Judge: Stephen P. Pfahler, Case: 23STCV24250, Date: 2025-03-05 Tentative Ruling

Case Number: 23STCV24250    Hearing Date: March 5, 2025    Dept: 68

Dept. 68

Date:  3-5-25

Case: 23STCV24250

Trial Date: Not Set

 

DEMURRER TO THE SECOND COMPLAINT

 

MOVING PARTY: Defendant, Allianz Life Insurance Company of North America

RESPONDING PARTY: Plaintiffs, Layne Kramer, et al.

 

RELIEF REQUESTED

Demurrer to the Second Amended Complaint

·         1st Cause of Action: Financial Elder Abuse

·         2nd Cause of Action: Breach of Fiduciary Duty

·         3rd Cause of Action: Professional Negligence

                             

SUMMARY OF ACTION

On an unspecified date, but sometime after November 2012 and presumably before November 2018, plaintiffs Layne Kramer, et al. invested in two annuity contracts provided by defendant Allianz Life Insurance Company of North America. The annuities were acquired with inheritance money following the passing of Layne Kramer’s father. Layne sought a source of income for the care of her elderly, ill mother. The transaction was arranged/brokered by insurance agent defendant David Neuman.

 

Again, presumably following the purchase of the annuities, Neuman was convicted on one count of felony embezzlement, and his insurance license revoked on November 13, 2018. A new agent was assigned by Allianz to Plaintiffs’ account. Notwithstanding the termination of any relationship between Neuman and Allianz, Neuman, as a continuing authorized agent on the account, was subsequently able to arrange for the disbursement of $330,000 from the annuities for personal use. Plaintiffs allege Allianz neither informed Plaintiffs of the prior conviction and loss of license by Neuman, nor properly inquired on the requested disbursements by Neuman.

 

On October 4, 2023, Plaintiffs filed their complaint for Financial Elder Abuse, Breach of Fiduciary Duty, Professional Negligence, and Receipt and Possession of Stolen Property (David Neuman only named defendant in this cause of action). David Neuman answered on December 12, 2023.

 

On March 11, 2024, the court sustained the demurrer to the second and third causes of action for Breach of Fiduciary Duty and Negligence with leave to amend. The court also granted the motion to strike paragraph 49 of the complaint and denied the remainder of the motion.

 

On April 10, 2024, Plaintiff filed a first amended complaint for Cal. Financial Elder Abuse, Breach of Fiduciary Duty, Professional Negligence, and Receipt And Possession Of Stolen Property. On April 22, 22, 204, Defendant David Neuman answered the first amended complaint.

 

On September 26, 2024, the court sustained the demurrer of Allianz Life Insurance Company with 20 days leave to amend as to the second and third causes of action for Breach of Fiduciary Duty and Professional Negligence. On October 16, 2024, Plaintiff filed the second amended complaint for Financial Elder Abuse, Breach of Fiduciary Duty, Professional Negligence, and Receipt and Possession of Stolen Property. The court also granted the motion to strike paragraph 54 of the first amended complaint. On November 12, 2024, Neuman answered the second amended complaint.

 

RULING: Sustained with Leave to Amend in Part/Overruled in Part.

 

Defendant Allianz Life Insurance Company of North America (Allianz) brings the subject demurer to the first, second and third causes of action in the second amended complaint for Financial Elder Abuse, Breach of Fiduciary Duty and Professional Negligence. Allianz submits the demurrer on grounds of uncertainty as to the elder abuse and negligence claims; Allianz, as an insurer owed no fiduciary duty or professional duty of care to its insureds; denial of any of an agency relationship between the insurer and Neuman based on the role of an insurance annuity issuer; and, the negligence cause of action is barred under the statute of limitations. Plaintiffs, Layne Kramer, Kramer Family Irrevocable Grant Trust by trustee Layne Kramer (Kramer) in opposition contends the operative complaint alleges a relationship beyond a conventional insurer based on the undertaking of additional fiduciary and professional duties in holding itself out as financial and estate planning professionals. Plaintiffs rely on imputed liability through the acts of its agent, Neuman, as well as a failure to protect Plaintiffs from potential harm by Neuman following cessation of the relationship with Allianz. Plaintiffs cite to new allegations in the operative complaint alleging agency through representation regarding the provision of “financial professional” services. Plaintiffs maintain a duty of care existed based on purported “adverse party admission” regarding the responsibility to review “suspicious” transactions as a basis of liability for all three challenged causes of action. Allianz in reply challenges the legal standard relied upon by Plaintiffs, reiterates the lack of any legal basis of duty, and concludes with denial of any basis of professional negligence and the statute of limitations bar as to any negligence claim.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

