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This case was last updated from Los Angeles County Superior Courts on 01/15/2021 at 00:24:12 (UTC).

TIFFANIE T. KENNEDY VS USA, INC.

Case Summary

On 07/08/2019 TIFFANIE T KENNEDY filed a Contract - Insurance lawsuit against USA, INC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6300

  • Filing Date:

    07/08/2019

  • Case Status:

    Other

  • Case Type:

    Contract - Insurance

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiffs

KENNEDY TIFFANIE T.

KENNEDY TIFFANIE T

Defendants

USA INC.

USAA INC.

USAA INC

COPART INC

Attorney/Law Firm Details

Defendant Attorneys

MICHAIL MAUREEN M

MOYA REN

 

Court Documents

Notice (name extension) - Notice OF NON-OPPOSITION TO DEFENDANT COPART, INC.'S DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

1/6/2021: Notice (name extension) - Notice OF NON-OPPOSITION TO DEFENDANT COPART, INC.'S DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

Certificate of Mailing for - Certificate of Mailing for (Hearing on Ex Parte Application Motion Continuance) of 01/07/2021

1/7/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Ex Parte Application Motion Continuance) of 01/07/2021

Request for Dismissal - Request for Dismissal

1/11/2021: Request for Dismissal - Request for Dismissal

Notice (name extension) - Notice of Non-Opposition to Demurrer to SAC

1/11/2021: Notice (name extension) - Notice of Non-Opposition to Demurrer to SAC

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

10/1/2020: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

8/4/2020: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

Reply (name extension) - Reply Reply to Opposition to Motion to Strike

3/20/2020: Reply (name extension) - Reply Reply to Opposition to Motion to Strike

Declaration (name extension) - Declaration of Tiffany T Kennedy in Support of Opposition

3/13/2020: Declaration (name extension) - Declaration of Tiffany T Kennedy in Support of Opposition

Declaration (name extension) - Declaration in Support of Opposition

3/13/2020: Declaration (name extension) - Declaration in Support of Opposition

Reply (name extension) - Reply Memorandum of Points and Authorities in Reply to Plaintiff's Opposition to USAA's Motion to Strike Amended Complaint Filed Without Leave of Court, etc.

12/9/2019: Reply (name extension) - Reply Memorandum of Points and Authorities in Reply to Plaintiff's Opposition to USAA's Motion to Strike Amended Complaint Filed Without Leave of Court, etc.

Opposition (name extension) - Opposition Plaintiff's Opposition to Motion to Strike

12/2/2019: Opposition (name extension) - Opposition Plaintiff's Opposition to Motion to Strike

Declaration (name extension) - Declaration of Demurring or Moving Party Regarding Meet and Confer

8/27/2019: Declaration (name extension) - Declaration of Demurring or Moving Party Regarding Meet and Confer

Opposition (name extension) - Opposition Plaintiff's Opposition to Defendant's Demurrer

8/27/2019: Opposition (name extension) - Opposition Plaintiff's Opposition to Defendant's Demurrer

Complaint - Complaint

7/31/2019: Complaint - Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

7/8/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

First Amended Standing Order - First Amended Standing Order

7/8/2019: First Amended Standing Order - First Amended Standing Order

Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

7/8/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

53 More Documents Available

 

Docket Entries

  • 01/13/2021
  • DocketUpdated -- Pursuant to the Request for Dismissal filed by Tiffanie T. Kennedy on 01/11/2021, the Amended Complaint (1st) filed by Tiffanie T. Kennedy on 01/15/2020 is dismissed without prejudice.; The following event(s) is/are advanced to this date and vacated: 01/21/2021 10:30 AM Hearing on Demurrer - with Motion to Strike (CCP 430.10) in Department 26; 02/17/2021 9:30 AM Hearing on Motion to Compel Further Discovery Responses in Department 26; 09/21/2021 8:30 AM Non-Jury Trial in Department 26; 01/13/2021 10:30 AM Hearing on Demurrer - with Motion to Strike (CCP 430.10) in Department 26; 02/17/2021 9:30 AM Hearing on Motion to Compel Further Discovery Responses in Department 26; 07/11/2022 10:30 AM Order to Show Cause Re: Failure to File Proof of Service in Department 26; Prejudice Type changed from With Prejudice to Without Prejudice

