Notice of Demurrer And Demurrer For Csaa InsuranceDemurrerCal. Super. - 1st Dist.January 17, 2018Oo 0 0 N t A W N D N D O R N N N N R N m m m m m e m e m e m XP N D A L N D R O Y d N E W N o - o o Lisa A. Costello State Bar No. 183000 CARBONE, SMOKE, SMITH, BENT & . EONARD ATTORNEYS AT LAW 505 14TH STREET, SUITE 600 OAKLAND, CA 94612-1911 510-267-7266 ATTORNEYS FOR DEFENDANT CSAA INSURANCE SERVICES, INC. ELECTRONICALLY FILED Superior Court of California, County of San Francisco 02/22/2018 Clerk of the Court BY :SANDRA SCHIRO Deputy Clerk SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION Trent Jason, Plaintiff, Vv. American Automobile Association of Northern California, Nevada, and Utah Incorporated, AKA AAA NCNU, A California Corporation, and CSAA Insurance Services, Incorporated AKA CSAA, A California corporation, Valera A. Barnhart, and Jane Doe I, Defendants. Case No. CGC18563695 NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO IN SUPPORT OF DEMURRER [Filed concurrently with Motion to Strike Punitive Damages] Date: April 12,2018 Time: 9:30 am Dept.: 302 Reservation No. 02130412-20 Action Filed: January 17,2018 Trial Date: None NOTICE OF DEMURRER TO PLAINTIFF HEREIN: PLEASE TAKE NOTICE THAT ON Thursday, April 12, 2018 at 9:30 am or as soon thereafter as this matter may be heard in Department 302 of the above-referenced Court located at 450 McAllister, San Francisco, California, Defendant CSAA INSURANCE SERVICES, INC. NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO (hereinafter “CSAA”) will and hereby does demur to the Complaint filed by Plaintiff, Trent Jason. This demurrer is made pursuant to Code of Civil Procedure section 430.10, et seq. on the following grounds: 1. CSAA generally demurs to all causes of action of the Complaint against CSAA because they are defective on their face because they fail to allege facts to state a cause of action against CSAA. C.C.P. §430.10(e). CSAA specially demurs to the first cause of action for breach of contract because it cannot be ascertained from the Complaint what the complete terms of the contract were; plaintiff has failed to cite the relevant terms of the contract verbatim or attach a copy of the contract. C.C.P. §430.10(f). CSAA specially demurs to the second cause of action for breach of the implied covenant of good faith because defendant did not issue the insurance policy at issue. C.C.P. §430.10(%). CSAA specially demurs to the third cause of action for breach of the implied covenant of good faith for failure to investigate because defendant did not issue the insurance policy at issue. C.C.P. §430.10(%). CSAA specially demurs to the fourth cause of action for misrepresentation because it fails to specifically plead facts that show how, when, to whom, and by what means the alleged misrepresentations were tendered; it also does not include any factual allegations to show justifiable reliance causing plaintiff to act in a certain detrimental way. C.C.P. §430.10(f). CSAA specially demurs to the fifth cause of action for false promise because it fails to specifically plead facts that show how, when, to whom, and by what means the alleged misrepresentations were tendered; it also does not include any factual allegations to show justifiable reliance causing plaintiff to act in a certain detrimental way. C.C.P. §430.10(D). NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO De o e ~~ O y w r bh W N ee N R DN N N N R N R m m b d be e m p m e m e m o e m R Y N n BR W N R O W 0 BA O W O R m o 7. CSAA specially demurs to the sixth cause of action for fraud because it fails to specifically plead facts that show how, when, to whom, and by what means the alleged misrepresentations were tendered; it also does not include any factual allegations to show justifiable reliance causing plaintiff to act in a certain detrimental way. C.C.P. §430.10(D). 8. CSAA specially demurs to the seventh cause of action for negligence on the grounds that the Complaint does not state sufficient facts to constitute a cause of action for negligence; the law does not recognize a negligence cause of action between the insured and its insurer — bad faith instead of negligence is the proper cause of action for damages allegedly arising out of the claims handling process. C.C.P. §430.10(f); Chateau Chamberay Homeowners Assn. v. Associated International Ins. Co. (2001) 90 Cal. App. 4th 335, 347; see also Adelman v Assoc. Intern. Ins. Co. (2001) 90 Cal. App. 4th 352, 365-366. This demurrer will be based upon this Notice of Demurrer, the attached Demurrer, the supporting Memorandum of Points and Authorities, Declaration of Attorney Lisa A. Costello, all files and documents contained within the Court’s file in this matter, and upon such further oral and/or documentary evidence and argument as may be presented to the court at the time this matter is heard. Respectfully submitted, DATED: February 22, 2018 CARBONE, SMOKE, SMITH, BENT & LEONARD I (od i Ly 0 ste Wr Lisa A. Costello Attorneys for Defendant CSAA Insurance Services, Inc. NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO a OO 0 J aN Ln W N N N D N D N ND N N N N Mm e e e e a e a e m a p m © 3 A BR W N R O S Y d N E W N =m DEMURRER Pursuant to Section 430.10, et seq, of the California Code of Civil Procedure, Defendant CSAA INSURANCE SERVICES, INC. (“CSAA”) demurs to the Complaint filed by Plaintiff Trent Jason on the following grounds: 1. CSAA generally demurs to all causes of action of the Complaint against CSAA because they are defective on their face because they fail to allege facts to state a cause of action against CSAA. C.C.P. §430.10(e). CSAA specially demurs to the first cause of action for breach of contract because it cannot be ascertained from the Complaint what the complete terms of the contract were; plaintiff has failed to cite the relevant terms of the contract verbatim or attach a copy of the contract. C.C.P. §430.10(f). . CSAA specially demurs to the second cause of action for breach of the implied covenant of good faith because defendant did not issue the insurance policy at issue. C.C.P. §430.10(f). CSAA specially demurs to the third cause of action for breach of the implied covenant of good faith for failure to investigate because defendant did not issue the insurance policy at issue. C.C.P. §430.10(f). CSAA specially demurs to the fourth cause of action for misrepresentation because it fails to specifically plead facts that show how, when, to whom, and by what means the alleged misrepresentations were tendered; it also does not include any factual allegations to show justifiable reliance causing plaintiff to act in a certain detrimental way. C.C.P. §430.10(f). CSAA specially demurs to the fifth cause of action for false promise because it fails to specifically plead facts that show how, when, to whom, and by what means the alleged misrepresentations were tendered; it also does not include any factual allegations to show justifiable reliance causing plaintiff to act in a certain detrimental way. C.C.P. §430.10(f). NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO 4- o e ~~ y h BR Ww BR ) ee B D B N D N R R R N R ) m e Re m ee d b m p m e a e s e s p m e m 0 3 AN W b W R em D Y E m G B W R O e e > 7. CSAA specially demurs to the sixth cause of action for fraud because it fails to specifically plead facts that show how, when, to whom, and by what means the alleged misrepresentations were tendered; it also does not include any factual allegations to show justifiable reliance causing plaintiff to act in a certain detrimental way. C.C.P. §430.10(f). . CSAA specially demurs to the seventh cause of action for negligence on the grounds that the Complaint does not state sufficient facts to constitute a cause of action for negligence; the law does not recognize a negligence cause of action between the insured and its insurer — bad faith instead of negligence is the proper cause of action for damages allegedly arising out of the claims handling process. C.C.P. §430.10(D); Chateau Chamberay Homeowners Assn. v. Associated International Ins. Co. (2001) 90 Cal. App. 4th 335, 347; see also Adelman v Assoc. Intern. Ins. Co. (2001) 90 Cal. App. 4th 352, 365-366. WHEREFORE, Defendant prays that: I. The demurrer be sustained with, or without, leave to amend; bo The Court