Preview
1 JENNY J. CHU (SBN 223077)
jchu@plawp.com
2 COLIN M. ADKINS
cadkins@plawp.com
3 PACIFIC LAW PARTNERS, LLP
2000 Powell Street, Suite 950
4 Emeryville, CA 94608
Tel: (510) 841-7777
5 Fax: (510) 841-7776
6 Attorneys for Defendant
STATE FARM MUTUAL AUTOMOBILE COMPANY
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF NAPA
10
11 CLYDE SMITH and KATHLEEN ) Case No.: 23CV000109
SMITH, )
(510) 841-7777 - Facsimile (510) 841-7776
12 ) DECLARATION OF COLIN M.
)
2000 Powell Street, Suite 950
ADKINS IN SUPPORT
Pacific Law Partners, LLP
13 Plaintiffs, ) DEFENDANT STATE FARM
Emeryville, CA 94608
) MUTUAL INSURANCE COMPANY’S
14 v. ) MOTION TO STRIKE - FAC
)
15 LATRELL LAMOUREA SCOTT ) Date: December 12, 2023
McCOCKRAN, EIACHELLE HARDY, ) Time: 8:30 a.m. .
16 STATE FARM MUTUAL ) Judge: Hon. Scott R.L. Young
AUTOMOBILE INSURANCE ) Dept.: B
17 COMPANY, and Does 1 TO 20, )
Inclusive, )
18 )
) Complaint Filed: January 26, 2023
19 Defendants. )
20 )
)
21
22 I, Colin M. Adkins, declare as follows:
23 1. I am an attorney licensed to practice before this Court, and am a
24 associate in the law firm of Pacific Law Partners, LLP, attorneys of record for
25 defendant State Farm Mutual Automobile Insurance Company (“State Farm”). I
26 am the primary attorney handling this file, and am able to attest to the facts
27 stated herein from my own personal knowledge and pursuant to my review of the
28 file.
Case No.: 23CV000109 1 Adkins Declaration in Support of MT Strike - FAC
1 2. Plaintiffs filed their complaint in the instant action on January 26,
2 2023.
3 3. State Farm demurred to the cause of action against State Farm in
4 that complaint and moved to strike the allegations of punitive damages.
5 4. On June 22, 2023, this court sustained that demurrer and granted
6 the motion to strike, both with leave to amend. A true and correct copy of that
7 order is attached as Exhibit 1.
8 5. On June 28, 2023, plaintiffs filed a first amended complaint.
9 6. On July 17, 2023, I sent a letter to plaintiffs’ counsel meeting and
10 conferring on plaintiffs’ cause of action and prayer for punitive damages against
11 State Farm, as required by Code of Civ. Pro. (“CCP”) sections 430.41(a)(1) and
(510) 841-7777 - Facsimile (510) 841-7776
12 435.5(a)(1). The letter advised of State Farm’s position on each issue and cited
2000 Powell Street, Suite 950
Pacific Law Partners, LLP
13 supporting case law. A true and correct copy of that letter is attached hereto as
Emeryville, CA 94608
14 Exhibit 2.
15 7. Since sending that letter, I agreed to stipulate that plaintiffs could
16 file a second amended complaint, but plaintiffs’ counsel has not provided an
17 acceptable proposed stipulation.
18 I declare under penalty of perjury under the laws of the State of California,
19 that the foregoing is true and correct.
20 Executed on August 31, 2023, in Emeryville, California.
21
22
COLIN M. ADKINS
23
24
25
26
27
28
Case No.: 23CV000109 2 Adkins Declaration in Support of MT Strike - FAC
EXHIBIT 1
CIVIL LAW & MOTION CALENDAR – Hon. Scott R.L. Young, Dept. B (Historic
Courthouse) at 8:30 a.m.
Clyde Smith et al vs Latrell Lamourea Scott McCockran et al 23CV000109
[1] DEMURRER
TENTATIVE RULING: The demurrer is SUSTAINED. Plaintiffs are granted 10
calendar days’, from notice of entry of the present order, to amend.
