Judge: Latrice A. G. Byrdsong, Case: 24STLC01344, Date: 2024-05-28 Tentative Ruling
Case Number: 24STLC01344 Hearing Date: May 28, 2024 Dept: 25
Hearing Date:
Tuesday, May 28, 2024
Case Name: IRINA PALACIOS, an individual v. AMERICAN GENERAL LIFE
INSURANCE COMPANY; and DOES 1-20
Case No.: 24STLC01344
Motion: Demurrer with Motion to Strike
Moving Party: Defendant American General Life Insurance Company
Responding Party: Plaintiff Irina Palacious
Notice: OK
Recommended Ruling: Defendant
American General Life Insurance Company’s
Demurrer is SUSTAINED in part and
OVERRULED in part.
It is
overruled as to the first cause of action, but sustained with 30 days leave to
amend as to the second through fourth causes of action.
Defendant’s
Motion to Strike is GRANTED with 30 days leave to amend.
BACKGROUND
On February
26, 2024, Plaintiff Irina Palacios (“Plaintiff”) filed a complaint against
Defendant American General Life Insurance Company (“Defendant”), and Does 1
through 20 for (1) breach of contract, (2) breach of the implied covenant of
good faith and fair dealing, (3) bad faith, and (4) financial elder abuse.
The complaint
alleges that Plaintiff held a Disability Income Plan policy with Defendant, and
was the insured. On or about June 29, 2020, Plaintiff was injured when she fell
on her back at her home and was taken to the Emergency Room. Plaintiff severely
sprained the ligaments of her cervical spine, lumbar spine, and thoracic spine,
and experienced myositis, an inflammatory condition that causes muscle fatigue,
weakness, and pain. Plaintiff filed a claim for disability benefits under the
Policy with Defendant, on June 29, 2020. Subsequently, Defendant denied the
claim. Plaintiff attempted to obtain a
certified copy of the Policy from Defendant, but was ignored by Defendant and
never received a copy. On or about June 2, 2023, Plaintiff’s counsel wrote a
letter to Defendant again requesting a certified copy of the Policy. On July 6,
2023, Defendant sent a letter to Plaintiff’s counsel refusing to produce a
certified copy of the Policy. Now, Defendant demurs to the first through fourth
causes of action and moves to strike the complaint.
MOVING PARTY POSITION
Defendant demurs to the complaint,
arguing that Plaintiff’s
claims are either time barred or otherwise fail to state facts sufficient to
constitute a cause of action.
Defendant argues that Plaintiff’s breach of contract
claim omits key terms of the agreement, including whether the contract is
oral or written. There likewise is a dearth of basic key facts such as
when the contract was entered into, the policy number, and the alleged monetary
amount owed under the contract.
Defendant claims the third cause of action is
superfluous to the second cause of action. A breach of the implied covenant of
good faith and fair dealing involves something beyond breach of the contractual
duty itself,’ and it has been held that ‘“[b]ad faith implies unfair dealing
rather than mistaken judgment....” Congleton v. National Union Fire Ins. Co.
(1987) 189 Cal.App.3d 51, 59.
Defendant contends Plaintiff’s complaint
impermissibly seeks bad faith tort damages based on time-barred claims.
The purported claim arose on June 29, 2020. A tort bad faith claim has a
two-year statute of limitation. Plaintiff did not file this matter until
February 26, 2024. The bad faith claims therefore are untimely. To the
extent Plaintiff attempts to plead an estoppel theory (Complaint, ¶ 38), the
general rule is that estoppel must be specifically “pleaded in the complaint
with sufficient accuracy to disclose the facts relied upon.”
Defendant argues the elder abuse claim suffers from
pleading deficiencies. First, Plaintiff does not plead the most basic
requirement for this claim: her age. Accordingly, she fails to show, on
the face of the Complaint, that she is eligible for any relief under the elder
abuse statute. Moreover, Plaintiff
also fails to sufficiently plead any “taking” has occurred. The consideration
Plaintiff paid for the contract (i.e., premium payments) is not a “taking.” Next,
the claim impermissibly seeks relief based on a purported breach of
contract, and is therefore barred by the economic loss rule.
