This case was last updated from Los Angeles County Superior Courts on 10/19/2020 at 08:18:23 (UTC).

THE TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY VS ELI'S AUTO CENTER II, INC., A CALIFORNIA CORPORATION

Case Summary

On 02/11/2019 THE TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY filed a Contract - Business lawsuit against ELI'S AUTO CENTER II, INC , A CALIFORNIA CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and RUPERT A. BYRDSONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4753

  • Filing Date:

    02/11/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CHRISTOPHER K. LUI

RUPERT A. BYRDSONG

 

Party Details

Plaintiff and Cross Defendant

THE TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY

Defendants

ELI'S AUTO CENTER II INC. A CALIFORNIA CORPORATION AKA ELI'S COLLISION REPAIR AKA ELI'S AUTO CENTER

ELI'S AUTO CENTER II INC. AKA ELI'S COLLISION REPAIR AKA ELI'S AUTO CENTER

Cross Plaintiffs

ELI'S AUTO CENTER II INC. A CALIFORNIA CORPORATION

ELI'S AUTO CENTER II INC.

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

BADAWI SUZANNE

BROOKS JOHN T.

Defendant and Cross Plaintiff Attorneys

BERBERICH DANIEL FRANCIS

BERBERICH DANIEL

 

Court Documents

Declaration - DECLARATION OF DANIEL BERBERICH IN SUPPORT OF MOTION TO RECLASSIFY

8/20/2020: Declaration - DECLARATION OF DANIEL BERBERICH IN SUPPORT OF MOTION TO RECLASSIFY

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT); TRIAL SETTING...)

8/3/2020: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT); TRIAL SETTING...)

Answer

7/16/2020: Answer

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 07/01/2020

7/1/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 07/01/2020

Reply - REPLY THE TRAVELERS PROPERTY CASUALTY INSURANCE COMPANYS REPLY IN SUPPORT OF ITS DEMURRER TO CROSSCOMPLAINT

4/21/2020: Reply - REPLY THE TRAVELERS PROPERTY CASUALTY INSURANCE COMPANYS REPLY IN SUPPORT OF ITS DEMURRER TO CROSSCOMPLAINT

Proof of Service (not Summons and Complaint)

3/17/2020: Proof of Service (not Summons and Complaint)

Declaration - DECLARATION OF SUZANNE BADAWI

3/17/2020: Declaration - DECLARATION OF SUZANNE BADAWI

Notice of Case Management Conference

2/20/2019: Notice of Case Management Conference

Order to Show Cause Failure to File Proof of Service

2/20/2019: Order to Show Cause Failure to File Proof of Service

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: NOTICE OF SETTLEMENT OF ENTIRE CASE) OF 02/20/2020

2/20/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: NOTICE OF SETTLEMENT OF ENTIRE CASE) OF 02/20/2020

Demurrer - without Motion to Strike - DEMURRER - WITHOUT MOTION TO STRIKE TO CROSS-COMPLAINT

9/3/2019: Demurrer - without Motion to Strike - DEMURRER - WITHOUT MOTION TO STRIKE TO CROSS-COMPLAINT

Answer - ANSWER TO SECOND AMENDED COMPLAINT

7/30/2019: Answer - ANSWER TO SECOND AMENDED COMPLAINT

Case Management Statement

7/23/2019: Case Management Statement

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

7/25/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Case Management Statement

7/10/2019: Case Management Statement

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE; CAS...)

5/20/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE; CAS...)

Summons - Summons on Complaint

2/11/2019: Summons - Summons on Complaint

Complaint

2/11/2019: Complaint

41 More Documents Available

 

Docket Entries

  • 10/19/2020
  • Hearing10/19/2020 at 09:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal (Settlement)

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  • 10/19/2020
  • Hearing10/19/2020 at 09:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 10/19/2020
  • Hearing10/19/2020 at 09:30 AM in Department 76 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Reclassify (Walker Motion)

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  • 10/07/2020
  • Docketat 10:00 AM in Department 28, Rupert A. Byrdsong, Presiding; Voluntary Settlement Conference - Held

