Syprasert v. Truck Ins. Exchange CA2/3 ( 2016 )

Filed 3/23/16 Syprasert v. Truck Ins. Exchange CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
ARICH SYPRASERT et al., B260567
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC527441)
v.
TRUCK INSURANCE EXCHANGE et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County,
Elizabeth R. Feffer, Judge. Affirmed.
WLA Legal Services, Inc., and Steven L. Zelig for Plaintiffs and Appellants.
Gordon & Rees LLP, and Christopher R. Wagner and Margaret M. Drugan, for
Defendants and Respondents.
_______________________________________
INTRODUCTION
Plaintiffs Arich and Boualirne Syprasert purchased an insurance policy from
defendant Truck Insurance Exchange (Truck) to insure their commercial property. The
policy contains a suit limitations provision that bars an insured from suing Truck unless
the lawsuit is brought within two years “after the date on which the direct physical loss
or damage occurred.” More than three and a half years after Truck denied their
insurance claim, the Sypraserts filed a lawsuit on behalf of themselves and a purported
class of holders of insurance policies purchased from Truck. The lawsuit named Truck,
Farmers Insurance Exchange (Farmers), and Truck Underwriters Association
(Underwriters) as defendants. The causes of action in the operative first amended
complaint are premised on the Sypraserts’ allegations that Truck’s suit limitations
provision is illegal or violates public policy.
The trial court sustained Truck’s and Farmers’ demurrer without leave to amend
as to all of the causes of action asserted against them.1 The court then dismissed Truck
and Farmers from the action.2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Sypraserts’ Insurance Policy and Claim for Recovery
In 2008, the Sypraserts, who are of Thai descent, purchased an insurance policy
from Truck to insure their commercial property located in Visalia, California against
“Risks of Direct Physical Loss.” The policy covers losses sustained between
December 18, 2008 and December 18, 2009. The policy contains several provisions
modeled after the standard-form insurance policy set forth in Insurance Code
section 2071, including a provision entitled “Legal Action Against Us” (the suit
1
The court overruled the demurrer to the fourth cause of action asserted against
Underwriters. Underwriters is not a party to this appeal.
2
Because the order sustaining the demurrer did not dismiss Truck and Farmers as
parties, we directed the Sypraserts’ counsel to obtain such an order or judgment and
forward it to this court. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.)
We have now received the dismissal order and exercise our discretion to deem the
Sypraserts’ appeal to have been taken from the dismissal order.
2
limitations provision), which provides that the Sypraserts cannot sue Truck under the
policy unless the lawsuit is “brought within 2 years after the date on which the direct
physical loss or damage occurred.”
On September 22, 2009, the Sypraserts’ property was severely damaged by fire.
They filed a claim under their policy, which was adjusted by Farmers and investigated
by a law firm. On February 16, 2010, Truck notified the Sypraserts that their claim had
been denied and, using language that “mirrored” the policy’s suit limitations provision,
advised the Sypraserts that they had until two years from the date of their loss to seek
legal recourse if they disputed the denial of their claim.
II. The Sypraserts’ Lawsuit
On November 12, 2013, more than three and a half years after their insurance
claim was denied, the Sypraserts filed a complaint against Truck, Farmers, and
Underwriters.3 On April 22, 2014, the Sypraserts filed the operative first amended
complaint asserting twelve causes of action, ranging from breach of the covenant of
good faith and fair dealing to violation of Penal Code section 496.4
3
The first amended complaint alleges that Underwriters acted as the
“attorney-in-fact” under the subscription agreement to the Sypraserts’ policy.
