This case was last updated from Los Angeles County Superior Courts on 06/01/2019 at 19:55:21 (UTC).

COAST NATIONAL INSURANCE COMPANY VS BERNANDINO CAMBRAY FLORE

Case Summary

On 02/19/2016 COAST NATIONAL INSURANCE COMPANY filed a Personal Injury - Uninsured Motor Vehicle lawsuit against BERNANDINO CAMBRAY FLORE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0948

  • Filing Date:

    02/19/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Uninsured Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff and Petitioner

COAST NATIONAL INSURANCE COMPANY

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

DOES I THROUGH V

FLORES BERNANDINO CAMBRAY

ANCHOR GENERAL INSURANCE COMPANY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BENSON LEGAL APC

BENSON SUSAN MARY ESQ.

Defendant Attorney

RODRIGUEZ KRISTEN RENE ESQ.

Cross Plaintiff Attorney

LOCHEAD JAMES S. ESQ.

 

Court Documents

SUBSTITUTION OF ATTORNEY

2/1/2018: SUBSTITUTION OF ATTORNEY

Minute Order

2/1/2018: Minute Order

Minute Order

4/12/2018: Minute Order

NOTICE OF RULING

4/17/2018: NOTICE OF RULING

Minute Order

7/11/2018: Minute Order

NOTICE OF FINAL STATUS CONFERENCE AND TRIAL

8/2/2018: NOTICE OF FINAL STATUS CONFERENCE AND TRIAL

Minute Order

1/11/2019: Minute Order

Ex Parte Application

1/17/2019: Ex Parte Application

Minute Order

1/22/2019: Minute Order

Ex Parte Application

5/21/2019: Ex Parte Application

COMPLAINT FOR PROPERTY DAMAGES AND UNINSURED MOTORIST BODILY INJURY DAMAGES

2/19/2016: COMPLAINT FOR PROPERTY DAMAGES AND UNINSURED MOTORIST BODILY INJURY DAMAGES

SUMMONS

2/19/2016: SUMMONS

PROOF OF SERVICE SUMMONS AND COMPLAINT

3/17/2016: PROOF OF SERVICE SUMMONS AND COMPLAINT

Unknown

3/30/2016: Unknown

REQUEST FOR ENTRY OF DEFAULT

9/2/2016: REQUEST FOR ENTRY OF DEFAULT

Minute Order

8/7/2017: Minute Order

Minute Order

12/8/2017: Minute Order

Minute Order

12/11/2017: Minute Order

21 More Documents Available

 

Docket Entries

  • 05/29/2019
  • Demurrer - with Motion to Strike (CCP 430.10); Filed by ANCHOR GENERAL INSURANCE COMPANY (Cross-Defendant)

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  • 05/29/2019
  • Motion to Strike (not initial pleading); Filed by ANCHOR GENERAL INSURANCE COMPANY (Cross-Defendant)

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  • 05/24/2019
  • at 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 05/21/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Hearing on Ex Parte Application (for Order Continuing Trial) - Held - Motion Granted

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  • 05/21/2019
  • Minute Order ( (Hearing on Cross-Defendant Anchor General Insurance Company's...)); Filed by Clerk

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  • 05/21/2019
  • Notice (Notice of Continued Trial); Filed by ANCHOR GENERAL INSURANCE COMPANY (Defendant)

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  • 05/21/2019
  • Ex Parte Application (for Order Continuing Trial); Filed by ANCHOR GENERAL INSURANCE COMPANY (Cross-Defendant)

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  • 01/25/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Continued - Party's Motion

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  • 01/22/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Hearing on Ex Parte Application (To Continue Trial and Related Dates) - Held - Motion Granted

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  • 01/22/2019
  • Minute Order ( (Hearing on Ex Parte Application To Continue Trial and Related...)); Filed by Clerk

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51 More Docket Entries
  • 08/05/2016
  • Proof-Service/Summons; Filed by Coast National Insurance Company (Plaintiff)

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  • 03/30/2016
  • Order on Court Fee Waiver (Superior Court); Filed by Bernandino Cambray Flores (Defendant)

