California Fair Plan Association vs. James R. Kropp

4. CU0002414 California Fair Plan Association vs. James R. Kropp

Defendant Kropp’s demurrer to Plaintiff’s complaint is sustained with leave to amend. Plaintiff shall file and serve its amended complaint within 10 days of service of the order after hearing.

Legal Standard

On demurrer, a court's function is limited to testing the legal sufficiency of the complaint. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114. In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. Miklosy v. Regents of the Univ. of Cal. (2008) 44 Cal.4th 876, 883. The court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.

Contentions, deductions and conclusions of law, however, are not presumed as true. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967. A plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate facts; the pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. A demurrer is not the appropriate procedure for determining the truth of disputed facts. Fremont Indemnity Co., 148 Cal.App.4th at 113-14.

First Cause of Action – Negligence

Defendant argues the complaint fails to allege how Defendant caused the fire at issue. The Court agrees.

The elements of a negligence cause of action are: (1) duty, (2) breach of duty; (3) proximate cause; and (4) damages. Predia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687. A breach is the failure to meet the standard of care, and the element of causation requires there be a connection between the defendant’s breach and the plaintiff’s injury. Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.

At bar, the Complaint alleges: a children’s ride-on car normally charged in the northern quadrant of the garage, using an extension cord plugged into a duplex receptacle northeast of the dryer, Complaint 7:1-4 (emphasis added); the extension cord was wrapped on the floor near a pile of Christmas lights in the same quadrant of the garage, Complaint 7:6-8; investigators observed that the upper portion of the duplex receptacle had a white appearance consistent with a power cord having been plugged into it at the time of the fire, but it is unclear which power cord was plugged in, Complaint 7:21-8:2; investigators also observed another overhead receptacle arrangement powered by a yellow extension cord in the northwestern wall of the garage, but it is unclear who installed such, Complaint 8:8-22 (emphasis added); the investigation concluded that the area of origin of the fire was on or near the western quadrant of the garage, Complaint 9:11- 13 (emphasis added); the data gathered determined the initial ignition or heat source of the fire remains unresolved, Complaint 9:16-18; potential ignition sources include the lithium-ion or lithium polymer batteries from the car, Complaint 9:21-24 (emphasis added); potential fuel sources include the plastic components of the kids car; Complaint 9:27-28 (emphasis added); the 3

ignition sequence hypotheses are either the fire resulted from failure of the car battery generating increased heat until plastic components or other combustible materials reached ignition temperatures, Complaint 10:5-8 (emphasis added); or, “actions of a known or unknown person” using an unidentified ignition source which came into contact with combustible materials, Complaint 10:9-12.

Plaintiff argues the above facts are sufficient to allege Defendant’s breach of duty. The Court is not persuaded. The allegations in the Complaint allege the child’s car and charger was located in the northern quadrant of the garage, and the fire originated in the western quadrant of the garage. The Complaint also states the lithium batteries could be the source of the fire, among other things. The Complaint does not explain how Defendant engaged in any wrongful conduct in connection with these batteries or otherwise.

Moreover, the allegations in the Complaint make no connection between the findings of the investigation and Defendant’s actions or failure to act, only stating “ [t]he starting of a fire at a property ordinarily does not occur unless there is negligence.” Complaint 11:8-9. Plaintiff has failed to sufficiently allege Defendant’s negligence caused the fire. The demurrer as to the first cause of action is sustained.

Second Cause of Action – Breach of Contract

Defendant argues the Complaint fails to state facts sufficient to constitute a cause of action for breach of contract. The Court agrees.

To state a claim for breach of contract, a plaintiff must allege: (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.

The Complaint alleges the damage to the subject rental property occurred because Defendant failed to keep the property and its fixtures in good working order as required by the contract/lease, and so breached the contract. Complaint 13:21-25. As discussed above, the Complaint fails to allege how Defendant failed to maintain the property in a safe and reasonable manner.

Subsection 33 of the lease required Defendant to carry his own renter’s insurance. There are no allegations in the Complaint that Defendant had not obtained insurance; rather it is alleged that Defendant did not force his insurance carrier to pay the claim. Plaintiff has failed to demonstrate how the latter situation, refusal of the carrier to cover the claim, constitutes a breach of the lease by Defendant. The demurrer as to the second cause of action is sustained.

Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. The burden is on the plaintiff to show a court a pleading can be amended successfully. Ibid.

At bar, Plaintiff asserts it can amend the complaint with additional detail. In light of that representation, leave to amend is granted. 4