Filed 4/1/20 Kaufer v. American Automobile Assn. of Northern Cal. etc. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CATHERINE KAUFER,

Plaintiff and Appellant,

v.

AMERICAN AUTOMOBILE ASSOCIATION OF NORTHERN CALIFORNIA, NEVADA & UTAH, et al.,

Defendant and Respondent.

A155801

(Contra Costa County Super.

MSC17-02339)

Plaintiff and appellant, Catherine Kaufer, appeals from a judgment of dismissal entered after the trial court sustained the demurrer of defendant and respondent, American Automobile Association of Northern California, Nevada & Utah (AAA), to the second amended complaint without leave to amend. We affirm.

 

BACKGROUND

In 2017, Kaufer commenced this suit against AAA and later filed the second amended complaint, the operative pleading (the complaint), which asserts causes of action for (1) professional negligence and breach of fiduciary duty, (2) negligence, and (3) misrepresentation, fraud, and/or concealment.

In the complaint, Kaufer alleges that her husband was riding a bicycle, when a motorist ran a red light and struck him. Kaufer’s husband died as a result of the accident.

The motorist was completely at fault for the collision but carried only $100,000 in liability insurance. At the time, Kaufer was insured with CSAA Insurance Exchange (CSAA), who is not a party in this action, under an automobile insurance policy that had uninsured/underinsured motorist coverage limits of $100,000. Because Kaufer’s uninsured/underinsured coverage limits were the same as the motorist’s liability limits, she could not recover her policy’s uninsured/underinsured benefits. (See Mercury Ins. Co. v. Vanwanseele-Walker (1996) 41 Cal.App.4th 1093, 1101 [“Underinsurance policy benefits are potentially available only when ‘ “the tortfeasor’s liability policy is in an amount less than the underinsured motorist policy of the injured driver” ’ ”]; Ins. Code, § 11580.2, subd. (p).)

Kaufer had been insured by CSAA through AAA since 1988. Nancy Pfeiffer Hazen, an employee of AAA, became Kaufer’s insurance agent in approximately 2000. Kaufer alleged Hazen “held herself out as an expert in personal insurance coverage,” including in the subjects of home and automobile insurance. Kaufer had attended a conference in which Hazen made a presentation to a group of real estate professionals “and stressed the need to make sure that people in the real estate profession were adequately insured.” In addition, Hazen allegedly represented to Kaufer that she “would act as Plaintiff’s personal expert and advisor in insurance, make certain Plaintiff carried both the right types of coverages and amounts of coverage by thoroughly reviewing and assessing Plaintiff’s personal circumstances,” and recommended Kaufer “with insurance appropriate to the needs of Plaintiff and her family.”

Kaufer further alleged that Kaufer periodically inquired of Hazen “the purpose for each category of coverage in both [her] home and auto policies” and whether they were adequate in amount. Hazen allegedly assured Kaufer that coverage under her home and automobile insurance policies was adequate.

In 2005 or 2006, Hazen also recommended that Kaufer increase her uninsured/underinsured coverage limits from $30,000 to $100,000 and bodily injury limits from $300,000 to $1,000,000. Kaufer followed these recommendations.

The maximum uninsured/underinsured coverage CSAA covered in an automobile policy was $1,000,000. Hazen did not inform Kaufer of the maximum uninsured/underinsured coverage available. Kaufer alleged that, had she known about its availability, she would have purchased the uninsured/underinsured coverage limits, which, in turn, would have entitled her to recover the difference between that amount and the $100,000 of the motorist’s liability limits, for a total of $900,000.

AAA demurred to the complaint asserting Kaufer’s failure to allege facts sufficient to state all causes of action. As to Kaufer’s negligence-based causes of action, AAA argued that the complaint did not allege facts demonstrating that AAA assumed a duty to advise Kaufer on the availability of higher uninsured/underinsured motorist coverage. AAA further contended that the allegations did not demonstrate AAA had a fiduciary relationship with Kaufer. In addition, AAA asserted that Kaufer’s misrepresentation and fraud claims failed because she did not allege with any specificity that Hazen intentionally or recklessly misrepresented any facts regarding her uninsured/underinsured coverage.

Kaufer opposed the demurrer, contending that Hazen had “a ‘duty to volunteer to an insured that the latter should procure additional or different insurance coverage.’ ” Kaufer claimed that Hazen assumed this duty when she held herself out as an expert “in the given fields of insurance being sought by Kaufer,” namely personal liability, automobile, and homeowners’ insurance. Additionally, Kaufer argued that “Hazen misrepresented the nature and purpose of UM/UIM coverage.” AAA replied to the opposition.