4
The first amended complaint alleges the following causes of action: (1) breach
of the covenant of good faith and fair dealing (first cause of action); (2) breach of
contract (second cause of action); (3) violation of Penal Code section 496 (third cause of
action); (4) breach of fiduciary duty (fourth cause of action); (5) fraud in the inducement
of the insurance policy and the claim adjustment (fifth cause of action); (6) negligent
misrepresentation (sixth cause of action); (7) intentional interference with a contractual
relationship (seventh cause of action); (8) violation of the Unruh Civil Rights Act
(Civ. Code, § 51, et seq.) (eighth cause of action); (9) violation of the Unfair
Competition Law (Bus. & Prof. Code, § 17200) (ninth cause of action); (10) fraud by
including an illegal suit limitations provision in the insurance policy (tenth cause of
action); (11) negligent misrepresentation (eleventh cause of action); and (12) violation
of Penal Code section 496 (twelfth cause of action).
The first, third, fifth, sixth, and eighth causes of action are brought against all
three defendants. The fourth cause of action is brought only against Underwriters. The
second, and ninth through twelfth, causes of action are brought only against Truck. The
seventh cause of action is brought against Farmers and Underwriters, but not Truck. All
3
Defendants demurred to the first amended complaint.5 The trial court sustained
defendants’ demurrer without leave to amend as to all of the causes of action, except for
the fourth cause of action for breach of fiduciary duty asserted only against
Underwriters.6 The court found that most of the Sypraserts’ claims are barred by the
suit limitations provision included in the Sypraserts’ insurance policy. As to the
Sypraserts’ claims for violations of the Unruh Civil Rights Act and the Unfair
Competition Law, the court found those claims are barred by the statute of limitations
applicable to the underlying statutes giving rise to the claims. The Sypraserts appeal.
DISCUSSION
I. Standard of Review
We apply a de novo standard of review to a trial court’s order of dismissal
following an order sustaining a demurrer. (Los Altos El Granada Investors v. City of
Capitola (2006) 139 Cal.App.4th 629, 650.) In other words, we exercise our
“independent judgment about whether the complaint states a cause of action as a matter
of law.” (Ibid.) “In reviewing a judgment of dismissal after a demurrer is sustained
without leave to amend, we must assume the truth of all facts properly pleaded by the
plaintiffs, as well as those that are judicially noticeable.” (Howard Jarvis Taxpayers
Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.)
When a demurrer “is sustained without leave to amend, we decide whether there
is a reasonable possibility that the defect can be cured by amendment: if it can be, the
of the causes of action are brought by the Sypraserts individually. The ninth through
twelfth causes of action are also brought on behalf of the purported class.
5
Defendants also filed a request for judicial notice of the first amended complaint,
an online press release discussing the Sypraserts’ insurance claim, and the letter denying
the Sypraserts’ insurance claim. No ruling on the request for judicial notice appears in
the record. However, it does not appear the trial court relied on any of the material
included in the request, other than the operative pleading which was the subject of the
demurrer, when it ruled on defendants’ demurrer.
6
The Sypraserts dismissed with prejudice the remaining fourth cause of action for
breach of fiduciary duty after the court ruled on defendants’ demurrer.
4
trial court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Such
a showing can be made for the first time before the reviewing court. (Smith v. State
Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711 (Smith).) “The
burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank,
supra, 39 Cal.3d at p. 318.)
A demurrer may be sustained without leave to amend where, “ ‘the facts are not
in dispute, and the nature of the plaintiff’s claim is clear, but, under the substantive law,
no liability exists.’ [Citation.]” (Seidler v. Municipal Court (1993) 12 Cal.App.4th
1229, 1233.) “A judgment of dismissal after a demurrer has been sustained without
leave to amend will be affirmed if proper on any grounds stated in the demurrer,
whether or not the court acted on that ground.” (Carman v. Alvord (1982) 31 Cal.3d
318, 324.)
II. Truck’s Suit Limitations Provision Complies with California Law
The Sypraserts contend their causes of action for breach of contract and bad faith
are not barred by their policy’s suit limitations provision because that provision is
invalid or violates public policy. The Sypraserts also contend they adequately alleged
individual and class claims for fraud, negligent misrepresentation, theft, and violation of
the Unfair Competition Law based on Truck’s inclusion of an illegal suit limitations
provision in insurance policies sold to class members. The Sypraserts explain that
Truck’s suit limitations provision is “inaccurate and deceptive” because it does not
contain language describing equitable tolling. Because most of the Sypraserts’ causes
of action are time-barred under the suit limitations provision, we first address the
legality of that provision. As explained below, Truck’s suit limitations provision is
valid because it conforms with the Insurance Code’s requirements.