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  • 01/12/2021
  • DocketProof of Service by Mail; Filed by: Tiffanie T Kennedy (Plaintiff); Tiffanie T. Kennedy (Plaintiff); As to: USAA, Inc (Defendant); After Substituted Service of Summons & Complaint ?: No

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  • 01/11/2021
  • DocketProof of Service by Mail; Filed by: Tiffanie T. Kennedy (Plaintiff); As to: USA, Inc. (Defendant)

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  • 01/11/2021
  • DocketOn the Amended Complaint (1st) filed by Tiffanie T. Kennedy on 01/15/2020, entered Request for Dismissal with prejudice filed by Tiffanie T. Kennedy as to the entire action

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  • 01/11/2021
  • DocketNotice of Non-Opposition to Motion to Strike Portions of SAC; Filed by: USA, Inc. (Defendant); As to: Tiffanie T. Kennedy (Plaintiff)

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  • 01/11/2021
  • DocketNotice of Non-Opposition to Demurrer to SAC; Filed by: USA, Inc. (Defendant); As to: Tiffanie T. Kennedy (Plaintiff)

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  • 01/11/2021
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 01/13/2021 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/11/2021

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  • 01/11/2021
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 01/21/2021 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/11/2021

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  • 01/11/2021
  • DocketHearing on Motion to Compel Further Discovery Responses scheduled for 02/17/2021 at 09:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/11/2021

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  • 01/11/2021
  • DocketHearing on Motion to Compel Further Discovery Responses scheduled for 02/17/2021 at 09:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/11/2021

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95 More Docket Entries
  • 07/08/2019
  • DocketUpdated -- Complaint: Status Date changed from 07/31/2019 to 07/08/2019

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  • 07/08/2019
  • DocketUpdated -- Amended Complaint (1st): Status Date changed from 10/18/2019 to 07/08/2019

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  • 07/08/2019
  • DocketRequest to Waive Court Fees; Filed by: Tiffanie T. Kennedy (Plaintiff)

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  • 07/08/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Tiffanie T. Kennedy (Plaintiff)

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  • 07/08/2019
  • DocketCivil Case Cover Sheet; Filed by: Tiffanie T. Kennedy (Plaintiff)

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  • 07/08/2019
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 07/08/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 07/08/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 07/08/2019
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 07/08/2019
  • DocketNon-Jury Trial scheduled for 01/04/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 19STLC06300    Hearing Date: January 13, 2021    Dept: 26

Kennedy v. USAA, Inc., et al.

DEMURRER AND MOTION TO STRIKE

(CCP § 430.10, et seq.)

TENTATIVE RULING

Defendant Copart, Inc.’s Demurrer to the Consolidated Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIFTH, SIXTH, AND SEVENTH CAUSES OF ACTION.

Defendant Copart, Inc.’s Motion to Strike Motion Portions of the Consolidated Second Amended Complaint is PLACED OFF CALENDAR AS MOOT.

ANALYSIS:

Plaintiff Tiffanie T. Kennedy (“Plaintiff”), in pro per, filed the action in Case No. 19STLC06300 against Defendants USAA General Indemnity Co. (erroneously sued as USAA, Inc.) (“Defendant USAA”) and Copart, Inc. (“Defendant Copart”) on July 8, 2019. Defendant USAA filed its Answer on August 13, 2019. On October 18, 2019, Plaintiff filed a First Amended Complaint. Plaintiff filed the action in LASC Case No. 19STLC07027 for breach of contract and bad faith against Defendants USAA and Copart on July 31, 2019.

On December 16, 2019, the Court struck the First Amended Complaint filed on October 18, 2019, consolidated the cases with Case No. 19STLC06300 as the lead case, and ordered Plaintiff to file a consolidated First Amended Complaint by January 15, 2020. Plainitff filed the Consolidated First Amended Complaint on January 15, 2020.

