Contract - Insurance
THE AMERICANA AT BRAND LLC
AMERICANA HOMES II LLC
CARUSO MANAGEMENT COMPANY LTD.
AMERICANA HOMES LLC
CARUSO AFFILIATED HOLDINGS LLC.
AMERICANA HOSUING L.P .
ALLIED WORLD NATIIONAL ASSURANCE COMPANY
THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
MCLEOD JOHN J.
MCLEOD JOHN J. ESQ.
MICHELMAN SANFORD L.
MICHELMAN SANFORD L. ESQ.
BROCKMAN ELIZABETH M
6/14/2021: Request for Dismissal
11/13/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION & ORDER
11/17/2020: Minute Order - MINUTE ORDER (COURT ORDER)
11/17/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/17/2020
7/15/2020: Notice of Settlement
7/21/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 07/21/2020
7/21/2020: Minute Order - MINUTE ORDER (COURT ORDER)
7/17/2020: Notice - NOTICE OF ENTRY ORDER
7/14/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION & ORDER
7/15/2020: Minute Order - MINUTE ORDER (COURT ORDER)
7/15/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 07/15/2020
7/10/2020: Case Management Statement
7/13/2020: Case Management Statement
4/28/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/28/2020
4/28/2020: Minute Order - MINUTE ORDER (COURT ORDER)
3/20/2020: Notice Re: Continuance of Hearing and Order
3/20/2020: Notice Re: Continuance of Hearing and Order
Docketat 08:30 AM in Department 37; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Vacated by CourtRead MoreRead Less
DocketRequest for Dismissal; Filed by Caruso Affiliated Holdings, LLC. (Plaintiff); Caruso Management Company, LTD. (Plaintiff); Americana Hosuing, L.P . (Plaintiff) et al.Read MoreRead Less
Docketat 08:30 AM in Department 37; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 1:30 PM in Department 37; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order) of 11/17/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order)); Filed by ClerkRead MoreRead Less
DocketStipulation and Order (to Continue the November 24, 2020 Hearing); Filed by The Insurance Company of The State of Pennsylvania (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 37; Hearing on Demurrer - without Motion to Strike - Not Held - Vacated by CourtRead MoreRead Less
Docketat 08:30 AM in Department 37; Case Management Conference - Not Held - Vacated by CourtRead MoreRead Less
Docketat 1:30 PM in Department 37; Hearing on Demurrer - without Motion to Strike - Not Held - Continued - StipulationRead MoreRead Less
DocketNotice of Remand from Federal Court; Filed by ClerkRead MoreRead Less
DocketNotice (to Adverse Party of Removal to Federal Court); Filed by Allied World Natiional Assurance Company (Defendant)Read MoreRead Less
DocketOrder to Show Cause Failure to File Proof of Service; Filed by ClerkRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNotice of Related Case; Filed by Caruso Affiliated Holdings, LLC. (Plaintiff); Caruso Management Company, LTD. (Plaintiff); Americana Hosuing, L.P . (Plaintiff) et al.Read MoreRead Less
DocketCivil Case Cover Sheet (Amended); Filed by Caruso Affiliated Holdings, LLC. (Plaintiff); Caruso Management Company, LTD. (Plaintiff); Americana Hosuing, L.P . (Plaintiff) et al.Read MoreRead Less
DocketComplaint; Filed by Caruso Affiliated Holdings, LLC. (Plaintiff); Caruso Management Company, LTD. (Plaintiff); Americana Hosuing, L.P . (Plaintiff) et al.Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by Caruso Affiliated Holdings, LLC. (Plaintiff); Caruso Management Company, LTD. (Plaintiff); Americana Hosuing, L.P . (Plaintiff) et al.Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
DocketSummons (on Complaint); Filed by Caruso Affiliated Holdings, LLC. (Plaintiff); Caruso Management Company, LTD. (Plaintiff); Americana Hosuing, L.P . (Plaintiff) et al.Read MoreRead Less
Case Number: *******2736 Hearing Date: January 13, 2020 Dept: 37
HEARING DATE: January 13, 2020
CASE NUMBER: *******2736
CASE NAME: Caruso Affiliated Holdings, LLC, et al. v. Allied World National Assurance Company, et al.