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  • 03/30/2016
  • ANSWER TO COMPLAINT FOR UNINSURED PROPERTY DAMAGES AND MOTORIST BODILY INJURY DAMAGES

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  • 03/30/2016
  • ORDER ON COURT FEE WAIVER

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  • 03/30/2016
  • Answer; Filed by Bernandino Cambray Flores (Defendant)

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  • 03/17/2016
  • PROOF OF SERVICE SUMMONS AND COMPLAINT

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  • 03/17/2016
  • Proof-Service/Summons; Filed by Coast National Insurance Company (Plaintiff)

    Read MoreRead Less
  • 02/19/2016
  • COMPLAINT FOR PROPERTY DAMAGES AND UNINSURED MOTORIST BODILY INJURY DAMAGES

    Read MoreRead Less
  • 02/19/2016
  • Complaint; Filed by Coast National Insurance Company (Plaintiff)

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  • 02/19/2016
  • SUMMONS

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Tentative Rulings

Case Number: BC610948    Hearing Date: January 10, 2020    Dept: A

Coast National Ins. Co. v Flore

Motion to Sever Cross-Complaint or Continue Trial

Calendar:

10

Case No.:

BC610948

Hearing Date:

January 10, 2020

Action Filed:

February 19, 2016

Trial Date:

February 18, 2020

MP:

Cross-Defendant Anchor General Insurance Company

RP:

N/A

ALLEGATIONS:

The instant action arises out of property damage to property owned by an insured of Plaintiff Coast National Insurance Company (“Plaintiff”) allegedly caused by Defendant Bernardino Cambray Flores (“Defendant” or “Flores”).

In its Complaint, filed February 16, 2016, Plaintiff alleges a single cause of action for negligence, alleging $42,621.14 in damages.

Defendant filed an Answer on March 30, 2016, and ultimately filed a Cross-Complaint (“XC”) against Cross-Defendant Anchor General Insurance Company (“Cross-Defendant” or “Anchor”) on January 16, 2019. Thereafter, Defendant filed a First Amended Cross-Complaint (“FXC”) on August 08, 2019, alleging seven causes of action sounding in (1) Breach of Contract/Breach of Implied Covenant of Good Faith and Fair Dealing, (2) Declaratory Relief, (3) Indemnification, (4) Negligent Misrepresentation, (5) Intentional Misrepresentation, (6) Fraud, and (7) Insurance Bad Faith.

PRESENTATION:

The Court heard and sustained a demurrer to the FXC on November 01, 2019, with 20 days leave to amend. Anchor filed the instant motion on November 26, 2019, and Defendant dismissed the Cross-Complaint on December 13, 2019.

RELIEF REQUESTED:

Cross-Defendant Anchor General Insurance Company moves to sever the Cross-Complaint or to continue the trial.

DISCUSSION:

The instant motion is moot pursuant to Defendant’s dismissal of the cross-action.

RULING: Off Calendar, moot.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Cross-Defendant Anchor General Insurance Company’s Motion to Sever the Cross-Complaint or Continue Trial came on regularly for hearing on January 10, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS MOOT PURSUANT TO DISMISSAL OF THE CROSS ACTION ON DECEMBER 13, 2019. OFF CALENDAR

DATE: _______________ _______________________________

JUDGE

Case Number: BC610948    Hearing Date: November 01, 2019    Dept: A

Coast National Ins. Co.

Demurrer to Cross-Complaint; Motion to Strike

Discovery motions

Calendar:

08

Case No.:

BC610948

Hearing Date:

November 01, 2019

Action Filed:

February 19, 2016

Trial Date:

February 18, 2020

Demurrer/Strike First Amended Cross-Complaint

MP:

Cross-Defendant Anchor General Insurance Company

RP:

N/A

Discovery Motions

MP:

Cross-Defendant Anchor General Insurance Company

RP:

N/A

ALLEGATIONS:

The instant subrogation action arises out of motor vehicle coverage issued to an insured of Plaintiff Coast National Insurance Company (“Plaintiff”) allegedly caused by Defendant Bernardino Cambray Flores (“Defendant” or “Flores”).

