Anita Ghazarian and Simon Penny v. Fire Insurance Exchange

by presenting evidence that a unique login and password known only to that person was required to affix the electronic signature, along with evidence detailing the procedures the person had to follow to electronically sign the document and the accompanying security precautions." (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5 th 541, 545.) Given these rules, the original Smith declaration filed by Defendants failed to establish existence of the agreement to arbitrate. Smith's April 23, 2026 declaration fails to show personal knowledge regarding Plaintiff's specific e-signing and do not supply the requisite details about Exact Staff's onboarding procedures.

Simply put, Exact Staff's evidence fails to "indicate whether or if so how [Exact Staff] ascertained that [Plaintiff] electronically signed, or was the person who electronically signed," the agreement. (Ruiz, supra, 232 Cal.App.4 th at 841.) However, Mr. Smith's declaration filed on August 12, 2026 with the Reply brief, provides more information. Ordinarily the court does not permit new evidence to be received as part of a reply. But given the three-step burden process for this matter, the court will consider it.

Fairness dictates however, that the court permit Plaintiff to offer a memorandum and supplemental declaration in surreply. Plaintiff is invited to provide a memorandum of no more than five pages, and a declaration from Mr. Meraz on two topics: (1) Response to Mr. Smith's supplemental declaration regarding Mr. Meraz's consent to arbitration; (2) Specific details about Mr. Meraz's job duties in support of a claim that he was a transportation worker excepted from the Federal Arbitration Act. The court does not invite any further filings on this topic.

At the hearing, the court will discuss with counsel a hearing date and briefing schedule. [1] The moving party "is not required to authenticate an opposing party's signature on an arbitration agreement as a preliminary matter " (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4 th 836, 846, emphasis in original), and the reviewing court "is only required to make a finding of the agreement's existence, not an evidentiary determination of its validity." (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4 th 215, 219.)

(26STCV06306) ..

Tentative Ruling

Re: Demurrer Date: 8/19/26 Time: 1:45 pm Moving Party: Fire Insurance Exchange ("FIE" or "Defendant") Opposing Party: Anita Ghazarian and Simon Penny (collectively

"Plaintiffs") Department: 11 Judge: Bruce G. Iwasaki ________________________________________________________________________ TENTATIVE RULING Defendant's demurrer is overruled. BACKGROUND This is a putative class action. According to Plaintiffs, FIE sold them "a 'Landlords Protector Package Policy,' No. 98586-46-05 (the 'Policy'), covering their residential rental property, including fire coverage, located at 531 West Terrace Street, Altadena, California 91001 (the 'Property') in 2015." (Opposition, p. 6.)

Plaintiffs claim FIE accepted their premium payments for years, and then failed them when they needed that protection most." (Ibid.) In particular, Plaintiffs state: On January 7, 2025, the Property lay in the path of the Eaton Fire, a wildland-urban interface fire that tore through Los Angeles under severe Santa Ana wind conditions. After the Fire, the neighborhood where the Property is located looked like a war zone. Homes directly adjacent to the Property were destroyed. Although the Property did not burn down, it sustained extensive damage from toxic Eaton Fire-generated compounds that penetrated the home and caused widespread smoke and ash contamination throughout the Property, penetrating soft and porous materials and permeating virtually every surface and space throughout the home.

The compounds that infiltrated the Property include neurotoxins and carcinogens. Plaintiffs filed a timely claim with [FIE] for property damage resulting from the Eaton Fire. Rather than take meaningful steps towards a prompt, fair, and equitable handling of Plaintiffs' claim, Plaintiffs allege that [FIE] failed to conduct an adequate investigation and failed to reasonably evaluate the claim. [FIE] relied on biased, unqualified vendors within its preferred network, including Defendant [Hygiene Technologies International, Inc. d/b/a Hygienetech's ("HT")], whose reports understated the extent of contamination, supporting [FIE's] predetermined objective of undervaluing the loss and underpaying Plaintiffs' insurance benefits. (Id. at pp. 7-8, citations omitted.)

Here, FIE demurs to the fifth cause of action for violation of Welfare and Institutions Code section 15600 ("Financial Elder Abuse") and the sixth cause of action for violation of Business and Professions Code section 17200 ("UCL"). APPLICABLE LAW When considering demurrers, courts read the allegations liberally and in context, and "treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law." (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) " 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." (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) It is error " to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment." (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) DISCUSSION Fifth Cause of Action - Financial Elder Abuse [1] Welfare and Institutions Code section 15610.30 provides: (a) "Financial abuse" of an elder or dependent adult occurs when a person or entity does any of the following: (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70. (b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult. (c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult. (d) For purposes of this section, "representative" means a person or entity that is either of the following: (1) A conservator, trustee, or other representative of the estate of an elder or dependent adult. (2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney. (Cal.