The trial court agreed with AAA and sustained the demurrer without leave to amend. In October 2018, the court entered a judgment of dismissal of the entire action.

DISCUSSION

I.

Standard of Review

The standard of review governing an order sustaining a demurrer without leave to amend is “long-settled.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.” (Ibid.) We “ ‘determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.’ ” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1172–1173.)

Moreover, we “must affirm if the trial court’s decision to sustain the demurrer was correct on any theory.” (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808.) In other words, “we do not review the validity of the trial court’s reasoning but only the propriety of the ruling itself.” (Orange Unified Sch. Dist. v. Rancho Santiago Cmty. College Dist. (1997) 54 Cal.App.4th 750, 757.)

II.

Kaufer Has Failed to Allege Facts Sufficient to State
Causes of Action on Her Own Behalf.

A. Negligence

Kaufer’s first two causes of action assert professional negligence and ordinary negligence. Kaufer contends the trial court erred in finding that the complaint did not adequately allege negligence liability because it lacked facts establishing AAA owed a duty to advise Kaufer that additional uninsured/underinsured motorist coverage was available. We disagree with Kaufer’s contentions.

“A complaint in an action for negligence must allege (1) the defendant’s legal duty of care towards the plaintiff, (2) the defendant’s breach of that duty, (3) injury to the plaintiff as a proximate result of the breach, and (4) damage to the plaintiff.” (Jones v. Grewe (1987) 189 Cal.App.3d 950, 954 (Jones); see also Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095 [same for professional negligence].) “A complaint which lacks facts to show a duty of care was owed is fatally defective.” (Jones, at p. 954.) “ ‘[W]hether a duty of care exists is a question of law for the court.’ ” (Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 920 (Fitzpatrick).)

In the insurance context, “[o]rdinarily, an insurance agent assumes only those duties normally found in any agency relationship. This includes the obligation to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured. [Citation.] The mere existence of such a relationship imposes no duty on the agent to advise the insured on specific insurance matters.” (Jones, supra, 189 Cal.App.3d at p. 954.) “ ‘An agent may point out to [the insured] the advantages of additional coverage and may ferret out additional facts from the insured applicable to such coverage, but he is under no obligation to do so; nor is the insured under an obligation to respond.’ ” (Ibid.)

Consistent with this principle, courts have held that an insurer or insurance agency generally has no duty to disclose the availability of adequate uninsured or underinsured motorist coverage. (See, e.g., Pabitzsky v. Frager (1985) 164 Cal.App.3d 401, 402-403 [sustaining demurrer to cause of action against insurer and its agent for failing to advise the plaintiff “to carry uninsured motorist insurance in an amount greater than the statutory minimum”]; see also Gibson v. Government Employees Ins. Co. (1984) 162 Cal.App.3d 441, 452 [holding no fiduciary duty “to (1) make available to them a particular kind of insurance, (2) advise them of the availability of such coverage elsewhere in the industry, or (3) advise them of inadequacies in coverage of which plaintiffs should, as reasonable persons, have themselves been aware”].)

However, an insurance agent may assume a greater duty to the insured “when—but only when—one of the following three things happens: (a) the agent misrepresents the nature, extent or scope of the coverage being offered or provided . . . , (b) there is a request or inquiry by the insured for a particular type or extent of coverage . . . , or (c) the agent assumes an additional duty by either express agreement or by ‘holding h[er]self out’ as having expertise in a given field of insurance being sought by the insured . . . .” (Fitzpatrick, supra, 57 Cal.App.4th at p. 927.)

Kaufer contends that exceptions (b) and (c) above apply in this case. With respect to exception (b), Kaufer relies on the allegations in the complaint that she had “inquired of Hazen of the purpose for each category of coverage in both home and auto policies Hazen and Defendants sold to Plaintiff, and whether Plaintiff’s insurance coverages were both appropriate in kind and adequate in amount, with Plaintiff making inquiries such as ‘We need to figure out if I am insured correctly,’ ‘How much should I have?,’ ‘What does this cover?,’ ‘Why do I need this coverage?,’ and ‘Is this enough?’ when discussing coverages and limits of coverages with Hazen.”