In its Complaint, filed February 16, 2016, Plaintiff alleges a single cause of action for negligence, alleging $42,621.14 in damages. Defendant filed an Answer on March 30, 2016, and ultimately filed a Cross-Complaint (“XC”) against Cross-Defendant Anchor General Insurance Company (“Cross-Defendant” or “Anchor”) on January 16, 2019.

Following demurrer, Defendant filed a First Amended Cross-Complaint (“FXC”) on August 08, 2019, alleging seven causes of action sounding in (1) Breach of Contract/Breach of Implied Covenant of Good Faith and Fair Dealing, (2) Declaratory Relief, (3) Indemnification, (4) Negligent Misrepresentation, (5) Intentional Misrepresentation, (6) Fraud, and (7) Insurance Bad Faith.

PRESENTATION:

Anchor demurred and moved to strike punitive damages and attorney’s fees allegations on September 10 and September 09, 2019, respectively. No opposition was filed with the Court.

Anchor additionally filed motions to (1) Compel Special Interrogatories, (2) Compel Form Interrogatories, (3) Compel Requests for Production, and (4) Deem Requests for Admission Admitted, on September 16, 2019. No opposition has been received by the Court.

RELIEF REQUESTED:

Anchor demurs to each cause of action in the FXC.

Anchor moves to strike allegations for punitive damages and attorney’s fees from the FXC.

Anchor also moves to compel responses to Special Interrogatories, Form Interrogatories, and Requests for Production from Flores without objection, together with $700.00 in sanctions per motion.

Anchor moves to deem Requests for Admission propounded on Flores admitted, together with $700.00 in sanctions.

DISCUSSION:

Standard of Review – Demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Code Civ. Proc. §430.30,(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339.

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. Blank, supra, 39 Cal. 3d at p. 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal. App. 4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank, supra, 39 Cal. 3d at p. 318.

Pursuant to Code Civ. Proc. §430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082, as modified (Dec. 23, 2003).

Meet and Confer – Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).

On review of the Declaration of Kristen Rodriguez, the Court finds that Anchor satisfied its meet and conferral obligations.

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First Cause of Action (Breach of Contract/Breach of Implied Covenant of Good Faith and Fair Dealing) – [Breach of Contract] To plead breach of contract, the plaintiff must allege (1) the existence of a contract, (2) plaintiff’s performance or excuse for non-performance, (3) defendant’s breach, and (4) resulting damage to plaintiff. Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290.

While Anchor argues that the FXC is insufficient to maintain the cause of action the Court’s review of Exhibit A to the FXC and the allegation that Exhibit A constituted the terms of the agreement between Flores and Anchor, and that the agreement was in effect at the time of the accident are sufficient to maintain the basic elements of a breach of contract cause of action. FXC, ¶26.

As such, the Court will overrule the demurrer to the FXC as to the potion of the First Cause of Action sounding in Breach of Contract.

[Breach of Implied Covenant of Good Faith and Fair Dealing] The elements for a cause of action in breach of the covenant of good faith and fair dealing require (1) the existence of a contractual relationship; (2) an implied duty; (3) breach; and (4) causation of damages. Smith v. San Francisco (1990) 225 Cal. App. 3d 38, 49. See also Love v. Fire Ins. Exchange (1990) 221 Cal. App. 3d 1136, 1153 (“In essence, the covenant is implied as a supplement to the express contractual covenants.”) The duty is most commonly found where a contract “confers on one party a discretionary power affecting the rights of the other.” 300 DeHaro St. Investors v. Dept. of Hous. & Community Dev. (2008) 161 Cal. App. 4th 1240, 1253. The scope of conduct that is prohibited by the covenant depends on the purposes and express terms of the contract. Carma Developers, Inc. v. Marathon Development California, Inc. (1992) 2 Cal. 4th 342, 373. “[T]ort recovery for breach of the covenant is available only in limited circumstances, generally involving a special relationship between the contracting parties, such as a relationship between an insured and its insurer.” Bionghi v. Metro. Water Dist. (1990) 70 Cal. App. 4th 1358, 1370.