Insurance Code section 2071 sets forth the standard form that all fire insurance
policies must follow. (See Ins. Code, §§ 2070 & 2071.) Insurance providers cannot
make changes to the standard form unless the changes “provide total fire coverage that
is at least ‘substantially equivalent’ to [or more favorable than] coverage provided by
5
the standard form.” (Century-National Ins. Co. v. Garcia (2011) 51 Cal.4th 564, 567;
see also Ins. Code, § 2070.) Part of the Insurance Code’s standard form is a suit
limitations provision that provides: “No suit or action on this policy for the recovery of
any claim shall be sustainable in any court of law or equity unless all the requirements
of this policy shall have been complied with, and unless commenced within 12 months
next after inception of the loss.” (Ins. Code, § 2071.) This provision, or
a similarly-worded one, should be included in all fire insurance policies issued in
California. (Ashou v. Liberty Mut. Fire Ins. Co. (2006) 138 Cal.App.4th 748, 756.)
Here, a similarly worded provision is included in the policies issued by Truck.
The provision included in the Sypraserts’ policy provides: “No one may bring a legal
action against us under this insurance unless: [¶] a. There has been full compliance with
all of the terms of this insurance; and [¶] b. The action is brought within 2 years after
the date on which the direct physical loss or damage occurred.” The Sypraserts also
allege a nearly identical provision was included in policies sold to class members.7 This
type of provision “ ‘has long been recognized as valid in California. . . . ’ [Citation.]”
(Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674, 683
(Prudential-LMI).) As such, the two-year suit limitations provision included in Truck’s
policies complies with the Insurance Code.
We now turn to the Sypraserts’ argument that Truck’s suit limitations provision
is illegal because it does not include equitable tolling language. In Prudential-LMI, the
California Supreme Court explained how a suit limitations provision operates. The
limitations period begins from the date of “inception of the loss,” which is defined as
the “point in time when appreciable damage occurs and is or should be known to the
insured, such that a reasonable insured would be aware that his notification duty under
the policy has been triggered.” (Prudential-LMI, supra, 51 Cal.3d at pp. 678, 687.) The
7
Specifically, the Sypraserts allege the following provision was included in
policies sold to class members: “ ‘No one may bring a legal action against us under this
insurance unless: . . . The action is brought within 2 years (or 1 year) after the date on
which the direct physical loss or damage occurred.’ ” (Italics removed.)
6
limitations period stops running, or becomes equitably tolled, however, if the insured
gives notice of the damage to the insurer. (Id. at p. 693.) The limitations period
remains tolled from when notice is given until the insurer denies coverage, at which
point the limitations period begins to run again. (Ibid.)
Equitable tolling, however, is not statutorily-mandated. It is a judicially-created
rule that affects how a suit limitations provision operates. (See Prudential-LMI, supra,
51 Cal.3d at pp. 687-693). It was established to balance the Legislature’s desire to
expedite resolution of legal disputes arising out of insurance policies against the
difficulties that a shorter-than-usual limitations period creates for an aggrieved insured.
(See Prudential-LMI, supra, 51 Cal.3d at pp. 691-692 [noting that the one-year
limitations period applicable to claims for breach of an insurance policy is shorter than
the three-year statute of limitations applicable to standard breach of contract claims].)
The Sypraserts contention that Prudential-LMI requires all insurance policies
governed by Insurance Code section 2071 to include language describing equitable
tolling is meritless. Prudential-LMI did not hold, or even suggest, that an insurance
policy’s suit limitations provision must include language describing equitable tolling.