enter an order dismissing CSAA Insurance Services, Inc.; 3 Defendant CSAA be awarded costs; and 4. The Court grant such other and further relief as it may deem proper. Respectfully submitted, DATED: February 22, 2018 CARBONE, SMOKE, SMITH, BENT & LEONARD isa (1 Costelli Lisa A. Costello Attorneys for Defendant CSAA Insurance Services, Inc. NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO 5 Oo 0 9 S N nn Bs W N ND N N N D R RN N N N e m o m e e e m em p m e e MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION Plaintiff’s Complaint contains seven causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, breach of the implied covenant for failure to investigate, misrepresentation, false promise, fraud, and negligent infliction of emotional distress. According to the facts alleged in the complaint, Plaintiff Trent Jason was involved in an automobile collision on January 19, 2017 when a vehicle owned by defendant Valera Barnhart and insured by USAA was driven by an unidentified person and rear ended plaintiff’s vehicle in a parking lot at the Stanford Mall in San Francisco. The collision resulted in approximately $1,400 in damages to plaintiff’s vehicle. A claim for damages was opened by USAA (claim # 8467587-2) and they agreed to compensate plaintiff for 50% of his damages based on their investigation and finding that he was 50% at fault for the accident. It is unclear from the complaint whether plaintiff received payment from USAA, whether he disputed their findings, or whether he attempted to recover 100% of his damages from USAA. As the insurer of the motor vehicle which struck plaintiffs vehicle, he could proceed with his claim directly with USAA, and against the vehicle’s owner Ms. Barnhart who was named as a defendant in this action. CSAA Insurance Services, Inc. was named as a defendant in this action, but it was not the insurance company that issued the automobile insurance policy at issue in this lawsuit, Moreover, plaintiff has not quoted verbatim the relevant terms of the insurance policy with CSAA Insurance Exchange as he did not carry collision coverage for his vehicle at the time of the accident, and there is no coverage. Plaintiffs failure to attach a copy of the insurance policy to his complaint renders it defective. For the reasons discussed herein, every cause of action is defective and the complaint should be dismissed in its entirety. Plaintiff did not recite the terms of the insurance contract or attach a copy to the Complaint. Therefore, Plaintiff has not properly placed the terms of the contract at issue and his NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO ole Oo 0 39 O N Un BK W O N N N N N N N N N s m e m em mm e m e m a e m @® N N n n B R A W N R O V N N R E W O N O m , o o causes of action for breach of contract and bad faith are improperly pled. Plaintiff also failed to allege sufficient facts to support his causes of action for misrepresentation, false promise, and fraud; the element of detrimental reliance is required and he has not alleged facts prior to the collision that support these causes of action. Lastly, negligence is not a viable cause of action against plaintiff's own insurer. For these reasons, defendant’s demurrer to the Complaint should be sustained in its entirety. II. MEET AND CONFER REGARDING DEMURRER Code of Civil Procedure section 460.41 was recently added to require that a demurring party meet and confer in good faith with the opposing party before filing a demurrer. As set forth in the Declaration of Attorney Lisa A. Costello filed herewith, efforts were made to reach an informal resolution of the issues raised by this demurrer. Specifically, Ms. Costello contacted plaintiff Trent Jason (who is in pro per) in writing and by telephone to request that he dismiss the Complaint or alternatively file an Amended Complaint to address the deficiencies in the original Complaint. Plaintiff was uncooperative in the meet and confer process, and this demurrer was filed. (See Costello Decl., 9 2-12.) III. DEMURRER STANDARD OF REVIEW California Code of Civil Procedure section 430.10(e) permits a defendant to object by demurrer to a pleading on the ground that the "pleading does not state facts sufficient to constitute a cause of action." For purposes of testing the sufficiency of the causes of action within a compliant, the demurrer admits the truth of all material facts, but not legal conclusions. Serrano v. Priest (1971) 5 Cal.3d 584, 591. Section 430.10(f) permits a party to demur where the complaint is uncertain, ambiguous, and unintelligible. The purpose of this demurrer is to show the Court that even if the facts of the Complaint are true, Plaintiff would nonetheless have no valid legal case against Defendant because of the insufficiency of the pleadings. NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO 7. OO 0 NN NN Ln Bs W N BN N N N N N N N Mm em mi ke e m a a e a S I B R R R U V U N V R E B I I s o 8 2 = IV. LEGAL DISCUSSION A. PLAINTIFF'S ENTIRE COMPLAINT FAILS TO STATE A CAUSE OF ACTION AGAINST DEFENDANT BECAUSE IT WAS NOT A PARTY TO THE SUBJECT INSURANCE CONTRACT The insurance contract at issue in this lawsuit was not issued by CSAA Insurance Services, Inc. A review of the California Department of Insurance website regarding companies that are authorized to issue automobile insurance in the State of California confirms that CSAA Insurance Services, Inc. is not such an authorized entity. (Costello Decl., 12.) Instead, the California Department of Insurance website identifies “California State Automobile Association Inter-Insurance Bureau,” which changed its name to “AAA Northern California, Nevada & Utah Insurance Exchange” and more recently to “CSAA Insurance Exchange.” (Costello Decl. §13, Exh. E.) The named defendant, CSAA Insurance Services, Inc., is not licensed or authorized by the California Department of Insurance. (Costello Decl. 912.) Therefore, the defendant named by plaintiff in this action was not a party to his insurance contract, and the entire complaint against it should be dismissed. B. PLAINTIFF’S FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT CAUSE OF ACTION LACKS MERIT BECAUSE PLAINTIFF FAILED TO ATACH A COPY OR ALLEGE THE SPECIFIC TERMS OF THE CONTRACT Setting aside the issue that defendant was not a party to the subject insurance policy, plaintiff's complaint also fails to allege what term or terms of the contract were purportedly breached by CSAA. Where a Complaint does not quote all of the terms of a contract in haec verba, and where the unquoted terms disclose an affirmative defense, the Court may consider the entire contract in ruling on a demurrer. See Anzacorp Indus. Leasing Co. v. Robert C. Young Associates, Inc. (1965) 237 Cal. App. 2d 724, 728. "The purpose of the specific pleading of a NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -8- Oo 0 9 A N BR W N N N D O N N Y O N RN N N em e m e d e m e m e m e a XR N A L h B W N R O O N R W N = written contract requirement is to permit the defendant to demur ... based upon the construction of the text of the contract" Petry v. Robertson (1988) 201 Cal. App. 3d 333, 341. Under California law, the elements of a breach of contract claim are: (1) the existence of a valid contract between the parties; (2) plaintiff s performance; (3) defendant's unjustified or unexcused failure to perform; and (4) damages caused by the breach. See Careau Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1388. Plaintiff must properly allege the terms of the purported contract and how these terms were purportedly breached. Plaintiff should identify all of the parties to the alleged contract, what its terms were, how these terms were allegedly breached, and by whom. Since Plaintiff's vague and conclusory Complaint fails to allege the relevant terms and how the purported contract was breached by CSAA, Plaintiff's first cause of action must fail. C. PLAINTIFF'S SECOND AND THIRD CAUSES OF ACTION FOR BAD FAITH AND BAD FAITH FAILURE TO INVESTIGATE LACK MERIT The elements for a cause of action in bad faith are generally: 1. That plaintiff suffered a loss covered under an insurance policy with defendant, 2. That defendant was notified of the loss; 3. That defendant unreasonably failed to pay or delayed payment of policy benefits; 4. That