Case Number: BC514297 Hearing Date: June 25, 2014 Dept: 34

Moving Party: Defendant Western General Insurance Company (“defendant”)

Resp. Party: None

Defendant’s demurrer to the first amended complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

PRELIMINARY COMMENTS:

Defendant’s demurrer to Plaintiff’s FAC is unopposed. This is not the first time that Plaintiff has opted not to oppose a demurrer. On 3/20/14, the Court sustained defendant’s unopposed demurrer to the complaint. Plaintiff did not appear at the hearing on the demurrer.

At the time of the previous demurrer, the Court stated, in response to Plaintiff’s lack of opposition to the demurrer:

“The Court finds such silence to be troubling. If plaintiff believed that the demurrer should be overruled, the court would expect that she would have filed an opposition. If plaintiff agreed that the complaint needed to be amended, the court would expect that she would have filed a first amended complaint, or otherwise notified the court that she planned on amending the complaint, so that the court and its staff would not have had to spend the time analyzing a demurrer to a complaint that even plaintiff agrees must be amended.”

Yet once again, plaintiff has chosen not to oppose the demurrer. The Court has taken this fact into consideration in deciding not to grant plaintiff yet another leave to amend.

BACKGROUND:

Plaintiff commenced this action on 7/8/13 against defendant for breach of contract, breach of the covenant of good faith and fair dealing, and declaratory relief.

On 3/20/14, the Court sustained defendant’s unopposed demurrer to the complaint. Plaintiff did not appear at the hearing. Plaintiff filed a first amended complaint on the same day.

Plaintiff alleges that she was insured under an automobile insurance policy for which defendant was the insurer. (FAC ¶ 6.) During the coverage period, plaintiff was involved in a motor vehicle collision with an uninsured driver. (Id., ¶¶ 7, 9-12.) Plaintiff notified defendant of the fact that the other driver was uninsured and submitted a settlement demand. (Id., ¶¶ 13-15.) Plaintiff alleges that the essential terms of the policy were for defendant to pay plaintiff for the damages pursuant to the uninsured motorist coverage of the policy. (Id., ¶ 16.) Plaintiff alleges that defendant engaged in delay tactics which caused her submit a demand for UM Arbitration. (Id., ¶¶ 19-25.) Plaintiff discusses discovery disputes between the parties in this arbitration. (Id., ¶¶ 29-39.)

On 2/4/14, the Court determined that this action was related to case number 13K07335.

ANALYSIS:

Jurisdiction

Defendant first argues that this Court does not have jurisdiction because the court in case number 13K07335 has sole jurisdiction to decide plaintiff’s claims as to discovery disputes. When this Court determined on 2/4/14 that the two cases are related, the Court assigned the cases to the instant department. (See Minute Order, 2/4/14.) Therefore, the Court does have jurisdiction to determine discovery disputes arising in both actions.

Defendant also argues that such disputes should be submitted to arbitration. (See Ins. Code, § 11580.2(f).) Defendant has not moved to compel plaintiff’s claims to arbitration. The Court declines to determine this issue on a demurrer.

First Cause of Action for Breach of Contract

The essential elements of a breach of contract claim are “(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.” (Reichert v. General Ins. Co. of America (1968) 68 Cal.2d 822, 830.) 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.)

The only facts alleged as to the terms of the policy are that defendant was obligated to pay for plaintiff’s economic and non-economic damages. (See FAC ¶ 16.) Plaintiff fails to clearly allege that defendant breached this obligation. Though plaintiff makes the conclusory allegation that defendant has not paid for these damages, the other allegations suggest that the parties are still litigating this dispute in the UM Arbitration. (See id., ¶¶ 25-38, 42, 46.) The only other alleged breaches are that defendant made unnecessary demands and delayed in adjusting the claim. (See id., ¶¶ 20-23, 40-41, 45.) Plaintiff fails to allege that the policy required or prohibited such conduct.

Accordingly, defendant’s demurrer to the first cause of action is SUSTAINED.

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

“[W]hen an insurer ‘fails to deal fairly and in good faith with its insured by refusing, without proper cause, to compensate its insured for a loss covered by the policy, such conduct may give rise to a cause of action in tort for breach of an implied covenant of good faith and fair dealing.’ [Citation.]” (Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 920.) “ ‘[T]he ultimate test of [bad faith] liability in the first party cases is whether the refusal to pay policy benefits was unreasonable.’ [Citation.] ‘[B]efore an [insurer] can be found to have acted tortiously, i.e., in bad faith, in refusing to bestow policy benefits, it must have done so “without proper cause.” ’ [Citation.]” (Morris v. Paul Revere Life Ins. Co. (2003) 109 Cal.App.4th 966, 973.) If an investigation would have disclosed information which would render the insurer’s doubts unreasonable, the insurer may be liable for breach of the covenant of good faith and fair dealing by failing to investigate, regardless of whether the insurer honestly harbored doubts. (See Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720-721.)

Plaintiff makes the conclusory allegation that defendant’s failure to properly and reasonably adjust the claim breached the covenant of good faith and fair dealing. (FAC ¶¶ 20-23, 53.) Plaintiff has not alleged facts which show that defendant was unreasonable in denying plaintiff’s claim or engaging in discovery disputes with plaintiff in the UM action.

Accordingly, defendant’s demurrer to the second cause of action is SUSTAINED.

Third Cause of Action for Declaratory Relief

In the third cause of action, plaintiff seeks a declaration as to the rights and obligations of the parties under the insurance policy. (See FAC ¶¶ 57-58.) However, plaintiff fails to allege the terms of the agreement which support any dispute. As stated above, the only contract term alleged by plaintiff is the obligation to pay damages, and the dispute as to this obligation is apparently being addressed in the UM action. (See FAC ¶¶ 16, 25-38.) It is unclear what present dispute over the contract terms remains that is not being address in that action.

Accordingly, defendant’s demurrer to the third cause of action is SUSTAINED.

This case was filed almost one year ago. This is the second demurrer to this action. As indicated more fully above in the Court’s “Preliminary Comments,” Plaintiff has chosen not to oppose either demurrer.

The Case is dismissed.