On review, Flores has failed to allege any facts that support the portion of the First Cause of Action sounding in Breach of Implied Covenant. Indeed, the apparent basis for the breach of the covenant, as alleged in the FXC, is merely the breach of contract. FXC, ¶33. Absent any allegations sufficient to establish a right to relief under this theory, the Court will sustain the demurrer to the portion of the First Cause of Action alleging liability based on the Implied Covenant.

However, as Flores has improperly pled both causes of action under a single cause of action, even though the Court noted this issue in its prior statement of decision on demurrer, the Court will sustain the demurrer to the entire First Cause of Action, with leave to reassert the Brach of Contract theory of liability only.

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Second Cause of Action (Declaratory Relief) – An action for declaratory relief the complaint is sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a contract and requests that the rights and duties be adjudged. City Of Tiburon v. Northwestern Pac. R.R. Co. (1970) 4 Cal. App. 3d 160, 170; see Code of Civ. Proc. §1060 (identifying the remedy of declaratory relief). If these requirements are met, the Court must declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to a favorable declaration. Declaratory relief is a broad remedy, and the rule that a complaint is to be liberally construed is particularly applicable to one for declaratory relief.

Further, a demurrer is a procedurally inappropriate method for disposing of a complaint for declaratory relief. Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal. App. 4th 187, 221. This is based on the reasoning that an order sustaining the demurrer would leave the parties where they were, with no binding determination of their rights, to await an actual breach and ensuing litigation. This would defeat a fundamental purpose of declaratory relief, which is to remove uncertainties as to legal rights and duties before breach and without the risks and delays that it involves. The object of declaratory relief is not necessarily a beneficial judgment; instead, it is a determination, favorable or unfavorable, that enables the plaintiff to act with safety. This reasoning has established the rule that the defendant cannot, on demurrer, attack the merits of the plaintiff's claim. Accordingly, a complaint is sufficient if it shows an actual controversy; it need not show that plaintiff is in the right.

Flores alleges that a dispute exists as to whether Anchor has a duty to pay on the insurance contract for the April 26, 2014, accident, which is sufficient to maintain the instant cause of action. Anchor’s argument that the cause of action is derivative of unmeritorious causes of action is unavailing under the circumstances.

Accordingly, the Court will overrule the demurrer to the Second Cause of Action.

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Third Cause of Action (Indemnification) – The elements for a cause of action sounding in equitable indemnity are: “(1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is … equitably responsible.” Bailey v. Safeway, Inc. (2011) 199 Cal. App. 4th 206, 217 (quoting Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc. (2001) 86 Cal. App. 4th 1135, 1139).

Flores has failed to make any factual allegations sufficient to state a cause of action for indemnification, as Flores fails to allege that Anchor should be responsible for any actions of Flores. Accordingly, the Court will sustain the demurrer to the Third Cause of Action.

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Fourth Cause of Action (Negligent Misrepresentation) – The elements for negligent misrepresentation are: (1) assertion of an untrue fact; (2) believed by defendant to be true; (3) without reasonable grounds for that belief; (4) defendant intended to induce plaintiff’s reliance on the representation; (5) plaintiff justifiably relied on that representation; and (6) resulting damage. Melican v. Regents of Univ. of Cal. (2007) 151 Cal. App. 4th 168, 182.

The FXC fails to allege any facts sufficient to maintain a cause of action, as the putative untrue facts alleged in FXC ¶47 are insufficient to maintain the instant claim on their face, and are merely further recitation of the facts in support of the Breach of Contact Cause of Action. Notably, the alleged fact that Anchor refused to issue an insurance policy based on the purported payments by Flores cuts against any reliance Flores may have had on such insurance. FAX ¶¶47-49.

Accordingly, the Court will sustain the demurrer to the Fourth Cause of Action.

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Fifth and Sixth Causes of Action (Intentional Misrepresentation/Fraud) Causes of action for ‘fraud’ ‘concealment’ and ‘intentional misrepresentation’ are all causes of action sounding in “deceit based on intentional misrepresentation.” Manderville v. PCG&S Group (2007) 146 Cal. App. 4th 1486, 1498, fn. 4. As such, “[t]o establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” Id. at 1498. Fraud must also be specifically pled, which means that the allegations in such an action need not be liberally construed, general pleading of the legal conclusion of fraud is insufficient, and every element of the cause of action for fraud must be alleged fully, factually and specifically. Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331; see also Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47 (Specific to fraud is the rule of particularity in pleading; fraud is the only remaining cause of action in which specific pleading is required to enable the court to determine, on the basis of the pleadings alone, whether a foundation exists for the cause.).