plaintiff was harmed; and 5. That defendant’s failure to pay/delay in payment of policy benefits was a substantial factor in causing plaintiff's harm. CACI 2331 (emphasis added); see also Gruenberg v. Aetna Insurance Co. (1973) 9 Cal.3d 566, 574-575. Because there was no contract of insurance between plaintiff and the named defendant, there was no duty of good faith and fair dealing owed by defendant to plaintiff and the cause of action for bad faith must fail. Moreover, even assuming there was a contract, plaintiff has not attached a copy or included the applicable policy language verbatim and as a result he has failed to establish what duty was owed and how it was NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -9- OO 0 0 A Un BR W N es N N N O N RN O N O N O N O N Mm o m e m o b o e e m o e m e a p m p a © Nd A L A W N R E D O O N RA W N Rk breached. As a result, these two causes of action as alleged must fail. D. PLAINTIFF’S FOURTH, FIFTH, AND SIXTH CAUSES OF ACTION FOR MISREPRESENTATION, FALSE PROMISE, AND FRAUD LACK MERIT There is no basis for a cause of action for misrepresentation, false promise, or fraud against CSAA. First, the plaintiff is required to plead the facts that support such a cause of action with specificity. Wilhelm v. Pray, Price, Williams & Russell, (1986) 186 Cal. App. 3d 1324, 1331; Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal. App. 4th 153, 157. And he has failed to do so. A cause of action for misrepresentation and fraud must allege the following elements: (D a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Croeni v. Goldstein (1994) 21 Cal. App, 4th 754, 758.) A cause of action for false promise requires plaintiff to establish the following elements: (1) defendant made a promise to plaintiff, (2) that defendant did not intend to perform this promise when it made it, (3) that defendant intended that plaintiff rely on this promise, (4) that plaintiff reasonably relied on defendant’s promise, (5) that defendant did not perform the promised act, (6) the plaintiff was harmed, and (7) that plaintiffs reliance on defendant’s promise was a substantial factor in causing his harm. Engalla v Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973-974. A general legal conclusion of fraud, misrepresentation, or deceit is insufficient, and every element of the cause of action “must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect." Wilhelm v. Pray, Price Williams & Russell, supra, 186 Cal. App. 3d at 1331. Given that the named defendant was not plaintiff’s insurer, he has not and cannot allege the necessary facts in support of this cause of action. Moreover, he has not alleged any facts that support detrimental reliance. “There are two causation elements in a fraud cause of action. First, the plaintiff's actual NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -10- OO XR J O N UL Bh W O N RN N O N O N RN ND N N m e m e e m ba em p a a © 9 A U R W N = O Y e d D R E W m S and justifiable reliance on the defendant’s misrepresentation must have caused him to take a detrimental course of action. Second, the detrimental action taken by the plaintiff must have caused his alleged damage.” Beckwith v. Dahl (2012) 205 Cal. App.4th 1039, 1062. There can be no detrimental reliance in support of a cause of action for fraud arising out of a letter from the insurance company or its conduct affer the subject automobile accident. Especially where, as here, plaintiff's property damage was compensable by the adverse vehicle’s owner, co-defendant Barnhart and her insurer USAA. In order to recover for misrepresentation, false promise, or fraud, as in any other tort, the plaintiff must plead and prove the detriment proximately caused by the defendant's tortious conduct. Civ. Code §3333; Service by Medallion, Inc. v. Clorox Co., supra, 44 Cal. App. 4th at p. 1818. Deception without a resulting loss is not actionable fraud. Hill v. Wrather (1958) 158 Cal. App. 2d 818, 825. Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with reliance on the representations must be shown." 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 680, p. 131. Viewed in the terms of materiality, "[a] false representation which cannot possibly affect the intrinsic merits of a business transaction must necessarily be immaterial because reliance upon it could not produce injury in a legal sense." Hill v. Wrather, supra, 158 Cal. App. 2d at p. 824. Here, Plaintiff faliled to allege with specificity who on behalf of the named defendant made the purported misrepresentations regarding plaintiff's insurance, when such alleged misrepresentations were made, how those alleged misrepresentations were conveyed (e.g. orally or in the parties’ contract), and to whom the alleged misrepresentations were made. Therefore, as Plaintiff only makes general conclusory allegations of misrepresentation, false promise, or fraud and fails to plead every element of these causes of action fully, factually, and specifically, the demur to these causes of action should be sustained. In addition, Plaintiff pleads no facts addressing how he was induced to act in justifiable reliance on defendant’s conduct. As a result, he has not pled sufficient facts to NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO i i= Oo © 3 O N wn B A W = N N N O N N O N N O N m m em em a e d em p m e a pe LC N A B R A W N = O Y a N R W O N m o o support these causes of action pursuant to Civil Code section 3333. Therefore, as there are no material facts that would support these causes of action, the demur should be sustained. E. THE SEVENTH CAUSE OF ACTION FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS IS SUBJECT TO DEMURRER WITHOUT LEAVE TO AMEND In order to recover for negligence or negligent infliction of emotional distress, plaintiff must first establish that a duty was owed by defendant to plaintiff. As discussed above, there was no contract between plaintiff and the named defendant. Nor has plaintiff alleged any facts that would give rise to a duty by defendant toward plaintiff. Even if defendant was plaintiff’s insurer, it is well-established in California that bad faith, rather than negligence, is an insured’s sole remedy against an insurer for damages arising out of the claims handling process. Chateau Chamberay Homeowners Assn. v. Associated International Ins. Co. (2001) 90 Cal. App. 4th 335, 347. Therefore, the cause of action for negligence is subject to demurrer without leave to amend. Plaintiff alleges that defendant issued him an automobile insurance policy and that he was involved in a motor vehicle accident with an unidentified driver operating the vehicle of co-defendant Valera Barnhart, which was insured by USAA. Plaintiff also alleges that defendant engaged in bad faith and tortious claims handling of his claim for $1,400 in property damage. These allegations do not give rise to a cause of action for negligent infliction of emotional distress against his insurer. Plaintiff has improperly included a cause of action for negligent infliction of emotional distress in his complaint. There is no separate cause of action for negligent infliction of emotional distress; it is a form of negligence. Therefore, it is subject to demurrer in the context of this lawsuit arising out of plaintiffs claim for automobile insurance policy benefits. As stated above, the law in California does not recognize a cause of action for negligence against an insurer for damages arising out of the claims handling process. Chateau Chamberay Homeowners Assn. v. Associated International Ins. Co. (2001) NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -12- OO 0 0 O Y wn BR W N N o BN D N D N N O N O N O N MH e m m e e a a p a e m p e a pe 2 D 6 0 2 8 P R Y E E B E E s I O R a E B E R 90 Cal. App. 4th 335, 347. The existence of a duty is a question of law for the court. Kentucky Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819. Therefore, defendant requests that this court sustain defendant’s demurrer to this cause of action without leave to amend given that there is no duty owed to plaintiff by defendant in connection with the seventh cause of action for negligent infliction of emotional distress. F. THE COMPLAINT IS DEFICIENT IN THAT IT FAILS TO ALLEGE SUFFICIENT FACTS TO PLACE CSAA ON NOTICE OF THE CLAIMS