The trial court in this case found these allegations were insufficient to show the second exception in Fitzpatrick applied. Citing Fitzpatrick, supra, 57 Cal.App.4th at p. 928, the court explained, “ ‘Notably lacking from [these] conclusory statement[s] is any allegation concerning any sort of specific inquiry from the [plaintiff] to the [agent], much less specific advice in the opposite direction.’ ” The court’s reasoning is sound. As Fitzpatrick requires, a special duty may be assumed when “there is a request or inquiry by the insured for a particular type or extent of coverage.” (Fitzpatrick, supra, 57 Cal.App.4th at p. 927, italics added.) The above allegations establish that Kaufer only asked Hazen general questions about her various insurance policies across the board, and did not ask about any particular type of coverage, much less the uninsured/underinsured motorist coverage specifically, which is the coverage at issue here. Thus, we find these allegations insufficient to trigger application of exception (b) in Fitzpatrick.

Contrary to Kaufer’s arguments in her reply brief, neither Free v. Republic Ins. Co. (1992) 8 Cal.App.4th 1726 (Free) nor Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110 (Desai) compels a different conclusion. In Free, the appellate court reversed an order of dismissal on the grant of a demurrer to a complaint which alleged that a homeowner had specifically inquired—several times allegedly—of his broker as to whether “the coverage limits of his policy were adequate to rebuild his home” in the event of its destruction by fire. (See Free, at p. 1729.) The complaint further alleged that, on each such occasion, “he was informed that they were,” advice which he alleged was repeated to him early in the year his home was destroyed by fire. (Ibid.) The court reversed, holding that the principle of Jones was not applicable to the facts alleged because “once [the broker] elected to respond to his inquiries, a special duty arose requiring them to use reasonable care.” (Free, at p. 1729.)

In Desai, supra, 47 Cal.App.4th 1110, the appellate court reversed an order of dismissal after the sustaining of a demurrer to a complaint that alleged an insurance agent negligently failed to deliver the agreed-upon coverage. The plaintiff alleged that he sought to purchase earthquake, fire, and hazard insurance on his property. (Id. at p. 1114.) He told the agent that he wanted 100 percent coverage for the cost of repairing or replacing improvements to the property, including increases for inflation. (Ibid.) The agent told him that Farmers offered such insurance and represented that the policy provided “ ‘100 [percent] coverage for the costs of repairs and/or replacement of the improvements to the property . . . in the event of a loss.’ ” (Ibid.) The plaintiff purchased the policy based on the agent’s representations. (Ibid.) When the plaintiff later suffered $546,757 in losses from an earthquake and a fire, the insurance agency refused to pay more than the $158,734 policy limit. (Id. at pp. 1114–1115.)

Free and Desai are easily distinguished. Kaufer’s general requests for insurance coverage alleged in this case in no way resemble the specific requests for full coverage in the event of the destruction of a home in Free or for 100 percent replacement coverage in Desai. In both of those cases, the plaintiffs sought to be protected against very specific eventualities, the loss of defined property with a quantifiable value, not underinsured motorist coverage for a potential loss that remained open-ended. Kaufer therefore failed to establish exception (b) under Fitzpatrick applied in this case.

We now turn to exception (c), which Kaufer argues applies because she alleged facts establishing Hazen expressly assumed a duty to advise her on additional underinsured coverage and held herself out as an expert on insurance matters. (See Fitzpatrick, supra, 57 Cal.App.4th at p. 927.) While Kaufer cites to numerous paragraphs in the complaint, the pertinent supporting allegations boil down to the following: that Hazen made “a presentation to a group of real estate professionals where . . . Hazen held herself out as an expert in personal insurance coverage for real estate professionals, including, but not limited to automobile and home insurance”; “act[ed] as Plaintiff’s personal expert and advisor in insurance, [agreed to] make certain Plaintiff carried both the right types of coverages and amounts of coverage by thoroughly reviewing and assessing Plaintiff’s personal circumstances . . . and . . . would make recommendations and provide Plaintiff with insurance appropriate to the needs of Plaintiff and her family”. Hazen also “recommended and then provided an increase in uninsured/underinsured automobile motorist coverage from $30,000 per person to $100,000 per person.”

