Case Number: BC716329 Hearing Date: August 20, 2019 Dept: 4A

Demurrer to Second Amended Complaint; Motion to Strike

Having considered the moving, opposition, and reply papers, the Court rules as follows.

BACKGROUND

On August 1, 2018, Plaintiff Leslie Blakeney (“Plaintiff”) filed a complaint against Defendant Sergio Garcia, alleging negligence and negligence per se for a vehicle collision that occurred on August 5, 2016.

On November 16, 2018, Plaintiff amended her complaint to name Defendant Manuela T. Garcia as Doe 1.

On February 19, 2019, Plaintiff filed a First Amended Complaint (“FAC”) to add a cause of action for negligent entrustment.

On April 5, 2019, Defendants Sergio Garcia and Manuela T. Garcia (collectively “Defendants”) filed a motion to strike punitive damages and attorney’s fees from Plaintiff’s FAC. On May 6, 2019, the Court granted the motion to strike with leave to amend.

On June 3, 2019, Plaintiff filed a Second Amended Complaint (“SAC”), adding a cause of action for fraud/intentional misrepresentation.

On July 16, 2019, Defendants filed the instant demurrer to SAC and motion to strike. Plaintiff filed opposition papers on August 5, 2019. Defendants filed reply papers on August 12, 2019.

PARTY’S REQUESTS

Defendants request an order sustaining the demurrer to the fourth cause of action. Defendants also request an order striking punitive damages from the SAC.

LEGAL STANDARD

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code of Civ. Proc. § 430.41.)

Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

California Code of Civil Procedure section 435.5 requires that, before filing a motion to strike, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject of the motion for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 435.5, subd. (a)(2).) The party must also file and serve a declaration detailing the meet and confer efforts. (Code Civ. Proc. § 435.5, subd. (a)(3).)

DISCUSSION

Meet and Confer

The Court finds that Defendants have sufficiently met and conferred prior to filing the demurrer and motion to strike. (Both Dacey Decls., ¶¶ 4-5.)

Demurrer

Defendants demur to the fourth cause of action for fraud/intentional misrepresentation on grounds that Plaintiff has failed to allege sufficient facts as to causation and damages.

In opposition, Plaintiff argues that her fourth cause of action alleges a cause of action for insurance fraud under Penal Code section 548, not civil fraud.

In reply, Defendants argue that Penal Code section 548 is a criminal statute that does not provide a private right of action to Plaintiff.

As a preliminary matter, the Court notes that although the caption provides that the fourth cause of action is for fraud/intentional misrepresentation, the body of the SAC clarifies that the fourth cause of action is for insurance fraud pursuant to California Penal Code section 548. The Court will thus address whether Plaintiff has stated a claim for violation of Penal Code section 548.

California Penal Code section 548 provides that “[e]very person who willfully injures, destroys, secretes, abandons, or disposes of any property which at the time is insured against loss or damage by theft, or embezzlement, or any casualty with intent to defraud or prejudice the insurer, whether the property is the property or in the possession of that person or any other person, is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or five years and by a fine no exceeding fifty thousand dollars ($50,000).” (Pen. Code, § 548(a).)

The Court finds Defendants’ argument made in reply to be meritorious. Penal Code section 548 provides for punishment by imprisonment and a fine. Plaintiff provides no authority authorizing a civil claim to be brought for a violation of Penal Code section 548. Given that there is no civil cause of action for violation of Penal Code section 548, Plaintiff has failed to state this cause of action against Defendants.

The Court notes that the plaintiffs in People ex rel. Allstate Insurance Company v. Suh (2019) 37 Cal.App.5th 253, cited by Plaintiff in the opposition, brought the violation of Penal Code section 550 claim on behalf of the State of California pursuant to Insurance Code section 1871.7. Insurance Code section 1871.7 permits any interested persons, including an insurer, to bring a civil action for violation of Penal Code sections 549, 550, or 551 for the person and for the State of California. (Ins. Code, § 1871.7(e)(1).) However, such an action must be brought in the name of the State. (Id.) Section 1871.7 also sets forth procedural requirements that must be satisfied for such actions, specifically serving a copy of the complaint and written disclosure of substantially all material evidence and information the person possesses on the district attorney and commissioner and filing the complaint in camera under seal for at least 60 days and not serving the defendant with the complaint until ordered to do so by the court. (Id., § 1871.7(e)(2).) This action was not brought in the name of the State nor are there any indications that it is compliant with section 1871.7(e)(2).

Given that there is no civil cause of action arising from the violation of Penal Code section 548 and this action was not commenced in the name of the State or otherwise compliant with Insurance Code section 1871.7(e)(2), the Court finds Plaintiff cannot successfully amend to state this cause of action against Defendants.

Therefore, the demurrer to the fourth cause of action is SUSTAINED without leave to amend.

Motion to Strike

Defendants move to strike Plaintiff’s claims for punitive damages on grounds that there are insufficient facts to support an award of punitive damages.

Given that the demurrer to the fourth cause of action is sustained, the motion to strike paragraph 82 is MOOT.

As for the motion to strike paragraphs 40 and 70 and the prayer for punitive damages, the Court finds Plaintiff has failed to allege sufficient facts to support an award of punitive damages. Plaintiff relies on allegations of Defendant Sergio Garcia’s prior two convictions for driving under the influence in June 2007 and February 2010 and his attempt to leave the scene of the accident and Defendant Manuela T. Garcia’s knowledge of Sergio’s prior convictions and history of drinking and driving to support the claims for punitive damages under the negligence and negligence entrustment causes of action. As discussed in the Court’s May 6, 2019 minute order, these allegations are insufficient to support a prayer for punitive damages against either defendant. Therefore, the motion to strike paragraphs 40, 70, and prayer for punitive damages is GRANTED without leave to amend.

Defendant is ordered to give notice of the Court’s ruling.