This case was last updated from Los Angeles County Superior Courts on 06/09/2019 at 03:31:07 (UTC).

PETER FISCHL VS GREGORY R. ACOSTA, INC.

Case Summary

On 07/19/2016 PETER FISCHL filed a Property - Other Property Fraud lawsuit against GREGORY R ACOSTA, INC. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are OKI, DAN THOMAS and GLORIA WHITE-BROWN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8602

  • Filing Date:

    07/19/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

OKI, DAN THOMAS

GLORIA WHITE-BROWN

 

Party Details

Plaintiff

FISCHL PETER

Defendants

SECURITIES AMERICA INC.

PACIFIC LIFE INSURANCE COMPANY

KESTRA INVESTMENT SERVICES LLC

DIAMOND BAR EXECUTIVE BENEFIT PROGRAMS &

ACOSTA GREGORY

GREGORY R. ACOSTA INC.

DIAMOND BAR EXECUTIVE BENEFIT PROGRAMS & INSURANCE SERVICES INC.

ACOSTA GREGORY R.

Attorney/Law Firm Details

Plaintiff Attorneys

ZUSSMAN ESQ. MARC I.

ZUSSMAN MARC IRWIN

Defendant Attorneys

D'AMURA ESQ. RICHARD A.

EDGERTON III ESQ. SAMUEL Y.

LILLY ESQ. MATTHEW E.

EDGERTON SAMUEL YOUNGS III

LILLY MATTHEW EDWARD

D'AMURA RICHARD A.

 

Court Documents

Declaration

5/24/2019: Declaration

Unknown

8/17/2016: Unknown

Answer

8/26/2016: Answer

Unknown

9/14/2016: Unknown

Unknown

9/14/2016: Unknown

Case Management Statement

11/15/2016: Case Management Statement

Unknown

12/5/2016: Unknown

Minute Order

12/6/2016: Minute Order

Unknown

1/6/2017: Unknown

Unknown

1/6/2017: Unknown

Other -

1/6/2017: Other -

Notice of Ruling

1/11/2017: Notice of Ruling

Notice of Change of Address or Other Contact Information

1/11/2017: Notice of Change of Address or Other Contact Information

Unknown

2/21/2017: Unknown

Minute Order

11/8/2017: Minute Order

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/19/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Case Management Statement

4/10/2019: Case Management Statement

Minute Order

4/26/2019: Minute Order

41 More Documents Available

 

Docket Entries

  • 05/24/2019
  • Motion for Leave to File a Cross-Complaint; Filed by Pacific Life Insurance Company (Defendant)

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  • 05/24/2019
  • Declaration (DECLARATION OF MATTHEW); Filed by Pacific Life Insurance Company (Defendant)

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  • 04/26/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Status Conference (reArbitration as to Deft. Kestra) - Held

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  • 04/26/2019
  • Minute Order ( (Status Conference re: Arbitration as to Deft. Kestra)); Filed by Clerk

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  • 04/25/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Status Conference (reArbitration as to Deft. Kestra) - Not Held - Continued - Stipulation

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  • 04/10/2019
  • Case Management Statement; Filed by Peter Fischl (Plaintiff)

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  • 04/10/2019
  • Stipulation and Order (stipulation to continue CMC); Filed by Peter Fischl (Plaintiff)

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  • 04/02/2019
  • Notice of Change of Address or Other Contact Information; Filed by Marc Irwin Zussman (Attorney)

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  • 03/22/2019
  • Notice of Deposit - Jury; Filed by Peter Fischl (Plaintiff)

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  • 03/21/2019
  • Proof of Service (not Summons and Complaint); Filed by Peter Fischl (Plaintiff)

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45 More Docket Entries
  • 08/30/2016
  • Rtn of Service of Summons & Compl; Filed by Peter Fischl (Plaintiff)

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  • 08/30/2016
  • Rtn of Service of Summons & Compl; Filed by Peter Fischl (Plaintiff)

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  • 08/30/2016
  • Rtn of Service of Summons & Compl; Filed by Peter Fischl (Plaintiff)

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  • 08/30/2016
  • Rtn of Service of Summons & Compl; Filed by Peter Fischl (Plaintiff)

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  • 08/26/2016
  • Answer; Filed by Pacific Life Insurance Company (Defendant)

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  • 08/17/2016
  • Rtn of Service of Summons & Compl; Filed by Peter Fischl (Plaintiff)

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  • 07/20/2016
  • Notice of Case Management Conference; Filed by Clerk

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  • 07/19/2016
  • Complaint; Filed by Peter Fischl (Plaintiff)

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  • 07/19/2016
  • Summons (on Complaint); Filed by Clerk

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  • 07/19/2016
  • Civil Case Cover Sheet; Filed by Peter Fischl (Plaintiff)

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Tentative Rulings

Case Number: KC068602    Hearing Date: March 13, 2020    Dept: J

HEARING DATE: Friday, March 13, 2020

NOTICE: Motion #1:OK[1]

Motion #2: OK

RE: Fischl v. Gregory R. Acosta, Inc., et al. (KC068602)

______________________________________________________________________________

 

1. Defendant Pacific Life Insurance Company’s DEMURRER TO SECOND AMENDED

COMPLAINT

Responding Party: Plaintiff, Peter Fischl

2. Cross-Defendants Kestra Investment Services, LLC’s, Gregory R. Acosta, Inc.’s, Diamond Bar Executive Benefit Programs & Insurance Services, Inc.’s and Gregory R. Acosta’s MOTION FOR JUDGMENT ON THE PLEADINGS [i.e., as to Pacific Life’s Cross-Complaint] [joined by Securities America, Inc.]

