Demurrer
of...causing injury.” Civ. Code § 3294(c)(1)-(3). “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.
For an employer to be liable for punitive damages for the actions of an employee, it must be shown that “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” Civ. Code § 3294(b). “With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” Ibid.
The Court finds Defendants’ separate statements of undisputed facts in support of summary adjudication of the cause of action for intentional tort (battery), which reference Defendants’ evidence, suffice to establish that one or more elements of the claim fail as a matter of law. Specifically, the undisputed facts show that the cause of action for intentional tort (battery) has no merit for the following reasons: none of the CB Defendants physically touched Plaintiff or put in motion causing Plaintiff to be touched on the day of the incident (SSUMF ## 4, 6, 9); none of the CB Defendants created or placed the bear mat in front of the front door to the premises (SSUMF ## 3, 5, 7, 9); there is no evidence the CB Defendants caused Plaintiff to be touched with the intent to harm or offend him (SSUMF ## 3-15).
More, the undisputed facts as to the prayer for punitive damages as to these Defendants show that the claim for punitive damages has no merit for the following reasons: there is no evidence any of the CB Defendants ever intended to harm or injure Plaintiff prior to the incident (SSUMF ## 11, 14, 15); there is no evidence any of the CB Defendants either intentionally omitted information about the bear mat (SSUMF # 11) or had actual knowledge of the presence of the bear mat at the premises prior to the (SSUMF # 13, 15).
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Additionally, there is no evidence that an officer, director, or managing agent of the corporation Defendants had advance knowledge or intended to harm Plaintiff. (SSUMF # 11, 13-15).
Conclusion
Accordingly and considering the shifting of the burden of proof to Plaintiff, who has not opposed the motion, the unopposed motion for summary adjudication is granted.
6. CU0001398 Brianna Vigrass v. Avian Borden, et al.
No appearance required. Petitioner’s Second Amended Petition is approved without additional appearance taking note Petitioner, the minor and counsel appeared previously in this matter, and Petitioner has now filed the second amended petition addressing the issues raised by the Court previously. Accordingly and as indicated by the Court previously, Petitioner’s and counsel’s appearance is waived for today’s proceeding.
7. CU0001662 Pankaj Gupta vs. Bamboo Ide8 Insurance Services et al
Defendant Bamboo Ide8 Insurance Services’ (“Bamboo”) and Defendant Sutton National Insurance Company, Inc.’s (“Sutton”) demurrers are sustained without leave to amend as to the Second Cause of Action for Negligent Misrepresentation and Third Cause of Action for Negligent Misrepresentation as set forth in Plaintiff’s Second Amended Complaint (“SAC”).
Requests for Judicial Notice
Defendant Bamboo’s requests for judicial notice are granted. Defendant Sutton’s requests for judicial notice are granted.
Legal Standard on Demurrer
A demurrer tests whether the complaint sufficiently states a valid cause of action. Hahn v. Merda (2007) 147 Cal.App.4th 740, 747. A demurrer may only challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. Code Civ. Proc. § 430.30(a). In the event a demurrer is sustained, leave to amend should be granted where the complaint’s defect can be cured by amendment. The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 852.
Complaints are read as a whole, in context, and are liberally construed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601. In reviewing the sufficiency of a complaint, courts accept as true all material facts properly pleaded and matters that may be judicially noticed, but not contentions, deductions, or conclusions of fact or law, or the construction of instruments pleaded, or facts impossible in law. Serrano v. Priest (1971) 5 Cal.3d 584, 591; Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43; see also South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732. Opinions, speculation, or allegations contrary to law or judicially noticed facts are also disregarded. Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 702.
Generally, the pleadings “must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insufficient for a plaintiff to simply plead the evidence by which he hopes to prove such ultimate facts.” Careau & Co. v. Security Pac. Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390; FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 384. Each evidentiary fact that might eventually form part of a party’s proof does not need to be alleged. C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. Conclusory pleadings are permissible and appropriate where supported by properly pleaded facts. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.
Second Cause of Action – Negligent Misrepresentation
Defendants’ demurrers to the Second Cause of Action for Negligent Misrepresentation are sustained without leave to amend.
“Negligent misrepresentation requires an assertion of fact, falsity of that assertion, and the tortfeasor’s lack of reasonable grounds for believing the assertion to be true. It also requires the tortfeasor’s intent to induce reliance, justifiable reliance by the person to whom the false
assertion of fact was made, and damages to that person. An implied assertion of fact is ‘not enough’ to support liability.” SI 59 LLC v. Variel Warner Ventures, LLC (2018) 29Cal.App.5th 146, 154 (internal citation omitted).
Bamboo’s Demurrer to Negligent Misrepresentation
Defendant argues the misrepresentations alleged are repackaged from Plaintiff’s breach of contract and bad faith actions against Sutton, to which the Court sustained the previous demurrer without leave to amend, and, as Sutton’s agent, Bamboo cannot be liable for bad faith claims handling, because it is not a party to the contract. In opposition, Plaintiff asserts Defendants made false statements regarding coverage and claim handling and concealed an intent to rescind the policy. The Court agrees with Defendants. While the Court must accept all the facts properly pled as true on demurrer, mere contentions, deductions, or conclusions of fact or law are not accepted as true.