On August 4, 2020, the Court ruled on Defendant USAA, Inc.’s Demurrer and Motion to Strike the Consolidated First Amended Complaint, as follows: by sustaining the first and second causes of action for breach of contract, fourth cause of action for breach of implied covenant of good faith and fair dealing, and fifth cause of action for negligence with 30 days’ leave to amend; and by sustaining the third cause of action for negligent misrepresentation, sixth cause of action for fraud and seventh cause of action for conversion without leave to amend. (Minute Order, 8/4/20.)

Plaintiff filed the Consolidated Second Amended Complaint on August 31, 2020.

The Consolidated Second Amended Complaint alleges causes of action for: (1) breach of contract (seeking declaratory relief); (2) tortious breach of the implied covenant of good faith and fair dealing; (3) negligent or intentional misrepresentation; (4) breach of implied covenant of good faith and fair dealing; (5) negligence; (6) fraud; and (7) conversion. As before, Plaintiff alleges that after her parked vehicle was struck by a hit-and-run driver, she received a settlement offer from Defendant USAA that did not comply with California and Texas laws for valuation of the vehicle. Plaintiff also alleges that her vehicle was further damaged by Defendant Copart when stored at its facility.

Demurrer to Consolidated Second Amended Complaint

Defendant Copart, Inc. filed the instant Demurrer to and Motion to Strike Portions of the Consolidated Second Amended Complaint on October 1, 2020. On January 7, 2021, the Court denied Plaintiff’s ex parte application to continue the hearing date on the instant Demurrer and Motion to Strike. To date, no opposition has been filed. A meet and confer declaration accompanies the Demurrer and satisfies the requirements of Code of Civil Procedure section 430.41. (Demurrer, Moya Decl., ¶¶3-5 and Exh. A.)

Defendant Copart, Inc. demurs to the entirety of the Consolidated Second Amended Complaint for uncertainty. Special demurrers, including those for uncertainty, are not permitted in a court of limited jurisdiction. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court will not rule on the demurrer for uncertainty to the entire Consolidated Second Amended Complaint.

Regarding the demurrer for failure to state a cause of action brought against the fifth, sixth and seventh causes of action, the Court will address each cause of action in turn.

5th Cause of Action for Negligence

Negligence requires allegations demonstrating duty, breach, causation and damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) Plaintiff’s allegation is that Defendant Copart, Inc. failed to use reasonable care in storing her vehicle at its facility. (CSAC, ¶88b.) In its demurrer, Defendant Copart, Inc. argues that Plaintiff has not alleged how she sustained damages as a result. Specifically, Plaintiff alleges her vehicle sustained estimated damages of around $5,736.415 , $6,633.336, or $7,923.59, but Defendant USAA, Inc. already offered her more than $8,000.00 under her insurance policy to cover the damages. (CSAC, ¶¶22, 28, 31, 58.)

Plaintiff’s own pleading demonstrates that her policy covered more than the extent of the property damages allegedly sustained by her vehicle at Defendant Copart, Inc.’s facility and that she declined that coverage. It is unclear what other damages Plaintiff is seeking against Defendant Copart, Inc. The Consolidated Second Amended Complaint alleges Plaintiff “suffered general, punitive and special damages to be determined at trial. These include attempts to force an unjust settlement offer, denial of vehicle repairs under the correct coverage of the Policy, closing Plaintiffs claim, Plaintiffs distress Over extra contractual damages and loss of personal property, Plaintiffs distress over insurance coverage disputes, forcing Plaintiff to initiate litigation to receive benefit due under the Policy and it’s laws, and other damages award by the court.” (CSAC, ¶91.) These damages are pertinent only to Defendant USAA’s alleged failure to comply with the policy terms.

Therefore, Defendant Copart, Inc.’s demurrer to the fifth cause of action is sustained without leave to amend.

6th Cause of Action for Fraud

The CSAC alleges that Defendants concealed the fact that they were a dual agency from Plaintiff, which they were obligated to reveal because it created a conflict of interest with regards to handling the claim for additional contributory damages. (CSAC, ¶94.)