Allianz carefully notes that it also brings the demurrer to the first cause of action, due to the omission of paragraph 54 in the second amended complaint and no alleged replacement of factual allegations supporting financial elder abuse as previously determined in the motions to strike said paragraph in the complaint and first amended complaint. The subject paragraph was only struck in the last two motions to strike, but a demurrer was never brought as to elder abuse claim itself. The court accepts the new challenge in order to address and determine whether the omission of paragraph 54 and new introductory paragraphs in fact so alter the scope of the first cause of action, as to constitute an effectively stated new cause of action for purposes of considering a demurrer. (Code Civ. Proc. 430.41, subd. (b).)

 

1st Cause of Action, Financial Elder Abuse: Sustained with Leave to Amend.

Allianz challenges the financial abuse cause of action following the omission of paragraph 54 from the first amended complaint, and a represented insufficient replacement of factual allegations. Plaintiffs recite the agent relationship and failure to protect after the cessation of the relationship with Neuman. Allianz in reply emphasizes the voluntary designation of Neuman as a trustee, thereby allowing Neuman to engage in transfers of property and insulating Allianz.

 

Welfare and Institutions Code section 15610.30 defines financial abuse.

 

(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity 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 15610.70.

(b) A person or entity shall be 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.

(c) For purposes of this section, 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.

 

(c) For purposes of this section, 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.

 

(d) For purposes of this section, “representative” means a person or entity that is either of the following: (1) A conservator, trustee, or other representative of the estate of an elder or dependent adult.

(2) An attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.

 

Paragraph 54 of the first amended complaint stated: “Allianz took and obtained Kramer’s funds for a wrongful use and/or was assisting Neuman in the taking and retaining of Kramer’s personal property for a wrongful use, when Allianz engaged in the following actions, among others: (i) approved Neuman’s change of mailing address of Kramer’s Trust to Neuman’s own home address without Kramer’s knowledge and/or consent, (ii) disbursed Kramer’s funds to Neuman when it knew or should have known that Neuman was the writing agent, had his license revoked for abusing seniors, and was a convicted felon; and (iii) failed to follow standard KBA protocol to verify that the customer desired the disbursement and that the customer was not the victim of fraud or identity theft.”

 

The court granted the motion to strike on ground that the subject paragraph again fell outside the scope of recovery for financial elder abuse. The subject cause of action in the second amended complaint now alleges a series of conclusive citations consisting of code sections and statements of elder abuse based on age and “financial unsophistication.” Plaintiff in opposition cites to failure to warn sections in both the introductory paragraphs and beyond the actually pled allegations for the subject cause of action in the later pled fiduciary duty and negligence causes of action.

 

Allianz correctly notes that all wrongful conduct occurred as a result of the embezzlement by Neuman, and Allianz is not otherwise alleged as an active principal. It remains unclear whether Plaintiffs somehow seek to allege an “assist” allegation as any such potential allegation remains unarticulated. Allianz raises this issue in the demurrer, but Plaintiff offers no apparent response in opposition. The court finds the conclusive nature of the cause of action renders any such potential position lacking. Elder abuse is an intentional tort. The court otherwise declines to make any argument for Plaintiffs regarding a potential applicable negligence standard simply based on a failure to protect. As this is the first time Allianz elected to present a demurrer to the subject cause of action, AND the court agreed to consider the demurrer, the court is left with no choice but to sustain the demurrer to this cause of action with leave to amend.

 

2nd Cause of Action, Breach of Fiduciary Duty: Overruled.

