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This case was last updated from Los Angeles County Superior Courts on 05/13/2021 at 02:40:42 (UTC).

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, AN INTERINSURANCE EXCHANGE VS NICHOLAS NAGEL, ET AL.

Case Summary

On 03/14/2019 INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, AN INTERINSURANCE EXCHANGE filed a Personal Injury - Uninsured Motor Vehicle lawsuit against NICHOLAS NAGEL. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2587

  • Filing Date:

    03/14/2019

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Uninsured Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB AN INTERINSURANCE EXCHANGE

Defendants and Cross Plaintiffs

NAGEL NICHOLAS

NAGEL JENNIFER

Cross Defendants

MENDOTA INSURANCE COMPANY

NAGEL ROBERT

Attorney/Law Firm Details

Plaintiff Attorney

MCCLAIN DEBORAH

Defendant and Cross Plaintiff Attorney

NAGEL JENNIFER LYN

Cross Defendant Attorneys

DELANY GENNA BROOKE

WERBIN ANTHONY W.

 

Court Documents

Request for Dismissal - Request for Dismissal

5/7/2021: Request for Dismissal - Request for Dismissal

Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

5/7/2021: Notice of Change of Address or Other Contact Information - Notice of Change of Address or Other Contact Information

Motion to Continue (name extension) - Motion to Continue Hearing on Motion for Summary Judgment

1/19/2021: Motion to Continue (name extension) - Motion to Continue Hearing on Motion for Summary Judgment

Declaration (name extension) - Declaration DECLARATION OF KATHERINE ALLEN IN SUPPORT OF CROSS-DEFENDANT MENDOTA INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY ADJUDICATION

10/30/2020: Declaration (name extension) - Declaration DECLARATION OF KATHERINE ALLEN IN SUPPORT OF CROSS-DEFENDANT MENDOTA INSURANCE COMPANY'S MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY ADJUDICATION

Notice (name extension) - Notice OF ERRATA TO CROSS-DEFENDANT MENDOTA INSURANCE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICA

11/2/2020: Notice (name extension) - Notice OF ERRATA TO CROSS-DEFENDANT MENDOTA INSURANCE COMPANY'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, ALTERNATIVELY SUMMARY ADJUDICA

Substitution of Attorney - Substitution of Attorney

3/3/2020: Substitution of Attorney - Substitution of Attorney

Reply (name extension) - Reply CROSS-DEFENDANT MENDOTA INSURANCE CO.'S REPLY TO THE OPPOSITION TO THE DEMURRER

1/14/2020: Reply (name extension) - Reply CROSS-DEFENDANT MENDOTA INSURANCE CO.'S REPLY TO THE OPPOSITION TO THE DEMURRER

Response (name extension) - Response Jennifer Nagel's and Nicholas Nagel's Response to Notice of Demurrer and Demurrer to Cross-Complaint

10/15/2019: Response (name extension) - Response Jennifer Nagel's and Nicholas Nagel's Response to Notice of Demurrer and Demurrer to Cross-Complaint

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

9/13/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

9/23/2019: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

9/23/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

9/23/2019: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

6/12/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

6/12/2019: Order on Court Fee Waiver (Superior Court) - Order on Court Fee Waiver (Superior Court)

Summons - Summons on Cross Complaint

6/12/2019: Summons - Summons on Cross Complaint

Summons - Summons on Complaint

3/14/2019: Summons - Summons on Complaint

Complaint - Complaint

3/14/2019: Complaint - Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

3/14/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

31 More Documents Available

 

Docket Entries

  • 05/10/2021
  • DocketAddress for Jennifer Lyn Nagel (Attorney) updated

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  • 05/07/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by: Jennifer Lyn Nagel (Attorney)

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  • 05/07/2021
  • DocketOn the Amended Cross-Complaint (1st) filed by Jennifer Nagel, et al. on 02/04/2020, entered Request for Dismissal with prejudice filed by Jennifer Nagel and Nicholas Nagel as to Mendota Insurance Company

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  • 04/02/2021
  • DocketNon-Jury Trial scheduled for 04/26/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 04/02/2021