ASSERTED Plaintiff is required to plead factual allegations addressing the elements of each cause of action claims against CSAA. In Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, the court held that although pleadings are to be liberally construed, they must nonetheless set forth essential facts with reasonable precision. As the Court of Appeal held in Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal. App. 3d 531, 537: “It is settled law that a pleading must allege facts and not conclusions, and that material facts must be alleged directly and not by way of recital. [Citation.] Also, in pleading, the essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise. [Citation.] Those recital, references to, or allegations of material facts which are left to surmise are subject to special demurrer for uncertainty." Although the "sole issue raised by a demurrer is whether the facts pleaded state a valid cause of action," there is a notable exception to this rule crucial to this demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604. Importantly, the Court need not assume the truth of and may disregard "contentions, deductions, or conclusions of fact or law." Aubry v. Tri -City Hosp. Dist. (1992) 2 Cal. 4th 962, 966- 967 (emphasis added). Here, Plaintiff's Complaint is devoid of factual allegations regarding any duties or obligations that CSAA owed to Plaintiff, how CSAA breached those duties, and how such breach of those duties simultaneously constituted a breach of the parties’ contract. In terms of the NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -13- DO XX 3 S N B W — << 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 breach of contract cause of action, the Complaint is completely bereft of any facts addressing what terms of the contract were allegedly breached, what CSAA did to breach the contract, and how the breach of the contract lead to Plaintiff s alleged damages. Plaintiff failed to allege with particularity the facts that would give rise to a cause of action for misrepresentation, false promise or fraud. Lastly, there is no basis in law for a cause of action in negligent infliction of emotional distress by plaintiff against his automobile insurer. As a result, the complaint is unintelligible. Therefore, since Plaintiff's allegations against CSAA are ambiguous, uncertain, unintelligible, and fail to put CSAA on notice of the claims against it, CSAA’s demurrer should be sustained in its entirety. V. CONCLUSION For the reasons discussed herein, Plaintiff’s Complaint fails to state any viable cause of action against CSAA Insurance Services, Inc. Plaintiff has not named his insurance company as the defendant in this action, and the entity that he did name, CSAA Insurance Services, Inc., is not a licensed insurer in the State of California. Therefore, there is no basis in law or fact for any of the causes of action set forth in Plaintiff’s Complaint. “A demurrer may be sustained without leave to amend where the nature of the Plaintiff's claim is clear and under the applicable substantive law it is plain that there can be no liability." Award Metals, Inc. v Superior Court (1991) 228 Cal. App. 3d 1128, 1131- 1132. Defendant respectfully requests that this demurrer to the Complaint of Trent Jason be sustained with, or without, leave to amend. NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -14- e e 1 S y W r d a W N ee o h p t — DD b N Y a I R Y N a BR 1 ) Jo [ S y fr m f k nt f a . f o t fr om e = i aN Lh BS 2 t o So t oo \& [ > ] ~ a [ 8 t h + w a 2 Respectfully submitted, DATED: February 22, 2018 CARBONE, SMOKE, SMITH, BENT & LEONARD . N Pol] i. sa (1 Uastells Lisa A. Costello Attorneys for Defendant CSAA Insurance Services, Inc. DECLARATION OF ATTORNEY LISA A. COSTELLO I, Lisa A. Costello, declare as follows: 1. I am an attorney licensed to practice in the courts of the State of California and am a member of the firm of Carbone, Smoke, Smith, Bent & Leonard, attorneys for defendant CSA A Insurance Services, Inc. in the above-entitled action, and make this declaration for and on behalf of said defendant. I have personal knowledge of the facts set forth herein and, if called to testify with respect thereto, could and would do so competently under oath. 2. Based upon information and belief, the summons and complaint were served on defendant CSAA Insurance Services, Inc. on J anuary 23, 2018. As a result, the initial response deadline was February 22, 2018. In order to allow sufficient time for the parties to meet and confer prior to filing a demurrer and motion to strike, I filed a Declaration with the court pursuant to C.C.P. §430.41 so that the deadline for defendant to respond to plaintiffs complaint would be extended from February 22, 2018 to March 24,2018. Plaintiff in pro per has objected to any extension of time and threatened to request a default if defendant’s responsive pleading was not filed by February 22, 2018. Therefore, a demurrer and motion to strike are being filed at this time. 8. Plaintiff has made accusations of improper delay and conduct by me in handling the meet and confer process regarding defendant’s demurrer and motion to strike. NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -15- O O 0 ON O N n b W N = N N D O R N N N N N N H m mm b m em e m oe m e m em XR N N BR W N = O 0 d N E W N R S His allegations are completely unfounded. On January 23, my father was diagnosed with stage IV cancer and I traveled out of state to assist with his care through February 10, 2018. Upon returning to the office on February 12, I reviewed the summons and complaint in this matter and prepared a lengthy meet and confer letter to plaintiff which was sent by email and US mail the next day. Because of the numerous issues involved, I believed that a letter before a telephone conference was appropriate. In my letter, I proposed that we speak by telephone on Friday, February 16, 2018. Because of other matters requiring my attention that week, Friday February 16 was the first available time for me to participate in that meet and confer telephone conference. 4. Copies of the email and letter that were sent to plaintiff Trent Jason on February 13, 2018 addressing the deficiencies in his Complaint are attached as “Exhibit A.” 5. A copy of the email that I received from plaintiff in response to my letter on February 13, 2018 is attached as “Exhibit B.” 6. Ireceived two lengthy voicemail messages from plaintiff on February 14 and 15,2018. He advised that he was available and would speak with me on Friday, February 16, 2018, as I proposed. Ts On February 16, 2018, I spoke with Trent Jason over the telephone for approximately 30 minutes. Instead of discussing each of the issues that were raised in my correspondence about the deficiencies in his complaint, he told me that the Attorney Declaration that I filed contained insufficient font size and other defects. He would not cooperate in a back and forth discussion, but instead insisted that he would do all of the talking. When I tried to ask a clarifying question or interject a comment, he accused me of cutting him off and said that he would proceed as if he had already told me what he was going to say. When he continued to discuss other lawsuits that he was involved in and told me that he felt a more experienced lawyer should be involved in this matter, especially considering the fact that defense attorneys had been fired or replaced in his other lawsuits, I asked him if there was anything else he would like to discuss for purposes of the meet and NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -16- Oo 0 0 a N n t W N N D R ND RN ND N N N N em em em e a em em em e m em pe XX N N B R A W N = O 0 d N RA W N = o o confer about his complaint as written in this case. He did not. Instead, he said that I was overly anxious and should see a doctor for a prescription of Valium. I told him that personal attacks were uncalled for; I said goodbye and ended the call. It was clear to me that he was not willing to engage in a good faith meet and confer discussion regarding the defects in his complaint. 8. Attached as “Exhibit C” is a copy of the email correspondence that I received from plaintiff on February 16, 2018. 