As with the cause of action sounding in negligent misrepresentation, Flores’ allegation that Anchor refused to issue an insurance policy cuts against any reliance by Flores to any representation made by Anchor. Further, the Court notes that the pleadings are plead with insufficient specificity, making the other elements too indefinite for the Court to analyze.

Accordingly, the Court will sustain the demurrer to the Fifth and Sixth Causes of Action.

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Seventh Cause of Action (Insurance Bad Faith) – Sounding in tort, a claim sounding in Insurance Bad Faith has the elements of (1) Duty, (2) Breach, (3) Causation, and (4) Damages, where the specific duty of the insurer has been specifically defined: “in the context of insurance bad faith, ‘the terms good faith and bad faith … are not meant to connote the absence or presence of positive misconduct of a malicious or immoral nature—considerations which … are more properly concerned in the determination of liability for punitive damages. … Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes from consideration a variety of types of conduct characterized in other contexts as involving bad  faith because they violate community standards of decency, fairness or reasonableness.’” Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal. App. 4th 1208, 1236.

On review of the Seventh Cause of Action, the Court notes that Flores is not seeking liability for a general Insurance Bad Faith claim, but is specifically seeking liability for violation of the proscriptions laid out in Insurance Code §709.03(h), under the Unfair Insurance Practices Act (the “Act”). Specifically, Flores is alleging the violation of Ins. Code §§709.03(h)(1)-(6), (12), & (13).

Anchor makes two arguments on demurrer as to why liability may not be imposed by Flores against Anchor under the Act: First, that because there was no insurance contract alleged, there can be no liability under the Act for violations thereof. Second, Anchor argues that the Act does not confer a private right of action to enforce its provisions even assuming the existence of a contract. As to the first argument, the Court notes that the contract has been adequately pled, as discussed supra. As to the second argument, the Court’s review of the cases cited in support of this contention – Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287; and Rattan v. United Servs. Auto. Ass'n (2000) 84 Cal. App. 4th 715 – do not stand for the proposition advanced by Anchor. In Moradi-Shalal the Court held that there was a private right of action under the Act when “a final judicial determination of the insured's liability has been first obtained” in order for a third-party claimant to pursue a claim, and Rattan held that recovery in tort was permissible. Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal. 3d 287, 313; and Rattan v. United Servs. Auto. Ass'n (2000) 84 Cal. App. 4th 715, 721-22.

Further, the line of cases that include Moradi-Shalal and Rattan begin with the case Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal. 3d 880, which held that “private litigants may rely upon the proscriptions set forth in the act as a basis for the imposition of civil liability upon an insurer.” Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal. 3d 880, 886. Under the instant circumstances, where an insured is alleging violation of the Act by his insurer, the Court concludes that Royal Globe’s holding that a private right of action is permissible remains the correct interpretation of the law.

Accordingly, the Court will overrule the demurrer as to the Seventh Cause of Action.

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Leave to Amend – While leave to amend is liberally granted upon request, here, Flores has failed to oppose the demurrer, and has failed to request leave to amend the FXC. As such, the Court infers that Flores is not capable of amending the pleading to state valid causes of action for (1) Breach of Implied Covenant of Good Faith and Fair Dealing, (2) Indemnity, (3) Negligent Misrepresentation, (4) Fraud, or (5) Intentional Misrepresentation. The demurrer to these causes of action, therefore, will be sustained without leave to amend.

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Standard of Review – Motion to Strike – The proper procedure to attack false allegations in a pleading is a motion to strike. Code Civ. Proc. §436(a). In granting a motion to strike made under Code Civ. Proc. §435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc. §436,(a). Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. Code Civ. Proc. §431.10. The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code Civ. Proc. §436(b).