Defendant also moves to strike the claim for punitive
damages, arguing they are based solely on conclusory allegations
of malice, oppression or fraud.
OPPOSITION
In opposition, Plaintiff argues that although
Plaintiff specifically alleges that Defendant “refused to provide a certified
copy of the Policy” to Plaintiff, Defendant now takes Plaintiff to task for
purportedly failing to “include key terms of the supposed agreement” in the
Complaint, i.e., failing to plead “key terms” from the very agreement Defendant
withheld from Plaintiff.
Regardless, Defendant’s arguments lack merit.
Indeed, Defendant’s argument that Plaintiff failed to plead whether the
contract was oral or written is frivolous. Plaintiff obviously alleges that the
contract was written since she alleges that she attempted to obtain a “copy” of
the Policy. Compl. ¶¶ 12, 16. Moreover, Plaintiff did plead the relevant terms
of the contract according to their legal effect. For example, Plaintiff alleges
that “Plaintiff entered into an agreement with Defendant according to which, in
consideration for payment of insurance premiums to Defendant, Plaintiff would
receive disability benefits in the event of a covered loss, injury and/or
disability.” Compl. ¶ 21. This is all that is necessary to plead a breach of
contract. Plaintiff is not required to plead the date the contract was entered
into, the policy number or the policy benefit amount. Rather, she is merely
required to plead the legal effect of the contract, which she has done.
Defendant’s argument that Plaintiff fails to plead damages is also without
merit. Plaintiff is not required to plead a specific amount of damages.
Plaintiff has sufficiently pleaded that as a result of Defendant’s breach of
contract “Plaintiff was proximately harmed in an amount to be determined at
trial according to proof, plus interest at the legal rate.” Compl. ¶ 26. Plaintiff’s
prayer for relief requests “an award of general damages according to proof” on
“all causes of action,” including the breach of contract claim.
As to the statute of limitations argument,
Plaintiff contends that she has alleged acts occurring well within the statute
of limitations that support Plaintiff’s claim, including that on “July 6, 2023,
AGLI sent a letter to Plaintiff’s counsel refusing to produce a certified copy
of the Policy and requesting a signed letter from IRINA or a durable power of
attorney.” Compl. ¶ 14. Further, Plaintiff alleges that subsequently “AGLI
still refused to provide a certified copy of the Policy to IRINA or her counsel.”
Compl. ¶ 16.
As to the third cause of action, Plaintiff argues
it is not superfluous to her breach of covenant of good faith and fair dealing
claim. Further, the doctrine of equitable estoppel bars Defendant from
asserting the statute of limitations. A defendant may be equitably estopped
from asserting a statutory or contractual limitations period as a defense if
the defendant's act or omission caused the plaintiff to refrain from filing a
timely suit and the plaintiff's reliance on the defendant's conduct was
reasonable. Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384–385; Vu
v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142,
1152–1153; Spray, Gould & Bowers v. Associated Internat. Ins. Co.
(1999) 71 Cal.App.4th 1260, 1268–1269. Insurance Code section 395 creates a
duty to provide a copy of the policy to Plaintiff, and Defendant’s failure to
comply with that duty gives rise to an equitable estoppel. See also Salloum
Foods & Liquor, Inc. v. Parliament Ins. Co. (1979) 69 Ill. App. 3d 422)
(insurer's unjustified and unexplained refusal to provide insured with copy of
policy, which occasioned insured's delay in filing suit, estopped insurer to
raise contractual limitation period as defense to insured's action on policy); Union
Fire Ins. Co. of Paris, France, v. Stone (1930) 41 Ga. App. 49, 152
S.E. 146, 146 (accord).
