Case Number: KC065901 Hearing Date: May 01, 2014 Dept: J

Re: Lyoyd Lee Chen v. Vincent TR Carpenter, et al. (KC065901)

(1) DEMURRER TO COMPLAINT; (2) MOTION OF PLAINTIFF TO COMPEL FURTHER DISCOVERY RESPONSES

Moving Parties: (1) Defendant Farmers Insurance Exchange; (2) Plaintiff Lloyd Lee Chen

Respondents: (1) Plaintiff Lloyd Lee Chen; (2) Defendant Farmers Insurance Exchange

In this insurance coverage dispute the Complaint, filed 4/02/13, asserts causes of action for:

1. Breach of Contract
2. General Negligence

The action is set for Trial Setting Conference 5/01/14.

(1) Demurrer to Complaint:

Farmers Insurance Exchange, Demurs to the first cause of action of Plaintiff’s Complaint for breach of contract on the grounds that it fails to state facts sufficient to state a claim and is uncertain.

To state a claim for breach of contract, the plaintiff must allege the contract, his performance of the contract or excuse for nonperformance, defendant’s breach and the resulting damage. (Otworth v. Southern Pacific Transportation Company (1985) 166 Cal.App.3d 452, 458.) Further, Plaintiff must indicate on the face of the Complaint whether the contract is written, oral, or implied by conduct. (Id. at 458-459.)

The Complaint herein alleges that there was a written contract in which Defendants Vincent TR Carpenter, Farmers Insurance Exchange, and Good News Escrow, Inc. “all agreed to provide Plaintiff with a liability insurance to be issued upon the closing of the purchase of Plaintiff’s residence.” However, Plaintiff has failed to either attach a copy of the alleged written contract, or set forth verbatim in the body of the complaint the essential terms of the alleged contract. Therefore, the demurrer is sustained with 10 days leave to amend.

(2) Motion to Compel Further Discovery Responses:

Plaintiff Lloyd Lee Chen, seeks an order compelling Defendant Farmers Insurance Exchange to provide further responses to (1) Form Interrogatories, Set One; (2) Special Interrogatories, Set One; (3) Demands for Inspection of Documents, Set One; and (4) Request for Admissions, Set One.

Plaintiff served the discovery requests on 12/18/13, and received a response on 2/10/14. Plaintiff claims that a majority of the responses claim that the company has no personal knowledge about Plaintiff or the Diamond Bar Home, and on that basis claims that many of the discovery requests are inapplicable (Responses to Special Interrogatories Nos. 3-16; Responses to Demand for Inspection Nos. 1-11; Responses to Form Interrogatory Nos. 12.1 through 50.6.). Plaintiff claims that he has correspondence from the agent that insurance information about Plaintiff and the Diamond Bar Home was tendered to Farmers Insurance. (Exs. 3 and 4).

Defendant Farmers Insurance Exchange, opposes the motion on grounds that Plaintiff has failed to file a separate statement as required by CRC 3.1345(a). Without a separate statement, Farmers Insurance Exchange is at a disadvantage as to what exactly Plaintiff seeks to compel. Further, Exs. 3 and 4 provide no substantive basis for otherwise considering this woefully deficient procedurally presented motion. Ex. 3 is merely an email exchange which does not evidence that Farmers Insurance Exchange issued any policy of insurance relevant to Plaintiff’s home. Ex. 4 is a letter from Farmers Insurance Exchange’s Counsel explaining that Farmers Insurance Exchange never issued a policy of insurance to Plaintiff.

Farmers also asserts that the request for monetary sanctions is fatally deficient because it lacks mention of the sanction in the notice of motion, or a declaration as required under CCP 2023.040.

California Rules of Court, Rule 3.1345 states, “[a]ny motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: (1) to compel further responses to requests for admission; (2) to compel further responses to interrogatories; (3) to compel further responses to a demand for inspection of documents or tangible things.”

Here, Plaintiff seeks further responses. Further, the motion concerns the content of the discovery responses he received from Defendant, so a separate statement is clearly required. Plaintiff has failed to file a separate statement. Therefore, the motion is denied.

CCP § 2023.040 states, “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

Here, the notice of motion does not “identify every person, party, and attorney against whom the sanction is sought,” nor does it “specify the type of sanction sought.” In fact, the word “sanction” does not appear anywhere in the paragraphs of the notice. Further, the declaration does not mention the sanction. Therefore, even if the motion were granted, Plaintiff’s request for sanctions would have to be denied.