Case Number: BC522054    Hearing Date: October 31, 2014    Dept: NCD

TENTATIVE RULING (10/31/14)
#8
BC 522054
LANDETA v. ROBERT MORENO INSURANCE SERVICES

Demurrer by Defendants Robert Moreno Insurance Services, Robert Benjamin Moreno and Insurance Company of the West to Plaintiff’s Complaint

TENTATIVE:
Demurrer is OVERRULED to the third cause of action for breach of contract, and fifth cause of action for promissory estoppel.

At the concession of plaintiff, demurrer is SUSTAINED to the fourth cause of action for specific performance, sixth cause of action for equitable estoppel, and seventh cause of action for breach of implied covenant of good faith and fair dealing.

Demurrer is SUSTAINED to the eighth cause of action for intentional misrepresentation on the ground the fraud is not stated with sufficient specificity as to each defendant, and particularly as against the corporate defendants.

Demurrer is SUSTAINED to the ninth cause of action for negligent misrepresentation on the ground the claim, which plaintiff appears to concede is for negligent false promise, is not a claim recognized in California—as false promise is an intentional tort.

At the concession of plaintiff, motion to strike prayer for attorneys’ fees is GRANTED without leave to amend.

Motion to strike claims for punitive damages is GRANTED, as the fraud claim is not alleged with sufficient specificity.

Ten days leave to amend, if possible.

RELIEF REQUESTED:
Sustain demurrer to third through ninth causes of action of Complaint
Strike claims for attorneys’ fees and punitive damages

CAUSES OF ACTION: from Complaint
1) Negligence
2) Negligence Per Se
3) Breach of Contract
4) Specific Performance
5) Promissory Estoppel
6) Equitable Estoppel
7) Breach of the Covenant of Good Faith and Fair Dealing
8) Intentional Misrepresentation
9) Negligent Misrepresentation

SUMMARY OF FACTS:
Plaintiff Fabian Landeto alleges that on May 12, 2011, he was involved in a traffic collision when defendant Jesus Espana driving a vehicle with the permission of its owner defendant Salvador Espana, made an illegal left turn in front of plaintiff, as a result of which plaintiff suffered severe damage to his vehicle and severe personal injuries. Plaintiff alleges that his representative, Andrew Sigal, sent a demand letter to Salvador Espana’s insurance carrier’s representative, defendant Robert Moreno Insurance Services (“RMI”). The insurance carrier is defendant Insurance Company of the West (“ICW”). Plaintiff alleges that ICW offered Espana $15,000 policy limits, in exchange for a full release to include both Salvador Espana and Jesus Espana. Plaintiff requested that Jesus’ name be removed from the release, but defendants replied that they would not pay policy limits for a release that did not name both the insured and permissive driver.

Plaintiff alleges that on April 16, 2013 he accepted the offer via electronic mail, and a copy of a General Release was mailed to Sigal, who forwarded it to plaintiff, who was in the middle of a cross-country move. On May 24, 2013, RMI/ICW mailed a letter informing plaintiff that the statute of limitations had run, and that it would no longer issue a settlement check. On May 24, 2013, Sigal sent RMI and ICW a copy of plaintiff’s executed release and requested that defendants honor their agreement, but they have declined to do so.

ANALYSIS:
Fourth Cause of Action—Specific Performance, Sixth Cause of Action—Equitable Estoppel, and Seventh Cause of Action— Breach of Implied Covenant of Good Faith and Fair Dealing
The opposition indicates that plaintiff concedes that these causes of action are not valid and that plaintiff will amend the complaint if the court grants leave to do so. The demurrer to these causes of action is therefore sustained with one opportunity to amend, if possible.

Third Cause of Action—Breach of Contract
Defendants argue that this claim is insufficiently stated because it appears from the pleading that there was no offer which was on the table when plaintiff purportedly accepted the offer.