As to the fourth cause of action for elder abuse,
Plaintiff argues Defendant’s own authority undermines its position. In Paslay,
the court specifically addressed “whether a merely incorrect denial of policy
funds under the circumstances shown here may constitute a ‘wrongful use’ of
those funds, for purposes of an elder abuse claim.” Paslay v. State Farm
Gen. Ins. Co. (2016) 248 Cal. App. 4th 639, 657. The court held that “under
subdivision (b) of 15610.30, wrongful conduct occurs only when the party who
violates the contract actually knows that it is engaging in a harmful breach,
or reasonably should be aware of the harmful breach.” Id. Here,
Plaintiff specifically alleged that “Defendant intended to defraud Plaintiff”
out of benefits she was due under the Policy. Compl. ¶ 44.
Finally, Plaintiff argues her claim is not barred by the
economic loss rule because the rule does not apply to “actions that constitute
the breach violate a social policy that merits the imposition of tort
remedies.” Aas v. Superior Ct., (2000) 24 Cal. 4th 627, 643.
Thus, the “conduct amounting to a breach of contract becomes tortious when it
also violates a duty independent of the contract arising from principles of
tort law.” Id. Here, Defendant’s conduct clearly violates the duties
underlying the elder abuse statute, such as the “social policy” of protecting
elders from fraud and abuse.
As
to the motion to strike, Plaintiff argues that a plaintiff alleging bad faith
denial of benefits may obtain punitive damages if Plaintiff can establish that Defendant
“not only denied or delayed the payment of policy benefits unreasonably or
without proper cause, but, in doing so, was guilty of malice, oppression or
fraud.” Jordan v. Allstate Ins. Co. (2007) 148 Cal. App. 4th 1062, 1080.
The standard is virtually the same for Plaintiff’s elder abuse claim. Country
Villa Claremont Healthcare Ctr., Inc. v. Superior Ct. (2004) 120
Cal. App. 4th 426, 432.
REPLY
None filed as of May 23, 2024.
ANALYSIS
As an
initial matter, Plaintiff’s opposition is untimely. Plaintiff’s opposition
was filed on May 20, 2024. Plaintiff’s Opposition was due nine court days
before the May 28, 2024 hearing date, which was May 14, 2024. Code Civ.
Proc., § 1005, subd. (b). However, the Court will exercise its discretion in
considering the merits of the opposition.
I.
Demurrer
A.
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action. Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers,
courts read the allegations liberally and in context. In a demurrer proceeding,
the defects must be apparent on the face of the pleading or via proper judicial
notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994;
Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶7:8. “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 (430.30, 430.70). The only issue involved in
a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous
matters, states a cause of action.” Hahn 147 Cal.App.4th at 747. A
complaint will be upheld against a demurrer if it pleads facts sufficient to
place the defendant on notice of the issues sufficient to enable the defendant
to prepare a defense. Doe v. City of Los Angeles (2007) 42 Cal.4th
531, 549-50
Leave to amend must be allowed where there is a reasonable
possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d
335, 348. The burden is on the complainant to show the Court that a
pleading can be amended successfully. Id.
B.
Meet and Confer Requirement
The meet and confer requirements have been met. (Burnite
Decl.)
1.
First Cause of Action for Breach of
Contract
Defendant argues that Plaintiff’s
Complaint does not include key terms of the purported agreement, including
whether the contract is oral or written. Defendant argues there likewise is a
dearth of basic key facts such as when the contract was entered into, the
policy number, and the alleged monetary amount owed under the contract.
The elements for a breach of
contract cause of action are: (1) the contract; (2) plaintiff’s performance or
excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages.¿ Reichert
v. General Ins. Co.¿(1968) 68 Cal.2d 822, 830;¿Hale v. Sharp
Healthcare¿(2010) 183 Cal.App.4th 1373, 1387. Further, the complaint must indicate whether the contract
is written, oral, or implied by conduct. Code Civ. Proc. § 430.10(g). Although
a written contract is usually pleaded by alleging its making and attaching a
copy which is incorporated by reference, a written contract can also be pleaded
by alleging the making and the substance of the relevant terms. Construction
Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th
189, 198-199; Perry v. Robertson (1988) 201 Cal.App.3d 333, 341.
