Judge: Virginia Keeny, Case: 24STCV26460, Date: 2025-03-11 Tentative Ruling

Case Number: 24STCV26460    Hearing Date: March 11, 2025    Dept: 45

Juan herrera v. autozone, inc., et al.

demurrer without motion to strike

Date of Hearing:          March 11, 2025                       Trial Date: None Set.  

Department:               45                                            Case No.:  24STCV26460

Moving Party:             Defendant Autozone Parts Inc.

Responding Party:       None

BACKGROUND

On October 11, 2024, Plaintiff Juan Herrera (“Plaintiff”) filed the Complaint against Defendants Autozone Inc. and Does 1 through 20. The Complaint alleges two causes of action for (1)negligence and (2) premises liability.

On November 11, 2024, Plaintiff filed the First Amended Complaint which alleges three causes of action for (1) negligence, (2) premises liability, and (3) tortious breach of the covenant of good faith and fair dealing 

On December 30, 2025, Defendant Autozone Parts Inc. erroneously sued as Autozone, Inc filed the instant Demurrer.

Nopposition has been filed.

[Tentative] Ruling

The Court SUSTAINS WITH LEAVE TO AMEND the demurrer. Plaintiff is ordered to file a Second Amended Complaint within 30 days of this order.

LEGAL STANDARD

A pleading is vulnerable to a demurrer on several grounds, including where a cause of action fails to state a cause of action, where the pleading is uncertain, and where, in an action founded in contract, “it cannot be ascertained from the pleading whether the contract is written, oral, or implied by conduct.” (Code of Civil Procedure [“CCP”] § 430.10(e)-(g).) The function of a demurrer is to test the legal sufficiency of the pleading as a matter of law. (MKB Management, Inc. v. Melikian (2010) 184 Cal.App.4th 796, 802.) “‘The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer.’ [Citations.]” (McKenney v. Purepac Pharmaceutical Co. 167 Cal.App.4th 72, 77.)

California courts treat demurrers as admitting all material facts that are properly pled but do not assume the truth of any contentions, deductions, or legal conclusions. (Kim v. Regents of California (2000) 80 Cal.App.4th 160, 163.) Where a demurrer is sustained, the court may grant leave to amend; however, leave to amend must be denied where there is no reasonable probability the defect is curable by amendment. (Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1539.) The burden of proving curability rests “squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 384.)

ANALYSIS

Defendant argues that Plaintiff’s third cause of action, for Tortious Breach of the Covenant of Good Faith and Fair Dealing, lacks an essential element of the cause of action, and must fail under Code of Civil Procedure Section 430.10(e).

Tortious Breach of the Covenant of Good Faith and Fair Dealing

The covenant of good faith and fair dealing is “implied by law in every contract.” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.) It “requires each party to do everything the contract presupposes the party will do to accomplish the agreement’s purposes.” (Ibid.) “[T]he covenant of good faith and fair dealing applies to employment contracts and that breach of the covenant may give rise to contract but not tort damages.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 663.)

To state a claim for the breach of the covenant of good faith and fair dealing, the plaintiff must allege “that the conduct of the defendant. . . demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) To decide if this has occurred, the court looks at the “contractual purposes and reasonably justified expectations of the parties.” (Ibid.)

“The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract.” (Smith v. City and County of San Francisco (2002) 225 Cal.App.3d 48, 49.)  

Here, the First Amended Complaint (“FAC”) fails to allege that any contract exists. (See First Amended Complaint at p. 6.) Instead, the FAC only alleges the following, “By refusing to reasonably settle Plaintiffs claim, Defendant acted unreasonably, failed to deal fairly and in good faith and acted without proper cause in refusing to faithfully perform its obligations to Plaintiff.” (FAC at p. 6.) The FAC further alleges, “Defendant's conduct in denying Plaintiff benefits and refusing to reasonably settle his claims was willful, wanton and in conscious disregard of the rights of Plaintiff” and “Defendant engaged in numerous violations of California Code of Regulations sections 2695 et seq. and California Insurance Code sections 790 et seq. . ..” (Id.) These allegations are insufficient to state a cause of action for the third cause of action because there are no facts alleged that a contract existed between the parties and are conclusory.

The Court is not persuaded that there is no reasonable possibility that Plaintiff can cure the defect identified above. Because “[l]eave to amend is liberally allowed,” the Court will grant Plaintiff leave to file a Second Amended Complaint. (See, e.g., Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1348.)

Accordingly, the Court SUSTAINS the demurrer WITH LEAVE TO AMEND.

CONCLUSION

The Court SUSTAINS WITH LEAVE TO AMEND. Plaintiff is ordered to file a Second Amended Complaint within 20 days of this order.