(See Prudential-LMI, supra, 51 Cal.3d at pp. 682-684, 687-693.) Rather, the court
simply described how an insurance policy’s suit limitations provision modeled after
Insurance Code section 2071 operates. (See id. at pp. 682-693.) Indeed, it approved
suit limitations provisions that are modeled after Insurance Code section 2071.
Specifically, the court observed that an insurance provision authorized by statute “is
deemed consistent with public policy as established by the Legislature,” and it
recognized that the model suit limitations provision set forth in Insurance Code
section 2071 has long been held valid in California. (Id. at pp. 683-684.)
We note that since Prudential-LMI was decided, the Legislature has not amended
Insurance Code section 2071 to require equitable tolling language in fire insurance
policies. (See Ins. Code, § 2071.) We also note that the Sypraserts do not contend that
Insurance Code section 2071 is unconstitutional, that its terms are unclear or
ambiguous, or that application of its terms would lead to absurd results. Instead, the
7
Sypraserts ask us to write into Insurance Code section 2071 language that the
Legislature did not use. We decline that invitation because courts do not have the
power to rewrite or amend valid legislation. (See DiCampli-Mintz v. County of
Santa Clara (2012) 55 Cal.4th 983, 992.) Because the suit limitations provision
included in the Sypraserts’ policy and the policies underlying their class claims
conforms to the standard form provision set forth in Insurance Code section 2071, it is
valid, enforceable, and consistent with public policy. (See Prudential-LMI, supra,
51 Cal.3d at pp. 683-684.)
III. The Trial Court Properly Dismissed the Sypraserts’ Second and
First Causes of Action for Breach of Contract and Bad Faith
A. The Sypraserts’ second cause of action for breach of
contract is time-barred.
In their second cause of action for breach of contract, the Sypraserts allege Truck
improperly investigated and denied their insurance claim. The trial court found that the
Sypraserts’ breach of contract claim is barred by the suit limitations provision because it
arises under the Sypraserts’ insurance policy. The court was correct.
The first amended complaint alleges that the Sypraserts’ property was damaged
on September 22, 2009. However, it does not allege when the Sypraserts discovered the
damage or filed their claim with Truck. Assuming the Sypraserts filed their claim as
early as possible--i.e., immediately after their property was damaged--the suit
limitations period would have started to run when Truck denied their claim on
February 16, 2010. (See Prudential-LMI, supra, 51 Cal.3d at pp. 683, 693.) The
Sypraserts had two years from February 16, 2010 to file their claim for breach of
contract. They did not file their lawsuit until November 12, 2013, more than a year and
a half after the suit limitations provision expired. Accordingly, their claim for breach of
contract is time-barred.
8
B. The Sypraserts’ first cause of action for bad faith
is time-barred.
The court also correctly found that the Sypraserts’ first cause of action for bad
faith was time-barred. A cause of action for bad faith denial of an insurance claim is
barred by the underlying policy’s suit limitations provision if the cause of action is
a “ ‘transparent attempt to recover on the policy, notwithstanding [the plaintiff’s] failure
to commence suit’ ” within the limitations period. (See Jang v. State Farm Fire &
Casualty Co. (2000) 80 Cal.App.4th 1291, 1301 (Jang), italics omitted.)
Because this cause of action simply recasts the breach of contract cause of action
as a bad faith claim, it too is barred by Truck’s policy’s suit limitations provision. (See
Jang, supra, 80 Cal.App.4th at p. 1301.) Put another way, the bad faith cause of action
fails as a matter of law because it is derivative of, and dependent on, the Sypraserts’
contention that their policy’s suit limitations provision is illegal.
C. Farmers and Truck are not estopped from relying on the
suit limitations provision.
The Sypraserts contend Farmers and Truck should be equitably estopped from
relying on the suit limitations provision to defend against their claims because Farmers
and Truck violated certain regulations governing the handling of insurance claims.
Specifically, the Sypraserts allege Farmers and Truck violated these regulations when
they denied the insurance claim by reciting the language of the suit limitations provision
contained in the Sypraserts’ policy without reference to equitable tolling. We disagree.