9. Attached as “Exhibit D” is a copy of the correspondence that plaintiff sent to the court dated February 20, 2018 regarding his request for default if a responsive pleading was not filed by defendant on February 22, 2018. 10. Plaintiff also filed a written objection to defendant’s Attorney Declaration re meet and confer before filing a demurrer. Because of the length of that document a copy is not attached hereto. It is believed to be in the court file. 11. Tcontacted the court clerk to request a hearing reservation for defendant’s demurrer and motion to strike. Because I expected the meet and confer process to continue into March, I requested a hearing date in April. The court clerk provided me with a hearing date and reservation number for April 12, 2018 at 9:30 am in Dept. 302. 12. On February 22, 2018, I researched whether CSAA Insurance Services, Inc. is licensed and authorized as an insurance company in the State of California. When searching the online database with the California Department of Insurance (“DOI”), I used the term “CSAA Insurance Services.” In response, I was informed that “No companies matching search criteria were found.” 13. On February 22, 2018, I researched the California DOI website to confirm the current status of California State Automobile Association Inter-Insurance Bureau as a licensed insurer in the state of California. According to the California DOI, California State Automobile Association Inter-Insurance Bureau was an authorized and licensed insurer until it changed its name effective February 11, 2011 to “AAA Northern California, Nevada & Utah Insurance NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -17- e e 3 O N a dB W N BN N N N N N BR N R m m m a pe d e m p d fm s pe d p m e d 0 NN O Y n t B R A W N = D Y G 0 N N n b W N es Exchange” and subsequently changed its name effective June 4, 2013 to “CSAA Insurance Exchange.” A copy of the DOI Company Profile is attached hereto as “Exhibit E.” 14. T'would not normally disclose details about my personal life, or my father’s medical condition, but given plaintiff’s apparent propensity for personal attacks, I feel that it is appropriate. On February 21, 2018 my father was admitted into hospice care. I will continue to work during this difficult time, but will require a reasonable time to review and respond to communications from plaintiff. Should plaintiff wish to engage in a good faith meet and confer after receipt of this demurrer and motion to strike, or to amend the complaint to address the issues raised, I am available to review and discuss as appropriate. I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct. Executed this 22nd day of February, 2018. bis (1 Onste Lisa A. Costello | LI NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -18- L e D N N N N N N N RN m e m mm b m e m e m e m em ea RX N N R W = O Y ® N 0 U R W R O —~, & EXHIBIT A NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -19- From: Costello, Lisa To: Y i ific.net” Ce: Brann. Lisa Subject: Jason v CSAA Ins Services, Inc. et al Date: Tuesday, February 13, 2018 10:26:00 AM Attachments: LT Trent Jason 2-13-2018 re me. ndf Mr. Jason, Please see attached correspondence of today’s date. I would like to speak with you about this matter and have proposed a telephone conference on Friday, February 16 at 9:00 am. If another date/time is more convenient for you, please let me know. | can be reached at (510) 267-7266 or by e-mail. Thank you for your time and attention to this matter. Sincerely, Lisa A. Costello, Esq. Carbone, Smoke, Smith, Bent & Leonard CSAA Insurance Group, a AAA insurer 505 14 Street, Suite 600 Oakland, CA 94612 Direct: (510) 267-7266 Cell: (510) 407-2872 Fax: (510) 834-8450 Licensed in California, Nevada & Arizona CONFIDENTIALITY NOTICE: This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. Sections 2510-2521, and any documents, files or previous e-mail messages attached to i, may contain confidential information that is legally privileged. if you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified thal any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify me by reply e mall atlisacostello@esan com by mail at the above address or by telephone at (510) 267-7266 and destroy the original transmission and its attachments without reading them or saving them in any manner. thank you, EXHIBIT A LAW OFFICES OF CARBONE, SMOKE, SMITH, BENT & LEONARD 505 14th Street, Suite 600 Oakland, CA 94612-1911 A law firm consisting of employees of the CSAA Insurance Group, including CSAA Insurance Services, Inc. 510-267-7266 FAX 510-834-8450 February 13,2018 VIA U.S. MAIL & E-MAIL: trentjason@pacific.net Mr. Trent Jason P.O. Box 981 Laytonville, CA 95454 Re: Jason v. CSAA Insurance Services, Inc., et al. San Francisco County Superior Court Case No. CGC-18-563695 Dear Mr. Jason: Please allow this correspondence to serve as my attempt to meet and confer with you regarding the civil lawsuit that you filed against my client (CSAA Insurance Services, Inc.) and others. Your Complaint alleges seven separate causes of action: (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) bad faith for failure to investigate a claim, (4) misrepresentation, (5) false promise, (6) fraud, and (7) negligent infliction of emotional distress. There is no factual or legal basis for any of these claims and defendant requests that you dismiss your lawsuit in its entirety, with the exception of your allegations against co-defendants Valera Barnhart and Jane Doe 1. The basis for this request is discussed in more detail below. According to the facts alleged in the complaint, you were involved in an automobile collision on January 19, 2017 when the vehicle owned by defendant Valera Barnhart and insured by USAA was driven by an unidentified person and rear ended your vehicle in a parking lot at the Stanford Mall in San Francisco. The collision resulted in approximately $1,400 in damages to your vehicle. A claim for damages was opened by USAA (claim # 8467587-2) and they agreed to compensate you for 50% of your damages based on their investigation and finding that you were 50% at fault for the accident. It is unclear from the complaint whether you received payment from USAA, whether you disputed their findings, or whether you attempted to recover 100% of your damages from them. As the insurer of the motor vehicle which struck your vehicle, you certainly could proceed with your claim directly with USAA, and against the vehicle’s owner Ms, Barnhart. EXHIBIT A Jason v. CSAA Insurance Services, Inc., et al. February 13, 2018 Page 2 In addition, you submitted a claim to CSAA Insurance Exchange (“CSAA”) under your policy for the property damage to your vehicle as a result of the automobile collision (claim # 1001-88-8831). Your claim was denied by CSAA because your insurance policy did not include collision coverage. Prior to the collision, you obtained automobile insurance from California State Automobile Association Inter-Insurance Bureau (which later changed its name to “AAA Northern California, Nevada & Utah Insurance Exchange,” and later changed its name to “CSAA Insurance Exchange”).! Your complaint names the wrong entities as defendants. Your automobile insurer at the time of the collision was CSAA Insurance Exchange — not CSAA Insurance Services, Inc. and not American Automobile Association of Northern California, Nevada and Utah, Inc. In addition to naming the wrong entity defendants, your Complaint lacks merit in its entirety against your insurer. Although your Complaint alleges that insurance policy No. CAAS100534372 included “comprehensive” coverage, the relevant policy language applicable to a collision would be collision coverage, which your policy did not include. As a result, there is no coverage for the damage to your vehicle as a result of the subject collision and your claim for damage to your vehicle was properly denied. There is no legal basis for you to file suit against CSAA and defendant requests a dismissal from this lawsuit. With regard to the seven separate causes of action pled in your Complaint, each one is addressed below. Breach of Contract A breach of contract cause of action requires that the relevant contract terms be included, verbatim, or a copy of the insurance contract be attached to the Complaint. Otherwise, it is subject to demurrer. "The purpose of the specific pleading of a written contract requirement is to permit the defendant to demur ... based upon the construction of the text of the contract." Petry v. Robertson (1988) 201 Cal. App. 3d 333, 341. You have not attached a copy of your automobile policy, nor have you included the relevant language verbatim in the Complaint. Please either dismiss my client, or amend your pleading to address this issue. Breach of Covenant of Good Faith and Fair Dealing & Bad Faith for Failure to Investigate As discussed above, your automobile policy did not include collision coverage. Asa result, your claim for damage to your vehicle as a result of the subject collision was denied. Absent coverage, there can be no action for breach of the implied covenant of good faith and fair dealing. Waller v. Truck Insur. Exchange (1995) 11 Cal. 4th 1, 35. Please dismiss my client and this cause of action in its entirety. 