Judge: Richard S. Whitney, Case: 37-2022-00051793-CU-PA-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2022-00051793-CU-PA-CTL ORLOSKY VS ARIZPE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT KEMPER AUTO INSURANCE COMPANY'S MOTION FOR JUDGMENT ON THE PLEADINGS AGAINST PLAINTIFF'S COMPLAINT is GRANTED.

Defendant KEMPER AUTO INSURANCE COMPANY ('Defendant') asserts Plaintiff Joseph Orlosky's ('Plaintiff') complaint fails to state a claim. Plaintiff is a pro per litigant. 'Pro. per. litigants are held to the same standards as attorneys.' (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Plaintiff's complaint merely alleges 'DEALING IN BAD FAITH AND REFUSING TO PAY LEGITIMATE CLAIMS PER STATE LAW.' Plaintiff concedes Plaintiff does not have standing to sue the insurer of the driver, Defendant, who allegedly caused Plaintiff damages 'until the insured's liability is in fact established.' (Williams v. Transport Indemnity Co. (1984) 157 Cal.App.3d 953, 960.) '[I]f the insured is not liable to the claimant, then the insurer is likewise not liable on the claim.' (Moradi-Shalal v. Fireman's Fund Ins.

Companies (1988) 46 Cal.3d 287, 307.) The California Supreme Court held a 'plaintiff may not sue both the insurer and the insured in the same lawsuit.' (Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, 891 overruled by Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287.) While Royal Globe was overruled on another grounds in Moradi-Shalal, the same applicable rule applies. (Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, 891 overruled on other grounds by Moradi-Shalal v. Fireman's Fund Ins.

Companies (1988) 46 Cal.3d 287.) After considering the issues involved with 'allowing a post-settlement Royal Globe action, the California Supreme Court stated 'the applicable rule is that the insured's liability must be judicially determined before a Royal Globe action can be brought. This 'predetermination' rule, although not without its drawbacks, seems to us to be the optimal accommodation of competing considerations within the limitations of the Royal Globe doctrine.' (Moradi-Shalal, supra, 46 Cal.3d at 313.) Plaintiff has not alleged any predetermination as to the liability of Defendant's insured. Rather, Plaintiff concedes Plaintiff may not sue the driver and the insurer in the same lawsuit. While Plaintiff asserts that Defendant interfered with the settling of the claim by delaying until the 'three statute of limitations were about to expire to settle for the claim,' Plaintiff does not allege a determination of liability as to the driver.

For all the Court knows Plaintiff may still recover from the driver a fair settlement or judgment. In the absence of allegations of a determination as to liability, the Court finds the complaint fails to state a claim against Defendant.

The motion is granted. Plaintiff has the burden of proving a reasonable possibility of amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff does not explain how the complaint could be amended. In Calendar No.: Event ID:  TENTATIVE RULINGS

3003837  64 CASE NUMBER: CASE TITLE:  ORLOSKY VS ARIZPE [IMAGED]  37-2022-00051793-CU-PA-CTL fact, Plaintiff seems to indicate the liability of the driver has not yet been determined. Therefore, the Court finds Plaintiff has failed to meet Plaintiff's burden. The motion is granted without leave to amend.

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