MOVING PARTY: Cross-Defendant, Caruso Affiliated Holdings, LLC
OPPOSING PARTY: Cross-Complainant, Allied World National Assurance Company
TRIAL DATE: None
PROOF OF SERVICE: OK
MOTION: Cross-Defendant’s Demurrer to Cross-Complaint
OPPOSITION: December 30, 2019
REPLY: January 6, 2020
TENTATIVE: Caruso’s demurrer is OVERRULED. Allied World is to give notice.
This is an insurance coverage action arising out of defendant, Allied World Assurance Company (“Allied World”)’s issuance of a pollution legal liability policy to Plaintiff, Caruso Affiliated Holdings, LLC (“Caruso”). Caruso alleges that Allied World’s insurance policy required Allied World to pay on behalf of Caruso any claims of property or environmental damage resulting from a pollution incident at certain locations, up to the limits outlined in Allied World’s policy.
Caruso further alleges that the homeowners association for non-party Excelsior at Brand (“Excelsior HOA”) filed a complaint against, among others, Caruso, in Los Angeles Superior Court, titled Excelsior at the Americana at Brand Homeowners’ Association v. Americana Housing, LP, et al., Los Angeles Superior court case no. BC683584 (“Underlying Action.”) Caruso alleges that notwithstanding the Allied World policy, Allied World unreasonably delayed in agreeing to fund Caruso’s defense. Further, Caruso alleges that even after it made an Armstrong Election under California law that Allied World would fund 100% of its defense in the underlying action and Allied World accepted this election, Allied World failed to honor its promise to fund 100% of the defense and has funded but a small portion of Caruso’s defense. Caruso also alleges that Allied World has wrongfully requested its excess insurance carrier, AIG, to contribute towards its defense notwithstanding Allied World’s representation that it alone would fund 100% of the defense.
Caruso’s complaint, filed June 27, 2019, alleges three causes of action for: declaratory relief, breach of contract, breach of the implied covenant of good faith and fair dealing. The second and third causes of action are alleged against Allied World only.
On August 7, 2019, Allied World notified this court of its intent to remove this action to federal court. On August 12, 2019, Allied World answered Caruso’s complaint in federal court and, as part of the answer, brought a cross-complaint against Caruso for equitable reimbursement. (see Caruso’s Request for Judicial Notice in Support of Motion, Exhibit 2, pg. 29-30.)
On October 1, 2019, the United States District Court for the Central District of California issued its opinion remanding this action on the grounds that it was improperly removed. Caruso now demurrers to Allied World’s cross-complaint on the grounds that it fails to state facts sufficient to constitute a cause of action. Allied World opposes the demurrer.
REQUEST FOR JUDICIAL NOTICE
Caruso requests, pursuant to Evidence Code sections 452 and 453, that the court take judicial notice of all of the following:
Caruso’s complaint in this action;
Allied World’s answer, counterclaim and cross-claim in this action, filed in the United States District Court for the Central District of California on August 12, 2019.
Caruso’s request is granted. The existence and legal effect of these documents are proper matters for judicial notice. (Evidence Code ; 452(d), (e).)
A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., ; 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., ; 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)
The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
When a case that is removed to federal court is later remanded for improper removal, the time to respond is as follows: “(2) if the defendant has not filed an answer in the original court, then 30 days from the day the original court receives the case on remand to do any of the following: (A) answer the complaint, (B) demurrer or move to strike all or a portion of the complaint if (i) an answer was not filed in the federal court, and (ii) a demurrer or motion to strike raising the same or similar issues was not filed and ruled upon by the original court prior to the removal of the action to federal court or was not filed and ruled upon in federal court prior to the remand.” (Code Civ Proc. ; 430.90 subd. (2).)