Section 2695.4, subdivision (a), of the Fair Claims Settlement Practices
Regulations (Cal. Code, Regs., tit. 10, §§ 2695.1-2695.17) provides in pertinent part:
“Every insurer shall disclose to a first party claimant or beneficiary, all benefits,
coverage, time limits or other provisions of any insurance policy issued by that insurer
that may apply to the claim presented by the claimant.” Section 2695.7, subdivision (f),
of the Fair Claims Settlement Practices Regulations requires an insurer to “provide
written notice of any statute of limitation or other time period requirement upon which
the insurer may rely to deny a claim.” Courts have interpreted these regulations to
9
create an affirmative duty on the part of the insurer to provide timely notice of any
applicable suit limitations provisions when denying the insured’s claim under a policy
issued by the insurer. (See Spray, Gould & Bowers v. Associated Internat. Ins. Co.
(1999) 71 Cal.App.4th 1260, 1269 (Spray); Superior Dispatch, Inc. v. Insurance Corp.
of New York (2010) 181 Cal.App.4th 175, 189-190 (Superior Dispatch) [“An insurer
can comply with both notice requirements with respect to contractual limitations
provisions by timely providing written notice of those provisions”].) An insurer can be
estopped from relying on a suit limitations provision if it does not properly inform the
insured of the provision when denying the insured’s claim. (See Spray, supra,
71 Cal.App.4th at p. 1269; Superior Dispatch, supra, 181 Cal.App.4th at pp. 188-191.)
The Sypraserts cannot establish estoppel because their pleading alleges that
Farmers and Truck complied with the notice requirements of the Fair Claims Settlement
Practices Regulations. Specifically, in the portion of the first amended complaint
entitled “Waiver, Forfeiture and Estoppel,” the Sypraserts allege, “When the claim was
denied, [the Sypraserts] had no reason to believe that the filing date was not as
[d]efendants had represented because the representation mirrored policy language.” As
already discussed, the language used in the suit limitations provision in the Sypraserts’
policy is valid and enforceable. Because the Fair Claims Settlement Practices
Regulations require only that an insurance provider give notice of an applicable
contractual limitations provision, Farmers and Truck satisfied their duty by informing
the Sypraserts of the applicable limitations period using language that “mirrored” the
policy’s suit limitations provision. (See Superior Dispatch, supra, 181 Cal.App.4th at
p. 190.)
This case is distinguishable from Spray, which the Sypraserts rely on to argue
defendants should be estopped from raising the suit limitations provision as a defense.
In Spray, the policyholders raised a triable issue as to whether an insurance company
could be estopped from relying on a suit limitations provision by introducing evidence
that the insurance company failed to advise the policyholders of the provision when it
denied their claim. (Spray, supra, 71 Cal.App.4th at p. 1264.) Here, a dispute does not
10
exist as to whether Farmers and Truck advised the Sypraserts of their policy’s suit
limitations provision when they denied the Sypraserts’ claim.
IV. The Trial Court Properly Dismissed the Sypraserts’ Fifth, Sixth,
Tenth, and Eleventh Causes of Action for Fraud and Negligent
Misrepresentation
The Sypraserts also allege individual and class causes of action for fraud and
negligent misrepresentation. In their fifth cause of action, the Sypraserts allege
Farmers, Truck, and Underwriters engaged in two types of fraud: fraud in the
inducement of the insurance policy by falsely representing that the policy contained
a legal suit limitations provision, and fraud in the adjustment and denial of the
Sypraserts’ claim under the policy. In their tenth cause of action for fraud, the
Sypraserts allege Truck fraudulently induced purported class members into purchasing
its insurance policies by representing that each policy contained a legal suit limitations
provision. The Sypraserts sixth and eleventh causes of action for negligent
misrepresentation are based on the same allegations giving rise to their fraud claims.