We agree with the trial court that these allegations were insufficient to trigger the application of exception (c). The present case is analogous to Jones, supra, 189 Cal.App.3d 950, in which a child sustained serious injuries when she fell into the swimming pool of an apartment building owned by the insureds. (Id. at p. 953.) The child’s parents sued the insureds for negligence, ultimately settling the action for $1.5 million. (Ibid.) The insureds then sued their insurance agent for negligence, asserting that he had held himself out as an insurance expert, had taken care of the insureds’ insurance needs for 10 years, during which time the insureds relied on his expertise, and had expressly and impliedly represented that the insureds’ insurance protection was adequate. (Ibid.) The trial court sustained the agent’s demurrer without leave to amend (ibid.), and the court of appeal affirmed. (Id. at p. 957.)

The court held, “The mere allegation in a complaint, as in this case, that an insured has purchased insurance from an insurance agent for several years and followed his advice on certain insurance matters is insufficient to imply the existence of a greater duty. Such reliance is not at all uncommon when an insured has done business with an insurance agency over a period of time.” (Jones, supra, 189 Cal.App.3d at p. 956.) The court further noted, “Nor can the existence of a broader agency relationship warranting the imposition of a greater duty be reasonably inferred from the complaint’s allegation that respondents had assured appellants of the adequacy of their liability coverage.” (Ibid.) It explained that, “an insured’s request for ‘sufficient coverage’ and an agent’s assurance that the policy provided ‘adequate’ coverage do not, in and by themselves, imply an ‘expanded principal-agent relationship.’ Such an exchange usually occurs within the context of the general principal-agent relationship. ‘Purchasers of insurance generally seek “sufficient coverage.” [Citation.] To imply the existence of a broader agency agreement from such an exchange, . . . would in effect make the agent ‘a blanket insurer for his principal.’ ” (Ibid.)

The allegations in Jones closely resemble those presented in the complaint before us. In particular, the allegations that Kaufer had relied on Hazen to handle her insurance needs for many years, followed Hazen’s advice on insurance matters, and was assured by Hazen that coverage under her various policies were adequate are similar to those deemed insufficient in Jones. These allegations therefore do not give rise to a special duty on Hazen’s part.

We are also unpersuaded by the other complaint allegations that Hazen held herself out as an expert when she recommended that Kaufer increase her uninsured/underinsured coverage limits from $30,000 to $100,000. Notably absent are any facts providing the context in which Hazen made such a recommendation that gave rise to Kaufer’s belief Hazen was an expert in that particular field of insurance. (See Wallman v. Suddock (2011) 200 Cal.App.4th 1288, 1312-1313 [no triable issues of fact of holding out based on agent’s suggestion that client purchase certain specified insurance because statement “does not explain the context in which [agent] suggested that plaintiffs separately insure each property and what [agent] counseled regarding risk management”].) Further, as the trial court found, Kaufer does not establish how this recommendation by itself alleges “more than that Hazen undertook the usual role of any insurance agent, with the usual level of knowledge any such agent would be expected to have.” Indeed, although Kaufer counters that “the [complaint] provides numerous allegations demonstrating that Hazen did far more and affirmatively represented herself as having a level of knowledge and expertise far beyond the ‘usual’ agent and expressly assumed additional duties over and above those of a ‘usual’ insurance agent,” she offers no further explanation to support this assertion.

Kurtz, Richards, Wilson & Co. v. Insurance Communicators Marketing Corp. (1993) 12 Cal.App.4th 1249 (Kurtz), which Kaufer cites in the opening brief, belies her contrary contentions. In Kurtz, the court of appeal overruled an order sustaining a demurrer without leave to amend. The cross-complaint in question alleged that the plaintiff, in its search for group medical, life and accident insurance for its employees, had relied on the defendant broker’s representatives, “who held themselves out as expert brokers and agents in the field.” (Id. at p. 1255.) As part of the process of securing policies, the broker’s representative allegedly urged the insured’s treasurer to sign a “ ‘Certification of Non-Applicability of Medicare Provisions of TEFRA [Tax Equity and Fiscal Responsibility Act of 1982] to a Group Plan.’ ” (Ibid.) The Medicare provisions of TEFRA made a company’s private medical insurance primary to Medicare if the company has more than 20 employees. (Ibid.) The broker had advised the insured it was not subject to the Medicare provisions of TEFRA. (Ibid.) In fact, the insured was subject to Medicare, and when the insurer sought to rescind the policy due to alleged misrepresentations by the broker on behalf of the insured, the insured cross-complained against the broker, alleging reliance on the broker’s expertise in signing the certificate. (See id. at pp. 1255–1256.) The court of appeal concluded that the cross-complaint alleged facts “that if true would establish that they entered into a relationship with [plaintiff] . . . including a special duty assumed when they held themselves out as experts on TEFRA.” (Id. at p. 1257.)

