2018-00228692-CL-IC

Sirree Wyatt vs. Viking Insurance Company of Wisconsin

Nature of Proceeding: Hearing on Demurrer

Filed By: Abeltin, James B.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the causes of action that will be addressed at the hearing. The parties are also reminded that pursuant to local court rules, only limited oral argument is permitted on law and motion matters. ***

Defendant Viking Insurance Company of Wisconsin’s demurrer to pro per Plaintiff Sirree Wyatt’s first amended complaint (“FAC”) is ruled upon as follows.

This is a breach of contract and bad faith action. Plaintiff alleges his car was stolen during the policy period, but Defendant denied Plaintiff’s claim. Plaintiff alleges that on March 13, 2017, he appeared for a deposition with his counsel. Defendant’s representative did not appear because she believed the deposition was scheduled for March 30, 2017. The parties attempted to reschedule the deposition to no avail. Plaintiff could no longer afford counsel, and, thus, was unrepresented. Due to a conflict in personalities, Defendant’s representative failed to and refused to continue the “investigation” insisting that she would not meet with Plaintiff unless he had counsel present. Because Plaintiff lacked counsel and Defendant’s representative refused to continue the investigation without counsel, the investigation was closed.

Defendant demurs to each cause of action on the grounds that each is uncertain and fails to state sufficient facts.

Breach of Contract

Defendant demurs on the ground that because Plaintiff failed to submit to an exam under oath, he cannot maintain breach of contract action. The demurrer is OVERRULED. Given Plaintiff’s allegations, the Court cannot conclude that Plaintiff “failed to submit” to an exam under oath. He alleges that he appeared for his March 17th deposition, but Defendant’s representative did not appear. The parties attempted to reschedule, but were unable to. Defendant’s counsel then refused to work with

Plaintiff unless he was represented by counsel. Thus, as alleged, it appears that Defendant’s representative’s acts made Plaintiff unable appear at deposition. Indeed, Defendant could have replaced its representative with another who would be willing to work with Plaintiff in pro per. Defendant further argues that Plaintiff fails to allege facts showing that the demand for an examination under oath was unreasonable. Defendant proffers no legal authority that such facts must be alleged to sufficiently state a breach of contract cause of action.

Bad Faith

The demurrer for failure to state facts is OVERRULED. Defendant argues that there inconsistencies with whether Plaintiff was represented by an attorney in the first instance. Plaintiff alleges that he appeared at his deposition with counsel on March 13 th, but was then unable to afford one. (FAC, Attachment BC-2.) With respect to the bad faith cause of action, he alleges “[i]n refusing to negotiate with the plaintiff who had never hired counsel, and refusing to communicate with him unless he hired counsel, the defendant acted in bad faith.” (FAC, page 6, ¶ 6.) Despite these inconsistencies, the Court is not convinced that these inconsistencies are material to Plaintiff’s cause of action. For example, even if Plaintiff was unrepresented from the beginning, could Defendant’s refusal to communicate and work with him without counsel be considered bad faith? Defendant proffers no legal authority that Plaintiff was required to have counsel from the start and that his failure to retain counsel somehow eliminated Defendant’s obligations to communicate and work with him.

Uncertainty

The demurrer for uncertainty is OVERRULED.

Given that the Court has overruled the demurrer, Defendant would ordinarily be required to file an answer to the FAC. However, because the Court has granted with leave to amend Defendant’s motion to strike and the Court has given Plaintiff an opportunity to file and serve a second amended complaint by October 9, 2018, Defendant need not file an answer to the FAC at this time. In the event Plaintiff does not file and serve an SAC by October 10, 2018, Defendant shall file and serve an answer to the FAC by October 22, 2018.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

The court notes that moving party has indicated the incorrect address in its notice of motion. The correct address for Department 54 of the Sacramento County Superior Court is 813 6th St, Sacramento California 95814, Second Floor. Moving party shall notify responding party(ies) immediately.

The notice of motion does not provide notice of the Court’s tentative ruling system, as

required by Local Rule 1.06(A). Defendant’s counsel is directed to contact Plaintiff forthwith and advise him of Local Rule 1.06 and the Court’s tentative ruling procedure. If Defendant’s counsel is unable to contact Plaintiff prior to hearing, Defendant’s counsel shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06

(A).

Item 16 2018-00228692-CL-IC

Sirree Wyatt vs. Viking Insurance Company of Wisconsin

Nature of Proceeding: Motion to Strike First Amended Complaint

Filed By: Abeltin, James B.

Defendant Viking Insurance Company of Wisconsin’s motion to strike claims for punitive damages is GRANTED with leave to amend.

The allegations are insufficient against a corporation. “An award of punitive damages … must rest on the malice of the corporation’s employees.” (Wilson v. Southern Cal. Edison Co. (2015) 234 Cal.App.4th 123, 164.) The requisite oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by a corporate director, officer, or managing agent. (Civ. Code § 3294(b).)

Where leave to amend is granted, Plaintiff may file and serve a second amended complaint (“SAC”) by no later than October 9, 2018, Response to be filed and served within 30 days thereafter, 35 days if the SAC is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

The court notes that moving party has indicated the incorrect address in its notice of motion. The correct address for Department 54 of the Sacramento County Superior Court is 813 6th St, Sacramento California 95814, Second Floor. Moving party shall notify responding party(ies) immediately.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(A). Defendant’s counsel is directed to contact Plaintiff forthwith and advise him of Local Rule 1.06 and the Court’s tentative ruling procedure. If Defendant’s counsel is unable to contact Plaintiff prior to hearing, Defendant’s counsel shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06 (A).