Defendant demurs to the third cause of action for Tortious Breach of Insurance Contract
and Bad Faith asserted through the Complaint filed by Plaintiffs Clyde Smith and Kathleen
Smith on grounds that the Complaint fails to allege facts sufficient to constitute a cause of action
and is uncertain. (Notice of Demurrer at 3:6-8.)
A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc., §
425.10, subd. (a)(1).) “The party against whom a complaint or cross-complaint has been filed
may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or
more of the following grounds:…(e) The pleading does not state facts sufficient to constitute a
cause of action…[¶]…(f) The pleading is uncertain. As used in this subdivision, “uncertain”
includes ambiguous and unintelligible….” (Code Civ. Proc., § 430.10.)
A demurrer is treated 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.) The Court must “construe the allegations of a complaint liberally in favor of the pleader.”
(Skopp v. Weaver (1976) 16 Cal.3d 432, 438.) The Court must also accept as true facts that may
be inferred from those expressly alleged. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th
1395, 1405.) “[A]llegations constituting legal conclusions are not provisionally admitted for the
purposes of a demurrer. [Citation.] Moreover, a demurrer ‘does not admit a conclusion of law,
nor does it admit … facts impossible in law, or allegations contrary to facts of which a court may
take judicial knowledge.’ (Griffin v. County of Colusa (1941) 44 Cal.App.2d 915, 918.)”
(Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276, 291-292.)
1. The Complaint is Uncertain
A demurrer for uncertainty is disfavored and may only be sustained where the allegations
render the complaint so incomprehensible that a defendant cannot reasonably respond. (Lickiss v.
Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)
Defendant argues that the Complaint is uncertain as to whether Defendant breached
Plaintiffs’ insurance policy or Co-Defendant Eiachelle Hardy’s insurance policy. The Court
agrees.
Plaintiffs allege that, “[a]t all times herein mentioned, STATE FARM was the insurance
company which provided the automobile insurance Policy for both the Defendant, HARDY, as
well as the Plaintiffs." (Complaint at ¶ 22.) “On or about June 18, 2022, the date of the accident,
5
both Plaintiffs’ and Defendant’s STATE FARM automobile insurance policies were in effect.”
(Id. at ¶ 24.) In this context, the Court finds that the allegation, “STATE FARM has breached the
insurance contract by failing to determine the amount of recovery” is fatally uncertain regarding
which of the two insurance contracts alleged was breached. (Id. at ¶ 27.) This is particularly true
in light of the fact, discussed below, that Plaintiffs failed to either attach the subject contract,
quote therefrom, or summarize with specificity those provisions alleged to have been breached.
To the extent that Defendant argues Plaintiffs fail to allege facts sufficient to state a claim
for breach of Co-Defendant Hardy’s insurance policy, the Court agrees. It does not appear from
the allegations of the Third Cause of Action that Plaintiffs are claiming a breach of the covenant
of good faith and fair dealing arising out of Co-Defendant Hardy’s insurance policy (See
Complaint at ¶¶ 26-28.) However, certain other language suggests a possibility that Plaintiff
could be asserting a third-party beneficiary claim relating to that policy. (See, e.g., id. at ¶ 27
[“STATE FARMS' knowledge of its obligation to pay for the Plaintiffs' damages for their
injuries from Defendant's insurance policy…”].)
Based on the foregoing, the demurrer is GRANTED.
Generally, it is an abuse of discretion for a court to deny leave to amend where there is
any reasonable possibility that a Plaintiff can state a good cause of action. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.) The Court finds from the nature of the allegations of the Complaint
and the arguments presented through Plaintiffs’ Opposition that there is a reasonable possibility
that Plaintiffs can amend to state good causes of action. For this reason, the demurrer is
SUSTAINED WITH LEAVE TO AMEND.
