Another Bite at the Apple

Eghtesad v. State Farm Gen. Ins. Co., No. A147481 (D1d2 Jun. 29, 2020)

Plaintiff here filed a form complaint against an insurance company. The factual allegations, which included claims for breach of contract, bad faith, and slander, were less than clear. Defendant demurred. Plaintiff, pro se at the time, failed to file an opposition, but did ask the trial court for a continuance to try to settle and hire a lawyer. The trial granted a couple of more continuances based on Plaintiff’s claims to have been injured in an auto accident. But eventually the court’s patience ran out. It denied a final continuance and, plaintiff having failed to respond, granted the demurrer without leave and dismissed the case with prejudice.

That was not a good idea. In California state court, it is an abuse of discretion not to give leave after the granting of a demurrer to an original complaint unless the face of the complaint shows there is no way it can be amended. Here, plaintiff’s original complaint was not very well organized, but there were facts in it that potentially suggested Plaintiff could allege a claim for breach of contract and bad faith. The Court further notes that, because a failure to afford leave to amend can be reversed even if Plaintiff failed to ask for leave from the trial court, a plaintiff’s representation in an appellate brief that if given the opportunity certain facts can be alleged is adequate to support a reversal.

Plaintiff’s slander claim, on the other hand, fares less well. The person who made the allegedly defamatory statements in that claim is actually not the insurance company. It was a third party, neither named as a defendant nor served. And at oral argument, Plaintiff admitted that the statements were made, and he knew they were made, in 2015. So even if Plaintiff could amend to name the right defendant and serve him, the one-year statute on defamation has long run. Since that incurable defect was plain from the complaint itself and Plaintiff’s admissions, no amendment is going to fix it.

Reversed.