1 See California Department of Insurance website at https:/interactive. web.insurance.ca.gov/companyprofile/companyprofile?event=companyProfile&doFunction=getCo mpanyProfile&eid=2828. EXHIBIT A Jason v. CSAA Insurance Services, Inc., et al. February 13, 2018 Page 3 Misrepresentation, False Promise, and Fraud There is no basis for a cause of action for misrepresentation, false promise, or fraud against CSAA. First, the plaintiff is required to plead the facts that support such a cause of action with specificity. Wilhelm v. Pray, Price, Williams & Russell, (1986) 186 Cal. App. 3d 1324, 1331; Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal. App. 4th 153, 157. A complaint for misrepresentation and fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. Croeni v. Goldstein (1994) 21 Cal. App, 4th 754, 758.) A cause of action for false promise requires plaintiff to establish the following elements: (1) defendant made a promise to plaintiff, (2) that defendant did not intend to perform this promise when it made it, (3) that defendant intended that plaintiff rely on this promise, (4) that plaintiff reasonably relied on defendant’s promise, (5) that defendant did not perform the promised act, (6) the plaintiff was harmed, and (7) that plaintiff’s reliance on defendant’s promise was a substantial factor in causing his harm. Engalla v Permanente Medical Group, Inc. (1997) 15 Cal 4th 951, 973-974. A general legal conclusion of fraud or deceit is insufficient, and every element of the cause of action “must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect." Wilhelm v. Pray, Price Williams & Russell, supra, 186 Cal. App. 3d at 1331. “There are two causation elements in a fraud cause of action. First, the plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation must have caused him to take a detrimental course of action. Second, the detrimental action taken by the plaintiff must have caused his alleged damage.” Beckwith v. Dahl (2012) 205 Cal. App.4th 1039, 1062. There can be no detrimental reliance in support of a cause of action for fraud arising out of a letter from the insurance company or its conduct affer the subject automobile accident. Especially where, as here, plaintiff's property damage was compensable by the adverse vehicle’s owner, co-defendant Barnhart and her insurer USAA. Negligent Infliction of Emotional Distress The law does not recognize a negligence cause of action against the insurance company. It is well-established in California that bad faith, rather than negligence, is an insured’s sole remedy against an insurer for damages arising out of the claims handling process. Chateau Chamberay Homeowners Assn. v. Associated International Ins. Co. (2001) 90 Cal. App. 4th 335, 347; see also Adelman v Assoc. Intern. Ins. Co. (2001) 90 Cal. App. 4th 352, 365-366. This cause of action should be dismissed. Punitive Damages Your Complaint seeks an award of punitive damages without including the requisite specificity of facts that would support such a claim. Conclusory characterizations that defendant’s conduct was oppressive, fraudulent or malicious does not meet the pleading requirement for punitive damages under Civil Code §3294. Brousseau v. Jarrett (1977) 73 Cal. App.3d 864, 872. EXHIBIT A Jason v. CSAA Insurance Services, Inc., et al, February 13, 2018 Page 4 Instead, the complaint must set forth the ultimate facts of defendant’s wrongful motive, intent or purpose. Unruh v. Truck Insurance Exchange (1972) 7 Cal. 3d 616, 632. In other words, plaintiffs must allege specific facts that manifest an evil motive on the part of the defendant to injure the plaintiff. Henderson v. Security National Bank (1977) 72 Cal. App.3d 764, 771-772. Conclusory language is not sufficient to support a punitive damages claim and, as written, plaintiffs claim is subject to a motion to strike. Please file a dismissal of your claim for punitive damages or, alternatively, amend the Complaint to address this deficiency. Based on the foregoing, defendant requests that you file a dismissal of the entire lawsuit against CSAA Insurance Services, Inc. and AAA of Northern California, Nevada & Utah, Inc. Alternatively, the Complaint should be amended to address the improper named entities and deficiencies discussed above. Pursuant to the meet and confer requirement of C.C.P. §430.41, I would like to schedule a telephone conference with you on Friday, February 16,2018 at 9:00 am. I can be reached at (510) 267-7266 or lisa.costello@csaa.com. In the interim, I will advise the court of our meet and confer efforts, and file the requisite Attorney Declaration which will extend the deadline for my client to respond to the complaint from February 22 to March 24,2018. Thank you for your time and attention to this matter. Sincerely, isn (1 Costello Lisa A. Costello LAC/lab EXHIBIT A OO 0 J A N Un bh W R = N N N O N N N N N N m e m em em em pe m a a e a XR N Y Un R A W = OS Y N D A W N R o o EXHIBIT B NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO -20- From: trentjason@pacific.net To: Costello, Lisa Subject: Re: Jason v CSAA Ins Services, Inc. et al Date: Tuesday, February 13, 2018 3:26:01 PM Trent Jason Plaintiff in pro per 4001 Branscomb Road (address for service) POBox 981 Laytonville California 95454-0981 1 (707) 984-6570 February 13, 2018; Tuesday; 3:25 P.M. Lisa A. Costello Attorney for CSAA Carbone Smoke Smith Bent & Leonard 505 14th Street, Suite 600 Oakland California 94612 1 (510) 267-7266 RE: TRENT JASON VERSUS CSAA, AAA NCNU, ET AL SUPERIOR COURT OF CALIFORNIA IN AND FOR SAN FRANCISCO Lisa: It appears that while you have been a California attorney since March 24, 2018, you have been practicing law for a short time in California. Please be informed of the following: You incorrectly represent that it was not determined that I was 100 percent not at fault. It was determined, in writing, that I was 100 percent NOT AT FAULT. I have all of the very extensive documentation on this matter. I spent 200 hours in preparing my complaint, including do the legal research necessary in preparing my complaint. The terms and conditions of my policy were printed where it was represented "American Automobile Association of Northern California, Utah, and Nevada." It was provided to me in person by Niels Larson, my insurance agent in Ukiah. The policy makes it very clear that [ do not need collision insurance, only comprehensive, where I obtain the license plate of the vehicle and that it is determined that T was not at fault in this matter. I represented these terms and conditions in the complaint - which it appears you did not read. Please have Niels Larsen read that part of the insurance terms and conditions, as he has agreed with me as to my being covered, after I telephoned him and represented where this was written in those terms and conditions. EXHIBIT B For each cause of action, the complaint made it clear that each of the prior paragraphs in the complaint were incorporated into every cause of action, just as though they were printed in any given cause of action represented. Again, it appears you did not read the complaint. You attended law school in Boston. In California, I am only allowed to grant a fifteen days extension for the opposing party to respond to the complaint, without leave of court. You have asked for thirty days. I can only stipulate to fifteen days. I do stipulate to this, but please be aware that this is only