The elements of (1) defendant concealed or suppressed a material fact; (2) defendant was under a duty to disclose the fact to the plaintiff; (3) defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (4) plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed or suppressed fact; (5) causation; and (6) the plaintiff sustained damage. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) Additionally, fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)

As Defendant Copart, Inc. argues, the Consolidated Second Amended Complaint does not make any specific allegations of concealment. Instead, Plaintiff broadly alleges that the Defendants had an obligation to reveal their joint enterprise because they owed Plaintiff a fiduciary duty. (CSAC, ¶¶94-95.) No specific allegations are made about Defendants’ duty to disclose this alleged joint agency other than it arises out of an insurance relationship. (Id. at ¶¶68-69.) Nor are facts alleged about Plaintiff’s reliance on the lack of disclosure. (Ibid.) Plaintiff does not allege how failing to know that Defendants were a joint enterprise caused Plaintiff to change her conduct, or if it did, how that changed position resulted in her sustaining damages. (Ibid.)

Therefore, the demurrer to the sixth causes of action is sustained without leave to amend.

7th Cause of Action for Conversion

Plaintiff alleges that after her locked vehicle was towed to Defendant Copart, Inc.’s facility, her personal belongings that were in the vehicle went missing. (CSAC, ¶¶97-100.) Defendant Copart, Inc. allegedly allowed an employee, agent or other person to access the facility and convert Plaintiff’s personal property. (Ibid.) The items were worth $611.60. (Id. at ¶98.)

“The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages....’ [Citation.]” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208.)

Defendant Copart, Inc. argues that the cause of action fails to state a cause of action because it is factually contradictory. Specifically, because Plaintiff alleges that it was Defendant Copart, Inc.’s “agent, employee or a person allowed to enter” its facility. (CSAC, ¶100.) The allegation does not sufficiently state that it was Defendant Copart, Inc.’s wrongful act that converted Plaintiff’s personal property. It indicates that another person, who was not Defendant Copart, Inc.’s agent or employee, could have entered the facility and converted Plaintiff’s personal property.

Therefore, the demurrer to the seventh cause of action is sustained without leave to amend.

Conclusion

Defendant Copart, Inc.’s Demurrer to the Consolidated Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE FIFTH, SIXTH, AND SEVENTH CAUSES OF ACTION.

Motion to Strike

Based on the foregoing ruling on the Demurrer, the Motion to Strike Motion Portions of the Consolidated Second Amended Complaint is PLACED OFF CALENDAR AS MOOT.

Moving party to give notice.

Case Number: 19STLC06300    Hearing Date: August 04, 2020    Dept: 26

Kennedy v. USAA, Inc., et al.

[Consolidated with 19STLC07027]

DEMURRER AND MOTION TO STRIKE

(CCP § 430.10, et seq.)

TENTATIVE RULING

Defendant USAA General Indemnity Co.’s Demurrer to the Consolidated First Amended Complaint is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND AS TO THE FIRST, SECOND, FOURTH AND FIFTH CAUSES OF ACTION, AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE THIRD, SIXTH, AND SEVENTH CAUSES OF ACTION.

Defendant USAA General Indemnity Co.’s Motion to Strike the Request for Punitive Damages in the Consolidated First Amended Complaint is PLACED OFF CALENDAR AS MOOT.

ANALYSIS:

Plaintiff Tiffanie T. Kennedy (“Plaintiff”), in pro per, filed the action in Case No. 19STLC06300 against Defendants USAA General Indemnity Co. (erroneously sued as USAA, Inc.) (“Defendant USAA”) and Copart, Inc. (“Defendant Copart”) on July 8, 2019. Defendant USAA filed its Answer on August 13, 2019. On October 18, 2019, Plaintiff filed a First Amended Complaint. Plaintiff filed the action in LASC Case No. 19STLC07027 for breach of contract and bad faith against Defendants USAA and Copart on July 31, 2019.