Anchor moves to strike Flores’ requests for punitive damages and attorney’s fees, alleged in the FXC. Without opposition, and pursuant to the Court’s determination on demurrer, there are no facts or claims sufficient to support an award of punitive damages or attorney’s fees.

Accordingly, the Court will grant the motion to strike.

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Standard of Review – Discovery Motions – Where a party fails to timely respond to discovery requests, the propounding party may move for an order of Court compelling responses to the outstanding written discovery. Code of Civ. Proc. §2030.290 (interrogatories); §2031.300 (requests for production). No meet and confer is necessary where a party fails to respond to written discovery. See Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 906. Similarly, if a party fails to timely respond to requests for admissions, the propounding party may move for a Court order deeming the Requests for Admission admitted. Code of Civ. Proc. §2033.280. An untimely responding party waives all objections, including privilege, unless they subsequently serve responses in substantial compliance with the Civil Discovery Act and demonstrate that their failure is the result of mistake, inadvertence, or excusable neglect. Code of Civ. Proc. §2030.290(a); Code of Civ. Proc. §2031.300(a); §2033.280(a). The Court shall impose monetary sanctions for failure to timely respond to interrogatories or requests for production unless the party acted with substantial justification or the circumstances render imposition of sanctions unjust. Code of Civ. Proc. §2030.290(c); §2031.300(c). For untimely responses to Requests for Admission, the Court shall deem the Requests for Admission admitted unless the responding party serves a code compliant response prior to the hearing. Code of Civ. Proc. §2033.280(c). The Court must impose a monetary sanction on the party or attorney whose failure to serve timely Requests for Admission responses necessitated the motion. Id.

On review of the Declarations of Kristen Rodriguez attached to each of the four discovery motions, and Flores’ failure to oppose any of the instant motions, the Court will grant each of the four discovery motions pending.

Sanctions – The motions seeking to compel responses to interrogatories and production only permit the award of sanctions for unsuccessfully making or opposing the motion – and here Flores did not oppose the motions. Accordingly, the Court considers an award of sanctions inappropriate under the code as to the Motions to Compel Special Interrogatories, Form Interrogatories, and Requests for Production. However, motions to deem requests for admissions admitted mandate an award of sanctions for ‘necessitating the motion.’ Code of Civ. Proc. §2033.280(c). Accordingly, the Court will award $380.00 in sanctions, reflecting the 2 hours spent preparing the motion at a rate of $160.00/hr, together with the filing fee of $60.00.

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RULING: THE DEMURRER IS SUSTAINED WITH LEAVE TO AMEND (TWENTY DAYS FROM NOTICE) THE FIRST CAUSE OF ACTION TO STATE A CAUSE OF ACTION FOR BREACH OF CONTRACT ONLY; OVERRULED AS TO THE SECOND AND SEVENTH CAUSES OF ACTION; AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE REMAINDER.

THE MOTION TO STRIKE IS GRANTED.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Cross-Defendant Anchor General Insurance Company’s Demurrer to the FXC, Motion to Strike, Motions to Compel Form Interrogatories, Special Interrogatories, & Requests for Production, and Motion to Deem Requests for Admission Admitted came on regularly for hearing on November 01, 2019, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEMURRER IS SUSTAINED WITH LEAVE TO AMEND (TWENTY DAYS FROM NOTICE) THE FIRST CAUSE OF ACTION TO STATE A CAUSE OF ACTION FOR BREACH OF CONTRACT ONLY; OVERRULED AS TO THE SECOND AND SEVENTH CAUSES OF ACTION; AND SUSTAINED WITHOUT LEAVE TO AMEND AS TO THE REMAINDER.

THE MOTION TO STRIKE IS GRANTED.

THE MOTIONS TO COMPEL RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, AND REQUESTS FOR PRODUCTION ARE GRANTED;

FLORES IS ORDERED TO PROVIDE FULL, COMPLETE, AND CODE-COMPLIANT RESPONSES WITHOUT OBJECTION WITH 20 DAYS; AND

SANCTIONS ARE DENIED AS TO THESE MOTIONS.

THE MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED IS GRANTED; AND

SANCTIONS ARE AWARDED IN THE AMOUNT OF $380.00 .

DATE: _______________ _______________________________

JUDGE