Judge: William A. Crowfoot, Case: 23AHCV01788, Date: 2023-11-03 Tentative Ruling

Case Number: 23AHCV01788    Hearing Date: November 3, 2023    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT

 

HIPILITO-DIEP FAMILY TRUST,

                   Plaintiff(s),

          vs.

 

J.D.C. INSURANCE SERVICES, INC.,

 

                   Defendant(s).

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     CASE NO.:  23AHCV01788

 

[TENTATIVE] ORDER RE: DEFENDANT J.D.C. INSURANCE SERVICES, INC.’S DEMURRER TO PLAINTIFF’S COMPLAINT

 

Dept. 3

8:30 a.m.

November 3, 2023

 

 

 

 

I.            INTRODUCTION

On August 8, 2023, plaintiff Hipilito-Diep Family Trust (“Plaintiff”) filed this action against defendant J.D.C. Insurance Services, Inc. (“Defendant”) asserting a cause of action for breach of contract. Plaintiff alleges that Defendant breached a written agreement by failing to provide insurance coverage and as a result, Plaintiff suffered emotional distress, as well as costs and legal fees to defend Los Angeles County Superior Court Case No. 23AHCV00949.

On October 10, 2023, Defendant filed a demurrer and a request for judicial notice.

On October 25, 2023, Defendant filed a notice of non-opposition. No opposition brief is on file with the Court.

II.          LEGAL STANDARD

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)

III.        DISCUSSION

A.           Request for Judicial Notice

Defendant requests the Court judicially notice of the Complaint filed in this case. The request is GRANTED. (Evid. Code, § 452(d).)

B.           Demurrer

Defendant argues that the Complaint fails to state facts sufficient to constitute a cause of action and is fatally uncertain. The Court agrees. First, Plaintiff fails to list both parties to the alleged breached agreement, instead only naming “Hipolito-Diep Family Trust (Cipriano Rey Hipolito/Nancy Diep).” Second, Plaintiff fails to identify any specific provisions or material terms of the contract that Defendant purportedly breached. Third, Plaintiff fails to attach a copy of the alleged agreement between Plaintiff and Defendant to the Complaint. Instead, Plaintiff only attached to the Complaint an incomplete copy of the declaration page of the Bamboo Insurance Policy. There is no copy of the policy or any indication that an agreement existed between Defendant and Plaintiff with terms which were purportedly breached.

Accordingly, Defendant’s demurrer is sustained on the grounds that it fails to state a cause of action.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  However, the burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) Here, Plaintiff did not oppose this demurrer and did not meet its burden of showing how amendment is possible. Accordingly, the demurrer is sustained without leave to amend.

IV.         CONCLUSION

Defendant’s demurrer is SUSTAINED without leave to amend.

Dated this 3rd day of November, 2023

 

 

 

 

       William A. Crowfoot

Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.