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  • 10/07/2020
  • Docketat 1:30 PM in Department 28, Rupert A. Byrdsong, Presiding; Non-Appearance Case Review - Not Held - Vacated by Court

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  • 10/07/2020
  • Docketat 1:30 PM in Department 76, Christopher K. Lui, Presiding; Non-Appearance Case Review - Not Held - Vacated by Court

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  • 10/07/2020
  • DocketMinute Order ( (Voluntary Settlement Conference)); Filed by Clerk

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  • 10/07/2020
  • DocketStatement of Policies and Procedures for Mandatory Settlement Conferences; Acknowledgment of Receipt and Stipulation; Filed by Clerk

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  • 09/21/2020
  • Docketat 08:30 AM in Department 76, Christopher K. Lui, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Continued - Court's Motion

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  • 09/21/2020
  • Docketat 08:30 AM in Department 76, Christopher K. Lui, Presiding; Trial Setting Conference - Not Held - Continued - Court's Motion

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64 More Docket Entries
  • 04/05/2019
  • DocketAmended Complaint 1st; Filed by The Travelers Property Casualty Insurance Company (Plaintiff)

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  • 02/27/2019
  • DocketProof of Service by Substituted Service; Filed by The Travelers Property Casualty Insurance Company (Plaintiff)

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  • 02/27/2019
  • DocketProof of Mailing (Substituted Service); Filed by The Travelers Property Casualty Insurance Company (Plaintiff)

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  • 02/20/2019
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/20/2019
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 02/11/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 02/11/2019
  • DocketCivil Case Cover Sheet; Filed by The Travelers Property Casualty Insurance Company (Plaintiff)

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  • 02/11/2019
  • DocketAffidavit (Affidavit of Venue Pursuant to CCP Section 1780(d) in Support of Complaint); Filed by The Travelers Property Casualty Insurance Company (Plaintiff)

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  • 02/11/2019
  • DocketSummons (on Complaint); Filed by The Travelers Property Casualty Insurance Company (Plaintiff)

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  • 02/11/2019
  • DocketComplaint; Filed by The Travelers Property Casualty Insurance Company (Plaintiff)

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Tentative Rulings

Case Number: 19STCV04753    Hearing Date: June 24, 2020    Dept: 76

STATEMENT OF FACTS

Plaintiff insurance company alleges that Defendants charged illegal fees in connection with repairs of insureds’ vehicles, and collected those fees pursuant to the policies.

Defendant Eli’s Auto Center II, Inc. filed a Cross-Complaint alleging that Plaintiff misrepresented that it would pay a certain amount to release an insured’s vehicle from the shop, and then protested the entire payment after picking up the vehicle from the shop.

Plaintiff/Cross-Defendant The Travelers Property Casualty Insurance Company demurs to the Cross-Complaint.

RECOMMENDED TENTATIVE RULING

Plaintiff/Cross-Defendant The Travelers Property Casualty Insurance Company’s demurer to the Cross-Complaint is OVERRULED as to the first cause of action and SUSTAINED without leave to amend as to the second cause of action.

ANALYSIS

Demurrer

Meet and Confer

The Declaration of Suzanne Badawi reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied.

Discussion

Although Plaintiff had filed a Notice of Settlement of Entire Case on February 18, 2020, because this demurrer was filed after that Notice of Settlement, it appears the settlement fell through.

Plaintiff/Cross-Defendant The Travelers Property Casualty Insurance Company demurs to the Cross-Complaint as follows:

1. First Cause of Action (Fraud)

Cross-Defendant argues that the fraud cause of action fails to plead the required elements of misrepresentation, reasonable reliance and resulting damages.

The elements of a cause of action for a false promise constituting fraud or deceit are: “(1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent at the time of making the promise; (3) the promise was made with intent to deceive or with intent to induce the party to whom it was made to enter into the transaction; (4) the promise was relied on by the party to whom it was made; (5) the party making the promise did not perform; (6) the party to whom the promise was made was injured.” (Regus v. Schartkoff (1957) 156 Cal.App.2d 382, 389.)