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  • 04/02/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/17/2022 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 04/02/2021

    Read MoreRead Less
  • 03/23/2021
  • DocketUpdated -- Stipulation and Order Stipulation for Conditional Settlement & Dismissal: Filed By: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); Result: Granted; Result Date: 03/23/2021

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  • 03/23/2021
  • DocketUpdated -- Stipulation and Order Stipulation for Conditional Settlement & Dismissal: Status Date changed from 03/15/2021 to 03/23/2021; Result Date changed from 03/23/2021 to 03/23/2021; As To Parties changed from Nicholas Nagel (Defendant), Jennifer Nagel (Defendant) to Nicholas Nagel (Defendant), Jennifer Nagel (Defendant)

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  • 03/23/2021
  • DocketOn the Complaint filed by Interinsurance Exchange of the Automobile Club, an interinsurance exchange on 03/14/2019, entered Order for Dismissal without prejudice as to Nicholas Nagel and Jennifer Nagel

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  • 03/08/2021
  • DocketMinute Order (Hearing on Motion for Summary Judgment)

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  • 03/08/2021
  • DocketHearing on Motion for Summary Judgment scheduled for 03/08/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 03/08/2021; Result Type to Held - Motion Granted

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46 More Docket Entries
  • 06/12/2019
  • DocketUpdated -- Request to Waive Court Fees: Filed By: Jennifer Nagel (Defendant); Result: Granted; Result Date: 06/12/2019; As To Parties: removed

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  • 06/11/2019
  • DocketProof of Service by Substituted Service; Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Nicholas Nagel (Defendant); Proof of Mailing Date: 04/26/2019; Service Cost: 100.00; Service Cost Waived: No

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  • 06/11/2019
  • DocketProof of Service by Substituted Service; Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Jennifer Nagel (Defendant); Proof of Mailing Date: 04/26/2019; Service Cost: 100.00; Service Cost Waived: No

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  • 03/14/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/17/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less
  • 03/14/2019
  • DocketNon-Jury Trial scheduled for 09/10/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

    Read MoreRead Less
  • 03/14/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/14/2019
  • DocketCivil Case Cover Sheet; Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Nicholas Nagel (Defendant); Jennifer Nagel (Defendant)

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  • 03/14/2019
  • DocketSummons on Complaint; Issued and Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Nicholas Nagel (Defendant); Jennifer Nagel (Defendant)

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  • 03/14/2019
  • DocketComplaint; Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Nicholas Nagel (Defendant); Jennifer Nagel (Defendant)

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  • 03/14/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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Tentative Rulings

Case Number: 19STLC02587    Hearing Date: March 8, 2021    Dept: 25

HEARING DATE: Mon., March 8, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Interinsurance Exchange of the Automobile Club v. Nagel, et al.

CASE NUMBER: 19STLC02587 COMPL. FILED: 03-14-19

NOTICE: OK DISC. C/O: 03-27-21

DISC. MOT. C/O: 04-11-21

TRIAL DATE: 04-26-21

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

MOVING PARTY: Cross-Defendant Mendota Insurance Company

RESP. PARTY: None

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Cross-Defendant Mendota Insurance Company’s Motion for Summary Judgment is GRANTED.

SERVICE:

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

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

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: None filed as of March 4, 2021 [ ] Late [ ] None

REPLY: None filed as of March 4, 2021 [ ] Late [ ] None

ANALYSIS:

  1. Background

On March 14, 2019, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed a complaint in subrogation against Nicholas Nagel (“Nicholas”) and Jennifer Nagel (“Jennifer”). Self-represented Nicholas and Jennifer filed an Answer and a Cross-Complaint against Mendota Insurance Company (“Mendota”) and Robert Nagel (“Robert”) on June 12, 2019.

Mendota filed a demurrer to the Cross-Complaint on September 23, 2019. The demurrer was sustained with 20 days’ leave to amend. (1/22/20 Minute Order.) Nicholas and Jennifer filed a First Amended Cross-Complaint (the “FACC”) against Mendota only on February 4, 2020. Mendota filed an Answer to the FACC on March 16, 2020.

