2017-00224677-CU-IC

Ronald Carter vs. State Farm General Insurance Company

Nature of Proceeding: Hearing on Demurrer (John Wheeler)

Filed By: Wicklund, Ethan J.

Defendant John Wheeler’s Demurrer to the Complaint is unopposed, taken as a concession to the merits and is sustained with leave to amend for failure to state facts sufficient to constitute a cause of action and for uncertainty.

This action filed by self represented plaintiff arises out of an insurance contract concerning plaintiff’s rental property.

Plaintiff Ronald Carter filed the instant Complaint in pro per on December 29, 2017. The Complaint named as defendants State Farm General Insurance Company (“State Farm”) and State Farm Agent John Wheeler (“Wheeler”). Using a form pleading, plaintiff listed seven separate causes of action he sought to allege against State Farm and Wheeler: breach of contract; common counts; “tortuous [sic] breach of contract”; breach of good faith and fair dealing;

“punitive damages”; bad faith insurance practice; and negligent infliction of emotional distress. (See Complaint, pg. 2, #8 & 9.) The Judicial Form Complaint does not separately list all causes of action as separate causes of action, as required by CRC 2.112.

Only four of the seven claims (breach of contract, “torturous [sic] breach of contract and mental distress”, breach of good faith and fair dealing, and bad faith insurance practice) are even mentioned by name in the body of the Complaint. The remaining three causes of action are omitted entirely. Moreover, as to all the potential claims, plaintiff fails to sufficiently state facts which constitute a cause of action for any of the above-listed theories- particularly as to John Wheeler who is not a party to the State Farm policy.

For example, the first cause of action alleged against Wheeler is breach of contract. The elements for a breach of contract cause of action are the existence of the contract; performance by the plaintiff or excuse for nonperformance; breach by the defendant; and damages. (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731,745.) Furthermore, the causes of action identified in the Complaint are pled in such an ambiguous and unintelligible fashion that the entire Complaint is uncertain.

The demurrer to each cause of action alleged in the Complaint is sustained with leave to amend for the reasons stated in the moving papers.

The demurrer is being sustained with leave to amend because this is the first challenge to the pleadings and the plaintiff has the right to amend his Complaint until the time of the hearing. CCP 472.

Plaintiff may file and serve an Amended Complaint on or before April 10, 2018. Response to be filed and served within 30 days of service of the Amended Complaint, 35 days if served by mail.