Demurrer CLM

Cal. Super. - 2nd Dist.July 26, 2016

123 23561 378401583 562400020067960 113454 21905 89 SUPERIOR COURT OF CALIFORNIA, MINUTE ORDER TIME: 08:20:00 AM JUDICIAL OFFICER PRESIDING: Kent Kellegrew COUNTY OF VENTURA VENTURA DATE: 01/25/2017 DEPT: 21 CLERK: Evelyn Balam REPORTER/ERM: None CASE NO: 56-2016-00484574-CU-PA-VTA CASE TITLE: Allen vs Glickman CASE CATEGORY: Civil - Unlimited CASE TYPE: PI/PD/WD - Auto EVENT TYPE: Demurrer (CLM) MOVING PARTY: State Farm General Insurance Company CAUSAL DOCUMENT/DATE FILED: Demurrer and Memorandum of Points & Authorities and Declarations of Michael J. O'Neill and Steve Smith, 12/22/2016 EVENT TYPE: Motion - Other (CLM) to Sever and Stay the Causes of Action alleged against State Farm MOVING PARTY: State Farm General Insurance Company CAUSAL DOCUMENT/DATE FILED: Motion - Other to Sever and Stay the Causes of Action Alleged Against State Farm; Memorandum of Points & Authorities; Declarations of Michael J. ONeill & Steve Smith, 12/22/2016 STOLO APPEARANCES STOLO Farsheed Shomloo, counsel, present for Plaintiff(s) telephonically. Michael O'Neill, specially appearing for State Farm General Insurance Company, self represented Defendant. Stolo Matter submitted to the Court with argument. The Court finds/orders: The Court's tentative is adopted as the Court's ruling. The Court rules as follows: The Court grants Defendant State Farm General Insurance Company's ("State Farm") request for judicial notice in its entirety. Sustains State Farm's general demurer to the second cause of action for breach of contract and third cause of action for breach of the implied covenant in Plaintiff Jordan Allen's Complaint, on the grounds (a) Plaintiff does not presently allege facts indicating that the subject accident occurred on an "insured location"; and (b) in the absence of such allegations, Plaintiff's claims against State Farm based on the "Medical Payments to Others" provision in the subject Policy appear premature on their face because no determination of fault has been made against the Halpern Defendants, State Farm's insureds. (See Shaolian v. Safeco Ins. Co. (1999) 71 Cal. App. 4th 268, 273-275.) The Court notes that the definition of "insured location" in the subject Policy is somewhat broader than the term "the residence premises." (See Decl. of Steve Smith, Exh. 1 [Policy], p. 25, ¶5.) As a result, the judicially noticed fact that the accident as alleged did not take place on the premises of the Halpern residence does not compel the conclusion that Plaintiff will be unable to allege facts indicating that the accident occurred on an "insured location." As a result, it is at least theoretically possible that Plaintiff VEN-FNR-10.03 MINUTE ORDER DATE: 01/25/2017 Page 1 DEPT: 21 CASE TITLE: Allen vs Glickman CASE NO: 56-2016-00484574-CU-PA-VTA might be able to amend to allege facts indicating that the accident did occur on an insured location, therefore rendering Plaintiff's claims against State Farm viable. As a result, there appear to the Court to be only two possible scenarios here: (1) Plaintiff's counsel, at the hearing on this matter, indicates that he can amend the Complaint to allege facts indicating that Plaintiff's accident occurred on an "insured location" as that term is defined in the subject Policy, in which case the Court will give Plaintiff 20 days leave to file and serve a 1st Amended Complaint; or (2) Plaintiff's counsel concedes at the hearing on this matter that he cannot amend the Complaint to allege facts indicating that Plaintiff's accident occurred on an "insured location," which will constitute a concession that the claims against State Farm are presently premature. Normally, the prematurity of a claim is a plea in abatement, and therefore would be a ground for abating (i.e., staying) these claims rather than dismissing them. (See, e.g., B.K.K. Co. v. Schultz (1970) 7 Cal. App. 3d 786, 791.) As a result, in this scenario the Court will simply abate (i.e., stay) Plaintiff's claims against State Farm pending a resolution (i.e., judgment) of Plaintiff's claims against the Halpern Defendants. Counsel for Plaintiff indicates that they wish to file an Amended Complaint as set forth on the record. Court grants that request and orders it to be filed no later than 2-14-17. Notice to be given by counsel for Defendant. STOLO VEN-FNR-10.03 MINUTE ORDER DATE: 01/25/2017 Page 2 DEPT: 21