Demurrer
There are numerous service issues related to the various pleadings which require CC to ‘start over’ the motion process and ensure proper service.
The Motion was improperly email served on pro per plaintiff Jun Li (“Plaintiff”). (ROA 10.) Unrepresented persons are exempt from mandatory electronic filing (Civ. Proc. Code § 1010.6(g)(4) and CRC Rule 2.253(b)(2)) and there is no evidence in the court’s records that Plaintiff consented to receive electronic service of pleadings. CC also filed a late supplemental declaration after Plaintiff filed an opposition to the Motion, which would not permit Plaintiff to consider the statements and evidence therein when preparing the opposition. (ROA 21.) The supplemental declaration was also improperly served by email.
As for Plaintiff’s pleadings, Plaintiff filed an opposition and then a supplemental declaration three days later. (ROA 19, 22.) Plaintiff failed to file a proof of service for either pleading. As CC did not file a reply brief, it is not clear if this was a conscious choice by CC or if the opposing pleadings were never served on CC.
As there are issues with improperly served and late filed pleadings, the court cannot consider the Motion on the merits as it is unclear what, if any, pleadings were served/received by the parties. The Motion is therefore DENIED without prejudice. If CC desire to have the Motion heard on the merits, they will have to start the process over and file a new motion and properly serve Plaintiff.
Plaintiff is also notified that he must file proofs of service pursuant to code requirements showing service of pleadings on CC. If Plaintiff does not serve proofs of service in the future, he risks the court refusing to consider said pleadings.
Counsel for CC is ordered to serve notice of the ruling.
3. Gooding v. Houpt 22-1271459 (Moot) 4. Keno Capital, LLC v. Oakleaf Holding LLC 23-1313683 (Moot) 5. Mott v. Fortiva Financial, LLC 25-1476893 (Moot) 6. Fernandez v. Pacific Life Insurance Company 25-1520544 Before the Court is a demurrer by defendant Pacific Life Insurance Company (Pacific Life) as to the complaint filed by plaintiffs Janeth Fernandez, Eriberto Fernandez and Luis Alberto Medina Larios. For the reasons set forth herein, the demurrer is OVERRULED as to the 1st, 4th and 5th causes of action and SUSTAINED as to the 2nd and 3rd causes of action, with 14 days leave to amend.
A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318
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factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-1405.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.)
1st Cause of Action – Fraudulent Concealment
The elements of concealment are: (i) Defendant must have concealed or suppressed a material fact; (ii) Defendant must have been under a duty to disclose the fact; (iii) Defendant must have intentionally concealed or suppressed the fact with the intent to defraud Plaintiff; (iv) Plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact; and (v) Plaintiff must have suffered resulting damage. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634.)
Pacific Life argues there were no material facts it was required to disclose. Ins. Code §332 requires the insurer to share with the insured “all facts within his knowledge which are or which he believes to be material to the contract.” Plaintiff alleges Pacific Life “created an illustration for Plaintiff’s policy dated April 17, 2023, which reflected an unsuitable product for Plaintiff, that had features contrary to Plaintiff’s instructions, including increasing cost of insurance charges over time, high fees, and significant surrender charge.” (Complaint ¶18) Plaintiff alleges this information was material and should have been, but was not, provided prior to sale of the policy. (Ibid; see also ¶¶26, 34) Pacific Life appears to argue it did not possess the information in the illustration and that such was only known to the insurance agent.
However, that is not what is pled. For purposes of demurrer, the duty to disclose is sufficiently pled. The Court also finds the remaining elements sufficiently pled.
Accordingly, the demurrer is OVERRULED as to the 1st cause of action for Fraudulent Concealment.
2nd Cause of Action - Breach of Fiduciary Duty
Pacific Life initially argues a two year statute of limitations applies. The Court disagrees. Because the gravamen of plaintiffs’ claim is for fraud, a three year limitations period applies. (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 963 -“The limitations period is three years for a cause of action for deceit (Citation), as it is for a cause of action for breach of fiduciary duty where the gravamen of the claim is deceit.”)
Pacific Life next argues that a claim for breach of fiduciary duty by an insured does not lie against an insurer. This argument has merit.