Here, Allied World notified this court of its intent to remove this action on August 7, 2019. On August 12, 2019, Allied World filed its counterclaim while the matter was in federal court. Caruso filed a motion to dismiss Allied World’s counterclaim on September 10, 2019 while the matter was in federal court (see Docket attached to Notice of Remand.) However, the motion to dismiss was not ruled upon before the matter was remanded on October 1, 2019. Caruso filed its demurrer on October 31, 2019, 30 days after this court received notice of remand.
As such, Caruso’s demurrer is both timely and proper, as its motion to dismiss was not ruled on while this matter was pending in federal court and it filed its demurrer within 30 days from when this court received notice of remand.
Caruso contends that Allied World’s cross-complaint is insufficiently pled because Allied World failed to defend Caruso “immediately” or “entirely.” (Motion, 4-6.) Caruso relies on Buss v. Superior Court (1997) 16 Cal.4th 35 (Buss) in support of its argument.
In Buss, an advertising agency brought an action against Jerry H. Buss and other defendants in connection with advertising contracts for the Los Angeles Lakers and other professional sports teams. (Buss, supra, 16 Cal.4th at p. 40.) Buss tendered the defense of this action to his insurers, all of whom denied coverage except one. (Id. at 41.) Although the one insurer paid Buss’ counsel for the defense, it refused to contribute to the settlement of the advertising agency action after being requested to do so. (Id. at 42.) Buss brought an action against the insurer for declaratory relief, breach of contract and breach of the implied covenant of good faith and fair dealing. (Id.) In a detailed holding examining whether the insurer was entitled to reimbursement from Buss as to each of the causes of action it funded in the litigation with the advertising agency, the Buss court generally held that the insurer was entitled to reimbursement only for those causes of action which were not “at least potentially covered.” (Id. at 60-61.) The Buss court additionally reasoned that an insurer has a duty to defend the insured under the policy for any claims that are at least potentially covered and, as such, may not seek reimbursement from the insured for such claims. (Id. at 49-50.) Conversely, the Buss court also reasoned that if the insurer paid for any claims that were not at least potentially covered, it may be entitled to seek reimbursement. (Id.)
Here, Allied World alleges that it paid and continues to pay Caruso fees in connection with the Underlying Action, some of which include fees for claims that are not covered, or potentially not covered. (Cross-Complaint at ¶¶ 22-23, 25.) As such, Allied World alleges that Caruso has been unjustly enriched by these payments and that it is entitled to contribution from Caruso in an amount according to proof for these payments. (Id. ¶¶ 25-26.)
Allied World contends that Caruso’s demurrer must be overruled because the demurrer is premised on an erroneous interpretation of Buss. (Opposition, 1-2.) Allied World also contends that it is not barred from bringing a cause of action for equitable contribution because it may have delayed in accepting the tender, or because it is also asserting the same claim against Defendant, the Insurance Company of the State of Pennsylvania (“ICSOP”). (Opposition, 7-8.)
The court agrees with Allied World’s arguments and overrules Caruso’s demurrer. Buss does not stand for the proposition that if an insurer did not defend its insured “immediately” and “entirely” it cannot seek reimbursement for defense of claims that are not potentially covered after it has assumed the complete defense. Instead, Buss stands for the proposition that an insurer cannot seek reimbursement on claims paid if the claims were at least potentially covered under the policy. Allied World’s cross-complaint alleges, as in Buss, that it paid for portions of Caruso’s defense in the Underlying Action which were not covered or not potentially covered by the relevant insurance policy it issued Caruso. As such, Allied World has sufficiently stated a cause of action for equitable reimbursement pursuant to the standard set forth in Buss.
Accordingly, Caruso’s demurrer is OVERRULED.
Caruso’s demurrer is overruled. Allied World is to provide notice.
 Caruso submits the declaration of its attorney Paul C. Hirst to demonstrate that it has sufficiently met and conferred prior to bringing the instant motion pursuant to Code of Civil Procedure section 430.41. Hirst attests that he met and conferred with Plaintiff’s counsel by telephone on September 3, 2019 and October 28, 2019 regarding Caruso’s proposed demurrer and did not come to an agreement. (Hirst Decl., ¶ 2.) Accordingly, Hirst’s declaration is sufficient under Code of Civil Procedure section 430.41.
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