On December 16, 2019, the Court struck the First Amended Complaint filed on October 18, 2019, consolidated the cases with Case No. 19STLC06300 as the lead case, and ordered Plaintiff to file a consolidated First Amended Complaint by January 15, 2020. Plainitff filed the Consolidated First Amended Complaint on January 15, 2020. The Complaint alleges causes of action for: (1) breach of contract; (2) breach of contract; (3) negligent misrepresentation; (4) breach of implied covenant of good faith and fair dealing; (5) negligence; (6) fraud; and (7) conversion. Generally, Plaintiff alleges that after her parked vehicle was struck by a hit-and-run driver, she received a settlement offer from Defendant USAA that did not comply with California and Texas laws for valuation of the vehicle. Plaintiff also alleges that her vehicle was further damages by Defendant Copart when stored at its facility.

Demurrer to Consolidated First Amended Complaint

On February 14, 2020, Defendant USAA filed the instant Demurrer. Plaintiff filed an opposition on March 13, 2020 and Defendant USAA replied on March 20, 2020. A meet and confer declaration accompanies the Demurrer and satisfies the requirements of Code of Civil Procedure section 430.41. (Demurrer, Whitten Decl., ¶¶3-5 and Exhs. A-B.)

Defendant USAA demurs to the Consolidated First Amended Complaint on the grounds that that it fails to state sufficient facts and is uncertain. Special demurrers, including those for uncertainty, are not permitted in a court of limited jurisdiction. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court will not rule on the demurrer for uncertainty. Regarding the demurrer for failure to state a cause of action, the Court will address each cause of action in turn.

1st and 2nd Causes of Action for Breach of Contract

A cause of action for breach of contract must allege the following elements: (1) existence of contract; (2) plaintiffs’ performance or excuse for nonperformance; (3) defendants’ breach (or anticipatory breach); and (4) resulting damage. (Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1178.) The Consolidated First Amended Complaint does not properly allege the first two elements of a breach of contract claim. Plaintiff alleges that she held an automobile insurance policy with full coverage of her vehicle through Defendant USAA for the last eight years. (CFAC, p. 12:11-16.) The policy, however, is not attached nor are its terms set forth. Additionally, Plaintiff has not alleged that she fully performed under the policy. Instead, Plaintiff jumps directly to allegations of breach by Defendants. (Id. at pp. 12:3-7, 14:5-10.) Additionally, the alleged breaches are not alleged to be breaches of the terms of any policy, but rather reports and valuations by Defendant USAA that were not in compliance with California and Texas law. (Id. at pp. 12:3-16:24.)

As the Consolidate First Amended Complaint does not allege the elements of a cause of action for breach of contract, the demurrer to the first and second causes of action is SUSTAINED WITH LEAVE TO AMEND.

3rd Cause of Action for Negligent Misrepresentation; 6th Cause of Action for Fraud

“The elements of fraud, which give rise to the tort action for [active] deceit, are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage.” (Conroy v. Regents of Univ. of Cal. (2009) 45 Cal. 4th 1244, 1255.) Negligent misrepresentation, on the other hand, involves an assertion of an untrue fact that Defendant believes to be true, but without a reasonable basis for that belief. (Melican v. Regents of Univ. of Cal. (2007) 151 Cal. App. 4th 168, 182.) As with all fraud causes of action, these must be alleged with particularity as to who made the statements, what was said, when and where the statements were made, and in what form. (Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 73.)

The Consolidated First Amended Complaint does not make any specific allegations of fraud or negligent misrepresentation. Instead, Plaintiff broadly alleges that Defendant USAA made false representations of matters within their personal knowledge intending to deceive Plaintiff and induce her into an unfair settlement. (CFAC, pp. 22:22-27, 25:7-19.) Nor has Plaintiff alleged the necessary element of reliance on Defendant USAA’s false statements because she allegedly rejected its settlement offer. (Id. at p. 5:13-14.) Finally, without allegations that Plaintiff relied on the false statements, there also cannot be any coherent allegation of damage as a result of the fraud.

The demurrer to the third and sixth causes of action are SUSTAINED WITHOUT LEAVE TO AMEND.

4th Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing

A cause of action for breach of the implied covenant of good faith and fair dealing cannot be alleged without proper allegation of the existence of a contract. “The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made…. The covenant thus cannot ‘be endowed with an existence independent of its contractual underpinnings.’” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349 [citations omitted].)