through to March 12, 2018. On March 13, I will file a request to enter default. My understanding is that you owned a company called Lisa Costello Voice. com, and that you worked as an attorney independently, but that you also worked for Lamorinda Theatre Acadamy, and Julian Morgan Center for the Arts. You simply failed to read my complaint, and had you, you would have seen that I complied with the specificity for the cause of action for fraud. If you file a motion to demurrer, it is on the part of the defendant to inform the court what the deficiencies of the specificity are, or the court must deny the demurrer for this cause of action. In California, there are general demurrers and also where the defendant demurrers to each cause of action. You will need to file a motion to demurrer to each cause of action in this matter. CSAA Insurance Exchange has only been a corporation for the past two years. It did not provide me the terms and conditions. Niels Larsen handed me a pamphlet of the terms and conditions, and it is very clear, as Niels Larsen will inform you, that I am covered for the hit and run based on my having comprehensive. That section of the terms and conditions makes it very, very clear, that I do not need collision insurance for the damages I have sustained. I have been driving for fifty years. I have never been at fault in any accident. All six of the incidents were hit and run incidents. My complaint is very qualified. It is because I expected an attorney to provide me the misguided information you have written, that I made a demand for $20,000.00 for emotional distress in anticipation of legal proceedings, as allowed in Sprague verses Superior Court, in 1985. This matter will go on for eighteen months. Iwill do EXHIBIT B very extensive discovery. Valera A. Barnhart was served this past Friday. Her representation to the process server 1 retained is what I'also allege. She was not the vehicle operator involved in this Incident. As I have alleged, she simply owned the vehicle. I do not have electronic mail where I reside, so it is only when I am at a restaurant, miles from my residence, that I have access to the Internet. Based on all of the above, please only send me mail through the United States Postal Service. Please do not send me any more e-mail from this date on. I will be available this Friday, at 9:00 A.M.. However, please read the applicable case law as to these matters. And please read my complaint. I have already prepared my opposition to a motion to demurrer, and the court will not grant any demurrer for any of my causes of action. Because you appear new at the application of law as to these insurance matters, you may want to have an attorney in your office who has a qualified duration as to insurance law communicate with me instead. You simply under-estimate my resolve on this mailer. Trent Jason Plaintiff in pro per > Mr. Jason, > > Please see attached correspondence of today's date. <5 : > 1 would like to speak with you about this matter and have proposed a > telephone conference on Friday, February 16 at 9:00 am. If another > date/time is more convenient for you, please let me know. I can be > reached at (510) 267-7266 or by e-mail. > > Thank you for your time and attention to this matter. > > Sincerely, > > Lisa A. Costello, Esq. > Carbone, Smoke, Smith, Bent & Leonard > CSAA Insurance Group, a AAA insurer > 505 14th Street, Suite 600 > Oakland, CA 94612 > Direct: (510) 267-7266 > Cell: (510) 407-2872 EXHIBIT B > Fax: (510) 834-8450 > Licensed in California, Nevada & Arizona > > CONFIDENTIALITY NOTICE: > This e-mail is covered by the Electronic Communications Privacy Act, 18 > U.S.C. Sections 2510-2521, and any documents, files or previous e-mail > messages attached to it, may contain confidential information that is > legally privileged. If you are not the intended recipient, or a person > responsible for delivering it to the intended recipient, you are hereby > notified that any disclosure, copying, distribution or use of any of the > information contained in or attached to this message is STRICTLY > PROHIBITED. If you have received this transmission in error, please > immediately notify me by 10K 2 e-mail at > lisa.costello@csaa.com< ; fg.csna.com> by mail at the above > address or by telephone at (510) 267-7266 and destroy the original > transmission and its attachments without reading them or saving them in > any manner. Thank you. > > EXHIBIT B Oo 0 a9 AN n h W N B D N N N N N N O N HR m m mm em em p a o e p m © N N RE W R N R C 0 0 d U R E W R = o S EXHIBIT C NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO 21- From: trentjason@pacific.net To: Costello, Lisa Subject: Your several representations to me are incorrect Date: Friday, February 16, 2018 5:11:29 PM February 16, 2018; Friday; 5:12 P.M. Lisa A. Costello: This electronic mail letter confirms that T telephoned you today, February 16,2018, at 9:00 A.M., which was the time you designate for the statutory meet and confer telephonic conference. Because there was a meet and confer telephonic conference, then, contrary to you legal advice to me, there is no thirty days extension for your client to file a motion to demurrer. This is because you made no attempt to meet and confer with me prior to the five days before you were to file your company's motion to demurrer. Instead, you made your first attempt after the deadline to do so. HOWEVER, I LEFT A TELEPHONE MESSAGE WITH YOU ON TUESDAY EVENING, FEBRUARY 13, 2018, AND YOU SHOULD HAVE TELEPHONED ME BACK ON WEDNESDAY OR TURSDAY, FEBRUARY 14, OR 15,2018, TO BE IN COMPLAINCE WITH THE MEET AND CONFER REQUIREMENTS, WHICH YOU INTENTIOANALLY DELAYED UNTIL AFTER THE DEADLINE TO MAKE ANY ATTEMPTS TO MEET AND CONFER WITH ME. THIS IS WHY SANCTIONS APPLY. The applicable part of California Code of Civil Procedure, section 430.41, which took effect on January 01, 2016, represents that there is only an extension of time if there was no meet and confer at least five days before the motion to demur was to be filed, and you provide a rational basis as to why you failed to meet and confer before that five days period before the responsive filing was do. You acted with a deceit upon the court by not making any attempt to meet and confer until after the deadline. Your declaration made it clear that you made no attempt to meet and confer with me prior to filing the declaration. Your declaration is supposed to be filed with the motion to demurrer, because you failed to meet and confer at least five days before the deadline to file your company's response. You made no attempt to telephone until after the deadline. This trickery warrants sanctions. You prepared your declaration and served it on me before you ever contacted me in any form or manner. I responded to you, below, on the same day. AAA NCNU and American Automobile Association of Northern California, Nevada, and Utah, are the only names on the EXHIBIT C insurance policy terms and conditions. Therefore, it is a defendant for leading me to believe that it was the insurer. There is the specificity for the cause of action for fraud, as the California court has expanded what fraud is, and in my 47 pages complaint, I explained all of this. Emotional distress in anticipation of legal proceedings is allowed, once monetary damages are established, as per Sprague versus Equifax (1985). I have 26 exhibits in my opposition to the motion to demurrer. There was only one letter from USAA and it simply represented it had begun an investigation. There is no corporate filing with the California Secretary of State for CSAA Insurance Exchange, and it is operating unlawfully in California; irrespective of whether or not it is registered with the California Department of Insurance. CSAA never made any communication to me for any payment; my insurance carrier represented that I was 100 percent not at fault; the matter entailed a hit and run incident, and that driver left the scene and refused to provide me any information or documentation as to her driver's license, the vehicle registration, or any insurance. Valera A. Barnhart was not the vehicle operator and she will make this very clear. Where my insurer determines that I am 100 percent not at fault, and the matter entails a hit an run, then I am covered under