As pointed out in the opposition, the pleading alleges that a contract was formed, and the details alleged do not foreclose the possibility that a contract was formed as alleged. The pleading alleges that in response to defendants’ reply that it would not pay policy limits for a release that did not name both the insured and permissive driver, plaintiff accepted the offer to accept only $15,000 and sign such a release (evidently conditioned on Jesus Espana signing a declaration that he had no other insurance). [See paras. 19, 20]. The complaint also alleges facts showing that there was mutual intent to enter into such an agreement, as defendants returned an executed version of the declaration, and mailed a copy of a general release, conduct which could evidence the formation of a contract. While it may ultimately be determined that there was no offer and acceptance, that is not the proper function of demurrer when there are competing inferences to be drawn from the facts alleged. The demurrer is therefore overruled.

Fifth Cause of Action—Promissory Estoppel
Here, the cause of action is asserted basically to estop defendants from relying on the bar of the statute of limitations.

Defendants argue that there is no clear and unambiguous promise here for the same reasons they argue that no contract was formed—in effect, there was no offer for plaintiff to accept, and so no contract formation. As noted above, the pleading does not on its face show that there was no contract formation, and the promise here, to settle the matter for the payment of policy limits of $15,000 in exchange for a release of both the insured and the driver, appears fairly clear and unambiguous. [Para. 64]. The demurrer is therefore overruled.

Eighth Cause of Action—Intentional Misrepresentation
To state a cause of action for fraud, plaintiff must plead the following elements: A false representation, actual or implied, or concealment of a matter of fact material to the transaction which defendant had a duty to disclose, or defendant’s promise made without intention to perform; defendant’s knowledge of the falsity; defendant’s intent to deceive; plaintiff’s justifiable reliance thereon; and resulting damage to plaintiff. Pearson v. Norton (1964) 230 Cal.App.2d 1; Witkin §668 et seq.; Judicial Council Form 982.1 (23).

Generally, in a fraud cause of action, a plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. When such a claim is made against a corporation, the level of specificity required is even higher. Under Lazar v. Superior Court, (1996) 12 Cal.4th 631, 645, in fraud complaints against a corporation, a plaintiff must allege all of the following:
-the names of the persons who made the misrepresentation;
-their authority to speak for the corporation;
-to whom they spoke;
-what they said or wrote; and
-when it was said or written.

The pleading alleges a false promise claim, alleging that each of the defendants “falsely represented that they agreed to settle Plaintiff’s claims for $15,000.” [Para. 81]. The claim is brought against “defendants” without specifying which defendant made false promises, to whom, what was said, where or when, or any of the other pertinent details.

The opposition argues that defendants have greater knowledge of the details here, and that such details are spelled out in the attached correspondence and e-mails. This does not appear to be a situation, however, where defendants would be in a better position to know the details that plaintiff is claiming give rise to a false promise, and it is not alleged that the only representations at issue are those reflected in writing in the various documents. The demurrer is sustained with leave to amend to allege the claim against each defendant alleged to be responsible with specificity.

Ninth Cause of Action—Negligent Misrepresentation
Again, this cause of action is not pleaded with particularity. In addition, as defendants argue, the claim appears to be one for negligent false promise. There is authority under which a promise to perform in the future, even if pleaded, is held cannot support a cause of action for negligent misrepresentation. Tarmann v. State Farm (1991) 2 Cal.App.4th 153, 159.

Plaintiff argues that the claim is sufficiently stated and that there is a recognized cause of action for negligent misrepresentation. Plaintiff does not address the authority under which there is no recognized claim for negligent false promise, but appears to concede that this is the theory. The demurrer is therefore sustained without leave to amend.

Motion to Strike
Attorneys’ Fees
Plaintiff concedes in the opposition that attorneys’ fees are not appropriately sought. The motion is therefore granted.

Punitive Damages
Defendants seek to strike the claims for punitive damages. Civil Code § 3294 authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud or malice.”

As argued in the opposition, although a properly pleaded fraud claim will generally support a recovery of punitive damages, here the fraud claim is not sufficiently stated, so the motion to strike is granted.