On October 30, 2020, Mendota filed the instant Motion for Summary Judgment, Alternatively Summary Adjudication (the “Motion”). No opposition was filed.

  1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

  1. Discussion

This action arises out of an accident that occurred on April 22, 2017 between Plaintiff’s insured and Nicholas. (FACC, ¶ 3.) Cross-Complainants allege Mendota breached the parties’ contract by failing to provide insurance coverage for the accident or a legal defense to Plaintiff’s subrogation lawsuit.

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

As noted above, this action arises from an automobile accident that occurred on or about April 22, 2017 between Plaintiff’s insured and Nicholas. (UMF No. 1.) Mendota presents the following evidence. In her application for coverage with Mendota dated November 22, 2016, Jennifer expressly requested that Nicholas be an excluded driver under her policy (the “Excluded Driver Application”). (UMF No. 7.) The Excluded Driver Application expressly states the following:

“With respect to the coverage(s) you have selected, [Mendota] will not pay damages, expenses, benefits or loss arising out of the maintenance or use of any other or ‘trailer’ while being operated by the ‘named excluded individual(s).’ THIS INCLUDES ANY CLAIM FOR DAMAGES MADE AGAINST YOU, A RELATIVE, OR ANY OTHER ORGANIZATION THAT IS VICARIOUSLY LIABLE FOR AN ACCIDENT ARISING OUT OF THE OPERATION OF AN AUTO OR ‘TRAILER’ BY THE EXCLUDED INDIVIDUAL. The undersigned acknowledge and understand that the Named Driver Exclusion Endorsement becomes effective and that it shall remain in effect for the term of the policy and for each renewal, reinstatement, replacement or amended policy, unless revoked by you. I also understand that this election will apply to future renewals, continuations, replacements and changes in my policy unless I notify Mendota in writing of a new election.” (UMF Nos. 8-9.) (Italics added.)

Mendota issued Policy Number PA3081491 (the “Policy”) to Jennifer Nagel. (UMF No. 5.) The Policy was effective from February 10, 2017 through May 22, 2018. (Id.) The declarations page for the policy indicates that Nicholas was an excluded driver during the relevant Policy coverage period. (UMF No. 6.) In addition, in their responses to Mendota’s requests for admission, Nicholas and Jennifer admit that Nicholas is an excluded driver under the policy. (UMF No. 10.)

The Policy contains the following provision regarding excluded drivers:

“If the named insured has asked us to exclude a specifically named driver from coverage under this policy, or if we have excluded a specifically named driver in lieu of cancellation under your state’s law and indicated that person is an Excluded Driver on your Declarations Page, the following shall apply when that excluded driver operates any motor vehicle:

We do not provide any coverage under any part of this policy for any accident or loss that occurs while an Excluded Driver is operating an auto or any other motor vehicle. When the excluded driver is operating a motor vehicle, coverage shall not apply for the Excluded Driver or any other person, including but not limited to claims for coverage under Liability Coverage against you, a family member, or any other organization or person who may be vicariously liable or liable for negligent entrustment with respect to any accident or loss arising out of the operation of a motor vehicle by any named Excluded Driver.”

(UMF No. 15.) (Italics added.)

In his discovery responses, Nicholas admits he was the person driving at the time of the April 22, 2017 accident. (UMF No. 16.)

The evidence demonstrates that Nicholas was the person driving at the time of the April 22, 2017 accident, that Nicholas was an excluded driver under Jennifer’s Policy with Mendota, and that Mendota’s Policy does not provide coverage to any excluded drivers, such as Nicholas, for accidents or losses that occur while an excluded driver is operating a motor vehicle. Thus, Mendota has carried its initial burden to show there was no contract between Mendota and Nicholas and that Mendota was not otherwise required to provide coverage to Nicholas for the April 22, 2017 accident. The burden now shifts to Jennifer and Nicholas to demonstrate a triable issue of material fact exists. As Jennifer and Nicholas have not filed an opposition, they have not carried their burden. Accordingly, Mendota’s Motion is GRANTED.