To plead a cause of action for breach of fiduciary duty, a plaintiff must allege facts showing the existence of a fiduciary duty owed to that plaintiff, a breach of that duty and resulting damage. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.) A fiduciary duty is founded upon a special relationship imposed by law or under circumstances in which “confidence is reposed by persons in the integrity of others” who voluntarily accept the confidence. (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1150; City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386.) “A fiduciary or confidential relationship can arise when confidence is reposed by persons in the integrity of others, and if the latter voluntarily accepts or assumes to accept the confidence, he or she may not act so as to take advantage of the other's interest without that person's knowledge or consent.” (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101–02.)

 

Four factors potentially impose a fiduciary duty: “(1) one party entrusts its affairs, interests or property to another; (2) there is a grant of broad discretion to another, generally because of a disparity in expertise or knowledge; (3) the two parties have an “asymmetrical access to information,” meaning one party has little ability to monitor the other and must rely on the truth of the other party's representations; and (4) one party is vulnerable and dependent upon the other.” (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 387–388.) One of the four factors is not determinative of a fiduciary relationship, but even the extince of all four factors in no way leads to a required finding of a fiduciary relationship. (Id. at 388.) Contractual relationships are among the situations where a Plaintiff may allege the elements, but the pre-existing contractual relationship in no way additionally supports the existence of fiduciary duty. (Id. at pp. 388-389.)

 

Additionally, in the insurance coverage context, “[a]n insurer is not a fiduciary, and owes no obligation to consider the interests of its insured above its own.” (Morris v. Paul Revere Life Ins. Co. (2003) 109 Cal.App.4th 966, 973; Village Northridge Homeowners Assn. v. State Farm Fire & Casualty Co. (2010) 50 Cal.4th 913, 929; Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1150–1151 [“The insurer-insured relationship, however, is not a true ‘fiduciary relationship’ in the same sense as the relationship between trustee and beneficiary, or attorney and client”]; Tran v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202, 1211 [“California courts have refrained from characterizing the insurer-insured relationship as a fiduciary one].)

 

“But, although an annuity contract is not a life insurance contract it is equally clear that the sale of annuity contracts in California is part of the business done by insurance companies. In fact, only insurance companies may engage in the sale of annuities in this state. As early as 1913 the attorney general of this state ruled that in order to qualify for the purpose of selling annuities, a company had to qualify as an insurance company. ... ‘Life insurance business, including endowments and annuities” ... has remained in the law since 1907. ... This statutory classification makes it clear that in this state the selling of annuities is part of the ‘business done in this state’ by life insurance companies ... (Equitable Life Assur. Soc. of U.S. v. Johnson (1942) 53 Cal.App.2d 49, 57.)

 

Consistent with the prior order, whether an insurance policy or annuity, the court finds no basis of a fiduciary duty simply based on the purchase of the annuity. The contractual relationship established through the annuities insufficiently establishes such a basis. (Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 30-31; Negrete v. Fidelity and Guar. Life Ins. Co. (C.D. Cal. 2006) 444 F.Supp.2d 998, 1003 [“Ninth Circuit courts, construing California law, hold that while the insurer-insured relationship is fiduciary in nature, it does not provide for an independent action for common law breach of fiduciary”]; Estate of Migliaccio v. Midland Nat'l. Life Ins. Co. (C.D. Cal. 2006) 436 F.Supp.2d 1095, 1106-1108.)

 

The court considers the alternative basis of imposing duty relied upon by Plaintiff through agency and alleged representations of accepting responsibility as “professional” purveyor of “financial and estate planning services,” and undertaking management and control of over said annuities. [Sec. Amend. Comp., ¶¶ 2, 4, 7.] Said duties included a duty to “enhance” or place “heightened supervision” on said account following the disassociation of Neuman from Allianz, yet continued activity occurring on the account. [Sec. Amend. Comp., ¶¶ 12-14, 42-48, 54-56, 72.]

 

The court again finds that while an agreement for the actual provision of financial services by law imposes a fiduciary duty, alleged assurances of quality financial management still only amount to the purchase of two insurance company annuity products. After three attempts, the court again finds such assurances fail to rise to the level financial planner, thereby imposing a fiduciary duty as a matter of law. The purchase of the annuities still constitutes a contractual purchase without any additionally imposed duties. (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 140; Wolf v. Superior Court, supra, 107 Cal.App.4th at pp. 30-31; Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1575-1576; see Worldvision Enterprises, Inc. v. American Broadcasting Companies, Inc. (1983) 142 Cal.App.3d 589, 595.)

