Judge: Robert P. Dahlquist, Case: 37-2023-00045928-CU-BC-NC, Date: 2024-02-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - February 21, 2024

02/22/2024  01:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00045928-CU-BC-NC AGUILAR SR VS WAWANESA GENERAL INSURANCE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 01/08/2024

Defendant Wawanesa General Insurance Company's demurrer to the first amended complaint (ROA # 11) is sustained in part and overruled in part.

Defendant's request for judicial notice dated January 8, 2024 (ROA # 14) is granted.

The special demurrer is overruled on the following grounds: (a) where a demurrer is made for uncertainty, it must specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint) See Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809 and (b) the causes of action do not appear to be uncertain, ambiguous or vague.

Turning to the general demurrer, the court is required to liberally construe the allegations of the amended complaint, with a view to substantial justice between the parties. CCP § 452. The court should sustain a demurrer only if the facts alleged in the amended complaint, liberally construed, are insufficient to constitute any cognizable cause of action. The court is not persuaded that this standard is satisfied here with respect to the third and sixth causes of action. Further, plaintiff is permitted to pursue alternative theories of liability at this stage of the case (breach of contract, conversion and UCL). See Adams v. Paul (1995) 11 Cal.4th 583, 593 ['a party may plead in the alternative and may make inconsistent allegations']. For these reasons, the demurrer to the third and sixth causes of action is overruled. As the case progresses, the defendant may continue to assert the demurrer's arguments and defenses by way of other motions and/or at trial.

The demurrer to the second and fourth causes of action for fraud/negligent misrepresentation and fraud/deceit is sustained. Plaintiff has failed to allege every element of the negligent misrepresentation and fraud causes of action with the required specificity. Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. As to the corporate defendant, the plaintiff must allege: the names of the persons who made the misrepresentations; their authority to speak for the corporation; to whom they spoke; what they said or wrote; and when it was said or written. Lazar v. Sup.Ct. (Rykoff–Sexton, Inc.) (1996) 12 Cal.4th 631, 645; Tarmann v. State Farm Mut. Auto. Ins. Co., supra, 2 Cal.App.4th at 157.

If plaintiff's counsel appears (in person or remotely) at the hearing and establishes that plaintiff can overcome these pleading deficiencies, the court is open to the possibility of sustaining the demurrer to the second and fourth causes of action with leave to amend. Otherwise, the demurrer as to those causes of action will be sustained without leave to amend. If the demurrer is sustained without leave to amend, defendant shall file and serve an answer by March 1, 2024.

Calendar No.: Event ID:  TENTATIVE RULINGS

3087890 CASE NUMBER: CASE TITLE:  AGUILAR SR VS WAWANESA GENERAL INSURANCE [IMAGED]  37-2023-00045928-CU-BC-NC This minute order constitutes the court's order. No party is required to submit a proposed order after hearing.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Thursday, February 22, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of February 22, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID:  TENTATIVE RULINGS

3087890