Here, the complaint
alleges “Plaintiff entered into an agreement with Defendant according to which,
in consideration for payment of insurance premiums to Defendant, Plaintiff
would receive disability benefits in the event of a covered loss, injury and/or
disability.” Compl. ¶ 21. “Plaintiff was insured under a valid policy in effect
on the date the loss occurred.” Id., ¶ 23. “Defendant failed to perform
under the parties’ agreement in denying coverage for disability benefits to
which Plaintiff was entitled, as well as by failing to provide Plaintiff a
certified copy of the insurance Policy.” Id., ¶ 24.
The
allegations indicate that the complaint was written as Plaintiff requested a
copy of the policy. As to Defendant’s argument that Plaintiff has not alleged
the policy number, the date the contract was entered into, and the amount owed
under the contract, Defendant cites to no authority which requires Plaintiff to
plead those details. All that is required is to plead the substance of the key
terms. Other than arguing that Plaintiff has not alleged whether the contract
was written or oral, Defendant identifies no other relevant terms that are
missing. Accordingly, the demurrer is OVERRULED as to the first cause of
action.
2.
Statute of Limitations as to the Second
Cause of Action for Breach of the Implied Covenant of Good Faith and Fair
Dealing and Third Cause of Action for Bad Faith
Defendant
next argues that Plaintiff’s complaint impermissibly seeks bad faith
tort damages based on time-barred claims.
“A bad
faith action in tort against an insurer for breach of the implied covenant of
good faith and fair dealing is governed by the two year-limitations period [in]
Code of Civil Procedure section 339.” Archdale v. American Internat.
Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 472. The
statute of limitations begins to run when there is a “complete denial of the
claim.” State Farm Fire & Casualty Co. v. Superior Court
(1989) 210 Cal.App.3d 604, 609.
Here,
the complaint alleges that Plaintiff filed a claim on June 29, 2020, which was
subsequently denied. However, it alleges that Defendant ignored Plaintiff’s
request for a copy of the policy. It also alleges that Defendant refused to
provide a copy of the policy to Plaintiff’s attorney on July 6, 2023. Compl., ¶¶
10, 11, 12, 13, 16. The complaint also alleges that Defendant should be
equitably estopped from denying coverage due to its conduct and bad faith. Id.,
¶ 39.
“An
estoppel against a limitations defense usually arises as a result of some
conduct by the defendant, relied on by the plaintiff, which induces¿the belated
filing of the action.” Spray, Gould & Bowers v. Assoc. Int’l Ins. Co.
(1999) 71 Cal.App.4th 1260, 1267–68.
“Four
elements must ordinarily be proved to establish an equitable estoppel: (1) The
party to be estopped must know the facts; (2) he must intend that his conduct
shall be acted upon, or must so act that the party asserting the estoppel had
the right to believe that it was so intended; (3) the party asserting the
estoppel must be ignorant of the true state of facts; and, (4) he must rely
upon¿the conduct to his injury.” Spray, supra, at p. 1268.
“The absence of
affirmative conduct here does not end the inquiry, however. An estoppel¿may¿arise from
silence where there is a duty to speak.” Id.
“A
defendant may be equitably estopped from asserting a statutory or contractual
limitations period as a defense if the defendant's act or omission caused the
plaintiff to refrain from filing a timely suit and the plaintiff's reliance on
the defendant's conduct was reasonable. The act or omission must constitute a
misrepresentation or nondisclosure of a material¿fact, rather than law. The
defendant need not intend to deceive the plaintiff to give rise to an equitable
estoppel.” Super.