The Court disagrees that misrepresentation and reasonable reliance are inadequately pled. The Cross-Complaint alleges that Cross-Defendant represented that it would pay the $25,000, made the $5,999.16 final payment, and when Cross-Defendant picked up the vehicle, it promptly sent a letter protesting the total payment of $25,000, and requested a return of the $5,999.16 payment Cross-Complaint, ¶¶ 20 – 25. The Cross-Complaint alleges that Cross-Complainant would not have agreed to discount its final bill had it known that Travelers intended to protest the agreement, seek to have it payment returned, and sue[1] Eli’s Auto for the return of the payment. (Cross-Complaint, ¶ 26.) This is sufficient to allege that Cross-Complainant relied to its detriment upon Cross-Defendants’ representations that it would pay $25,000, paying $5,999.16 to complete payment of that amount in order to obtain possession of the vehicle, and then protesting that amount. The total amount of damages alleged in the Cross-Complaint is $3,932.45—the difference between the final $28,932.45 bill and the negotiated $25,000 reduced total, (Cross-Complaint, ¶ 18), which reduced total Cross-Complainant alleges it would not have agreed to if it had known Cross-Defendant would protest that amount (after obtaining possession of the vehicle).

A promise made without an intent to perform it is a misrepresentation of a fact (present state of mind). (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158-59.)

Certain broken promises of future conduct may, however, be actionable. Civil Code section 1710, subdivision (4) defines one type of deceit as "A promise, made without any intention of performing it." As Witkin explains, "A false promise is actionable on the theory that a promise implies an intention to perform, that intention to perform or not to perform is a state of mind, and that misrepresentation of such a state [*159] of mind is a misrepresentation of fact. The allegation of a promise (which implies a representation of intention to perform) is the equivalent of the ordinary allegation of a representation of fact." (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 670, p. 120, italics in original.)

To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing. (Citations omitted.) Given this requirement, an action based on a false promise is simply a type of intentional misrepresentation, i.e., actual fraud.

(Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158-59 [italics in original, bold emphasis added].)

Whether or not Travelers’ made the $5,999.16 payment under protest simultaneously with the payment is a fact which is not contained in the Cross-Complaint and cannot be considered on demurrer. Although Cross-Defendant claims that the Cross-Complaint pleads that Travelers paid under protest, citing ¶ 14 of the Cross-Complaint (Reply at Page 5:2), the Cross-Complaint actually pleads that such protest was expressed after Travelers picked up the vehicle. (Cross-Complaint, ¶ 14.) This was necessarily after Cross-Complainant agreed to discount the bill and Travelers was able to obtain possession of the vehicle, stripping Cross-Complainant of its leverage. “The demurrer admits the facts pleaded in the complaint and raises the question whether those facts are sufficient to state a cause of action on any legal theory. . . . ‘The function of a demurrer is to test the sufficiency of the complaint alone and not the evidence or other extrinsic matters. [Citation.]’ (Citation omitted.)” (Hellum v. Breyer (2011) 194 Cal.App.4th 1300, 1308-09.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

This cause of action is sufficiently pled.

The demurrer to the first cause of action is OVERRULED.

2. Second Cause of Action (Negligent Misrepresentation).

Cross-Defendant argues that the fraud cause of action fails to plead the required elements of misrepresentation, reasonable reliance and resulting damages.

The elements of negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ (Citation omitted.)” (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal. App.4th 35, 50.)

However, as to the negligent misrepresentation cause of action, the Cross-Complaint is actually alleging a negligent false promise—negotiating the bill down to $25,000 and paying the $25,000 with the intent to later protest that amount—which is not a cognizable theory of recovery in California. “To be actionable, a negligent misrepresentation must ordinarily be as to past or existing material facts. ‘[P]redictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud.’ (Citation omitted.)” (Tarmann, supra, 2 Cal.App.4th at 158.) There is no cause of action for a negligent false promise. (Id. at 159: Simply put, making a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise.”)

Accordingly, the demurrer to the second cause of action is SUSTAINED without leave to amend.

[1] Note: The litigation privilege set forth in Civil Code § 47(b) would bar liability on the basis of the filing of this lawsuit and damages incurred in defending this lawsuit.

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