2. Breach of Contract
The Court also finds that the Complaint fails to allege facts sufficient to state a claim for
breach of Plaintiffs’ insurance contract.
“If the action is based on an 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 instrument must be attached
and incorporated by reference. (Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59 [35
Cal.Rptr. 652].)” (Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452,
458-59.)
While the Complaint alleges the existence of an insurance policy between the parties that
was in effect at the date of the accident (See Complaint at ¶ 24), Plaintiffs fail to adequately
establish the terms of the contract by attaching a copy of the policy or pleading its relevant terms.
In the absence of this detail, the Court agrees with Defendant’s further argument that allegations
of Defendant’s failure to disclose policy limits are insufficient to allege breach of contract.
3. Bad Faith Breach of Insurance Contract
The Court further finds that the Complaint fails to allege facts that would state a claim for
insurance bad faith.
6
“In every insurance policy there is an implied obligation of good faith and fair dealing
that neither the insurance company nor the insured will do anything to injure the right of the
other party to receive the benefits of the agreement.” (CACI No. 2330.) To state a claim for bad
faith breach of insurance contract, “the insured must show that the insurer has (1) withheld
benefits due under the policy and (2) that such withholding was ‘unreasonable’ or ‘without
proper cause.’ The actionable withholding of benefits may consist of the denial of benefits due;
paying less than due; and/or unreasonably delaying payments due.” (Major v. Western Home Ins.
Co. (2009) 169 Cal.App.4th 1197, 1209 [87 Cal.Rptr.3d 556], internal citations omitted.])
As Defendant here argues, Plaintiffs’ bad faith claim fails because the Complaint does
not adequately establish the terms of the underlying contract. While breach of an express policy
provision is not required for a bad faith insurance claim, the insured must show a valid insurance
contract covering the claim at issue. (See Carson v. Mercury Ins. Co. (2012) 210 Cal.App.4th
409, 429; Waller v. Truck Ins. Exch., Inc. (1995) 11 C4th 1, 36.)
The Court does not find allegations in the Complaint sufficient to establish bad faith
conduct. Plaintiffs allege that Defendant “intentionally acted in bad faith by refusing to disclose
Defendant’s policy limits.” (Complaint at ¶ 29.) However, this single allegation, presumed for
purposes of the present analysis to be true, is insufficient to establish that Defendant acted
“unreasonably” or “without proper cause.” The Insurance Information and Privacy Protection
Act prohibits the pre-complaint disclosure of policy limits absent written permission from the
insured. (Ins. Code, § 791.13, subd. (a); Griffith v. State Farm Mut. Auto Ins. Co. (1991) 230
Cal.App.3d 59, 65 [281 Cal.Rptr. 165, 167].)
4. Plaintiffs’ Opposition
Through the Opposition, Plaintiffs renew their complaints regarding Defendant’s
unwillingness to disclose policy limits. The only question before the Court on demurrer,
however, is whether Plaintiffs’ Complaint is deficient in the ways discussed above. Plaintiffs’
arguments regarding the merits of their case are immaterial to this purpose. (See 640 Tenth, LP v.
Newsom (2022) 78 CA.5th 840, 852 [held: court required to ignore “a three page ‘Introduction’
resembling closing argument in a jury trial” and looks only to “well-pleaded factual allegations
and matters properly subject to judicial notice”].)
Moreover, Plaintiffs submit two Declarations in support of their opposition. In ruling on
the demurrer, the Court may only consider the face of the Complaint and matters that are
judicially noticeable. (See Blank v. Kirwan (1985) 39 C3d 311, 318.) No other extrinsic evidence
can be considered (See Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881.)
Plaintiffs have not requested that the Court take judicial notice of the declarations filed in
support of the Opposition or any of the matters asserted therein. Moreover, the Court does not
find that they are properly subject to judicial notice pursuant to Evidence Code 451 or 452. (See
Code Civ. Proc., § 430.30, subd. (a).) The Court therefore disregards them in ruling on the
demurrer.