Welf. & Inst. Code Sec. 15610.30, emphasis added.) Defendant claims Plaintiff alleges conclusory "knew or should have known" allegations: Similar to the situation

addressed in [Paslay v. State Farm General Insurance Co. (2016) 248 Cal.App.4 th 639], the gravamen of this dispute between Plaintiffs and FIE is the scope and reasonable costs of repair to return the Property to its pre-Loss condition based on reports by the parties' respective experts. Notably, the Complaint alleges no facts evidencing the "taking, hiding, appropriating, obtaining or retaining" of Plaintiff Penny's property by fraud or undue influence on the part of FIE which is fatal the Financial Elder Abuse claim.

In this respect, FIE's Demurrer to Plaintiff Penny's Financial Elder Abuse claim should be sustained because the pleading is conclusory and bereft of sufficient underlying facts. See Singh v. State Farm General Ins. Co. (C.D. Cal., Apr. 27 2023) 2023 WL 3335908, at *2 (conclusory allegation that State Farm "knowingly and wrongfully retained" plaintiff's property by denying the claim without investigation found insufficient); Davis v. Sentinel Insurance Co. (S.D. Cal., Oct. 18, 2018) 2018 WL 5084789 at *3 (conclusory allegation about untimely, inadequate investigation, oppressive and despicable conduct, and unreasonable refusal to timely pay benefits insufficient to state financial elder abuse claim against insurer); O'Brien v.

Continental Cas. Co. (N.D. Cal., Aug. 13, 2013) 2013 WL 4396761, at *5 (insurer's alleged retention and withholding of benefits "in bad faith and with an intent to defraud" insufficient to state a claim). (Demurrer, p. 11; see also id. at p. 10.) Plaintiff disagrees: . . . Plaintiff Penny has alleged the very circumstances where a Financial Elder Abuse claim arises. Paslay reached a different result only because the court found "no evidence" that the insurer acted unreasonably or in subjective bad faith in denying additional benefits, whereas Plaintiff Penny has specifically alleged that [FIE] knowingly relied on deficient evidence to undervalue his claim and retain benefits owed under the Policy. (See Section II, supra.)

Further, [FIE] cannot rely on the genuine dispute doctrine because Plaintiff alleges that [FIE] unequivocally stated that no additional evidence would persuade it to alter its predetermined coverage position. (Complaint P. 118; see also Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 723 [insurer cannot claim genuine dispute where it failed to thoroughly and fairly investigate, process, and evaluate the insured's claim].) Those allegations negate any genuine good faith dispute and support Plaintiff Penny's claim that [FIE] knowingly retained benefits owed to an elder and deprived an elder of Property rights. (Paslay, supra, 248 Cal.App.4th at 657-58.)

Moreover, Paslay is distinguishable because it was decided on a fully developed evidentiary record at the summary judgment stage, not at the pleading stage. Lastly, Plaintiff Penny's allegations are detailed, specific, and well-supported, particularly at the pleading stage, and are anything but conclusory. As set forth in Section II, supra, Plaintiffs allege conduct supporting bad faith and Financial Elder Abuse, well beyond "the mere denial of coverage." [Singh, supra, 2023 WL 3335908, at *2].

As a result, the federal district court cases upon which [FIE] relies fail to undermine Plaintiff Penny's allegations and are readily distinguishable.

(Demurrer 11:9-22.) (Opposition, p. 19; see also id. at pp. 17-18, 20.) The Court turns to the allegations. The complaint alleges: 182. An elder is "any person residing in this state, 65 years or older." Cal. Welf. & Ins. Code. Sec. 15610.27 183. Plaintiff Penny is an elder adult. Plaintiff Penny was 69 years of age at the time of the Fire and is currently 70 years old. By their actions, Defendants have engaged in financial abuse against an elder adult, Plaintiff Penny, in violation of the California Elder Abuse and Dependent Adult Civil Protection Act, California Welfare and Institutions Code Sec.Sec. 15600 et seq. 184.

Financial abuse of an elder adult occurs when any person or entity takes, secretes, appropriates, or retains real or personal property of an elder adult to a wrongful use or with an intent to defraud, or both. Real property is coextensive with lands, tenements, and hereditaments. Personal property includes money, goods, chattels, things in action, and evidences of debt. A wrongful use is defined as taking, secreting, appropriating, or retaining property in bad faith. Bad faith occurs where the person or entity knew or should have known that the elder had the right to have the property transferred or made readily available to the elder or to his or her representative. 185.

