Case Number: BC546968    Hearing Date: September 08, 2014    Dept: 34

Moving Party: Defendants Mid-Century Insurance Co., Farmers Insurance Co. Inc., and Fire Insurance Exchange (“defendants”)

Resp. Party: Plaintiff Christopher Miazga (“plaintiff”)

Defendants’ demurrer to the complaint is OVERRULED.

Plaintiff’s Objections:

Objection
1 SUSTAINED
2 SUSTAINED
3 SUSTAINED
4 SUSTAINED
5 SUSTAINED
6 SUSTAINED
7 SUSTAINED
8 SUSTAINED
9 SUSTAINED
10 SUSTAINED
11 SUSTAINED
12 SUSTAINED

Defendant’s Request for Judicial Notice is DENIED. (See California Rules of Court, Rule 3.1113(l). Further, judicial notice of Internet pages of even official entities may be improper absent evidentiary foundation showing the following elements: (1) author, (2) date of creation, (3) purpose, (4) reliability, and (5) veracity. (Hartwell Corp. v. Sup. Ct. (2002) 27 Cal.4th 256, 279, fn. 12.)

BACKGROUND:

Plaintiff commenced this action on 5/28/14 against defendants for: (1) breach of contract and (2) breach of duty of good faith and fair dealing. Plaintiff alleges that in October 2009 he was physically attacked by third-party Johnny Sebetic in Sebetic’s home. (Compl., ¶¶ 11-14.) Plaintiff was also physically harmed by Giancarlo Romano, who was also in Sebetic’s home. (Id., ¶¶ 12, 15-16.) Plaintiff alleges that Romano was insured under insurance contracts for which defendants were the insurers, and that plaintiff’s injury met the definition of covered bodily injury under the contracts. (Id., ¶¶ 18-25.) Plaintiff made a timely demand on Romano to pay damages resulting from plaintiff’s injury, and Romano timely notified defendants of plaintiff’s claim. (Id., ¶¶ 27-28.) On 2/14/11, plaintiff filed an action against Romano for claims arising from the injuries, and Romano timely tendered the lawsuit to defendants for defense and indemnification. (Id., ¶¶ 30-31.) Defendants then informed Romano that it was their position that plaintiff’s injury was not covered under the policies, and defendants refused to provide coverage for any damages arising from plaintiff’s injury. (Id., ¶¶ 32-34.) Plaintiff and Romano thereafter entered into a settlement and release of claims, and a judgment was thereafter entered in the amount of $250,000.00. (Id., ¶¶ 35-37.) Pursuant to the settlement agreement, Romano assigned to plaintiff all rights and claims Romano may have against the defendants arising out of their refusal to defend or indemnify Romano. (Id., ¶ 39.)

ANALYSIS:

Defendants demur to the entire complaint and the two causes of action contained therein on the grounds that the complaint is uncertain and fails to allege sufficient facts.

Uncertainty

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 7:85.) “Demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, ¶ 7:85 [citing Khoury, 14 Cal.App.4th at p. 616].)

The complaint is not so uncertain that defendants cannot reasonably respond. The Court rejects defendants’ argument that the complaint is uncertain because it fails to state which defendant issued the “one policy.” (See Dem., p. 4:2-7.) Plaintiff clearly alleges that Romano was the insured under “insurance contracts” (plural) for which all three defendants were the insurers. (Compl., ¶¶ 5, 18.) The Court also rejects defendants’ argument that plaintiff should have attached the underlying complaint, settlement agreement, judgment, or policy. A demurrer merely tests the sufficiency of the pleadings, and supporting evidence not necessary at this point. Plaintiff’s allegations, which are taken as true for the purposes of this demurrer, are sufficient. To the extent that defendants wish to learn more information as to plaintiff’s claims, they may do so during the discovery process.

First Cause of Action for Breach of Contract

“A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) “If the action is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) However, it is not always necessary to attach the contract or allege its terms verbatim. “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)

Plaintiff alleges that Romano was insured under insurance contracts from which the defendants were insurers. (Compl., ¶ 18.) Plaintiff alleges that defendants each had a contractual duty to defend and indemnify Romano for the judgment against him in plaintiff’s underlying lawsuit. (Id., ¶¶ 19-26, 42-43, 45.) Plaintiff alleges that Romano performed under the agreements. (Id., ¶¶ 27-28, 31.) Plaintiff alleges that defendants breached the contracts by failing to tender a defense or indemnification. (Id., ¶¶ 32-34, 44, 46.) Plaintiff alleges he was damaged as a result. (Id., ¶¶ 49-51.) These allegations are sufficient to support the first cause of action.

The Court rejects defendants’ argument that plaintiff lacks standing to sue Farmers Insurance Company because it is not an insuring defendant. Nothing in the complaint establishes that Farmers is not an insuring defendant. Indeed, as stated above, plaintiff clearly alleges that all three defendants were insurers under the insurance contracts. (See Compl., ¶ 18.) Plaintiff also alleges facts which suggest that Farmers is an alter ego of the other defendants. (See id., ¶¶ 6-7.) These allegations are taken as true for the purposes of this demurrer. (See Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 7:5.)

Accordingly, defendants’ demurrer to the first cause of action is OVERRULED.

Second Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing

Defendants’ sole argument as to the second cause of action is that it necessarily fails because the first cause of action fails. (See Dem., p. 5:1-4.) The opposite is also true.

Accordingly, defendants’ demurrer to the second cause of action is OVERRULED.