Responding Party: Cross-Complainant, Pacific Life Insurance Company

Tentative Ruling

1. Defendant Pacific Life Insurance Company’s Demurrer to Second Amended Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

2. Defendants Kestra Investment Services, LLC’s, Gregory R. Acosta, Inc.’s, Diamond Bar Executive Benefit Programs & Insurance Services, Inc.’s and Gregory R. Acosta’s Motion for Judgment on the Pleadings [i.e., as to Pacific Life’s Cross-Complaint] is DENIED as untimely.

Background

Plaintiff Peter Fischl (“Plaintiff”) alleges that his broker misrepresented the nature of certain life insurance policies, annuities and mutual funds, which allegedly induced him to purchase the investments. Plaintiff claims the investments were not in the best interests of his financial portfolio.

On January 6, 2017, the court ordered Plaintiff’s claims against Kestra Investment Services, LLC (“Kestra”) to arbitration with the Financial Industry Regulatory Authority Dispute Resolution (“FINRA”) and stayed Plaintiff’s claims as against Kestra pending arbitration with FINRA. On March 4, 2019, Plaintiff dismissed Gregory R. Acosta, Inc. (“Acosta Inc.”), Diamond Bar Executive Benefit Programs & Insurance Services, Inc. (“DBEBP”), Kestra, Securities America, Inc. (“Securities”) and Gregory R. Acosta (“Acosta”), with prejudice.

On August 9, 2019, Pacific Life Insurance Company (“Pacific Life”) filed a cross-complaint, asserting causes of action against Acosta, Acosta Inc., DBEBP, Securities and Kestra for:

  1. Contractual Indemnity

  2. Equitable Indemnity

    On December 6, 2019, Plaintiff filed a Second Amended Complaint (“SAC”), asserting causes of action against Acosta Inc., DBEBP, Kestra, Securities, Pacific Life, Acosta and Does 1-50 for:

  1. Intentional Misrepresentation

  2. Negligent Misrepresentation

  3. Breach of Fiduciary Duty

  4. Negligence

  5. Financial Abuse of an Elder

  6. Violation of Unfair Competition Law

  7. Violation of Penal Code Section 496(c)

    A Status Conference is set for May 7, 2020. The Final Status Conference if set for September 25, 2020. Trial is set for October 6, 2020.

    1. Demurrer to Second Amended Complaint

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Discussion

Pacific Life demurs, per CCP § 430.10(e), to the first through seventh causes of action in Plaintiff’s SAC, on the basis that they each fail to state facts sufficient to constitute causes of action.

November 5, 2018 General Order

Pursuant to the November 5, 2018 General Order Re Mandatory Electronic Filing for Civil, litigants are required to provide printed courtesy copies of, inter alia, pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more, pleadings and motions that include points and authorities and demurrers. Here, the court did not receive a courtesy copy of the papers filed by the parties. Counsel is admonished. Counsel is instructed to comply with the court’s general order in future filings.

Merits

Plaintiff’s SAC contains the following prefatory language: Plaintiff “hereby files his second amended complaint against Pacific Life Insurance Company (‘PACIFIC LIFE’) for causing, contributing to, and compounding the damages suffered by Plaintiff both through its direct conduct and in aiding, abetting, and conspiring with Gregory R. Acosta, Inc. (‘GREGORY INC.’), Diamond Bar Executive Benefit Programs & Insurance Services, Inc., Kestra Investment Services, LLC (‘KESTRA’), Securities America, Inc. (‘SECURITIES AMERICA’) and Gregory R. Acosta (‘ACOSTA’). Hereafter, known as the Acosta Affiliates. Plaintiff has released [the Acosta Affiliates] . . . from all claims and dismissed them from this action with prejudice . . . Plaintiff has also released Defendant Pacific Life, and its affiliates, from all claims based upon vicariously [sic] liability for the bad acts and omissions of material facts of the Acosta Affiliates. Pacific Life’s liability in the SAC is not based on agency, but rather on PACIFIC LIFE’s direct conduct, including but not limited to defective underwriting and misleading marketing of its life insurance policies. The allegations in the SAC are that Defendant Pacific Life caused, contributed to, or compounded the damages suffered by Plaintiff both through their direct conduct and/or aiding, abetting, or conspiring with the Acosta Affiliates . . .” (SAC, 1:22-2:15 [emphasis added].)