7
The Court acknowledges that Plaintiffs have attached a complaint that it appears to
propose to file. The Court has not reviewed that proposed amendment and takes no position here
on whether it cures the defect raised by the demurrer.
[2] MOTION TO STRIKE
TENTATIVE RULING: The motion to strike is GRANTED. Plaintiffs are granted 10
days’ leave to amend (and/or restate their) punitive damages allegations.
Defendant moves, pursuant to Code of Civil Procedure Sections 435 and 436, for an
order to strike certain “allegations of punitive damages against State Farm from plaintiffs Clyde
Smith and Kathleen Smith’s complaint on grounds that the pleading fails to state facts sufficient
to support an award of such damages….” (Notice of Motion at 1:24-2:3.)
The Court may strike any language in a cause of action that seeks an improper remedy.
(Caliber Bodyworks, Inc. v. Super. Court (2005) 134 Cal.App.4th 365, 385.) To adequately state
a claim for punitive damages, a complaint must contain allegations that the defendant has been
guilty of oppression, fraud or malice. (Civil Code § 3294, subd. (a); Turman v. Turning Point of
Central Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Malice” includes “despicable conduct which
is carried on by the defendant with a willful and conscious disregard of the rights or safety of
others.” (Civil Code § 3294, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects
a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Id. at subd.
(c)(2).) Finally, “fraud” is defined as “an intentional misrepresentation, deceit, or concealment of
a material fact known to the defendant with the intention on the part of the defendant of thereby
depriving a person of property or legal rights or otherwise causing injury.” (Id. at subd. (c)(3).)
First, as discussed in the concurrent ruling on Plaintiffs’ demurrer (Demurrer Ruling), the
Court does not find that Plaintiffs have alleged facts sufficient to state a claim for bad-faith
breach by Defendant insurer.
Moreover, the Court does not find allegations which, if true, would establish that
Defendant was guilty of oppression, fraud, or malice.
Based on the foregoing, the motion is GRANTED. As explained in the Court’s Demurrer
Ruling, there appears a reasonable possibility that Plaintiffs can amend to state good claim for
bad-faith. The Court further finds a reasonable possibility that Plaintiffs could allege facts
sufficient to constitute oppression, fraud, or malice. Based on the foregoing, Plaintiffs are
granted leave to amend, and/or re-allege, the subject punitive damages allegations.
8
EXHIBIT 2
Preview
1 JENNY J. CHU (SBN 223077) jchu@plawp.com 2 COLIN M. ADKINS cadkins@plawp.com 3 PACIFIC LAW PARTNERS, LLP 2000 Powell Street, Suite 950 4 Emeryville, CA 94608 Tel: (510) 841-7777 5 Fax: (510) 841-7776 6 Attorneys for Defendant STATE FARM MUTUAL AUTOMOBILE COMPANY 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF NAPA 10 11 CLYDE SMITH and KATHLEEN ) Case No.: 23CV000109 SMITH, ) (510) 841-7777 - Facsimile (510) 841-7776 12 ) DECLARATION OF COLIN M. ) 2000 Powell Street, Suite 950 ADKINS IN SUPPORT Pacific Law Partners, LLP 13 Plaintiffs, ) DEFENDANT STATE FARM Emeryville, CA 94608 ) MUTUAL INSURANCE COMPANY’S 14 v. ) MOTION TO STRIKE - FAC ) 15 LATRELL LAMOUREA SCOTT ) Date: December 12, 2023 McCOCKRAN, EIACHELLE HARDY, ) Time: 8:30 a.m. . 16 STATE FARM MUTUAL ) Judge: Hon. Scott R.L. Young AUTOMOBILE INSURANCE ) Dept.: B 17 COMPANY, and Does 1 TO 20, ) Inclusive, ) 18 ) ) Complaint Filed: January 26, 2023 19 Defendants. ) 20 ) ) 21 22 I, Colin M. Adkins, declare as follows: 23 1. I am an attorney licensed to practice before this Court, and am a 24 associate in the law firm of Pacific Law Partners, LLP, attorneys of record for 25 defendant State Farm Mutual Automobile Insurance Company (“State Farm”). I 26 am the primary attorney handling this file, and am able to attest to the facts 27 stated herein from my own personal knowledge and pursuant to my review of the 28 file. Case No.: 23CV000109 1 Adkins Declaration in Support of MT Strike - FAC 1 2. Plaintiffs filed their complaint in the instant action on January 26, 2 2023. 