Judge Ronald F. Frank, Case 22TRCV00563 2023-02-07 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00563, Date: 2023-02-07 Tentative Ruling

Case Number: 22TRCV00563 Hearing Date: February 7, 2023 Dept: 8

Tentative Ruling

HEARING DATE: February 7, 2023

CASE NUMBER: 22TRCV00563

CASE NAME: Ocean Recovery, LLC v. Sullivan Curtis Monroe Insurance Services, LLC and Scottsdale Indemnity Company .

MOVING PARTY: Defendant, Scottsdale Indemnity Company

RESPONDING PARTY: None.

TRIAL DATE: None set

MOTION: (1) Demurrer to First Amended Complaint

Tentative Rulings: (1) SUSTAINED with 10 days leave to amend. The Court expects the case to be at issue with all parties defendant served by the March 16, 2023 date of the CMC.

I. BACKGROUND

A. Factual

On July 8, 2022, Plaintiff, Ocean Recovery, LLC (“Plaintiff”) filed a complaint against Sullivan Curtis Monroe Insurance Services, LLC, and Scottsdale Indemnity Company (collectively “Defendants”). On July 13, 2022, Plaintiff filed an amended complaint. The complaint alleges a cause of action for breach of contract. Although the contract document attached to the First Amended Complaint state that the coverages were “underwritten by Scottsdale Insurance Company,” Plaintiff did not name that entity but instead named Scottsdale Indemnity Company.

B. Procedural

On August 17, 2022, Defendant, Scottsdale Indemnity Company filed a demurrer. To date, nearly 6 months later, no opposition has been filed. The Demurring Defendant also submitted a meet-and-confer declaration indicating that despite attempts to discuss the claimed pleading defect with Plaintiff’s counsel, she was “stood up” after scheduling a time to discuss the matter on the phone, and follow-up attempts went without response by Plaintiff’s counsel.

II. MOVING PARTY’S GROUNDS FOR THE DEMURRER

¿ Defendant demurs to Plaintiff’s complaint for Breach of Contract claiming that the FAC does not state facts sufficient to constitute a cause of action because it is subject to a general demurrer on the grounds that the amended complaint is legally vague, ambiguous, and unintelligible. In essence, the Demurrer contends that Plaintiff has named the wrong company and failed to provide facts showing that Scottsdale Indemnity Company has any connection to the contract attached to the FAC which states in multiple places that the coverages were underwritten by Scottsdale Insurance Company.

III. ANALYSIS

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿

B. Discussion

Plaintiff judicial council form complaint alleges that this action is for a breach of a written contract with Defendants Sullivan Curtis Monroe Insurance Services, LLC and Scottsdale Indemnity Company. (FAC, BC-1; Exhibit A.) The FAC alleges that on April 29, 2020, Defendants failed to produce coverage it had been contracted to procure, that Defendants ill-advisedly denied defense and indemnity, and that Defendant failed to reimburse plaintiff for its expenses as promised. (FAC, BC-2.) Plaintiff also alleges that it has performed all obligations to defendant except those obligations plaintiff was prevented or excused from performing. (FAC, BC-3.) Lastly, Plaintiff’s FAC alleges that it suffered damages caused by defendant’s breach of the agreement in the sum of $248,631.90, and attorney’s fees according to proof. (FAC, BC-4.)

The uncertainty in this pleading is the inconsistency in the names of the Scottsdale entities: the exhibit indicates it is an Insurance Company while the allegations of the FAC itself contend the contracting party is an Indemnity Company. Generally, matters contained in exhibits to the Complaint control over inconsistent allegations in the complaint.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Demurrer to all causes of action is SUSTAINED with 10 days leave to amend. The Court is intentionally giving Plaintiff a very short time to amend the pleading, given the duration that this demurrer has been pending giving Plaintiff ample time to be prepared to correct the typo or the ambiguity.

Moving party is ordered to give notice.¿¿