Defendants have acted in breach of contract and Defendants have acted in bad faith. Plaintiff Penny has an entitlement to Policy benefits which [FIE] has unlawfully withheld and retained as a direct and proximate result of Defendants' breaches of contract and bad faith actions alleged herein. 186. Defendants [FIE] and HT engaged in a deceptive and fraudulent scheme designed to deprive Plaintiff Penny of the coverage available to him under the Policy. Each Defendant has deliberately minimized and marginalized the extent of Fire-related damage to the Property in order to deny Plaintiff Penny the full benefits to which he is entitled. 187.

Defendants have committed financial elder abuse against Plaintiff Penny by acting in such a manner to wrongfully deny him coverage for "all loss by fire" at the Property. Through coordinated actions aimed at diminishing the true scope of covered damage, Defendants have deprived Plaintiff Penny of the full extent of Coverage A - Dwelling, Extended Replacement Cost, Coverage B - Separate Structures, Building Ordinance or Law, Coverage C - Personal Property, and Coverage D - Loss of Rents. As a result, Defendants have wrongfully taken, withheld, and retained property due to Plaintiff Penny under a contract. 188.

Defendants' conduct has resulted in the deprivation of essential insurance benefits and the loss of rental income. Defendants' actions have forced Plaintiff Penny to expend his own limited resources to pay for remediation that is necessary but that [FIE] refuses to cover because it relied on HT's falsified and misleading assessment to downplay the Property's smoke and ash contamination. Defendants' misconduct has further compelled Plaintiffs to proceed with a lesser remediation,

unlawfully depriving Plaintiff Penny of the right to possess and enjoy his Property in its safe, pre-loss condition. 189. Plaintiff Penny has suffered direct financial losses, including significant out-of-pocket remediation expenses and a high-interest rate loan, because [FIE] and HT have misrepresented the true measure of covered damage at the Property. [FIE] has acted in bad faith and has unreasonably withheld from Plaintiff Penny the full benefits owed under the Policy. A reasonable person would consider [FIE's] actions to be in bad faith. 190.

Because of his age and the trauma of being a wildfire victim, Plaintiff Penny is in a vulnerable position. Defendants have occupied positions of apparent authority and have exercised power and control over Plaintiff Penny and his real and personal property. [FIE] has abused its role as a powerful insurer, and HT has abused its purported status as a professional safety and consulting firm, to wrongfully take and withhold property belonging to Plaintiff Penny. Defendants' conduct has infringed upon Plaintiff Penny's personal rights and has resulted in inequity, loss of assets, and a fundamental departure from the promises and protections owed to him.

Defendants acted intentionally, willfully, and in conscious disregard of Plaintiff Penny's rights as an elder. 191. The PW Stephens estimate was derived from HT's sham Report, and [FIE] knowingly and wrongfully relied on that Report to deny Plaintiff Penny the coverage to which he is entitled. In addition, [FIE] has underpaid Plaintiff Penny for his Loss of Rents by basing benefits on an improperly deflated rental amount. 192. [FIE] has breached its contract with Plaintiff Penny, and Plaintiff Penny has also suffered harm as the intended third-party beneficiary of [FIE's] contract with HT.

Defendants knew or should have known that their conduct constituted breaches of these contracts and that such breaches would cause harm to an elder adult. A reasonable person or entity exercising due care would have recognized that such conduct was likely to injure Plaintiff Penny. Similarly, a reasonable person or entity exercising due care would have recognized that [FIE's] actions were and have been unreasonable and constitute insurance bad faith. 193. Defendants have acted with recklessness, malice, fraud, and oppression towards Plaintiff Penny, and he is entitled to financial compensation as a result of their wrongful behavior. 194.

As a direct and proximate result of Defendants' financial abuse against an elder, Plaintiff Simon has sustained undue delay, physical, financial, mental, and emotional harm, a loss of Policy benefits, and a loss of the use and enjoyment of real property. (Complaint, P.P. 182-194.) Accepting the allegations as true, the demurrer is overruled. The allegations, especially paragraphs 191 and 192, satisfy the "knew or should have known" standard and suffice to put Defendant on notice. (Cf. Paslay, supra, 248 Cal.App.4 th at 642-643, 656-659 [affirming summary adjudication because the evidence did not raise a triable issue concerning

actual or constructive knowledge].) The Court believes the efficient approach, notwithstanding Defendant's federal authorities, is to flesh out further details via discovery. Sixth Cause of Action - UCL "[T]he UCL permits a cause of action to be brought if a practice violates some other law. In effect, the 'unlawful' prong of [section] 17200 makes a violation of the underlying law a per se violation of [section] 17200." (Stern, Business & Professions Code Section 17200 Practice (The Rutter Group 2025) P. 3:53.) "Virtually any law or regulation -- federal or state, statutory or common law -- can serve as predicate for a [section] 17200 'unlawful' violation.