3 3. State Farm demurred to the cause of action against State Farm in 4 that complaint and moved to strike the allegations of punitive damages. 5 4. On June 22, 2023, this court sustained that demurrer and granted 6 the motion to strike, both with leave to amend. A true and correct copy of that 7 order is attached as Exhibit 1. 8 5. On June 28, 2023, plaintiffs filed a first amended complaint. 9 6. On July 17, 2023, I sent a letter to plaintiffs’ counsel meeting and 10 conferring on plaintiffs’ cause of action and prayer for punitive damages against 11 State Farm, as required by Code of Civ. Pro. (“CCP”) sections 430.41(a)(1) and (510) 841-7777 - Facsimile (510) 841-7776 12 435.5(a)(1). The letter advised of State Farm’s position on each issue and cited 2000 Powell Street, Suite 950 Pacific Law Partners, LLP 13 supporting case law. A true and correct copy of that letter is attached hereto as Emeryville, CA 94608 14 Exhibit 2. 15 7. Since sending that letter, I agreed to stipulate that plaintiffs could 16 file a second amended complaint, but plaintiffs’ counsel has not provided an 17 acceptable proposed stipulation. 18 I declare under penalty of perjury under the laws of the State of California, 19 that the foregoing is true and correct. 20 Executed on August 31, 2023, in Emeryville, California. 21 22 COLIN M. ADKINS 23 24 25 26 27 28 Case No.: 23CV000109 2 Adkins Declaration in Support of MT Strike - FAC EXHIBIT 1 CIVIL LAW & MOTION CALENDAR – Hon. Scott R.L. Young, Dept. B (Historic Courthouse) at 8:30 a.m. Clyde Smith et al vs Latrell Lamourea Scott McCockran et al 23CV000109 [1] DEMURRER TENTATIVE RULING: The demurrer is SUSTAINED. Plaintiffs are granted 10 calendar days’, from notice of entry of the present order, to amend. Defendant demurs to the third cause of action for Tortious Breach of Insurance Contract and Bad Faith asserted through the Complaint filed by Plaintiffs Clyde Smith and Kathleen Smith on grounds that the Complaint fails to allege facts sufficient to constitute a cause of action and is uncertain. (Notice of Demurrer at 3:6-8.) A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc., § 425.10, subd. (a)(1).) “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:…(e) The pleading does not state facts sufficient to constitute a cause of action…[¶]…(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible….” (Code Civ. Proc., § 430.10.) A demurrer is treated 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.) The Court must “construe the allegations of a complaint liberally in favor of the pleader.” (Skopp v. Weaver (1976) 16 Cal.3d 432, 438.) The Court must also accept as true facts that may be inferred from those expressly alleged. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1405.) “[A]llegations constituting legal conclusions are not provisionally admitted for the purposes of a demurrer. [Citation.] Moreover, a demurrer ‘does not admit a conclusion of law, nor does it admit … facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.’ (Griffin v. County of Colusa (1941) 44 Cal.App.2d 915, 918.)” (Kenneth Mebane Ranches v. Superior Court (1992) 10 Cal.App.4th 276, 291-292.) 1. The Complaint is Uncertain A demurrer for uncertainty is disfavored and may only be sustained where the allegations render the complaint so incomprehensible that a defendant cannot reasonably respond. (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) Defendant argues that the Complaint is uncertain as to whether Defendant breached Plaintiffs’ insurance policy or Co-Defendant Eiachelle Hardy’s insurance policy. The Court agrees. Plaintiffs allege that, “[a]t all times herein mentioned, STATE FARM was the insurance company which provided the automobile insurance Policy for both the Defendant, HARDY, as well as the Plaintiffs." (Complaint at ¶ 22.) “On or about June 18, 2022, the date of the accident, 5 both Plaintiffs’ and Defendant’s STATE FARM automobile insurance policies were in effect.” (Id. at ¶ 24.) In this context, the Court finds that the allegation, “STATE FARM has