Dobard v. Torres
Filed 1/29/14 Dobard v. Torres CA1/1
>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
>
>
California Rules
of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BARBARA DOBARD,
Plaintiff and
Appellant,
v.
SHARON TORRES et al.,
Defendants and
Respondents.
A136956
(Alameda
County
Super. Ct. No.
HG11610392)
Plaintiff Barbara Dobard, appearing href="http://www.fearnotlaw.com/">in propria persona, sued defendants Sharon
Torres, Rick Poulin, and Allstate Insurance Company (collectively Allstate) as
a third party claimant, following an automobile accident with an Allstate
policy holder. After granting Dobard two
additional chances to file a viable complaint, the trial court sustained
Allstate’s demurrer to her second amended complaint
without leave to amend and entered judgment against her. We affirm the judgment of dismissal.
>Factual and Procedural Backgroundhref="#_ftn1" name="_ftnref1" title="">[1]
Dobard filed a complaint against Allstate
following an automobile accident with an Allstate policyholder. In addition to suing the company, she also
named as defendants, Sharon Torres and Rick Poulin, the claims adjuster and
manager assigned to Dobard’s claim, respectively. Dobard alleged href="http://www.fearnotlaw.com/">causes of action for “motor vehicle,â€
general negligence, and products liability, and sought “damages arising from
wreckless disregards [sic] to
plaintiff, intentional infliction of href="http://www.sandiegohealthdirectory.com/">emotional distress.†She further alleged “malicious disrespectful,
hostility, abuse actions incompetent, overlooked, carelessness†in the complaint,
and sought punitive damages.
Allstate interposed a demurrer and made
a motion to strike the complaint. Both
were dropped from the calendar as moot after Dobard filed a 56-page first
amended complaint, accompanied by a 27-page “Memorandum of Points and
Authorities†in support of the complaint and href="http://www.mcmillanlaw.us/">jury trial demand. Allstate again interposed a demurrer and made
a motion to strike.
On June 1, 2012, the
trial court sustained the demurrer on the ground Dobard failed to state any viable
cause of action and granted limited leave to amend as her causes of action for fraud,
failure to pay benefits under the insurance policy, misrepresentation, and
intentional infliction of emotional distress. The trial court issued a detailed written
order, noting at the outset that its tentative ruling had not been
contested. The order also discussed the shortcomings in the
amended complaint and specified what Dobard would have to allege as to the
causes of action as to which leave to amend was granted. The court dismissed much of the motion to
strike as moot in light of the demurrer ruling and granted the motion as to
Dobard’s punitive damages claim with
leave to amend.
Two weeks later, on June 18, 2012, Dobard
filed a ten-page second amended complaint, alleging two causes of action, one
entitled “Tortious Fraud-Deceit†(enumerated as the “Sixteenth Cause of
Actionâ€) and the other, “Misrepresentation†(enumerated as the “Seventeenth
Cause of Actionâ€). Allstate again interposed
a demurrer and filed a motion to strike.
This time, Dobard appeared and
contested the court’s tentative ruling.
Following the hearing on August 24, 2012, the court
issued a written ruling sustaining Allstate’s demurrer without leave to amend. The court dropped the motion to strike as moot
in light of the ruling on the demurrer. The court entered judgment of dismissal on September 25, 2012, and the clerk gave notice of entry on September 26. Dobard filed a timely notice of appeal on October 29, 2012.
Discussion
“When reviewing a judgment
dismissing a complaint after the granting of a demurrer without leave to amend,
courts must assume the truth of the complaint’s properly pleaded or implied
factual allegations. [Citation.] . . . In
addition, we give the complaint a reasonable interpretation, and read it in
context.†(Schifando v. City of >Los Angeles (2003) 31 Cal.4th 1074, 1081.) “ ‘We treat the demurrer as admitting all
material facts properly pleaded, but not contentions, deductions or conclusions
of fact or law.’ †(>Blank v. Kirwan (1985) 39 Cal.3d 311,
318, quoting Serrano v. Priest (1971)
5 Cal.3d 584, 591.)
We “review the complaint de novo to
determine whether it contains facts sufficient to state a cause of action under
any legal theory†and, if the complaint is lacking, “we then consider whether
the court abused its discretion in denying leave to amend the complaint.†(In re
Estate of Dito (2011) 198 Cal.App.4th 791, 800.) “We will reverse for abuse of discretion if we
determine that there is a reasonable possibility the plaintiff can cure the
pleading by amendment.†(>Glen Oaks Estates Homeowners Assn. v. Re/Max
Premier Properties, Inc. (2012) 203 Cal.App.4th 913, 919.) “The burden of proving such reasonable
possibility is squarely on the plaintiff.†(Blank
v. Kirwan, supra, 39 Cal.3d at p. 318.)
Fraud and
Misrepresentation Causes of Action
As in her various pleadings, Dobard
devotes much of her opening brief on appeal to recounting the injuries and
property damage she claims to have sustained as a result of an automobile
collision with an Allstate insured. She
is plainly not happy with Allstate’s actions taken on behalf of its insured,
and complains the company never conducted an adequate investigation into her
claimed injuries and damages. She has
not, however, addressed the legal shortcomings in the fraud and negligence
causes of action advanced in her second amended complaint.
“ ‘Fraud is an intentional
tort, the elements of which are (1) misrepresentation; (2) knowledge of
falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable
reliance; and (5) resulting damage.’
[Citation.]†(>Conrad v. Bank of America (1996)
45 Cal.App.4th 133, 156 (Conrad),
rejected on another point in Lovejoy v.
