Case Number: BC523040    Hearing Date: September 09, 2014    Dept: J

Re: Hattie Jackson, et al. v. Romina Fancisco-Loreto, et al. (BC523040)

DEMURRER TO FIRST AMENDED COMPLAINT

Moving Party: Defendant Avis Rent A Car System, LLC

Respondents: Plaintiffs Hattie Jackson and Marquel Neal

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c)

In this wrongful death action, Plaintiffs allege that their decedent, a passenger in a vehicle operated by Defendant Romina Franciso-Loreto, was involved in a multi-vehicle collision and suffered grave injuries which caused her death. Plaintiffs commenced this action on 10/1/13. The First Amended Complaint (“FAC”), filed 2/7/14, asserts causes of action for:

1. Negligence-Wrongful Death
2. Breach of Contract
3. Breach of the Covenant of Good Faith and Fair Dealing

A Status Conference is set for 9/9/14.

Defendant Avis Rent A Car Systems, LLC (“Defendant”) demurs to the Second Cause of Action for Breach of Contract on the grounds that: (1) it fails to state facts sufficient to constitute a cause of action against Defendant, (2) it is uncertain, and (3) it is purportedly founded upon a contract and it cannot be ascertained form the pleadings whether the contract is written, oral, or implied, what the specific terms of the contract are, lacks any specificity as to the timing of the contract, when or if it was entered into or finally if a contract actually existed, whether it was signed by Defendant.

SECOND CAUSE OF ACTION FOR BREACH OF CONTRACT:

The elements of a breach of contract cause of action are: (1) the existence of a contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

Plaintiff must indicate on the face of the Complaint “whether the contract is written, is oral, or is implied by conduct.” (CCP § 430.10(g).)

Contract terms may be alleged generally according to legal intendment. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) Pleading contracts by legal effects involves alleging the relevant terms in substance. (McKell v. Washington Mutual, Inc. (2006) 142 Cal. App. 4th 1457, 1489.)

The FAC alleges that Defendants Francisco-Loreto and/or Does 11 through 20 entered into a contract with Defendant, which included among other benefits, underinsured motorist coverage benefits for the personal injury and/or wrongful death of any passenger in a vehicle rented by Defendant Francisco-Loreto and Does 11 through 20. (FAC ¶ 29.) The FAC, however, does not indicate whether the contract is written, is oral, or is implied by conduct. The FAC also fails to allege the relevant terms of the contract in substance. Thus, the demurrer to the second cause of action is sustained.

Plaintiffs, in opposition, concede that the demurrer should be sustained, but seeks leave to file a Second Amended Complaint (“SAC”). Specifically, Plaintiffs request that the court provide them with at least 45 days which to amend their pleading. Plaintiffs explain that they were informed that Defendant provided additional “Optional Protections,” to Defendant Francisco-Loreto and/or Service Employees International Union (“SEUI”), and that they will shortly be serving a notice to take the deposition of the person most knowledgeable for Defendant to recover certain materials supporting that such “additional protection” was obtained and is applicable to this incident. However, it appears that allowing 45 days or more for Plaintiffs to file the SAC is excessive. Thus, Plaintiffs’ request for leave is denied at this time. However, Plaintiffs may seek leave to amend if and when facts supporting their cause of action for breach of contract are discovered.