Judge: Virginia Keeny, Case: 22VECV01096, Date: 2023-01-09 Tentative Ruling

Case Number: 22VECV01096    Hearing Date: January 9, 2023    Dept: W

TANNETTE GATES v. warner center condominiums, et al.

DEFENDANT HIPPO ANALYTICS INC. DBA HIPPO INSURANCE SERVICES’ DEMURRER TO PLAINTIFF’S COMPLAINT AND MOTION TO STRIKE PUNITIVE DAMAGES

Date of Hearing:          January 9, 2023                       Trial Date:       None Set

Department:               W                                             Case No.:         22VECV01096

Moving Party:             Defendant Hippo Analytics, Inc. dba Hippo Insurance Services

Responding Party:       None

BACKGROUND

On August 3, 2022, plaintiff Tannette Gates (Plaintiff) filed a Complaint against multiple defendants including Hippo Analytics, Inc. dba Hippo Insurance Services (Defendant).  Plaintiff only alleges one cause of action, breach of written contract, against Defendant.

On November 16, 2022, Defendant filed this instant demurrer with motion to strike on the grounds that Plaintiff cannot maintain a cause of action for breach of contract because she fails to quote any terms of the alleged contract or attach a copy of the contract, which is required in pleading a breach of contract claim. 

As of January 4, 2023, no opposition has been filed.

[Tentative] Ruling

The Court SUSTAINS Defendant’s Demurrer WITHOUT LEAVE TO AMEND.  The Court GRANTS Defendant’s requests for costs in the amount of $435. 

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Schultz v. Harney (1994) 27 Cal. App. 4th 1611, 1622,¿as modified on denial of reh'g¿(Sept. 29, 1994).)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (See Mech. Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal. App. 4th 672, 677.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Civ. Code Proc., §§ 430.30, 430.70.)  

At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him.  (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.)  A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.”  (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].) 

ANALYSIS

Judicial Notice

Defendant requests the Court take judicial notice of Exhibit 8, the operative complaint in this instant matter.  The Court GRANTS Defendant’s request under Evidence Code section 452(d).

Motion to Strike

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any party thereof.  (Code Civ. Proc., § 435(b)(1); Cal. Rules of Court, rule 3.1322(b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Defendant moves to strike punitive damages.

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.]”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294.  (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 (College Hospital).)  These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice.  (Civ. Code § 3294 (a).)  “Malice is defined in the statute as conduct 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.”  (College Hospital, supra, 8 Cal.4th at p. 725.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]”  (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, fn. omitted.)

Here, Plaintiff has not pled sufficient facts to support a claim of punitive damages under Civil Code section 3294.  In fact, as Defendant points out, Plaintiff fails to allege any oppression, fraud, or malice committed by Defendant, and the only mention of punitive damages is in Plaintiff’s prayer for relief.  Thus, Defendant’s motion to strike is GRANTED.

Demurrer

Breach of Contract

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.]”  (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)  “A written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect …. In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions ….”  (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489, citations omitted.)  “An oral contract may be pleaded generally as to its effect, because it is rarely possible to allege the exact words ….”  (Khoury v. Maly's of California, Inc., (1993) 14 Cal. App. 4th 612, 616, citations omitted)

Here, Plaintiff fails to plead a cause of action for breach of contract because she does not provide its terms or its legal effect.  Plaintiff does not set out verbatim in the complaint the terms which Defendant breached.  Although Plaintiff refers to Exhibit B as an attached document, Exhibit B is not attached.  Neither does Plaintiff establish the legal effect of the contract as she does not allege any substance of the contract’s relevant terms—or any terms at all.

Defendant requests that the Court sustain the demurrer without leave to amend because there is no contract between the parties as Defendant is not an insurance company.  Although leave to amend is to be granted liberally, since Plaintiff fails to provide an opposition, the Court finds that Defendant’s argument has merit.

Thus, the Court SUSTAINS the Demurrer as to the breach of contract claim WITHOUT LEAVE TO AMEND.

Requests for Costs

Defendant also requests $435 in costs associated with its first appearance before this Court pursuant to CCP §§ 1032 and 1033.5.  Since Defendant is the prevailing party, the Court grants Defendant’s request.

CONCLUSION

In light of the foregoing, the Court SUSTAINS WITHOUT LEAVE TO AMEND Defendant’s Demurrer as to the Eighth Cause of Action for Breach of Contract.

Defendant to provide notice and to submit a judgment in accordance with this ruling.  .