Kurtz makes clear that “expert” for purposes of the “holding out” exception in Fitzpatrick, refers to expertise in a particularly complicated or sophisticated field of insurance, such as the effect of the Medicare provisions of a federal statute on large group health insurance programs. In contrast to the allegations in Kurtz, Kaufer’s complaint does not allege any facts to demonstrate that Kaufer handled anything other than straightforward, garden-variety insurance policies to protect Kaufer’s personal assets like cars and homes. In addition, although Kaufer also alleged that Hazen made a presentation to real estate professionals, she “presents neither allegations nor argument why real estate professionals would be different from any other customers with respect to auto liability insurance—and still less, with respect to the proper level of uninsured/underinsured motorist coverage.” Therefore, Kaufer failed to allege facts demonstrating Hazen held herself out as an expert on uninsured/underinsured motorist coverage.

Kaufer’s additional counterarguments are unavailing. Kaufer expends considerable effort explaining the difference between pleading “ultimate facts” and evidentiary facts and that the trial court failed to appreciate the difference between the two when it sustained the demurrer. “ ‘[A] complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts.’ ” (Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1102.) However, for the reasons explained above, even assuming Kaufer did allege ultimate facts, such as that Hazen recommended increasing uninsured/underinsured coverage and made a presentation to real estate professionals, those facts are insufficient to support the existence of an essential element of her negligence cause of action: a legal duty. (See Mobley v. Los Angeles Unified School Dist. (2001) 90 Cal.App.4th 1221, 1239 [“To be valid, a pleading must contain factual allegations supporting the existence of all the essential elements of a known cause of action”].)

Further, Kaufer’s reliance on the “law of dual agency” sets up a straw man. Kaufer cites Kurtz, supra, 12 Cal.App.4th 1249, for the proposition that an insurance agent’s general duty to use reasonable care and any additional duties assumed by agreement or by holding one’s self out as an expert “do not disappear because the agent is also an agent for an insurer.” (Id. at p. 1257.) This proposition has no application here because plaintiff has failed to allege facts showing that she owed Kaufer a general duty of care or establishing any of the other exceptions under Fitzpatrick applied. In the absence of such facts, whether or not Hazen was a dual agent is irrelevant. Dual agency does not defeat a duty otherwise established, but it also does not create a duty not otherwise shown.

Lastly, Kaufer’s references to the legislative purpose behind section 11580.2 and a publication advocating the need for insurance agents to offer excess uninsured/underinsured coverage do not compel reversal. While it is true that “[s]ection 11580.2 is a remedial statute that forces insurers to provide coverage against the menace of uninsured motorists” (Allstate Ins. Co. v. Mercury Ins. Co. (2007) 154 Cal.App.4th 1253, 1258), Kaufer overlooks that “the purpose of the uninsured motorist statute is not to make all drivers whole from accidents with uninsured drivers, but to make sure that drivers injured by such drivers are protected to the extent that they would have been protected had the driver at fault carried the statutory minimum of liability insurance.” (Pabitzky v. Frager, supra, 164 Cal.App.3d at p. 403; see also Malone v. Nationwide Mutual Ins. Co. (1989) 215 Cal.App.3d 275, 277 [“[U]nderinsured motorist coverage is not the equivalent of full excess coverage”].)

While the collision and the fatality in this case are tragic and we have sympathy for the plaintiff, that does not mean public policy considerations compel imposing a special duty on Hazen here. As Jones explains, “[n]either an insurance agent nor anyone else has the ability to accurately forecast the upper limit of any damage award in a negligence action against the insured by a third party. To impose such a duty based on the pleadings in this case would in effect make the agent a blanket insurer for his principal. We fail to see where sound public policy would require the imposition of such a duty upon the agent, unless the latter has by an express agreement or a holding out undertaken that obligation.” (Jones, supra, 189 Cal.App.3d at p. 957.) Similarly, here, Hazen could not be fairly charged with predicting the severity of the accident and the extent of the financial harm the at-fault motorist in this case would cause. “[T]he onus [was] thus squarely on [Kaufer] to inform [Hazen] of the insurance [s]he requires.” (Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 1096.)

In sum, the trial court correctly sustained the demurrer with respect to Kaufer’s first and second causes of action for negligent liability.