 

Plaintiff however now better distinguishes the specific differences between the contractual based annuity defense relied upon by Allianz, and the vicarious liability-based claim. The court previously found the agency allegations wonting due to the lack of facts alleging Neuman’s transfer of funds to personal accounts after disciplinary action post-severance with the Allianz company. The temporal gap rendered the prior complaint uncertain. Plaintiff now makes clearer the intent to allege the imposition of a fiduciary duty against Allianz to safeguard against potential wrongful conduct by a former agent. The duty arises from at least constructive knowledge of criminal and administrative punitive action against said agent for embezzlement of client funds (though it’s not clear as to whether any victims were Allianz clients or with other insurers, brokerages, financial planners, etc.).

 

Allianz lacks specific address of this exact claim, and instead relies on a defense that the criminal conduct of Neuman constituted action outside the scope of agency. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691.) Allianz position relies on Civil Code section 2343: “One who assumes to act as an agent is responsible to third persons as a principal for his acts in the course of his agency, in any of the following cases, and in no others: 1. When, with his consent, credit is given to him personally in a transaction; 2. When he enters into a written contract in the name of his principal, without believing, in good faith, that he has authority to do so; or, 3. When his acts are wrongful in their nature.” (Civ. Code, § 2343.) The statute appears to apply to liability against Neuman yet fails to illuminate the claim of agency based on the conduct of Neuman as an agent servicing the annuity contracts issued by principal Allianz.

 

The court finds the position insufficiently addresses the nature of the specific basis for vicarious liability: the alleged lapse in safety protocols protecting clients from potential agents engaging in criminal embezzlement upon notice of prior unlawful actions. While the purchase of the contracts themselves remain insulated actions, the court finds the access and ability to exercise control over the disposition of disbursements based on information provided by Plaintiff in engaging into some form of financial management relationship with Allianz through its agent, Neuman, imposed a fiduciary duty of care on the company. “[A] fiduciary duty may exist, even in the absence of a traditional fiduciary relationship. But as the investors themselves observe ... ‘[t]he key factor in the existence of a fiduciary relationship lies in control by a person over the property of another.’” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 245–246.) Allianz exercised a certain level of control over the funds. Whether Allianz simply followed instructions as presented in the trust documents or not constitutes a position beyond the scope of the pleadings at this stage of consideration.

 

For purposes of the demurrer, the second amended complaint sufficiently articulates a basis of a fiduciary duty through the provision of “financial services," such as the management of annuity disbursements. The alleged breach occurred based on the failure to protect Plaintiff from the alleged criminally rogue actions of Neuman following at a minimum constructive notice of termination of insurance brokerage licenses, criminal conviction, and actual cessation of the relationship with Allianz. The court will neither parse out allegations nor make further factual determinations as to granular differences in annuity disbursement management. The demurrer to the subject cause of action is OVERRULED.

 

3rd Cause of Action, Professional Negligence: Overruled.

Allianz challenges the subject claim on the failure to allege a claim separate and independent from the breach of contract claim, and limitation of claims to insurance based as to insurance companies. Plaintiff again relies on the principal agent basis of liability for establishment of a basis of imposed duty.

 

“To state a cause of action for professional negligence, a party must show ‘(1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.’” (Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 1137.) The operative complaint alleges the elements of the claim. [Comp., ¶¶ 70-73.]

 

The court accepts the general proposition regarding contractual and bad faith requirements against insurance companies. (New Plumbing Contractors, Inc. v. Nationwide Mutual Ins. Co. (1992) 7 Cal.App.4th 1088, 1096). The court will not otherwise rely on or cite unpublished authority presented. The argument regarding contractual limitations, while legally correct, assumes an agreement for benefits under an insurance contract. Nothing in the operative complaint alleges an agreement for insurance, an agreement for brokerage services, or even a breach of the two annuity agreements.

