This case was last updated from Los Angeles County Superior Courts on 10/26/2020 at 04:11:32 (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 Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2587

  • Filing Date:

    03/14/2019

  • Case Status:

    Pending - Other Pending

  • 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

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

Notice of Ruling - Notice of Ruling

1/22/2020: Notice of Ruling - Notice of Ruling

Amended Complaint - (Amended)

2/4/2020: Amended Complaint - (Amended)

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 and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

9/13/2019: Notice and Acknowledgment of Receipt - Notice and Acknowledgment of Receipt

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

Answer - Answer

9/24/2019: Answer - Answer

Proof of Service by Substituted Service - Proof of Service by Substituted Service

6/11/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

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

19 More Documents Available

 

Docket Entries

  • 03/17/2022
  • Hearing03/17/2022 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 04/26/2021
  • Hearing04/26/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 09/18/2020
  • DocketNotice of Continuance of Hearing and Proof of Service; Filed by: Interinsurance Exchange of the Automobile Club, an interinsurance exchange (Plaintiff); As to: Nicholas Nagel (Defendant); Jennifer Nagel (Defendant)

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  • 09/03/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 09/03/2020
  • DocketOn the Court's own motion, Non-Jury Trial scheduled for 09/10/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 04/26/2021 08:30 AM

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  • 03/16/2020
  • DocketAnswer; Filed by: Mendota Insurance Company (Cross-Defendant); As to: Jennifer Nagel (Cross-Complainant); Nicholas Nagel (Cross-Complainant)

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  • 03/03/2020
  • DocketSubstitution of Attorney; Filed by: Jennifer Nagel (Cross-Complainant); Jennifer Nagel (Defendant); As to: Jennifer Lyn Nagel (Attorney)

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  • 02/04/2020
  • DocketAmended Amended Complaint; Filed by: Jennifer Nagel (Cross-Complainant); Nicholas Nagel (Cross-Complainant); As to: Mendota Insurance Company (Cross-Defendant); Robert Nagel (Cross-Defendant)

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  • 02/04/2020
  • DocketUpdated -- Amended Amended Complaint: As To Parties changed from Robert Nagel (Cross-Defendant), Mendota Insurance Company (Cross-Defendant) to Mendota Insurance Company (Cross-Defendant), Robert Nagel (Cross-Defendant)

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  • 02/04/2020
  • DocketUpdated -- Amended Amended Complaint Amended Cross-Complaint (1st): Name Extension: Amended Cross-Complaint (1st); As To Parties changed from Robert Nagel (Cross-Defendant), Mendota Insurance Company (Cross-Defendant) to Mendota Insurance Company (Cross-Defendant), Robert Nagel (Cross-Defendant)

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28 More Docket Entries
  • 06/12/2019
  • DocketCross-Complaint; Filed by: Jennifer Nagel (Cross-Complainant); Nicholas Nagel (Cross-Complainant); As to: Mendota Insurance Company (Cross-Defendant); Robert Nagel (Cross-Defendant)

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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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  • 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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  • 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

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

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  • 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: 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.