EVEREST NATIONAL INSURANCE COMPANY VS ALEXANDER DIAZ

Tentative Rulings

Case Number: 18STLC13127    Hearing Date: August 20, 2020    Dept: 25

HEARING DATE: Wed., August 19, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Everest National Insurance Company v. Diaz

CASE NUMBER: 18STLC13127 COMP. FILED: 10-17-18

NOTICE: OK DISC. C/O: 03-16-20

MOTION C/O: 03-31-20

PROCEEDINGS: MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Plaintiff Everest National Insurance Company

RESP. PARTY: None

MOTION FOR JUDGMENT ON THE PLEADINGS

(CCP §438 )

TENTATIVE RULING:

Plaintiff Everest National Insurance Company’s Motion for Judgment on the Pleadings is GRANTED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of August 14, 2020 [ ] Late [X] None

REPLY: None filed as of August 14, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On October 17, 2018, Plaintiff Everest National Insurance Company (“Plaintiff”) filed an action against Defendant Alexander Diaz (“Defendant”) for subrogation. The Complaint alleges that on February 6, 2018, DOE 1’s negligence during the operation of Defendant’s motor vehicle resulted in damages of $1,631.22. (Comp., ¶ 6.) On December 11, 2018, Defendant filed a general denial with a single affirmative defense stating Plaintiff was at fault for the accident.

On April 29, 2019, the Court granted Plaintiff’s Motion to Deem Requests for Admission Admitted against Defendant. (4/29/19 Minute Order.)

On August 26, 2019, Plaintiff filed the instant Motion for Judgment on the Pleadings (the “Motion”) and Request for Judicial Notice (“RJN”). The Court continued the hearing on February 27, 2020 due to Plaintiff’s failure to properly meet and confer with Defendant. (2/27/20 Minute Order.) Plaintiff was ordered to meet and confer with Defendant and file a declaration attesting to such efforts at least 16 court days before the next hearing. (Id.) On May 8, 2020, Plaintiff filed the requested declaration.

To date, no opposition has been filed.

1. Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

1. Discussion

Here, Plaintiff asserts a single cause of action for subrogation.

“There are eight elements of an insurer's cause of action for equitable subrogation: ‘[1] the insured suffered a loss for which the defendant is liable, either as the wrongdoer whose act or omission caused the loss or because the defendant is legally responsible to the insured for the loss caused by the wrongdoer; [2] the claimed loss was one for which the insurer was not ” (Pulte Home Corporation v. CBR Electric, Inc. (2020) 50 Cal.App.5th 216, 229.) (Italics in original.)

Plaintiff requests that the Court take judicial notice of (1) Defendant’s Answer to the Complaint, (2) Plaintiff’s Motion to Deem Admissions Admitted, and (3) the Court’s April 25, 2019 order granting Plaintiff’s Motion to Deem Admissions Admitted. Plaintiff’s request is GRANTED. (Evid. Code, § 452, subd. (d).)

The admissions in the requests directly contradict the general denial and single affirmative defense. Specifically, the admissions admit that Defendant was the registered owner of the vehicle DOE 1 was driving at the time of the accident and that DOE 1 was driving the vehicle with the permission of Defendant. (RJN, Exh. B., Request for Admissions, Nos. 1-2.) They also admit that Defendant failed to exercise reasonable care in permitting DOE 1’s use of the subject vehicle and that said lack of care was a substantial factor in causing the accident. (Id. at Nos. 3-4.) Further, they admit that the accident caused Plaintiff to incur damages in the amount of at least $1,631.22. (Id. at Nos. 5-8.) Finally, they admit that the affirmative defenses asserted lack merit and evidentiary support. (Id. at No. 9.)

By this Motion, Plaintiff has demonstrated that its Complaint properly pleads a subrogation cause of action and that it served Defendant with requests for admission seeking the admission of the truth of the allegations in the Complaint, as detailed above. The admissions here establish the facts upon which Plaintiff bases its Complaint and Defendant has not alleged a defense to Plaintiff’s action. Accordingly, the Motion for Judgment on the Pleadings is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Everest National Insurance Company’s Motion for Judgment on the Pleadings is GRANTED.

Moving party is ordered to give notice.

Case Number: 18STLC13127    Hearing Date: August 19, 2020    Dept: 25

HEARING DATE: Wed., August 19, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Everest National Insurance Company v. Diaz

CASE NUMBER: 18STLC13127 COMP. FILED: 10-17-18

NOTICE: OK DISC. C/O: 03-16-20

MOTION C/O: 03-31-20

PROCEEDINGS: MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Plaintiff Everest National Insurance Company

RESP. PARTY: None

MOTION FOR JUDGMENT ON THE PLEADINGS

(CCP §438 )

TENTATIVE RULING:

Plaintiff Everest National Insurance Company’s Motion for Judgment on the Pleadings is GRANTED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of August 14, 2020 [ ] Late [X] None

REPLY: None filed as of August 14, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On October 17, 2018, Plaintiff Everest National Insurance Company (“Plaintiff”) filed an action against Defendant Alexander Diaz (“Defendant”) for subrogation. The Complaint alleges that on February 6, 2018, DOE 1’s negligence during the operation of Defendant’s motor vehicle resulted in damages of $1,631.22. (Comp., ¶ 6.) On December 11, 2018, Defendant filed a general denial with a single affirmative defense stating Plaintiff was at fault for the accident.