In analyzing the SAC, Bamboo is not a party to the contract, and, thus, Bamboo cannot be liable for negligent misrepresentation. Bamboo is a licensed insurance broker/agent appointed by Sutton pursuant to Ins. Code § 1704(a) and not an insurance company. As the agent of the insurer, Bamboo is not a party to the contract sued upon. “An insurance policy is, fundamentally, a contract between the insurer and the insured.” Stein v. International Ins. Co., (1990) 217 Cal.App.3d 609, 613. Plaintiff “cannot assert a claim for breach of contract against one who is not a party to the contract.” Tri-Continent International Corp. v. Paris Savings & Loan Assn. (1993) 12 Cal.App.4th 1354, 1359.
Additionally, the claim fails to allege any representation by Bamboo, false or otherwise, and so fails to state sufficient facts to maintain this cause of action against Bamboo. Moreover, Plaintiff fails to meet the specificity requirement to maintain this cause of action against Bamboo. “[A] cause of action for misrepresentation requires an affirmative statement, not an implied assertion.” RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089,1102. Mere negligence in the handling of an insurance claim does not support recovery in tort against an insurer, much less the insurer’s agent.
Adelman v. Associated International Ins. Co. (2001) 90 Cal.App.4th 352, 356 (“An insured can recover in tort against an insurer for the improper handling of a claim only upon a showing that the insurer acted in bad faith; as we explain, such a showing requires something more than simple negligence.”). The Court fails to see how Bamboo’s mere acceptance of insurance premiums, stating Plaintiff’s claim is under review, or any of the other assertions contained in the second cause of action equates to an affirmative statement equating to a false representation by Bamboo as alleged in the SAC.
Thus, Plaintiff has failed to allege both false representations to Plaintiff regarding his coverage, and fails to allege bad faith.
Sutton’s Demurrer to Negligent Misrepresentation
As discussed above, the cause of action fails to state sufficient facts, nor does it meet the specificity requirement to maintain this cause of action against Sutton. Moreover, Plaintiff’s SAC alleges the only statement made assuring coverage was made by his own agent, Steve Feig,
rather than an agent of Sutton. Thus, Plaintiff again fails to meet the pleading standard to maintain the second cause of action for negligent misrepresentation as to Defendant Sutton.
Third Cause of Action – Negligent Infliction of Emotional Distress (“NIED”)
Defendants’ demurrers to the Third Cause of Action for NIED are sustained without leave to amend. This claim also fails to state sufficient facts in the same fashion Plaintiff fails to state sufficient facts in support of the Second Cause of Action. It is well settled NIED is not a separate tort, but rather, part of the law of negligence with the usual elements for negligence applying including duty and negligent breach. NIED is solely a claim stemming from a cause of action for negligence. Ragland v. U.S. Bank National Assn (2012) 209 Cal.App.4th 182.
Further, Sutton owes no duty of good faith and fair dealing and thus, cannot owe a duty giving rise to this claim. Coleman v. Republic Indem. Ins. Co. of Calif. (2005) 132 Cal.App.4th 403, 415416. Moreover, the Second and Third causes of action relate to the handling of the claim, and it is well settled an action for negligent claim handling is not a legally cognizable theory under California law. Plaintiff has failed to plead any bad faith handling.
Leave to Amend
“Where a demurrer is sustained or a motion for judgment on the pleadings is granted as to the original complaint, denial of leave to amend constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment.” Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852. At bar, Plaintiff has now filed a second amended complaint and, as to the instant demurrers, has not shown he is capable of amending the complaint a third time to sufficiently allege the foregoing causes of action against Bamboo and/or Sutton.
Plaintiff has only alleged his own insurance agent from Gary E Krouse Insurance Services, Inc, Steve Feig, represented his policy would cover the expenses of the damage done by water leakage. See Defendants’ RJNs, Ex. A. However, as discussed above, Mr. Feig is not a representative of either Bamboo or Sutton. As such, Mr. Feig’s statements cannot be attributable to either Defendant. Therefore, leave to amend is denied.
Where a demurrer is sustained, without leave to amend, as to all causes of action of a pleading against a party, the Court is to enter a judgment of dismissal, upon an informal request of a party. CCP §581(f)(1); Desai v. Farmers Ins. Exch. (1996) 47 Cal. App. 4th 1110, 1115 (an order of dismissal as to a party, pursuant to Code of Civil Procedure Section 581(f)(1), is an independently appealable, final judgment); Beazell v. Schrader (1963) 59 Cal. 2d 577, 579-80 (“‘[w]hen a demurrer to a complaint has been sustained without leave to amend, the only judgment which properly may be entered is a dismissal of the action.’"); Berri v. Sup. Ct. (1955) 43 Cal. 2d 856, 860 (“after a demurrer is sustained without leave to amend..., no formal motion to dismiss the action is necessary. The entry of a judgment of dismissal follows as a matter of course.”).
In that the Court has sustained all causes of action against Defendant Bamboo without leave to amend, the Court hereby enters judgment of dismissal solely as to Bamboo.
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