breached the insurance contract by failing to determine the amount of recovery” is fatally uncertain regarding which of the two insurance contracts alleged was breached. (Id. at ¶ 27.) This is particularly true in light of the fact, discussed below, that Plaintiffs failed to either attach the subject contract, quote therefrom, or summarize with specificity those provisions alleged to have been breached. To the extent that Defendant argues Plaintiffs fail to allege facts sufficient to state a claim for breach of Co-Defendant Hardy’s insurance policy, the Court agrees. It does not appear from the allegations of the Third Cause of Action that Plaintiffs are claiming a breach of the covenant of good faith and fair dealing arising out of Co-Defendant Hardy’s insurance policy (See Complaint at ¶¶ 26-28.) However, certain other language suggests a possibility that Plaintiff could be asserting a third-party beneficiary claim relating to that policy. (See, e.g., id. at ¶ 27 [“STATE FARMS' knowledge of its obligation to pay for the Plaintiffs' damages for their injuries from Defendant's insurance policy…”].) Based on the foregoing, the demurrer is GRANTED. Generally, it is an abuse of discretion for a court to deny leave to amend where there is any reasonable possibility that a Plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The Court finds from the nature of the allegations of the Complaint and the arguments presented through Plaintiffs’ Opposition that there is a reasonable possibility that Plaintiffs can amend to state good causes of action. For this reason, the demurrer is SUSTAINED WITH LEAVE TO AMEND. 2. Breach of Contract The Court also finds that the Complaint fails to allege facts sufficient to state a claim for breach of Plaintiffs’ insurance contract. “If the action is based on an 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 instrument must be attached and incorporated by reference. (Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59 [35 Cal.Rptr. 652].)” (Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458-59.) While the Complaint alleges the existence of an insurance policy between the parties that was in effect at the date of the accident (See Complaint at ¶ 24), Plaintiffs fail to adequately establish the terms of the contract by attaching a copy of the policy or pleading its relevant terms. In the absence of this detail, the Court agrees with Defendant’s further argument that allegations of Defendant’s failure to disclose policy limits are insufficient to allege breach of contract. 3. Bad Faith Breach of Insurance Contract The Court further finds that the Complaint fails to allege facts that would state a claim for insurance bad faith. 6 “In every insurance policy there is an implied obligation of good faith and fair dealing that neither the insurance company nor the insured will do anything to injure the right of the other party to receive the benefits of the agreement.” (CACI No. 2330.) To state a claim for bad faith breach of insurance contract, “the insured must show that the insurer has (1) withheld benefits due under the policy and (2) that such withholding was ‘unreasonable’ or ‘without proper cause.’ The actionable withholding of benefits may consist of the denial of benefits due; paying less than due; and/or unreasonably delaying payments due.” (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1209 [87 Cal.Rptr.3d 556], internal citations omitted.]) As Defendant here argues, Plaintiffs’ bad faith claim fails because the Complaint does not adequately establish the terms of the underlying contract. While breach of an express policy provision is not required for a bad faith insurance claim, the insured must show a valid insurance contract covering the claim at issue. (See Carson v. Mercury Ins. Co. (2012) 210 Cal.App.4th 409, 429; Waller v. Truck Ins. Exch., Inc. (1995) 11 C4th 1, 36.) The Court does not find allegations in the Complaint sufficient to establish bad faith conduct. Plaintiffs allege that Defendant “intentionally acted in bad faith by refusing to disclose Defendant’s policy limits.” (Complaint at ¶ 29.) However, this single allegation, presumed for purposes of the present analysis to be true, is insufficient to establish that Defendant acted “unreasonably” or “without proper cause.” The Insurance Information and Privacy Protection Act prohibits the pre-complaint disclosure of policy limits absent written permission from the insured. (Ins. Code, § 791.13, subd. (a); Griffith v. State Farm Mut. Auto Ins. Co. (1991) 230 Cal.App.3d 59, 65 [281 Cal.Rptr. 165, 167].) 