On April 29, 2019, the Court granted Plaintiff’s Motion to Deem Requests for Admission Admitted against Defendant. (4/29/19 Minute Order.)

On August 26, 2019, Plaintiff filed the instant Motion for Judgment on the Pleadings (the “Motion”) and Request for Judicial Notice (“RJN”). The Court continued the hearing on February 27, 2020 due to Plaintiff’s failure to properly meet and confer with Defendant. (2/27/20 Minute Order.) Plaintiff was ordered to meet and confer with Defendant and file a declaration attesting to such efforts at least 16 court days before the next hearing. (Id.) On May 8, 2020, Plaintiff filed the requested declaration.

To date, no opposition has been filed.

1. Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

1. Discussion

Here, Plaintiff asserts a single cause of action for subrogation.

“There are eight elements of an insurer's cause of action for equitable subrogation: ‘[1] the insured suffered a loss for which the defendant is liable, either as the wrongdoer whose act or omission caused the loss or because the defendant is legally responsible to the insured for the loss caused by the wrongdoer; [2] the claimed loss was one for which the insurer was not ” (Pulte Home Corporation v. CBR Electric, Inc. (2020) 50 Cal.App.5th 216, 229.) (Italics in original.)

Plaintiff requests that the Court take judicial notice of (1) Defendant’s Answer to the Complaint, (2) Plaintiff’s Motion to Deem Admissions Admitted, and (3) the Court’s April 25, 2019 order granting Plaintiff’s Motion to Deem Admissions Admitted. Plaintiff’s request is GRANTED. (Evid. Code, § 452, subd. (d).)

The admissions in the requests directly contradict the general denial and single affirmative defense. Specifically, the admissions admit that Defendant was the registered owner of the vehicle DOE 1 was driving at the time of the accident and that DOE 1 was driving the vehicle with the permission of Defendant. (RJN, Exh. B., Request for Admissions, Nos. 1-2.) They also admit that Defendant failed to exercise reasonable care in permitting DOE 1’s use of the subject vehicle and that said lack of care was a substantial factor in causing the accident. (Id. at Nos. 3-4.) Further, they admit that the accident caused Plaintiff to incur damages in the amount of at least $1,631.22. (Id. at Nos. 5-8.) Finally, they admit that the affirmative defenses asserted lack merit and evidentiary support. (Id. at No. 9.)

By this Motion, Plaintiff has demonstrated that its Complaint properly pleads a subrogation cause of action and that it served Defendant with requests for admission seeking the admission of the truth of the allegations in the Complaint, as detailed above. The admissions here establish the facts upon which Plaintiff bases its Complaint and Defendant has not alleged a defense to Plaintiff’s action. Accordingly, the Motion for Judgment on the Pleadings is GRANTED.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Everest National Insurance Company’s Motion for Judgment on the Pleadings is GRANTED.

Moving party is ordered to give notice.

Case Number: 18STLC13127    Hearing Date: February 27, 2020    Dept: 25

MOTION FOR JUDGMENT ON THE PLEADINGS

(CCP §438 )

TENTATIVE RULING:

Plaintiff Everest National Insurance Company’s Motion for Judgment on the Pleadings is CONTINUED to APRIL 30, 2020, at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, Plaintiff is ordered to file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being denied or placed off calendar.

ANALYSIS:

1. Background

On October 17, 2018, Plaintiff Everest National Insurance Company (“Plaintiff”) filed an action against Defendant Alexander Diaz (“Defendant”) for subrogation. The Complaint alleges that on February 6, 2018, DOE 1’s negligence during the operation of Defendant’s motor vehicle resulted in damages to Plaintiff’s insured. (Comp., ¶ 6.) On December 11, 2018, Defendant filed an Answer, in pro per.

On April 25, 2019, the Court granted Plaintiff’s Motion to Deem Requests for Admission Admitted against Defendant. (4/25/19 Minute Order.)

On August 26, 2019, Plaintiff filed the instant Motion for Judgment on the Pleadings (the “Motion”) and Request for Judicial Notice (“RJN”). To date, no opposition or reply briefs have been filed.

1. Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

1. Discussion

A. Meet and Confer Requirement

 

Plaintiff’s counsel’s declaration states he sent Defendant a meet and confer letter on August 5, 2019, but did not receive a response. (Mot., Pleasant Decl., p. 1-2, Exh. A.) However, Code of Civil Procedure section 439 requires that the parties meet and confer in person or by telephone at least 5 days before a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439, subd (a).) Plaintiff’s declaration does not state that the parties met and conferred in person or by telephone, or that there was even an attempt to do so. Thus, it does not satisfy the meet and confer requirement of Section 439, subdivision (a).

Plaintiff is ordered to meet and confer with Defendant in person or by telephone and to file a supplemental declaration attesting to such efforts at least 16 court days before the next scheduled hearing.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Everest National Insurance Company’s Motion for Judgment on the Pleadings is CONTINUED to APRIL 30, 2020, at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, Plaintiff is ordered to file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being denied or placed off calendar.

Moving party is ordered to give notice.