The Sypraserts have not adequately pleaded causes of action for fraud based on
a theory of fraud in the inducement of Truck’s insurance policies. Because the suit
limitations provision used by Truck is legal, any representation by defendants that
Truck’s policies contain a legal suit limitations provision cannot form the basis for
a claim of fraud. In other words, the Sypraserts have not alleged any fraudulent conduct
by defendants. Likewise, the Sypraserts have not alleged any negligent
misrepresentation by defendants in the execution of Truck’s insurance policies.
The Sypraserts also have not adequately alleged causes of action for fraud and
negligent misrepresentation arising out of defendants’ adjustment and denial of the
Sypraserts’ insurance claim. “ ‘ “Every element of the cause of action for fraud must be
alleged in the proper manner and the facts constituting the fraud must be alleged with
sufficient specificity to allow [the] defendant to understand fully the nature of the
charge made.” ’ [Citations.]” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991)
2 Cal.App.4th 153, 157 (Tarmann).) This means the plaintiff must allege “the names of
11
the persons who made the allegedly fraudulent representations, their authority to speak,
to whom they spoke, what they said or wrote, and when it was said or written.” (Ibid.)
The same requirement applies to a claim for negligent misrepresentation, where the
alleged misrepresentation is a “false promise” to perform an act. (See id. at p. 159.)
Here, the Sypraserts allege defendants fraudulently concealed the purpose for
which they hired a law firm to investigate the Sypraserts’ claim. The Sypraserts
contend defendants hired the law firm to create the appearance that defendants were
investigating the Sypraserts’ claim, when defendants never intended to investigate the
claim at all. They further allege defendants denied their claim immediately after it was
filed, even though defendants represented that they would conduct a good-faith
investigation. The Sypraserts did not allege, however, who made the representation that
defendants would conduct a good faith investigation of the Sypraserts’ claim, under
what authority that person spoke, and when that person spoke. Accordingly, they have
failed to state causes of action for fraud and negligent misrepresentation arising out of
the adjustment and denial of their claim. (Tarmann, supra, 2 Cal.App.4th at p. 157.)
V. The Trial Court Properly Dismissed the Sypraserts’ Third and
Twelfth Causes of Action for Theft
In their third and twelfth causes of action, the Sypraserts allege claims for “theft”
under Penal Code section 496, subdivision (c). Penal Code section 496, subdivision (c)
allows a plaintiff to recover treble civil damages for theft. (See Bell v. Feibush (2013)
212 Cal.App.4th 1041, 1047-1049.) Penal Code section 484 defines theft as, among
other things, the fraudulent appropriation of money or property by false pretenses.
(Pen. Code, § 484, subd. (a); see also Bell, supra, 212 Cal.App.at p. 1048.) The
elements for theft by false pretenses are: “(1) the making of a false pretense or
representation by the defendant, (2) the intent to defraud the owner of his property, and
(3) actual reliance by the owner upon the false pretense in parting with his property.”
(People v. Fujita (1974) 43 Cal.App.3d 454, 467.)
The Sypraserts’ theft claims are premised on a theory of theft by false pretenses.
In their third cause of action, the Sypraserts allege Farmers, Truck, and Underwriters
12
“fraudulently misappropriated money” and “knowingly and designedly by false and
fraudulent representations or pretenses induced Plaintiffs to pay them money.” (Internal
quotation marks omitted.) Specifically, the Sypraserts allege defendants induced them
into purchasing their insurance policy by falsely claiming that the policy contained
a legal suit limitations provision. In their twelfth cause of action, the Sypraserts allege
Truck engaged in the same conduct when it sold insurance policies to purported class
members.
These allegations do not state claims for theft by false pretenses under Penal
Code section 496, subdivision (c). As already discussed, the suit limitations provision
included in Truck’s policies is legal. Thus, any representation by defendants that
Truck’s policies contain a legal suit limitations provision was not false and does not
support claims for theft by false pretenses as alleged in the third and twelfth causes of
action.