Dispatch, Inc. Ins. Corp. of New York (2010) 181 Cal.App.4th 175, 186,
emphasis and citations omitted.
“A
nondisclosure is a cause of injury if the plaintiff would have acted so as to
avoid injury had the plaintiff known the concealed fact. The plaintiff's
reliance on a nondisclosure was reasonable if the plaintiff's failure to
discover the concealed fact was reasonable in light of the plaintiff's
knowledge and experience. Whether the plaintiff's reliance was reasonable is a
question of fact for the trier of fact unless reasonable minds could reach only
one conclusion based on the evidence. The fact that a plaintiff was represented by
counsel and the¿scope and timing of the representation are relevant to the
question of the reasonableness of the plaintiff's reliance.” Id., at p.
187–88.)
The Court
finds that the complaint fails to allege sufficient facts to show the doctrine
of equitable estoppel applies. It only alleges that Defendant’s failure to
provide a copy of the policy was in violation of Insurance Code 395. There are
no allegations relating to whether Plaintiff failed to timely file suit due to
the nondisclosure of the policy, or any facts to show this was reasonable. The
Court observes that the complaint alleges that in June 2023 Plaintiff’s counsel
wrote a letter to Defendant to produce a copy of the policy. If Plaintiff was
not represented until June 2023, this
should all be alleged in order for the court to determine whether plaintiff’s
failure to file suit earlier based on the reliance of nondisclosure was
reasonable.
As a result,
the demurrer as to the second and third causes of action is SUSTAINED with 30
days leave to amend.
3. Fourth
Cause of Action for Financial Elder Abuse
Defendant
argues Plaintiff’s claim for elder abuse fails because she has not alleged her
age. Defendant also argues Plaintiff
also fails to sufficiently plead any “taking” has occurred.
Pursuant to
Welfare & Institutions Code § 15610.30, financial elder abuse occurs when a
person 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 1575 of the Civil Code.” Welf. & Inst. Code §15610.30(a).
A person is
“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.” Id. subd. (b). “[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.” Id. subd. (c).
Moreover,
“statutory causes of action must be pleaded with particularity.” (Covenant
Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)
Plaintiff alleges she was an elder
at the time of the loss. Compl. ¶ 43. Defendant allegedly took premiums from Plaintiff.
Id. Plaintiff further alleges Defendant intended to defraud Plaintiff.
(Id., ¶ 44.)
The court agrees that a bad faith
claim may support a cause of action for financial elder abuse. Paslay v. State Farm General Ins. Co. (2016) 248
Cal.App.4th 639, 658 [“[U]nder subdivision (b) of [Welf. & Inst. Code
section] 15610.30, wrongful conduct occurs only when the party who violates the
contract actually knows that it is engaging in a harmful breach, or reasonably
should be aware of the harmful breach”]. However, statutory causes of action
must be pled with particularity. Plaintiff alleges fraud. In California,
fraud must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30
Cal.4th 167, 184.) “The particularity
demands that a plaintiff plead facts which show how, when, where, to whom, and
by what means the representations were tendered.” (Cansino
v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) The complaint is
missing this particularity. The demurrer is SUSTAINED with 30 days leave to
amend on this ground.
Defendant additionally argues the
cause of action for elder abuse is barred under the economic loss rule.
“‘A person may not ordinarily recover in tort for the
breach of duties that merely restate contractual obligations.’” Stop Loss
Insurance Brokers, Inc. v. Brown & Toland Medical Group (2006) 143
Cal.App.4th 1036, 1041 (quoting Aas v. Superior Court (2000) 24 Cal.4th
627, 643). “‘Instead “[c]ourts will generally enforce the breach of a
contractual promise through contract law, except when the actions that
constitute the breach violate a social policy that merits the imposition of
tort remedies.’” Id. (alteration in original).