B. Breach of Fiduciary Duty

The trial court also concluded that the complaint did not allege facts supporting Kaufer’s breach of fiduciary duty cause of action. Kaufer makes no effort to address the trial court’s conclusions or explain why they were error. We agree with the court’s reasoning that “[i]n general, an insurer is not a fiduciary for its insureds.” (See Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1147-1150 [“[I]n the absence of Supreme Court precedent declaring an insurer to be a true fiduciary, we decline to import uncritically the entire cargo of fiduciary obligations into the port of insurance law”].) Accordingly, we affirm the court’s decision to sustain the demurrer as to this cause of action.

C. Fraud and Negligent Misrepresentation

Finally, Kaufer contends she alleged facts sufficient to state her third cause of action for “misrepresentation/fraud/concealment,” which essentially contains claims for negligent misrepresentation and fraud. We disagree.

“The well-known elements of a cause of action for fraud are: (1) a misrepresentation, which includes a concealment or nondisclosure; (2) knowledge of the falsity of the misrepresentation, i.e., scienter; (3) intent to induce reliance on the misrepresentation; (4) justifiable reliance; and (5) resulting damages. [Citation.] The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce reliance. [Citation.] In both causes of action, the plaintiff must plead that he or she actually relied on the misrepresentation.” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)

“Fraud and negligent misrepresentation claims must be pled with particularity and by facts that ‘ “ ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” ’ ” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14.) Thus, “general and conclusory allegations do not suffice,” and “ ‘ “ ‘the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.’ ” ’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Kaufer cites extensively to Witkin to argue that “the specificity of pleading of a fraud claim only applies to the identification of the misrepresentation and perhaps, the falsity of that representation, but not to the elements of knowledge, intent, justifiable reliance or causation, which can all be alleged generally.” (See 5 Witkin, Cal. Proc. (5th ed. 2008) §§ 714, 719, 724, 725, 728, 730.) Even assuming Kaufer’s assessment is correct, the complaint did not plead the misrepresentation element with specificity. Kaufer alleged that she had “various communications with Hazen” from 2000 through 2015, “during which Plaintiff provided Hazen” with her financial information, “communicated that she needed insurance coverage that would be adequate to meet her needs [and] the needs of her family . . . in the event an incident took place giving rise to a claim under any aspect of their insurance coverages.” AAA “through Hazen[,] told and assured Plaintiff in various ways that The Policy would be adequate to meet the needs of Plaintiff and her family” and that “[t]hese representations were false and were made knowingly and/or recklessly, and without regard for the truth.”

We agree with the trial court that these allegations “were way too vague and general to support a fraud tort.” Kaufer merely alleges that various communications with Hazen took place during a fifteen-year time span, but fails to “ ‘ “ ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” ’ ” (Charnay v. Cobert, supra, 145 Cal.App.4th at p. 185, fn. 14.)

Kaufer’s concealment allegations are also insufficient to state fraud and negligent misrepresentation claims. The “misrepresentation” element of negligent misrepresentation and fraud may be established by showing “ ‘the suppression of fact by one bound to disclose it.’ ” (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1136; Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 255 [same for fraud].) Kaufer alleged that in 2005 or 2006, Hazen recommended Kaufer increase her uninsured/underinsured coverage from $30,000 to $100,000. But, according to Kaufer, Hazen “concealed and/or failed to disclose or inform Plaintiff that her uninsured/underinsured coverage could be raised even higher” and “did not explain how [such] coverage would function and apply in the event of a covered loss.”

The negligent misrepresentation and fraud claims are based upon the same purported duty to disclose that Kaufer alleged in connection with her negligent claims. For the reasons stated in section II.A., ante, we conclude that AAA and Hazen did not owe Kaufer a duty to disclose the availability of higher uninsured/underinsured coverage. We therefore reject Kaufer’s attempts to recast her negligence allegations against AAA into fraud and negligent misrepresentation claims. The trial court properly sustained AAA’s demurrer to the misrepresentation/fraud/concealment cause of action.

III.

Kaufer Fails to Show the Trial Court Erred in Denying Leave to Amend.

On appeal, Kaufer does not assert the trial court abused its discretion in denying leave to amend the complaint. Kaufer’s appellate brief proposes no amendments that might support an abuse of discretion ruling. (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [plaintiff’s failure to argue on appeal how it could amend complaint to state viable claim results in forfeiture of challenge to denial of leave to amend].) We deem the argument forfeited.

DISPOSITION

The judgment is affirmed. AAA is entitled to its costs on appeal.

 

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

Kaufer v. American Automobile Assn. (A155801)