  1. Conclusion & Order

For the foregoing reasons, Cross-Defendant Mendota Insurance Company’s Motion for Summary Judgment is GRANTED.

Moving party is ordered to give notice.

Case Number: 19STLC02587    Hearing Date: January 22, 2020    Dept: 25

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Cross-Defendant Mendota Insurance Company’s Demurrer to the Cross-Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

OPPOSITION: Filed on October 15, 2019 [ ] Late [ ] None

REPLY: Filed on January 14, 2020 [ ] Late [ ] None

ANALYSIS:

  1. Background

On March 14, 2019, Plaintiff Interinsurance Exchange of the Automobile Club (“Plaintiff”) filed an action for subrogation against Defendants Nicholas Nagel and Jennifer Nagel (collectively, “Cross-Complainants”). Plaintiff’s action stems from an accident that occurred between Plaintiff’s insured and Nicholas Nagel, Jennifer Nagel’s son.

On June 12, 2019, Cross-Complainants filed an Answer and a Cross-Complaint against Cross-Defendants Mendota Insurance Company (“Mendota”) and Robert Nagel without clearly specifying a cause of action.

On September 23, 2019, Mendota filed a Demurrer to the Cross-Complaint (the “Demurrer”). On October 15, 2019, Cross-Complainants filed an Opposition. That same day, the Court continued the hearing on the Demurrer scheduled for October 20, 2019 to January 22, 2020. On January 14, 2020, Mendota filed a Reply brief.

  1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of

which judicial notice has been taken.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

  1. Discussion

    1. Service of the Cross-Complaint

As an initial matter, the Court addresses the service of the Cross-Complaint on Mendota.

“A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action.” (MJS Enterprises, Inc. v. Superior Court (1984) 153 Cal.App.3d 555, 557.) “Notice of the litigation does not confer personal jurisdiction absent substantial compliance with the statutory requirements for service of summons.” (Id.) Code of Civil Procedure section 428.60, provides that, when a party has not appeared in the action, “a summons upon the cross-complaint shall be issued and served upon him in the same manner as upon a commencement of an original action.” (Code Civ. Proc., § 428.60, subd. (1).) (Italics added.)

Service of process within California can be made by mail if it is coupled with acknowledgment of receipt. (Code Civ. Proc., § 415.30.) When service is made by mail, the plaintiff must serve a copy of the summons and complaint, two copies of the notice and acknowledgment form, and a return envelope, postage prepaid, addressed to the sender. (Code Civ. Proc., § 415.30, subd. (a).) “Service of a summons pursuant to this section is deemed complete on the date a written acknowledgment of receipt of summons is executed, if such acknowledgment thereafter is returned to the sender.” (Code Civ. Proc., § 415.30, subd. (c).) If a party fails to return the acknowledgment, there is no effective service. (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 199.)

Here, Mendota had not previously appeared in the action and thus service of the cross-complaint must comply with the statutory requirements of service of summons of an original action. Cross-Complainants attempted to serve the Cross-Complaint by mail and acknowledgment and receipt of service. (9/10/19 Proof of Service.) However, they did not check the box indicating that Cross-Complainants included two copies of the notice and acknowledgment form and a return envelope, postage prepaid, addressed to the sender as required by Code of Civil Procedure section 415.30, subdivision (a). In addition, Cross-Complainants do not include a copy of the notice and acknowledgment form signed by Mendota with their filed proof of service. Instead, they attempt to satisfy this requirement by attaching a copy of the signed mailing receipt, which is insufficient. (See Tandy Corp. v. Superior Court (1981) 117 Cal.App.3d 911, 913 [finding that a signed postal service receipt is not an acknowledgment of receipt of service of summons].)

However, a general appearance by a party, which includes filing a demurrer, is “equivalent to personal service of summons on each party.” (Code Civ. Proc., § 410.50, subd. (a); Code Civ. Proc., § 1014.) Thus, because Mendota has generally appeared by filing a demurrer, the Court acquired personal jurisdiction over Mendota.

