Demurrer
City of Fresno (1984) 151 Cal.App.3d 635, 647.) Nor have Defendants presented sufficient evidence to suggest that any requested relief is warranted here in any event. The Motion is therefore DENIED.
The clerk is to give notice of this ruling.
9. Wong v. SBS Trust Deed Network 23-1343409 (Moot) 10. Victory Live, Inc. V. Kai Sports and Entertainment Corp. 25-1512515 Before the Court is motion for an order setting a default prove-up hearing filed by plaintiff Victory Live, Inc. (Plaintiff). For the reasons set forth below, the motion is GRANTED.
Plaintiff’s request for judicial notice is GRANTED. (Evid. Code § 452, subd. (d).)
Entry of default judgment by the court clerk is authorized only if the action is one “arising upon [a] contract or judgment”; seeks recovery of “money or damages only” in a fixed or determinable amount; and the defendant was not served by publication. (Code of Civ. Proc. § 585, subd. (a).) In all other cases, a default judgment can be granted only by the judge upon an evidentiary showing. (Code of Civ. Proc. § 585, subd. (b).) A court judgment is also required where plaintiff seeks “reasonable” attorney fees, i.e., where the plaintiff wants more than the scheduled fee pursuant to local rule. In such cases, the court clerk has no power to determine the amount and a court judgment is required. (Landwehr v. Gillette (1917) 174 Cal. 654, 657-658.)
Here, the defaulted defendants were personally served, and Plaintiff’s complaint is an action arising out of an express contract seeking the recovery of money damages in the fixed amount of $293,691.63. However, Plaintiff seeks reasonable attorney fees in an amount more than allowed by the attorney fee schedule under Local Rule 366. (Compl. at p. 12:5; ROA 45; RJN, Exs. 2 at ¶ 14, Ex. 3 at ¶ 2.) Thus, a court judgment upon evidentiary showing is required. The motion is therefore GRANTED.
The Court sets the default prove-up hearing for a date and time to be determined at the hearing in Department C20. Plaintiff shall file and serve a notice of the hearing and re-serve the prior default packet and/or any other required documents pursuant to California Rules of Court, rule 3.1300
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Counsel for Plaintiff shall give notice of this ruling.
11. Pruthi v. Spinnaker Insurance Company 26-1550156 The demurrer of defendant Hippo Analytics, Inc. (Hippo) directed to the complaint of plaintiffs Akhil Pruthi and Indu Pruthi (collectively, Plaintiffs) is OVERRULED.
Hippo shall file an answer to the complaint within 20 days.
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,
The question of plaintiff’s ability to prove the allegations in the complaint, or possible difficulties in making such proof, is of no concern in ruling on a demurrer. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action—not whether they are true. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)
Hippo contends the third cause of action for Violation of the Elder Abuse and Dependent Adult Civil Protection Act fails because Hippo, as an insurance adjuster, cannot be liable for violation of the elder abuse statute based on the holding in Strawn v. Morris Polich & Purdy, LLP (2019) 30 Cal.App.5th 1087.
It is not clearly shown from the allegations in the complaint that Strawn applies to Plaintiffs’ claims against Hippo. Initially, as Plaintiffs point out, the complaint does not plead that Plaintiffs’ claim was adjusted by Hippo’s employees “licensed as independent insurance adjusters.” No such allegation is contained in the pleading. The complaint pleads that Hippo and defendant Spinnaker Insurance Company (Spinnaker) “are affiliates and subsidiaries owned by their parent company, Hippo Holdings, Inc.,” and that Defendants were “conducting the business of issuing and selling” the homeowner’s insurance at issue. (Complaint, ¶¶ 5, 7.)
The complaint also alleges that Defendants, which includes Hippo, took Plaintiffs’ policy premiums with no intent of fully paying the benefits promised under the policy and wrongfully retained Plaintiffs’ policy benefits by denying payment or paying less than was due. (Complaint, ¶ 45.) The allegations that Spinnaker and Hippo are affiliates and subsidiaries acting under a common parent company could suggest that Hippo had – as Plaintiffs put it – a financial stake in premiums collected and claims not paid and was thus acting for its own individual advantage.
Under these circumstances, Strawn may not apply. (See Strawn, supra, 30 Cal.App.5th at 1101-1102.)
Plaintiffs are correct that the issue of who specifically adjusted Plaintiffs’ claim, in what capacity, and under which license is something that cannot be resolved on demurrer.
Based on the foregoing, the demurrer is OVERRULED.
Counsel for Plaintiffs shall give notice.
12. Nicholson v. Bland 25-1461757 Before the Court is an unopposed demurrer by Plaintiff Paul Nick Nicholson to the answer by Defendant Daniel Bland to the First Amended Complaint (FAC). For the reasons set forth herein, the Demurrer i s SUSTAINED as to the 2nd – 6th and 12th – 16th affirmative defenses and OVERRULED as to the remaining defenses. Defendant is granted 14 days leave to file an amended answer.