This case was last updated from Los Angeles County Superior Courts on 02/06/2020 at 08:14:26 (UTC).

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB VS RAUL AVILA

Case Summary

On 04/25/2019 INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB filed a Personal Injury - Uninsured Motor Vehicle lawsuit against RAUL AVILA. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4104

  • Filing Date:

    04/25/2019

  • Case Status:

    Other

  • 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

WENDY CHANG

 

Party Details

Plaintiff and Cross Defendant

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB

Defendant and Cross Plaintiff

AVILA RAUL

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorneys

BAILEY JUDI

BEAN MICHAEL L.

Defendant Attorney

JALBUENA ARNEL BABIERA

 

Court Documents

Request for Dismissal - Request for Dismissal

1/24/2020: Request for Dismissal - Request for Dismissal

Notice of Settlement - Notice of Settlement

12/4/2019: Notice of Settlement - Notice of Settlement

Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

12/5/2019: Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

10/2/2019: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

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

9/4/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Declaration (name extension) - Declaration Declaration of Demurring or Moving Party in Support of Automatic Extension

8/5/2019: Declaration (name extension) - Declaration Declaration of Demurring or Moving Party in Support of Automatic Extension

Substitution of Attorney - Substitution of Attorney

8/5/2019: Substitution of Attorney - Substitution of Attorney

Answer - Answer

6/20/2019: Answer - Answer

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

6/20/2019: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

Cross-Complaint - Cross-Complaint

6/21/2019: Cross-Complaint - Cross-Complaint

Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

6/21/2019: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)

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

5/24/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Declaration re: Due Diligence - Declaration re: Due Diligence

5/28/2019: Declaration re: Due Diligence - Declaration re: Due Diligence

Complaint - Complaint

4/25/2019: Complaint - Complaint

Summons - Summons on Complaint

4/25/2019: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

4/25/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

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

4/25/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

5 More Documents Available

 

Docket Entries

  • 01/28/2020
  • DocketUpdated -- Request for Dismissal: As To Parties changed from Raul Avila (Cross-Complainant) to Interinsurance Exchange of the Automobile Club (Cross-Defendant), Raul Avila (Defendant)

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  • 01/28/2020
  • DocketOrder to Show Cause - Hearing re: Dismissal Date scheduled for 04/22/2020 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/28/2020

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  • 01/24/2020
  • DocketOn the Cross-Complaint filed by Raul Avila on 06/21/2019, entered Request for Dismissal with prejudice filed by Raul Avila as to Interinsurance Exchange of the Automobile Club

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  • 01/24/2020
  • DocketOn the Complaint filed by Interinsurance Exchange of the Automobile Club on 04/25/2019, entered Request for Dismissal with prejudice filed by Interinsurance Exchange of the Automobile Club as to Raul Avila

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  • 01/24/2020
  • DocketRequest for Dismissal; Filed by: Interinsurance Exchange of the Automobile Club (Cross-Defendant); As to: Raul Avila (Cross-Complainant)

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  • 12/05/2019
  • DocketUpdated -- Notice of Settlement: As To Parties: removed

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  • 12/05/2019
  • DocketUpdated -- Order to Show Cause re: Dismissal (Settlement): Status Date changed from 12/05/2019 to 12/05/2019; As To Parties: removed

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  • 12/05/2019
  • DocketOrder to Show Cause - Hearing re: Dismissal Date scheduled for 04/22/2020 at 10:30 AM in Stanley Mosk Courthouse at Department 94

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  • 12/05/2019
  • DocketOrder to Show Cause re: Dismissal (Settlement); Filed by: Clerk

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  • 12/05/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/28/2022 at 10:30 AM in Stanley Mosk Courthouse at Department 94 Not Held - Vacated by Court on 12/05/2019

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12 More Docket Entries
  • 06/20/2019
  • DocketProof of Service (not Summons and Complaint); Filed by: Raul Avila (Defendant); As to: Interinsurance Exchange of the Automobile Club (Plaintiff)

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  • 05/28/2019
  • DocketDeclaration re: Due Diligence; Filed by: Interinsurance Exchange of the Automobile Club (Plaintiff); As to: Raul Avila (Defendant)

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  • 05/24/2019
  • DocketProof of Service by Substituted Service; Filed by: Raul Avila (Defendant); As to: Raul Avila (Defendant); Proof of Mailing Date: 05/16/2019; Service Cost: 100.00; Service Cost Waived: No

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  • 04/26/2019
  • DocketNon-Jury Trial scheduled for 10/22/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 04/26/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/28/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 04/26/2019
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 04/25/2019
  • DocketComplaint; Filed by: Interinsurance Exchange of the Automobile Club (Plaintiff); As to: Raul Avila (Defendant)

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  • 04/25/2019
  • DocketSummons on Complaint; Issued and Filed by: Interinsurance Exchange of the Automobile Club (Plaintiff); As to: Raul Avila (Defendant)

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  • 04/25/2019
  • DocketCivil Case Cover Sheet; Filed by: Interinsurance Exchange of the Automobile Club (Plaintiff); As to: Raul Avila (Defendant)

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  • 04/25/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC04104    Hearing Date: December 09, 2019    Dept: 94

Interinsurance Exchange of the Automobile Club v. Avila, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Cross-Defendant Interinsurance Exchange of the Automobile Club’s Demurrer to the Cross-Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On April 25, 2019, Interinsurance Exchange of the Automobile Club (“Cross-Defendant”) filed the instant action for breach of contract against Defendant Raul Avila (“Cross-Complainant”). On June 21, 2019, Cross-Complainant filed a Cross-Complaint for breach of contract against Cross-Defendant. Cross-Defendant then filed the instant Demurrer to the Cross-Complaint on September 4, 2019. To date, no opposition has been filed.

Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). Specifically, a demurrer may be brought per Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. Per Code of Civil Procedure section 430.10, subdivision (a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

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.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Discussion

The Court finds that the Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Bean Decl., filed 8/5/19.) In demurring to the Cross-Complaint, Cross-Defendant contends that Cross-Complainant fails to allege facts to support a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (d).) The Cross-Complaint alleges a single cause of action for breach of contract.

The pleading must allege the contract, plaintiff’s performance or excuse for non-performance, defendant’s breach, and damage to plaintiff therefrom. (Acoustics, Inc. v. Trepte Constr. Co. (1971) 14 Cal.App.3d 887, 913.) Although the terms of a written contract are usually pleaded by attaching a copy that is incorporated by reference, the terms can also be pleaded by alleging 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.)

The Cross-Complaint neither alleges the relevant terms, nor attaches a copy of, the parties’ agreement. (Cross-Compl., ¶BC-1.) Instead, it jumps straight to allegations of Cross-Defendant’s breach due to its “refusing to deal with Plaintiff in good faith,” which caused Cross-Complaint’s inability to perform on the contract (Id. at ¶BC-2.) This is an attempt to allege a cause of action for breach of the implied covenant of good faith and fair dealing. Every contract imposes upon each party a duty of good faith and fair dealing in the performance of the contract such that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36.)

Although Cross-Defendant argues that there can be no cause of action for the implied covenant of good faith and fair dealing over a med-pay benefits agreement (citing Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 276-81), it cannot be determined what type of agreement is at issue in the Cross-Complaint. The Cross-Complaint does not set forth any of the contract terms, so the Court cannot find it refers to the contract at issue in Plaintiff’s Complaint. The Cross-Complaint simply refers to an agreement to reimbursement. (Cross-Compl., ¶BC-2.)

Based on the foregoing, the Demurrer to the Cross-Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.