As discussed above, Plaintiff has not alleged the existence of a contractual relationship with Defendant USAA. Therefore, the claim for breach of the implied covenant of good faith and fair dealing cannot survive.

The demurrer to the fourth cause of action is sustained with leave to amend.

5th Cause of Action for Negligence and 7th Cause of Action for Conversion

The negligence and conversion causes of action are based on damages Plaintiff’s vehicle sustained when it was towed by Defendant Copart and stored at its unsecured facility, as well as the loss of personal items that were in the vehicle. (CFAC, pp. 23:23-24:25; 26:1-27:1.)

As Defendant USAA points out in its demurrer, it is unclear on what basis it is liable for Defendant Copart’s alleged negligence and conversion of Plaintiff’s personal belongings. The Consolidated First Amended Complaint alleges that Defendant USAA allowed Plaintiff’s vehicle to be towed by Copart and stored in an unsecured area, but there are no allegations showing Defendant USAA was aware of the unsecured nature of the Defendant Copart’s storage area or that damage to Plaintiff’s vehicle and loss of her personal items was foreseeable.

Negligence requires an allegation of duty, breach, causation and damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) Foreseeability of harm is crucial in determining the existence of a duty of care under the law. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1189.) Here, there are insufficient allegations to show that it was foreseeable to Defendant USAA that Plaintiff’s vehicle would be damaged or Plaintiff’s personal item would be lost. Therefore, the demurrer to the fifth cause of action is sustained with leave to amend.

Regarding conversion, Plaintiff must allege that Defendant USAA disposed of her property. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) There are no allegations that Defendant USAA took Plaintiff’s personal property from her vehicle; the theory of liability is that Defendant USAA is liable for failing to prevent the loss of the property. This is not a proper basis for a conversion cause of action. The demurrer to the seventh cause of action is sustained without leave to amend.

Conclusion

The Demurrer to the Consolidated First Amended Complaint is SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND AS TO THE FIRST, SECOND, FOURTH AND FIFTH CAUSES OF ACTION, AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE THIRD, SIXTH, AND SEVENTH CAUSES OF ACTION.

Motion to Strike

Based on the foregoing ruling on the Demurrer, the Motion to Strike Motion to Strike the Request for Punitive Damages is PLACED OFF CALENDAR AS MOOT.

Moving party to give notice.

Case Number: 19STLC06300    Hearing Date: December 16, 2019    Dept: 94

Kennedy v. USAA, Inc., et al.

DEMURRER AND MOTION TO STRIKE

(CCP § 430.10, et seq.)

TENTATIVE RULING

Defendant USAA General Indemnity Co.’s Motion to Strike in LASC Case No. 19STLC06300 is GRANTED. THE FIRST AMENDED COMPLAINT FILED ON OCTOBER 18, 2019 IS STRUCK.

Defendant USAA General Indemnity Co.’s Demurrer and Defendant Copart, Inc.’s Motion to Strike in LASC Case No. 19STLC07027 are PLACED OFF CALENDAR.

LASC Case No. 19STLC06300 and LASC Case Nos. 19STLC07027 ARE CONSOLIDATED FOR ALL PURPOSES WITH LASC CASE NO. 19STLC06300 TO BE THE LEAD CASE. ALL FUTURE FILINGS ARE TO BE UNDER THE LEAD CASE NUMBER. ALL FUTURE DATES IN LASC CASE NO. 19STLC07027, ARE VACATED.

PLAINTIFF IS ORDERED TO FILE A FIRST AMENDED COMPLAINT CONSOLIDATING THE CLAIMS IN CASE NO. 19STLC06300 AND CASE NO. 19STLC07027.

ANALYSIS:

Demurrer and Motion to Strike in Case No. 19STLC07027

Plaintiff Tiffanie T. Kennedy (“Plaintiff”) filed the action in LASC Case No. 19STLC07027 for breach of contract and bad faith against Defendants USAA General Indemnity Co. (erroneously sued as USAA, Inc.)  (“Defendant USAA”) and Copart, Inc. (“Defendant Copart”) on July 31, 2019. On September 30, 2019, Defendant Copart filed the instant Motion to Strike Portions of the Complaint. On October 25, 2019, Defendant USAA filed the instant Demurrer. Plaintiff filed an opposition to the Motion to Strike on December 2, 2019.

