plaintiff was authorized to amend its complaint against Navigators within 20 days of the September 9, 2022 order.  Plaintiff elected not to amend its complaint against Navigators, and instead filed its Second Amended Complaint “against Defendants Benveniste & Francke Insurance Services, Daniel Francke, and DOES 1-10, inclusive[.]”  (SAC p. 2:1-3.)  Because Plaintiff failed to amend its complaint as to Navigators within the 20-day time period, Plaintiff was not permitted to voluntarily dismiss Navigators without prejudice pursuant to a Request for Dismissal on December 14, 2022.  The court therefore finds that the court retains jurisdiction since Plaintiff did not dismiss Navigators pursuant to a “proper filing of a request to voluntarily dismiss” its matter against this defendant.  (Law Offices of Andrew L. Ellis, supra, 178 Cal.App.4th at p. 876.)  

The court therefore exercises its discretion to strike Plaintiff’s Request for Dismissal of Navigators without prejudice, filed on December 14, 2022, because it was not drawn or filed in conformity with the laws of this state and to vacate the entry of that dismissal without prejudice.  (Code Civ. Proc., § 436, subd. (b).)

Code of Civil Procedure “Section 581, subdivision (f)(2) ‘… gives the defendant the right to obtain a court order dismissing the action with prejudice once the court sustains the demurrer with leave to amend and the plaintiff has not amended within the time given.’”  (Cano v. Glover (2006) 143 Cal.App.4th 326, 330.)  As set forth above, Plaintiff did not amend the complaint against defendant Navigators within the time given by the court.  Thus, Navigators is entitled to an order dismissing this action against it with prejudice.  (Ibid.; Code Civ. Proc., § 581, subd. (f)(2).)  The court therefore grants Navigators’ ex parte application.

ORDER

The court overrules defendants Benveniste & Francke Insurance Services and Daniel Francke a/k/a Dan Francke’s demurrer to plaintiff RIFM Properties, LLC’s Second Amended Complaint.

The court denies defendants Benveniste & Francke Insurance Services and Daniel Francke a/k/a Dan Francke’s motion to strike portions of plaintiff RIFM Properties, LLC’s Second Amended Complaint.

The court orders defendants Benveniste & Francke Insurance Services and Daniel Francke a/k/a Dan Francke to file an answer to plaintiff RIFM Properties, LLC’s Second Amended Complaint within 10 days of the date of this order.

The court grants defendant Navigators Specialty Insurance Company’s ex parte application to dismiss action.

The court orders that the Request for Dismissal of defendant Navigators Specialty Insurance Company without prejudice, filed by plaintiff RIFM Properties, LLC on December 14, 2022, is stricken and that the dismissal without prejudice entered on December 19, 2022, is vacated.       

The court orders that defendant Navigators Specialty Insurance Company is dismissed from this action with prejudice pursuant to Code of Civil Procedure section 581, subdivision (f)(2).

The court orders defendant Navigators Specialty Insurance Company to give notice of this ruling.

IT IS SO ORDERED.

DATED:  May 16, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court