    1. Timeliness of Filing and Meet and Confer Requirement

Mendota was served with the Cross-Complaint by mail on July 23, 2019. (8/27/19 Werbin Decl., ¶ 4.) On August 13, 2019, Mendota’s counsel attempted to meet and confer with Cross-Complainants telephonically but was unable to. (Id., ¶ 5-6.) On August 27, 2019, pursuant to Code of Civil Procedure section 430.41, subdivision (a)(2), Mendota’s counsel filed a declaration stating he was unable to meet and confer with Cross-Complainants, entitling him to an automatic 30-day extension to file a response. Less than 30 days later, Mendota filed this Demurrer on September 23, 2019.

Cross-Complainants argue that Mendota’s Demurrer is untimely. As explained above, because Mendota was not properly served with the Cross-Complaint, it was not required to respond at all. The Court only acquired personal jurisdiction over Mendota because it generally appeared by filing a Demurrer. Thus, Cross-Complainants’ timeliness arguments are irrelevant.

In addition, the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Werbin Decl., ¶¶ 3-6.) Cross-Complainants confusingly state that “Mendota did attempt to meet and confer in good faith,” but allege they never received any messages from Mendota’s counsel and, on that basis, the Demurrer should be overruled. (Oppo., p. 10:8-12; Jennifer Rangel Decl., ¶ 4; Nicholas Rangel Decl., ¶ 5.) Mendota’s counsel made a single effort to contact Cross-Complainants despite obtaining a 30-extension. Counsel is admonished to be more diligent in future meet and confer efforts. Nonetheless, “[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 130.41(a)(4).) That being said, the Court now turns to the merits of the Demurrer.

    1. Uncertainty

Mendota demurs on the basis that the allegations in the Cross-Complaint are uncertain under Code of Civil Procedure section 430.10, subdivision (f).

“A party may demur to a complaint or cross-complaint on the ground that it does not state facts sufficient to constitute a cause of action [CCP §¿430.10(e)]. This is known as a “general” demurrer, while all other grounds for demurrer listed under CCP §¿430.10 are referred to as ‘special’ demurrers.” (1 MB Practice Guide: CA Pretrial Civil Procedure, § 11.08.) Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Thus, this Court does not have jurisdiction to hear Mendota’s Demurrer on the basis of uncertainty.

    1. Failure to State Sufficient Facts to Constitute a Cause of Action

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) Although a written contract is usually pleaded by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pleaded by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199; Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.)

Cross-Complainants do not specify a cause of action in their Cross-Complaint. However, “[t]he labeling of a pleading is not determinative, but rather the subject matter of the action is to be determined from its allegations, regardless of what they may be called. [Citation.]” (Board of Administration v. Wilson (1997) 57 Cal.App.4th 967, 976.) Cross-Complainants appear to attempt to plead a cause of action for breach of contract.

The Cross-Complaint alleges Cross-Complainant Jennifer Nagel contracted with Mendota to provide insurance coverage, including “uninsured motorist coverage” for her vehicle. (Cross-Compl., ¶ 5.) However, Cross-Complainants did not attach a copy of the alleged contact, nor do they allege any of the relevant terms of the alleged contract, other than generally stating they had “uninsured motorist coverage. ” (Id.) Cross-Complainants also do not allege they performed under the contract or were excused from performing. Further, Cross-Complainants do not allege how or when Mendota breached the alleged contract. Indeed, they allege that Mendota “should be required to pay for any damages under Plaintiff’s insured’s claim” (Id., ¶ 6) but also concede that, to their own knowledge, “Plaintiff has failed to make a demand on [Mendota]…” (Id., ¶ 8). Nor do Cross-Complainants allege they themselves made a demand on Mendota to pay Plaintiff’s damages. Further, Cross-Complainants allege that they have received a demand of $20,055.03. (Id.) This amount is what Cross-Complainants appear to be claiming in damages, but it is unclear from the language in their pleading.

For these reasons, Mendota’s Demurrer to the Cross-Complaint is sustained with leave to amend.

  1. Conclusion & Order

For the foregoing reasons, Cross-Defendant Mendota Insurance Company’s Demurrer to the Cross-Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.

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