“The insurer-insured relationship ... is not a true ‘fiduciary relationship’ in the same sense as the relationship between trustee and beneficiary, or attorney and client. [Citation]. It is, rather, a relationship often characterized by unequal bargaining power [citation], in which the
insured must depend on the good faith and performance of the insurer [citations]. This characteristic has led the courts to impose ‘special and heightened’ duties, but '[w]hile these “special” duties are akin to, and often resemble, duties which are also owed by fiduciaries, the fiduciary-like duties arise because of the unique nature of the insurance contract, not because the insurer is a fiduciary.' [Citation].” (Vu v. Prudential Prop. & Cas. Ins. Co. (2001) 26 Cal.4th 1142, 1150- 1151.)
Accordingly, the demurrer is SUSTAINED as to the 2nd cause of action for Breach of Fiduciary Duty.
3rd Cause of Action – Negligence
Pacific Life argues the negligence cause of action is barred by the two year statute of limitations.
In opposition, plaintiffs argue Pacific Life’s conduct was such that it should be equitably estopped from asserting the statute of limitations defense.
“ ‘An estoppel may arise although there was no designed fraud on the part of the person sought to be estopped. [Citation.] To create an equitable estoppel, ‘it is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss.’ ... ‘...Where the delay in commencing action is induced by the conduct of the defendant it cannot be availed of by him as a defense.’ ‘ ” (Vu v. Prudential Prop. & Cas. Ins. Co. (2001) 26 Cal. 4th 1142, 1152–53)
“To establish estoppel as an element of a suit the elements of estoppel must be especially pleaded in the complaint with sufficient accuracy to disclose facts relied upon.” (Chalmers v. County of L.A. (1985) 175 Cal.App.3d 461, 467.) “In order to assert equitable estoppel, the following four elements must be present: (1) the party to estopped must be apprised of the facts; (2) he must intend that his conduct be acted on, or must so act that the party asserting estoppel had a right to believe it was so intended; (3) the party asserting estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury.” (Sofranek v.
County of Merced (2007) 146 Cal.App.4th 1238, 1250.) “Whether equitable estoppel applies is normally a question of fact. [Citation.] However, where the complaint pleads undisputed facts establishing that equitable estoppel does not apply, the issue may be resolved on demurrer.” (Id. at p. 1251.) Alternatively stated, when “the facts are undisputed, the existence of an estoppel is a question of law.” (Cal. Cigarette Concessions v. City of L.A. (1960) 53 Cal.2d 865.)
Plaintiffs allege in conclusory fashion that their discovery of the negligence was delayed. (Complaint ¶¶21, 29 & 36) However, there are insufficient facts pled. For example Janeth Fernandez alleges the April 17, 2023 illustration “reflected an unsuitable product for plaintiff.”
(Complaint ¶18) She then alleges the April 17, 2023 illustration was among the documents she e-signed on 5/17/23. (Complaint ¶20)
Accordingly, the demurrer is SUSTAINED as to the 3rd cause of action for Negligence.
4th Cause of Action - Rescission AND 5th Cause of Action - Unfair Competition
Defendant argues that both the 4th and 5th causes of action are barred because the fraudulent concealment cause of action fails. In light of the foregoing finding that fraudulent concealment is sufficiently pled, Pacific Life’s demurrer to the 4th and 5th causes of action is OVERRULED.
The Demurrer is sustained with 14 days leave to amend. However, leave to amend is granted only as to the specific causes of action to which the Demurrer was sustained. Leave to amend is NOT granted to alter/amend other portions of the complaint or to add/amend other causes of action. If plaintiffs seeks leave to amend, such must be done pursuant to CCP §473 and the appropriate rules.
Pacific Life Insurance Company shall give notice.
7. Mito’s Holdings, Inc. v Deniz Restaurants, LLc25- 1534622 (Continued) 8. Black v. Lutfi 25-1528410 Before the Court are two motions filed by Erick Black (Plaintiff). The first is a Demurrer to the Cross-Complaint (XC) filed by Mohammad Lutfi (Lutfi). The second is a Motion for Judgment on the Pleadings as to the First Amended Complaint (FAC) filed by Plaintiff against Lutfi. For the reasons set forth herein, the Demurrer is OVERRULED and the Motion for Judgment on the Pleadings is DENIED.
DEMURRER TO CROSS-COMPLAINT
The role of a demurrer is “to test the legal sufficiency of a complaint.” (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994, citations omitted.) A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v.
GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-1405.) On demurrer, a complaint must be liberally construed. (Code of Civil Procedure § 452; Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) All material facts properly pleaded, and reasonable inferences drawn from them, must be accepted as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.)
1. 1st Cause of Action – Declaratory Relief