Case Name:   Paramo v. Maria Elena’s Restaurant, et al.

Case No.:       1-12-CV-230170

Defendants Golden Eagle Insurance Corporation and Liberty Mutual Insurance Company (collectively, “Defendants”) demur to the first, second, third, fourth, and fifth causes of action in the Third Amended Complaint (“TAC”) of plaintiff Orlando D. Paramo (“Plaintiff”).

Defendants request that the Court take judicial notice of the following documents:

• ISO Commercial General Liability Coverage Form, form number CG 00 01 10 01, an excerpt of which is found in Taylor Gold, LLC’s policy, policy number CBP 9502539, issued by Golden Eagle; and

• Santa Clara County Superior Court Docket for this action, Paramo v. Anaya, et al., Case No. 1-12-CV-230170.

Defendants’ request for judicial notice is DENIED as to the first document.  Plaintiff has attached an insurance policy to the TAC and it is not apparent from the request for judicial notice that the ISO Commercial General Liability Coverage Form is also part of the same policy.  The request itself states that only an excerpt of the Commercial General Liability Coverage Form is included in Taylor Gold, LLC’s policy and it is not specified what the excerpt includes.

Defendants’ request for judicial notice is GRANTED as to the docket.  (Evid. Code, § 452, subd. (h).)

The first cause of action is for breach of contract.  Defendants argue, inter alia, that Plaintiff was required to report expenses incurred to Defendants within one year of the accident and Plaintiff has not alleged compliance with this requirement.  This argument is based on a provision in the relevant Commercial General Liability Coverage Form.  However, this document is not attached to the TAC and, as stated above, the Court does not take judicial notice of this document.  Therefore, the terms of the Commercial General Liability Coverage Form are not properly before the Court and cannot be considered on demurrer.

Nevertheless, while Plaintiff has attached portions of the underlying insurance policy to the TAC, it appears that Plaintiff has not attached the entire policy.  As argued by Defendants, if a breach of contract cause of action relies on a written contract, then generally the contract must be set out verbatim in the body of the complaint or as a copy attached and incorporated by reference.  (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459, citing Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59.)  Plaintiff has not attached the entire policy or alleged the substance of all relevant terms.  Accordingly, Defendants’ demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The second cause of action is for fraud and deceit and the third cause of action is for intentional and negligent misrepresentation.  Fraud must be pleaded specifically; general and conclusory allegations do not suffice.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  “The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”  (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)  Plaintiff alleges Defendants made “false representations,” but provides no specifics.  (See TAC, ¶¶ 30, 37.)  Plaintiff’s allegations are conclusory and devoid of any facts to support these causes of action.  Accordingly, Defendants’ demurrer to the second and third causes of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The fourth cause of action is for violation of California Civil Code section 1559 (insurance bad faith) and the fifth cause of action is for breach of the covenant of good faith and fair dealing.  As alleged by Plaintiff, these causes of action rely on the viability of the breach of contract cause of action.  In fact, the fifth cause of action sets forth no facts at all, but simply incorporates the prior allegations of the TAC, leaving the Court to speculate as to what conduct is at issue in this cause of action.  Accordingly, Defendants’ demurrer to the fourth and fifth causes of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

Defendants move to strike certain allegations in the TAC that refer to Kit Lai, Ping Lai, and Taylor Gold, LLC as “defendants.”  Kit Lai, Ping Lai, and Taylor Gold, LLC are no longer defendants as their demurrer to Plaintiff’s Second Amended Complaint was sustained without leave to amend.  Therefore, referring to them as “defendants” is improper.  Defendants’ motion to strike is GRANTED WITHOUT LEAVE TO AMEND.