Judge: Cherol J. Nellon, Case: 22STCV29453, Date: 2023-10-12 Tentative Ruling

Case Number: 22STCV29453    Hearing Date: October 12, 2023    Dept: 14

Instant Pleading

            Defendants Orwig and Fiesta now demur to the FAC on the grounds that Plaintiff has failed to state a cause of action against it.

Decision

            The Request for Judicial Notice is GRANTED.

The demurrer is SUSTAINED, without leave to amend. Defense is to submit a judgment of dismissal within 5 days.

Discussion

            The FAC tells a relatively simple story in which Plaintiff used a “straw buyer” to get auto insurance at a discount.

            Plaintiff was given a power of attorney by a Mr. David Dawson, who is not a party to this lawsuit. Plaintiff went to the offices of Defendant Fiesta, where he spoke with Defendant Orwig, who assisted him in procuring insurance for Mr. Dawson. Defendant Aspire ultimately issued a policy to Mr. Dawson. However, Mr. Dawson was never the owner or the driver of the vehicle (a 2010 Prius) that Aspire insured – Plaintiff was.

            Plaintiff has submitted a declaration from Mr. Dawson admitting that he allowed Plaintiff to use his name and driver’s license number to obtain the policy because the two of them are friends. (Declaration of David Dawson filed May 1, 2023). Plaintiff’s name appears nowhere on the policy, which is attached to the FAC.

            Plaintiff has no viable claim against Defendants Orwig and Fiesta. Nor can one be stated. Plaintiff cannot sue the broker because a policy based on his own fraud was rescinded.