Thus, if a 'business practice' violates any law -- literally -- it also violates [section] 17200 and may be redressed under that section." (Id. at P. 3:56.) "The second 'wrong' proscribed by [section] 17200 is 'unfair' business practices. Because [section] 17200's definition of the five proscribed 'wrongs' is set forth in the disjunctive, a business practice can be 'unfair' -- and violative of [section] 17200 -- even if it is not 'deceptive' and even if it is 'lawful.'" (Id. at P. 3:112.) "The 'unfair' standard is intentionally broad, allowing courts maximum discretion to prohibit new schemes to defraud." (Id. at P. 3:113.) " The third type of conduct proscribed by [section] 17200 is 'fraudulent' business practices." (Id. at P. 3:153.) "A business practice is 'fraudulent' within the meaning of [section] 17200 if 'members of the public are likely to be deceived.'" (Id. at P. 3:154.) "An advertisement's potentially deceptive effect is measured by the audience to which it is addressed.

Under the UCL and False Advertising statute, this will usually be the 'reasonable person' standard." (Ibid.) Defendant contends: * Plaintiffs possess adequate legal remedies (See Demurrer, pp. 7-9 [arguing that the UCL only permits equitable remedies and that a UCL claim should be dismissed when adequate legal remedies exist]); and * "Plaintiffs cannot pursue injunctive relief to enjoin an insurer from alleged future breaches of contract." (Id. at p. 9 [claiming "Plaintiffs' request for injunctive relief under the UCL impermissibly seeks to enjoin FIE from breaching its contractual obligations under the Policy in the future or to remedy past wrongs"].)

The first contention is unavailing. California law allows Plaintiffs to plead inconsistent theories, request inconsistent remedies, and leave election for another day. (See, e.g., Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group 2026) P. 6:249.5 [advising that a "plaintiff may proceed to trial on alternative theories with inconsistent remedies" and that an election is not required until " entry of judgment "], emphasis in original.) Whether Plaintiffs have an adequate remedy at

law is a question for either summary judgment or trial. The second contention is also unavailing. It amounts to an improper partial demurrer in that it attacks one of multiple requested remedies. (See Complaint, P. 207 ["seek[ing] all available remedies under the UCL, including but not limited to restitution, disgorgement of ill-gotten gains, injunctive, and public injunctive relief prohibiting Defendants from continuing their unlawful practices"].) Moreover, Defendant's authorities - Thayer Plymouth Cener, Inc. v.

Chrysler Motors Corp. (1967) 255 Cal.App.2d 300 (" Thayer "), Benn v. Allstate Insurance Co. (C.D. Cal. 2021) 569 F.Supp.3d 1029, and Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548 - do not support dismissal of Plaintiff's injunctive-relief request at this stage. Thayer analyzes a preliminary injunction and did not involve a UCL claim. (See Thayer, supra, 255 Cal.App.2d at 302-303.) Benn and Cisneros hold that "California law precludes" injunctions enjoining "future breaches of contract[]" and that "[i]njunctions should not be granted as punishment for past acts." (Benn, supra, 569 F.Supp.3d at 1035, 1038; see also Cisneros, supra, 39 Cal.App.4 th at 574 ["The injunctive remedy should not be exercised 'in the absence of any evidence that the acts are likely to be repeated in the future.'"].)

By contrast, Plaintiffs allege ongoing fraudulent conduct. (See Complaint, P.P. 203-205, 207; see also Stern, supra, at P.P. 7:36.1-7:36.3 [summarizing Zhang v. Superior Court (2013) 57 Cal.4 th 364, noting that the California Supreme Court held that "an insured [can] bring a [UCL] cause of action against its insurer . . . based on allegations that the insurer misrepresents and falsely advertises that it will promptly and properly pay covered claims when it has no intention of doing so"].) The ability to fashion an appropriate injunction to enjoin the fraudulent conduct is a factual matter.

The demurrer is overruled. [1] The fifth cause of action is brought by Plaintiff Penny only. | Home -->)" -->