Meet and confer declarations, which accompany both the Demurrer and Motion to Strike, satisfy the requirements of Code of Civil Procedure sections 430.41 and 439. (Demurrer, Michail Decl., ¶¶5-7; Motion to Strike, Moya III Decl., ¶3.)

Defendant USAA demurs to the Complaint on the grounds that that there is another action pending between the same parties on the same claims, the Complaint fails to state sufficient facts and is uncertain. Code of Civil Procedure section 430.10, subdivision (c) states that a a demurrer may be brought where “[t]here is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).) Here, Plaintiff previously filed an action on July 8, 2019—Kennedy v. USAA, Inc., LASC Case No. 19STLC06300—against Defendant USAA alleging the same facts, namely that she was damaged by their conduct following damage caused to her vehilce by an unidentified vehilce. Both cases revolve around Defendants’ liability for the damage to Plaintiff’s vehilce, whether caused by an unidentified driver or by the company that towed Plaintiff’s vehilce following the accident. The claims alleged, however, are not identical, as the Complaint here alleges negligence, fraud, and conversion. (Compl., ¶¶9-25.) The Complaint in Case No. 19STLC06300 only alleges breach of contract and bad faith. (Case No. 19STLC06300 Compl., ¶¶8-25.)

In light of the foregoing, the Court on its own motion consolidates the actions under Code of Civil Procedure section 1048 for all purposes. Specifically, Code of Civil Procedure section 1048, subdivision (a) provides that “[w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Code Civ. Proc., § 1048, subd. (a).) Given that both cases arise out of the same set of facts and involve common questions of law and fact, consolidation is appropriate to conserve the resource of both the Court and the parties.

Case No. 19STLC06300 is designated the lead case.

Motion to Strike in Case No. 19STLC06300

Plaintiff filed the action in Case No. 19STLC06300 on July 8, 2019. Defendant USAA filed its Answer on August 13, 2019. On October 18, 2019, Plaintiff filed a First Amended Complaint. Defendant USAA filed the instant Motion to Strike the First Amended Complaint on October 28, 2019. Defendant USAA moves the strike the First Amended Complaint on the grounds that it was filed without leave of Court.

A plaintiff may amend a complaint once as a matter of right “at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon . . . .” (Code Civ. Proc., § 472, subd. (a).) Here, where Defendant USAA filed only an Answer to the Complaint, Plaintiff’s right to amend was thereafter cut off. An amendment to the Complaint after the filing of the Answer may only be upon leave of Court.

As the Court has not given Plaintiff leave to file an amended Complaint, the First Amended Complaint filed on October 18, 2019 is hereby struck. To the extent Plaintiff’s opposition seeks leave to amend, Plaintiff is ordered to file a First Amended Complaint consolidating the claims in Case No. 19STLC06300 and Case No. 19STLC07027. This will allow Defendants to challenge the propriety of any of the allegations or claims therein in a single action.

Conclusion

Defendant USAA General Indemnity Co.’s Motion to Strike in LASC Case No. 19STLC06300 is GRANTED. THE FIRST AMENDED COMPLAINT FILED ON OCTOBER 18, 2019 IS STRUCK.

Defendant USAA General Indemnity Co.’s Demurrer and Defendant Copart, Inc.’s Motion to Strike in LASC Case No. 19STLC07027 are PLACED OFF CALENDAR.

LASC Case No. 19STLC06300 and LASC Case Nos. 19STLC07027 ARE CONSOLIDATED FOR ALL PURPOSES WITH LASC CASE NO. 19STLC06300 TO BE THE LEAD CASE. ALL FUTURE FILINGS ARE TO BE UNDER THE LEAD CASE NUMBER. ALL FUTURE DATES IN LASC CASE NO. 19STLC07027, ARE VACATED.

PLAINTIFF IS ORDERED TO FILE A FIRST AMENDED COMPLAINT CONSOLIDATING THE CLAIMS IN CASE NO. 19STLC06300 AND CASE NO. 19STLC07027.

Moving party to give notice.