Plaintiff, however, subsequently appears to hold Pacific Life vicariously liable for Plaintiff’s damages based on alleged misconduct by Acosta. See, e.g., ¶2 (“at all relevant times, ACOSTA was a licensed agent, representative and sales person of PACIFIC LIFE”); ¶3 (“[a]t all relevant times, ACOSTA was a representative of PACIFIC LIFE and acted in concert and with the approval and under the oversight and supervision of PACIFIC LIFE”); ¶15 (“In or about May 2008, Plaintiff’s sister introduced Acosta, as an agent, representative and sales person of Pacific Life, to Plaintiff”); ¶51 (“ACOSTA and the ACOSTA affiliates made each of the above misrepresentations under the authority to speak for PACIFIC LIFE”); ¶67 (“PACIFIC LIFE is liable for the conduct of ACOSTA and the ACOSTA affiliates and the other defendants . . .”); ¶74 (“The ACOSTA affiliates’ breach directly, legally, and proximately caused Plaintiff to suffer unsuitable investments, lost opportunities, penalties, fees, and damages to be established according to proof at trial but no less than $1,000,00 . . .”); ¶88 (“PACIFIC LIFE, by accepting and retaining the benefits that resulted from the transactions effected by ACOSTA, and the ACOSTA affiliates, is jointly liable with ACOSTA and the ACOSTA affiliates for the damages suffered by Plaintiff”). Plaintiff also alleges that the Acosta Affiliates, “[a]t all relevant times,” “maintained control and acted as custodians of all of Plaintiff’s investments and related accounts” (Id., ¶22) and alleges that his sole dealings were with Acosta, not Pacific Life (Id., ¶¶23-25,30-32, 35, 39-41, 42-47.) Plaintiff does not allege that he had any direct dealings with Pacific Life; in fact, Plaintiff concedes that “Plaintiff may have alleged that his sole dealings were with Acosta . . .” (Opposition, 4:13.)

Additionally, “[t]he essence of [a conspiracy] claim is that it is merely a mechanism for imposing vicarious liability; it is not itself a substantive basis for liability.” (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 823.) Courts similarly have referred to aiding and abetting as a form of vicarious liability See, e.g., Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 101 (“Plaintiff sought to recover from Defendants on theories of vicarious liability (conspiracy and aiding and abetting)”); Doe I v. Cisco Systems, Inc. (N.D. Cal. 2014) 66 F.Supp.3d 1239, 1247.

Plaintiff’s allegations regarding fraudulent underwriting also fail. Plaintiff concedes that he had no dealings with Pacific Life, and does not allege that he relied on Pacific Life’s underwriting in purchasing the life insurance policies at issue or even that he was privy to such efforts; instead, Plaintiff alleges that he relied on Acosta’s alleged misrepresentations in purchasing the life insurance policies. Plaintiff’s citation to Insurance Code §§ 781 and 783.5 as “prohibit[ing] insurers from knowingly permitting an agent to make misrepresentations to induce a person to take out a new policy and allow an old policy to lapse” underscores that Plaintiff is falling back on his agency theory of liability; to the extent that this occurred, it was Acosta who did so, not Pacific Life.

The demurrer is SUSTAINED.

2. Motion for Judgment on the Pleadings

Legal Standard

The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) A motion by a defendant can be made on the grounds that “[t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint,” or that “[t]he complaint does not state facts sufficient to constitute a cause of action against that defendant.” (CCP § 438(c)(1)(B)(i)&(ii).) The grounds for a motion for judgment on the pleadings “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP § 438(d).) As with a demurrer, the test is whether the complaint states any valid claim entitling plaintiff to relief.

Although a nonstatutory motion “may be made at any time either prior to the trial or at the trial itself” (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650 [citation omitted]), a CCP § 438 motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (CCP § 438(e).)

Discussion

Kestra, Acosta Inc., DBEBP and Acosta move the court, pursuant to CCP § 438, for judgment on the pleadings in their favor as to Pacific Life’s cross-complaint. The motion is joined by Securities.

November 5, 2018 General Order

Pursuant to the November 5, 2018 General Order Re Mandatory Electronic Filing for Civil, litigants are required to provide printed courtesy copies of, inter alia, pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more and pleadings and motions that include points and authorities. Here, the court did not receive a courtesy copy of the papers filed by the parties. Counsel is admonished. Counsel is instructed to comply with the court’s general order in future filings.

Analysis

The court DENIES the motion as untimely under CCP § 438(e). Although no pretrial conference order was entered, the original trial date in this action was October 3, 2017. Trial is currently set for October 6, 2020. Kestra, Acosta Inc., DBEBP and Acosta filed the motion pursuant to CCP § 438 only (See Motion 3:3 and reply, 1:22); accordingly, the lack of time limitations associated with a nonstatutory motion do not apply.


[1] Motion #1 was filed on January 3, 2020 and originally set for hearing on February 13, 2020. On January 9, 2020, moving party filed a “Notice of Rescheduled Hearing Date . . .,” advising therein that the hearing had been continued to March 13, 2020.