4. Plaintiffs’ Opposition Through the Opposition, Plaintiffs renew their complaints regarding Defendant’s unwillingness to disclose policy limits. The only question before the Court on demurrer, however, is whether Plaintiffs’ Complaint is deficient in the ways discussed above. Plaintiffs’ arguments regarding the merits of their case are immaterial to this purpose. (See 640 Tenth, LP v. Newsom (2022) 78 CA.5th 840, 852 [held: court required to ignore “a three page ‘Introduction’ resembling closing argument in a jury trial” and looks only to “well-pleaded factual allegations and matters properly subject to judicial notice”].) Moreover, Plaintiffs submit two Declarations in support of their opposition. In ruling on the demurrer, the Court may only consider the face of the Complaint and matters that are judicially noticeable. (See Blank v. Kirwan (1985) 39 C3d 311, 318.) No other extrinsic evidence can be considered (See Ion Equip. Corp. v. Nelson (1980) 110 CA3d 868, 881.) Plaintiffs have not requested that the Court take judicial notice of the declarations filed in support of the Opposition or any of the matters asserted therein. Moreover, the Court does not find that they are properly subject to judicial notice pursuant to Evidence Code 451 or 452. (See Code Civ. Proc., § 430.30, subd. (a).) The Court therefore disregards them in ruling on the demurrer. 7 The Court acknowledges that Plaintiffs have attached a complaint that it appears to propose to file. The Court has not reviewed that proposed amendment and takes no position here on whether it cures the defect raised by the demurrer. [2] MOTION TO STRIKE TENTATIVE RULING: The motion to strike is GRANTED. Plaintiffs are granted 10 days’ leave to amend (and/or restate their) punitive damages allegations. Defendant moves, pursuant to Code of Civil Procedure Sections 435 and 436, for an order to strike certain “allegations of punitive damages against State Farm from plaintiffs Clyde Smith and Kathleen Smith’s complaint on grounds that the pleading fails to state facts sufficient to support an award of such damages….” (Notice of Motion at 1:24-2:3.) The Court may strike any language in a cause of action that seeks an improper remedy. (Caliber Bodyworks, Inc. v. Super. Court (2005) 134 Cal.App.4th 365, 385.) To adequately state a claim for punitive damages, a complaint must contain allegations that the defendant has been guilty of oppression, fraud or malice. (Civil Code § 3294, subd. (a); Turman v. Turning Point of Central Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Malice” includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code § 3294, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Id. at subd. (c)(2).) Finally, “fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id. at subd. (c)(3).) First, as discussed in the concurrent ruling on Plaintiffs’ demurrer (Demurrer Ruling), the Court does not find that Plaintiffs have alleged facts sufficient to state a claim for bad-faith breach by Defendant insurer. Moreover, the Court does not find allegations which, if true, would establish that Defendant was guilty of oppression, fraud, or malice. Based on the foregoing, the motion is GRANTED. As explained in the Court’s Demurrer Ruling, there appears a reasonable possibility that Plaintiffs can amend to state good claim for bad-faith. The Court further finds a reasonable possibility that Plaintiffs could allege facts sufficient to constitute oppression, fraud, or malice. Based on the foregoing, Plaintiffs are granted leave to amend, and/or re-allege, the subject punitive damages allegations. 8 EXHIBIT 2