VI. The Trial Court Properly Dismissed the Sypraserts’ Ninth
Cause of Action for Violation of the Unfair Competition Law
In their ninth cause of action, the Sypraserts allege Truck violated the Unfair
Competition Law by selling insurance policies that include the challenged suit
limitations provision. The Unfair Competition Law prohibits any unfair, unlawful, or
fraudulent business act or practice, including “unfair, deceptive, untrue or misleading
advertising” under Business and Professions Code section 17500. (Bus. & Prof. Code,
§ 17200.) To state a cause of action for deceptive or misleading advertising under the
Unfair Competition Law, the plaintiff must allege that consumers are likely to be
deceived by the defendant’s conduct. (Prakashpalan v. Engstrom, Lipscomb and Lack
(2014) 223 Cal.App.4th 1105, 1134.)
The Sypraserts allege Truck engaged in “illegal, unfair and deceptive business,
advertising and solicitation practices” by “misrepresenting to its insureds the time
within which to file suit as a result of mishandling of first party claims.” Specifically,
the Sypraserts allege Truck’s advertisement of its policies as containing a legal suit
13
limitations provision was deceptive because the provision does not contain language
describing equitable tolling.
The Sypraserts’ claims under the Unfair Competition Law fail because they do
not allege any deceptive acts by Truck: there is no requirement that Truck must state or
advertise that its suit limitations provision is subject to equitable tolling. As we already
discussed, the language used in Truck’s suit limitations provision conforms with
Insurance Code section 2071’s standard form. As the Supreme Court observed in
Prudential-LMI, a suit limitations provision that conforms with Insurance Code
section 2071 has long been recognized as valid in California, and such a provision is
deemed consistent with public policy as established by the Legislature.
(Prudential-LMI, supra, 51 Cal.3d at pp. 683-684.)
VII. The Trial Court Properly Dismissed the Sypraserts’ Seventh Cause of
Action for Intentional Interference with a Contractual Relationship
In their seventh cause of action, the Sypraserts allege Farmers intentionally
interfered with their contractual relationship with Truck by improperly investigating
their insurance claim. To state a claim for intentional interference with a contractual
relationship, the plaintiff must allege: “(1) the existence of a valid contract between the
plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the
defendant’s intentional acts designed to induce a breach or disruption of the contractual
relationship; (4) actual breach or disruption of the contractual relationship; and
(5) resulting damage.” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)
“The tort of intentional interference with contractual relations is committed only
by ‘strangers—interlopers who have no legitimate interest in the scope or course of the
contract’s performance.’ [Citation.] Consequently, a contracting party is incapable of
interfering with the performance of his or her own contract and cannot be held liable in
tort for conspiracy to interfere with his or her own contract.” (PM Group, Inc. v.
Stewart (2007) 154 Cal.App.4th 55, 65.) Certain entities or persons who are not parties
to the contract, such as agents of the breaching party, also cannot be held liable for
intentional interference with a contractual relationship. (See Weinbaum v. Goldfarb,
14
Whitman & Cohen (1996) 46 Cal.App.4th 1310, 1316 (Weinbaum).) For example, an
insurance adjusting firm and its employees cannot be held liable for interfering with the
contractual relationship between the insurer and the insured. (Gruenberg v. Aetna Ins.
Co. (1973) 9 Cal.3d 566, 576; see also Weinbaum, supra, 46 Cal.App.4th at p. 1316.)
The Sypraserts try to sidestep the rule that an adjustment firm cannot be held
liable for tortiously interfering with the contractual relationship between the insurer and
the insured by pleading that Truck and Farmers are separate entities. This allegation
does not save the Sypraserts’ claim. Although the Sypraserts allege that the two
companies are separate entities, they do not allege that Farmers was not acting as
Truck’s agent when it adjusted the Sypraserts’ claim. In fact, the Sypraserts specifically
allege that Farmers adjusted their insurance claim. By doing so, the Sypraserts allege
that Farmers acted as Truck’s agent. (See Weinbaum, supra, 46 Cal.App.4th at p. 1316
[an insurance adjustment firm and its employees act as the agent of the insurer].)
