Judge Salvatore Sirna, Case Number: 23PSCV00230, Date: 2023-08-08 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV00230, Date: 2023-08-08 Tentative Ruling

Case Number: 23PSCV00230 Hearing Date: August 8, 2023 Dept: G

Plaintiff Bin Yang’s Motion to Amend Second Amended Complaint

Respondent: Defendant Mercury Insurance Company

TENTATIVE RULING

Plaintiff Bin Yang’s Motion to Amend Second Amended Complaint is DENIED.

BACKGROUND

This is an action arising from an automobile accident and the subsequent litigation. On January 31, 2020, Plaintiff Bin Yang was involved in an automobile accident with Defendant Thomas Ton (Ton). After Plaintiff filed a claim with Ton’s insurer, Defendant Mercury Insurance Company (Mercury Insurance), Plaintiff alleges Mercury Insurance determined Plaintiff’s vehicle was totaled and only allowed Plaintiff to rent a replacement vehicle for five days. As a result of Plaintiff’s dealings with Mercury Insurance, Plaintiff allegedly experienced two heart attacks and PTSD.

On June 25, 2021, Plaintiff filed a personal injury action (Case No. 21STCV23749) against Ton and Mercury Insurance (collectively, Defendants). On June 29, Plaintiff filed a First Amended Complaint (FAC) in that action against the same Defendants alleging (1) personal injuries, (2) insurance fraud, and (3) manslaughter. Defendants both demurred to Plaintiff’s FAC.

On October 7, 2021, the court issued a minute order overruling Ton’s demurrer to the first cause of action, sustaining Ton’s demurrer to the second cause of action with 20 days leave to amend, and sustaining Ton’s demurrer to the third cause of action without leave to amend. The court also sustained Mercury Insurance’s demurrer to the second cause of action with 20 days leave to amend while Mercury Insurance’s demurrer to the first and third causes of action were sustained without leave to amend. Last, the court granted Defendants’ motion to strike punitive damages from the FAC without leave to amend. On October 18, Plaintiff filed a motion for reconsideration of the court’s rulings that was denied November 16. On December 14, Plaintiff filed a notice of appeal from the court’s rulings (Case No. B317215.)

On December 21, Plaintiff filed a motion to recuse the judge in Plaintiff’s action. The next day, the court struck Plaintiff’s motion pursuant to Code of Civil Procedure section 170.4. On January 7, 2022, Plaintiff filed an amended motion to recuse the same judge. On January 20, the court struck the amended motion for the same reasons the initial motion was stricken. On July 25, Plaintiff filed another motion to recuse the same judge that was stricken on July 27. On August 11, Plaintiff filed a notice of appeal from the court’s order. (Case No. B322927.)

On September 27, 2022, the Court of Appeal dismissed Plaintiff’s appeal in Case No. B317215 on the grounds that the November 16, 2021 order is not appealable. On December 30, 2022, the Court of Appeal’s order became final.

On November 23, 2022, Ton filed a motion for terminating sanctions against Plaintiff with a hearing on the motion set for January 23, 2023. On January 12, Plaintiff voluntarily dismissed the action without prejudice.

On January 26, 2023, Plaintiff the present action against the same Defendants, alleging the following causes of action: (1) personal injuries, (2) insurance fraud, (3) manslaughter, (4) first degree attempted murder, and (5) first degree attempted murder. On February 2, the Court of Appeal determined Plaintiff was in default and dismissed Plaintiffs appeal in Case No. B322927. The Court of Appeal’s order became final on April 5.

On April 19, 2023, the court sustained Ton’s demurrer to Plaintiff’s Complaint without leave to amend. The court also sustained Mercury Insurance’s demurrer to Plaintiff’s second, third, fourth, and fifth causes of action without leave to amend. While the court had posted a tentative ruling that sustained Mercury Insurance’s demurrer to Plaintiff’s first cause of action for personal injury without leave to amend, the court declined to adopt the tentative in this regard and instead sustained the demurrer with twenty days’ leave to amend.

On May 10, 2023, Plaintiff filed a First Amended Complaint (FAC) against the same Defendants alleging (1) personal injury and (2) insurance bad faith. On July 3, the court sustained Mercury Insurance’s demurrer to Plaintiff’s FAC with leave to amend as to the first cause of action and without leave to amend as to the second cause of action.

On July 13, 2023, Plaintiff a Second Amended Complaint (SAC) against Mercury Insurance alleging a single cause of action for personal injury.

On July 14, 2023, Plaintiff filed the present motion. A hearing on the motion is set for August 8 with a case management conference on October 17.

ANALYSIS

Plaintiff seeks leave to file a Third Amended Complaint (TAC) that alleges an additional cause of action for insurance bad faith. For the following reasons, the court DENIES Plaintiff’s motion.

Legal Standard

“A court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code Civ. Proc., § 473, subd. (a)(1).) The court’s discretion will usually be exercised liberally to permit amendments of the pleadings. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.)¿“A motion to amend a pleading before trial must . . . [s]tate what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and [s]tate what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.” (Cal. Rules of Court, rule 3.1324(a).) The declaration must also specify the amendment’s effect, why it is necessary and proper, when the facts supporting the amended allegations were discovered, and why the request was not made earlier. (Cal. Rules of Court, rule 3.1324(b).)

If the party seeking the amendment has needlessly delayed, and the delay has prejudiced the opposing party, the court has the discretion to deny leave to amend. (See Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation. (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)

Discussion

In this case, Plaintiff seeks leave to allege a cause of action for insurance bad faith after the court sustained a demurrer to this cause of action without leave to amend. As an initial matter, the court notes Plaintiff failed to include a copy of the proposed TAC in Plaintiff’s motion. Additionally, Plaintiff’s motion failed to demonstrate the viability of a cause of action for insurance bad faith.

“An insurer is said to act in ‘bad faith’ when it breaches its duty to deal ‘fairly’ and ‘in good faith’ with its insured.” (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1209.) In other cases, the injured party may bring an action against the tortfeasor’s insurer if the insured assigns its rights to the party or if the party has obtained a judgment against the insured. (Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 142-143.)

Here, Plaintiff does not allege that Plaintiff is the insured. Instead, Plaintiff argues Plaintiff is one of the third parties that can sue Mercury Insurance in special circumstances. However, Plaintiff does not cite to any California authority that is binding on this court, but instead cites to a series of federal and state court cases from New York and Florida that are not controlling. To the extent Plaintiff relies on Rush v. Savchuk (1980) 444 U.S. 320, that case is inapposite as it does not address California law and instead considers whether Minnesota has personal jurisdiction over a defendant. (Id., at p. 332-333.)

Plaintiff also argues Plaintiff is the intended beneficiary of Ton’s insurance policy. However, this argument has already been rejected as an insurer’s duty to settle claims is intended to benefit the insured and not injured claimants. (Murphy v. Allstate Ins. Co. (1976) 17 Cal.3d 937, 944.) In fact, an insurer’s breach of this duty can be beneficial to the injured claimant as that claimant may then go to court and receive a potentially higher award of damages. (Id., at p. 941.)

Accordingly, because Plaintiff failed to demonstrate how Plaintiff has legal standing to assert a cause of action for insurance bad faith, Plaintiff’s motion is DENIED.

CONCLUSION

Based on the foregoing, Plaintiff’s motion for leave to file a TAC that alleges a cause of action for insurance bad faith is DENIED.