 

The court agrees that the allegation regarding the “sale” of the “trust” as some form of financial product constitutes an arguably superfluous or conflating statement. Still, the court assumes an apparent intent that the trust was recommended as part of the financial services package offered and provided by Neuman, and the annuities were presumably purchased for placement into the trust. The existence of the trust with Neuman’s access provides the means for Neuman’s wrongful course of conduct. The court therefore finds challenge based on recovery within the contract inapposite for purposes of ruling on the demurrer.

 

As addressed in the breach of fiduciary claim, the court finds the facts establishing the fiduciary duty undertaken duty to protect Plaintiff from conduct of a former agent no longer associated with the insurer supports negligence as well. The court again declines to consider any potential factual nuances beyond the scope of the demurrer.

 

On the statute of limitations, Allianz’s two paragraph argument relies on the allegations of the underlying transaction occurring on May 21, 2020, and January 22, 2021, with notation of the lawsuit filing date on October 4, 2023. Plaintiff maintains Allianz insufficiently establishes any accrual date simply based on the transaction dates. Allianz in reply contend Plaintiff has the burden to establish a timely filed complaint.

 

The court declines to substantively address the positions regarding the burden of either the plaintiff or challenging party in demurrer to establish a timely filed complaint. The burden falls on the challenging party.

 

Within two years: 1. An action upon a contract, obligation or liability not founded upon an instrument of writing, except as provided in Section 2725 of the Commercial Code or subdivision 2 of Section 337 of this code; or an action founded upon a contract, obligation or liability, evidenced by a certificate, or abstract or guaranty of title of real property, or by a policy of title insurance; provided, that the cause of action upon a contract, obligation or liability evidenced by a certificate, or abstract or guaranty of title of real property or policy of title insurance shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder.

2. An action against a sheriff or coroner upon a liability incurred by the doing of an act in an official capacity and in virtue of office, or by the omission of an official duty including the nonpayment of money collected in the enforcement of a judgment.

3. An action based upon the rescission of a contract not in writing. The time begins to run from the date upon which the facts that entitle the aggrieved party to rescind occurred. Where the ground for rescission is fraud or mistake, the time does not begin to run until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

 

Code Civ. Proc., § 339

 

The demurrer and reply lack specific address of the basis for the application of the two-year written contract statute of limitations for a professional negligence cause of action. Again, nothing in the operative complaint appears to raise a claim under the annuity contracts themselves. The court also declines to find a contractual based claim of liability to fit the mold presented by Allianz. “‘It has been well established in this state that if the cause of action arises from a breach of a promise set forth in the contract, the action is ex contractu but if it arises from a breach of duty growing out of the contract it is ex delicto. [Citations.]’” (Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1495; (Erlich v. Menezes (1999) 21 Cal.4th 543, 551 [“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”]; Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1057–1058.). The rule also finds support in the economic loss rule. (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922 [“the rule functions to bar claims in negligence for pure economic losses in deference to a contract between litigating parties].)

 

It otherwise remains unclear whether Plaintiff is also perhaps seeking to establish a delayed discovery accrual, but again, the court will not elaborate on unmade arguments regarding potential bases of accrual or the proper statute of limitations. The demurrer is OVERRULED as to this cause of action.

 

In summary, the demurrer is sustained with 10 days leave to amend as to the elder abuse cause of action, and overruled as to the breach of fiduciary duty and negligence causes of action. Plaintiff may not add any new causes of action without leave of court. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Material changes to the operative complaint seeking to alter or omit the material terms or dates may also be subject to a demurrer under the sham pleading standard. Given the case presents the first review of the elder abuse claim, the court declines to consider Plaintiffs’ potential inability to factually present a claim without omitting or altering certain key facts. (See Code Civ. Proc., § 430.41, subd. (e)(1); Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 245.)

 

“In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1), see Code Civ. Proc., § 435.5, subd. (e)(1).)

 

If Plaintiff elects to forego filing a third amended complaint, Allianz shall answer the remaining causes of action in the operative complaint within 10 days of the lapse of the amendment deadline. Allianz may only bring a demurrer to the elder abuse action, if applicable.

 

Allianz to give notice.