Accordingly, Farmers cannot be held liable for intentionally interfering with the
contractual relationship between the Sypraserts and Truck.
Relying on Woods v. Fox Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 344,
the Sypraserts contend an agent of the breaching party can be liable for intentionally
interfering with a contractual relationship. The Sypraserts’ reliance on Woods is
misplaced. In Woods, the court held that a powerful shareholder may be liable if it
interferes with a contract between the corporation whose shares it owns and some other
entity. (Woods, supra, 129 Cal.App.4th at p. 353.) The court did not, however, hold
that an agent of a contracting party can be liable for interference. (Id. at pp. 350-356.)
Indeed, in reaching its holding that shareholders can be liable for interference with
a contractual relationship, it recognized the long-standing rule that a contracting party
and its agent cannot be liable for such interference. (Id. at p. 352.)
VIII. The Trial Court Properly Dismissed the Sypraserts’ Eighth
Cause of Action for Violation of the Unruh Civil Rights Act
Finally, in their eighth cause of action, the Sypraserts allege Farmers, Truck, and
Underwriters violated the Unruh Civil Rights Act. They claim defendants denied them
15
“full and equal accommodations, advantage[s], privileges, and/or services because
[they] are of Thai descent.” The trial court found this claim was barred by the statute of
limitations for causes of action under the Unruh Civil Rights Act.
Claims under the Unruh Civil Rights Act are subject to one of two statutes of
limitations. For claims derived from the common law, a two-year statute of limitations
applies. (See Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 756-759 (Gatto)
[the statute of limitations for personal injury actions governs claims involving liability
derived from common law]; Code Civ. Proc., § 335.1; see also Rylaarsdam et al.,
Cal. Practice Guide: Civil Procedure Before Trial, Statutes of Limitations (The Rutter
Group 2016) ¶¶ 4:620 [if the liability “devolved from common law, the action is subject
to the general 2-year ‘personal injury’ statute of limitations” under Code of Civil
Procedure section 335.1].) For claims based on a statutory liability that did not exist at
common law, a three-year statute of limitations applies. (See Gatto, supra,
98 Cal.App.4th at p. 759; Code Civ. Proc., § 338, subd. (a); see also Rylaarsdam et al.,
Cal. Practice Guide: Civil Procedure Before Trial, Statutes of Limitations (The Rutter
Group 2016) ¶¶ 4:620-4:645.)
A claim under the Unruh Civil Rights Act for denial of “full and equal
accommodations, advantages, facilities, privileges, or services in all business
establishments” on the basis of national origin is derived from the common law and thus
subject to the two-year statute of limitations. (See Gatto, supra, 98 Cal.App.4th at
p. 756, 758.) As a result, the Sypraserts had two years from the time defendants denied
their insurance claim to file their cause of action for violation of the Unruh Civil Rights
Act. Their cause of action is untimely because it was filed more than three and a half
years after their insurance claim was denied.8
8
Even if the three-year statute of limitations applies, the Sypraserts’ cause of
action is barred because the Sypraserts did not file their original complaint within three
years of Truck’s denial of their claim under their policy.
16
IX. The Trial Court Properly Dismissed the Sypraserts’ Causes of Action
Without Leave to Amend
As noted above, the plaintiff carries the burden of demonstrating that there is
a reasonable probability that his or her complaint can be amended to state a cause of
action. (Blank, supra, 39 Cal.3d at p. 318.) Such a showing can be made for the first
time on appeal. (Smith, supra, 93 Cal.App.4th at p. 711.) In their opening brief, the
Sypraserts make no attempt to argue that they can amend their complaint to state causes
of action against Farmers or Truck. They also did not file a reply brief. Because the
Sypraserts have not carried their burden, we affirm the trial court’s dismissal of their
claims after sustaining the demurrer without leave to amend.
DISPOSITION
The order of dismissal is affirmed. Respondents shall recover their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
*
ALDRICH, Acting P. J. HOGUE, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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