AT&T Corp. (2001) 92 Cal.App.4th 85, 92–94.) “[M]isrepresentation . . . includes a
concealment or nondisclosure.†(Cadlo v.
Owens-Illinois, Inc. (2004) 125 Cal. App. 4th 513,
519 (Cadlo).) “Fraud
is a charge that is easily made but less often substantiated. In order to
establish a cause of action for fraud a plaintiff must plead and prove in full,
factually and specifically, all of the elements of the cause of action.†(Conrad,
supra, 45 Cal.App.4th at p. 156.) “General and conclusory claims of fraud will
not suffice.†(Ibid.)
To establish negligent
misrepresentation, the same elements must be shown, “except there is no
requirement of intent to induce reliance.â€
(Cadlo, supra, 125 Cal.App.4th
at p. 519.) As with fraud, a cause of
action for negligent misrepresentation must be “factually and specifically
alleged.†(Ibid.)
Despite being given specific directions
by the trial court as to the allegations she needed to make to state viable
causes of action for fraud and misrepresentation, Dobard failed to meet her
pleading burden. She made no allegations
of misrepresentation, a requirement for both causes of action. (Conrad,
supra, 45 Cal. App. 4th at p. 156.) Nor
did she allege Allstate’s knowledge of falsity, intent to induce reliance, or her
own justifiable reliance. (>Ibid.)
Rather, Dobard alleged that Allstate employee Sharon Torres threatened
to “damage [her] life and cause great bodily harmâ€, and that Torres’s threats
over the phone led her to suffer a stroke. Even assuming the truth of these factual allegations,
as we must, they do not state a cause of action for fraud or misrepresentation.
Accordingly, the court did not err in
sustaining the demurrer as to these causes of action.
Leave to Amend
to Allege Breach of Oral and Written Contract
Dobard did not include in the record
on appeal any reporter’s transcript of the hearing on the demurrer and motion
to strike her second amended complaint.
Nor are we able to discern from any of the moving and opposing papers
filed in conjunction therewith any request by Dobard that she be given leave to
further amend, let alone a showing as to what allegations she could make to
justify granting her a third opportunity to amend. The trial court, however, expressly denied
leave to amend. And, in any case, “ ‘the
showing as to how the complaint may be amended need not be made to the trial
court and can be made for the first time to the reviewing court. . . .’ †(Burchett
v. City of Newport Beach (1995) 33 Cal.App.4th 1472, 1482.)
In her opening brief on appeal, Dobard
seems to suggest she can state a claim for breach of an “oral and written
contract guarantying the accident [sic]
of its preferred services†and that she made a motion for leave to file a third
amended complaint to state such a claim. The record does not reflect such a motion was ever
filed. She has not, in any event, in her
opening brief, adequately explained how and on what basis she could state a
breach of contract claim against Allstate, with which she did >not have a policy of insurance.
“To state a cause of action for
breach of contract, a party must plead the existence of a contract, his or her
performance of the contract or excuse for non performance, the defendant’s
breach and resulting damage.†(>Harris v. Rudin, Richman & Appel
(1999) 74 Cal.App.4th 299, 307.) “If
the action is based on alleged breach of a written contract, the terms must be
set out verbatim in the body of the complaint or a copy of the written
agreement must be attached and incorporated by reference.†(Ibid.)
The elements of a breach of oral
contract claim are the same as those for a breach of written contract. An oral contract is formed when (1) the
parties have the capacity to enter into a contract; (2) the parties consent to
the contract; (3) the contract has a lawful object; and (4) there is sufficient
consideration or cause for the parties to enter into the contract. (See Civ. Code, § 1550.)
While Dobard asserts Allstate
breached “its separate oral and written contract guarantying the accident [>sic] of its preferred services,†she ties
this to Allstate’s written contract of insurance with its policyholder, Jose
Martinez. Dobard, however, is not a
party to that contract, and thus cannot state a cause of action against
Allstate for breach of that contract.
Similarly, Dobard’s references to the implied covenant of good faith and
fair dealing do not, and cannot, support a breach of contract claim. That is an implied term of the contract of
insurance, and is a duty Allstate owes its insured, not Dobard. (See Moradi-Shalal
v. Fireman’s Fund Ins. Companies (1988) 46 Cal. 3d 287, 304–305.)
Dobard also asserts “Allstate orally
represented to Dobard that it would assume the position of guarantor of the
repairs work need to undertake by the body shop, including the assumption of
responsibilities for medical damage to the physical body parts caused by the
accident in carrying out the repair work.†To the extent Dobard is attempting to assert a
separate oral promise by Allstate to her, she has not met her burden of showing
a reasonable possibility she could allege the other required elements of
contract. For example, she has alleged
no consideration for the alleged oral contract, nor is there a reasonable
possibility she could do so.
In sum, the trial court did not
abuse its discretion in dismissing her second amended complaint without leave
to further amend.
>Disposition
The judgment of dismissal is affirmed. Respondent to recover costs on appeal.
_________________________
Banke,
J.
We concur:
_________________________
Dondero, Acting P. J.
_________________________
Sepulveda, J.href="#_ftn2"
name="_ftnref2" title="">*>
>
id=ftn1>
href="#_ftnref1" name="_ftn1" title="">[1]> Because this is an
appeal from a dismissal following the sustaining of a demurrer without leave to
amend, the facts are those alleged in the operative pleadings.
id=ftn2>
href="#_ftnref2" name="_ftn2" title="">* Retired Associate Justice of
the Court of Appeal, First Appellate District, Division Four, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.