“‘[T]he same wrongful act may constitute both a breach of
contract and an invasion of an interest protected by the law of torts.’” Erlich
v. Menezes (1999) 21 Cal.4th 543, 551 (quoting North American Chemical
Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774). “‘[A]
contractual obligation may create a legal duty and the breach of that duty may
support an action in tort.’” Id. “[H]owever, conduct amounting to a breach of contract
becomes tortious only when it also violates a duty independent of the contract
arising from principles of tort law.” Id.
“Tort
damages have been permitted in contract cases where a breach of duty directly
causes physical injury [citation]; for breach of the covenant of good faith and
fair dealing in insurance contracts [citation]; for wrongful discharge in
violation of fundamental public policy [citation]; or where the contract was
fraudulently induced. [citation]” Erlich, supra, 21 Cal.4th at
551-52. “In each of these cases, the duty that gives rise to tort liability is
either completely independent of the contract or arises from conduct which is
both intentional and intended to harm.” Id. at 552.
However, Plaintiff alleges she was harmed
as a result of Defendant’s wrongful use of the insurance premium benefits. Compl.,
¶ 45; prayer ¶ 1. This harm is separate and apart from
“economic loss.”
II. Motion to
Strike
Any party,
within the time allowed to respond to a pleading, may serve and file a motion
to strike the whole or any part thereof – i.e., even single words or phrases.
(Code. Civ. Proc. § 435(b)(1)); Warren v. Atchison, Topeka & Santa Fe
Ry. Co. (1971) 19 Cal App.3d 24, 40. A motion to strike lies either: (1) to
strike any “irrelevant, false or improper matter inserted in any pleading”;
and/or (2) to strike any pleading or part thereof “not drawn or filed in
conformity with the laws of this state, a court rule or order of court.” (Code.
Civ. Proc. § 436); Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528;
As with demurrers, the grounds for a motion to strike must appear on the face
of the pleading, or from any matter which the court may judicially notice.
(Code Civ. Proc. § 437.)
Defendant also moves to strike allegations relating
to punitive damages, arguing they are based solely on conclusory allegations
of malice, oppression or fraud.
To
support a claim for punitive damages, a plaintiff must allege facts and
circumstances showing conduct constituting malice, fraud or oppression.¿¿Grieves
v. Superior Court¿(1984) 157 Cal. App. 3d 159, 166. The predicate acts to
support a claim for punitive damages must be intended to cause injury or must
constitute “malicious conduct,” defined as “despicable conduct” carried on by
Defendant with a willful and conscious disregard of the rights of others. Code
Civ. Proc. § 3294(a). Oppressive conduct is defined as “despicable conduct”
that subjects a person to cruel and unjust hardship in conscious disregard of a
person’s rights. Code Civ. Proc. § 3294(c).¿¿Plaintiff must allege facts
demonstrating that “the defendant acted in such an outrageous and reprehensible
manner that the jury could infer that he knowingly disregarded the substantial
certainty of injury to others."¿Dawes v. Superior Court (1980) 111
Cal. App. 3d 82, 90. Moreover, a claim for punitive damages cannot be pleaded
generally and allegations that a defendant acted "with oppression, fraud
and malice" toward plaintiff are insufficient legal conclusions to show
that the plaintiff is entitled to an award of punitive damages. Brousseau v.
Jarrett (1977) 73 Cal.App.3d 864, 872. Rather, specific factual allegations
are required to support a claim for punitive damages. Id.
As noted above, Plaintiff has alleged
fraud, which requires particularity. No such particularity has been provided in
the complaint. The complaint alleges in a conclusory fashion that
Defendant intended to defraud Plaintiff. Thus, Defendant’s Motion to Strike is
GRANTED with 30 days leave to amend.
Conclusion
Accordingly, Defendant’s Demurrer
is SUSTAINED in part and OVERRULED in part.
It is overruled as to the
first cause of action, but sustained with 30 days leave to amend as to the
second through fourth causes of action. T
The Motion to Strike is GRANTED
with 30 days leave to amend.
Plaintiff to give notice.