uninsured motorist. My insurer represented in writing twice that I was 100 percent not a fault. It was up to my insurer to pay me for the damage caused by a vehicle operator who was not licensed and left the scene. I am covered for this. I only need comprehensive insurance, for this, and the policy is clear that where I obtained the license plate number, and where it was determined that I was not at fault, the deductible does not apply. You need to prepare your pleadings in 12 point print. Some of it is seen on the cover page in 8 point and 10 point. Your license number is to to the immediate left of your name. "UNLIMITED MATTER" is to be placed directly above the case number. You deleted part of my mailing address. The mailing address to my post office box needs the nine digits I provided. You added "Mr." and punctuation to my address label. This should be deleted so that the label can be computer read. All letters should be capitalized. EXHIBIT C If you do not agree to my offer to extend the 15 days period to respond, then I will file my request to enter default on February 23, 2018. You need to inform me of this at this time. TRENT JASON PLAINTIFF IN PRO PER PO BOX 981 LAYTONVILLE CA 95454-0981 EXHIBIT C Oo 0 NN A N n w V N N N N N N O N H H m o m mm em e m a em PO N A L h B W N R O O N N N D E W O N R o EXHIBIT D NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO 99. Trent Jason Plaintiff, in pro per 4001 Branscomb Road P.O Box 981 (address for service) Laytonville California 95454-0981 1 (707) 984-6570 trentjason@pacific.net February 20, 2018 Clerk of the Superior Court Superior Court of California in and for San Francisco Room 103 - First Floor 450 McAllister Street San Francisco California 94012 RE: REQUEST TO ENTER DEFAULT ON FEBRUARY, 23, 2018, IF DEFENDANT CSAA INSURANCE SERVICES, INCORPORATED, A.K.A. CSAA, A CALIFORNIA:CORPORATION, HAS NOT FILED A RESPONSE; NEED TO FOWARD TO THE PRESIDING JUDGE IN THIS MATTER: "PLAINTIFF'S DECLARATOIN IN OPPOSITION TO DEFENDANT CSAA INSURANCE SERVICES, INCRPORATED'S, ADDITIONAL THIRTY DAYS TO FILE A MOTION TO DEMURRER, AND PLAINTIFF'S REQUEST TO ENTER DEFAULT AGAINST CSAA INSURANCE SERVICES, INCORPORATED; A.K.A. CSAA. TRENT JASON VERSUS CSAA INSURANCE SERVICES, INCORPORATED, A.K.A. CSAA, CASE NUMBER CGC-18-563695 : SUPERIOR COURT OF CALIFORNIA, IN AND FOR THE COUNTY OF SAN FRANCISCO Good morning Deputy Court Clerk of the Superior Court of California, in and for San Francisco: I'am the plaintiff in this matter now before the court. Defendant CSAA Insurance Services, Incorporated, a.ka. CSAA, has filed its "Declaration of Attorney Lisa A. Costello RE Meet and Confer For Extension of Time to File Demurrer.” Because the declaration establishes that the compliance of the applicable California Code of Civil Procedure, which is section 430.41, subsection (a), subpart (2), was not complied with, then | ask that my "Request to Enter Default" be entered with the court, after the court's review of my now filed " Plaintiff's Declaration in Opposition to Defendant CSAA Insurance Services, Incorporated's, Additional Thirty Days to File A Motion to Demurrer, and Plaintiff's Request to Enter Default Against CSAA Insurance Services, Incorporated, A.K.A. CSAA". Because all of this may be a matter of law, | believe that it would be just and proper for the presiding judge in this matter to determine if Defendant CSAA Insurance Services, Incorporated, a.k.a. CSAA, failed to comply with California Code of Civil Procedure, section 4301.41(a)(2), and that, therefore, | am entitled to have my "Request To Enter Default” filed, and for the presiding judge to grant the "Notice of Entry of Default." EXHIBIT D Please forward the above represented "Opposition", along with the "Request to Enter Default” which | will have provided to you this Friday, February 23, 2018. | have served this named Defendant's attorney my opposition, and the five exhibits attached to it. I have also provided to you, two self-addressed, postage paid envelopes for the court to return those documents which are, or will be, filed with the court, after the court makes it decision if the "Entry of Default is just and proper in this matter. One of the envelopes is to me and the other is to Defendant CSAA Insurance Services, Incorporated's, attorney of record in this matter. I have provided a copy of this two pages letter to this named defendant's attorney, and it was included with my "Opposition" which | have now provided to you; both of which were served on that attorney,’ as addressed below, Thank you for your time and effort in this matter. J 1 \ {1 bay) i S Trent Jason Plaintiff, in pro per CC. LISA A COSTELLO ATTORNEY FOR CSAA INSURANCE SERVICES INCORPORATED CABONE SMOKE SMITH BENT & LEONARD ATTORNEYS AT LAW 505 14TH ST STE 600 OAKLAND CA 94612-1911 EXHIBITD OO 0 3 A N Un bh W N D N R ND N N N N = em em em m m m m XP N D Un AE R N = O VW a Es BD o o o m o o EXHIBIT E NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO 23- Company Profile CoE Li 3 es tes ee COMPANY PROFILE Company Profile Company Search Company Information “Company Information CSAA INSURANCE EXCHANGE Old Company 3055 OAK ROAD Names WALNUT CREEK, CA 94597-2098 Agent for Service 800-923-8228 Reference Information Old Company Names Effective Date NAIC Group List AAA NORTHERN CALIFORNIA, NEVADA & UTAH INSURANCE Lines of Business ’ 1 oo Lusiness EXCHANGE 06/04/2013 Workers’ IF IA STATE AUTOMOBILE ASSOCIATION INTER-INSURANCE Compensation CALTORN Sl a DCs 02/11/2011 Complaint and Request for . Action/Appeals Agent For Service Contact Information Co ) cee. VVIEN IMperial Financial Statements 818 WEST SEVENTH STREET PDF's SUITE 930 Annual Statements LOS ANGELES CA 90017 Quarterly _ Statements Reference Information Company Complaint | Company NAIC #: 15539 Performance & Comparison Data California Company ID #: 0441-6 Company Enforcement Action Date Authorized in California: 08/08/1914 Composite ; , Complaints Studies License Status: UNLIMITED-NORMAL Additional Info Company Type: Property & Casualty Find A Company Representative In State of Domicile: CALIFORNIA Your Area View Financial back to top Disclaimer NAIC Group List NAIC Group #: 1278 CSAA Ins Grp Lines Of Business The company is authorized to transact business within these lines of insurance. For an explanation of any of these terms, please refer to the glossary, AIRCRAFT AUTOMOBILE BOILER AND MACHINERY BURGLARY COMMON CARRIER LIABILITY EXHIBIT E https://interactive.web.insurance.ca.gov/...panyprofile/companyprofile?event=companyProfilc& doFunction=getCompanyProfile&eid=2828[2/22/20 18 11:04:06 AM] Company Profile CREDIT DISABILITY FIRE LIABILITY MARINE MISCELLANEOUS PLATE GLASS SPRINKLER SURETY TEAM AND VEHICLE WORKERS’ COMPENSATION back to top © 2008 California Department of Insurance EXHIBIT E https://interactive.web.insurance.ca.gov/...panyprofile/companyprofile?event=companyProfile&doF unction=getCompanyProfile&eid=2828[2/22/2018 11:04:06 AM] o s e ~~ O Y a B W DY = I D R N N N N N b m E m p a em s m m a e s e m ee 0 N N A bh W N em DO 0 O e d N t h Bh Ww lo o — Jason v. American Automobile Assoc’n, et al. San Francisco County Superior Court Case No. CGC18563695 PROOF OF SERVICE BY MAIL I, Lisa A. Branin, am employed by the office of Carbone, Smoke, Smith, Bent & Leonard in 505 14th Street, Suite 600, Oakland, CA 94612-1911. I am over the age of 18 years and am not a party to this action. I am readily familiar with my employer's business practice for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service the same day it is placed for collection in the ordinary course of business. I served the accompanying NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO by placing the document(s) for collection and mailing on the date below, following ordinary business practices at the above business address of my employer, in a sealed envelope or envelopes, with postage fully paid, and addressed to: Trent Jason PO Box 981 Laytonville, CA 95454-0981 Plaintiff, in pro per I declare under penalty of perjury under the laws of the State of California that the £0 Rua Lisa A. Branin foregoing is true and correct. Dated: February 22, 2018 NOTICE OF DEMURRER TO COMPLAINT; DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER; DECLARATION OF ATTORNEY LISA A. COSTELLO 24.
