Judge: Theresa M. Traber, Case: 22STCV02644, Date: 2022-10-03 Tentative Ruling

Case Number: 22STCV02644    Hearing Date: October 3, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 3, 2022                     TRIAL DATE: NOT SET

CASE:                         Neil Mandt v. Certain Underwriters at Lloyd’s, London, et al.

CASE NO.:                 22STCV02644           

DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY:               Defendants Petersen International Underwriters and Disability Management Services, Inc.

RESPONDING PARTY(S): Plaintiff Neil Mandt (not opposing)

CASE HISTORY:

·         01/21/22: Complaint filed.

·         02/24/22: First Amended Complaint Filed

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for breach of an insurance contract filed on January 21, 2022, with a First Amended Complaint submitted on February 24, 2022.  Plaintiff alleges that Defendants wrongfully declined to pay benefits under an insurance policy to which Plaintiff alleges he was entitled.

Defendants Peterson International Underwriters and Disability Management Services, Inc. demur to the First Amended Complaint as to both causes of action asserted against them.

TENTATIVE RULING:

Defendants’ Demurrer to the First Amended Complaint is SUSTAINED without leave to amend.

            Plaintiff’s request for dismissal of Defendants PIU and DMS is DENIED AS MOOT.

//

DISCUSSION:

Defendants Peterson International Underwriters and Disability Management Services, Inc. demur to the First Amended Complaint as to both causes of action asserted against them.

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer.  (Code Civ. Proc., § 430.41(a)(4).)

            The Declaration of Elizabeth L. Dolter states that counsel for the parties met and conferred by electronic correspondence and by telephone between March 18, 2022 and April 14, 2022. (Declaration of Elizabeth L. Dolter ISO Demurrer ¶¶ 2-4.) Defendants have therefore satisfied their statutory meet-and-confer obligations.

Analysis

Defendants Peterson International Underwriters and Disability Management Services, Inc. demur to the First Amended Complaint as to both causes of action asserted against them.

            Defendants contend that Plaintiff has failed to state facts sufficient to constitute a cause of action for either the first cause of action for breach of contract or the second cause of action for breach of the implied covenant of good faith and fair dealing. Defendants base this contention on the Underwriters Policy attached to the Complaint, which expressly states that Defendant PIU is not the insurer and is not liable for any loss or claim, and an express acknowledgement that DMS is only an agent of the Underwriters at Lloyds and not an insurer. (See FAC ¶ 4, Exh. A.)

            Plaintiff has filed a non-opposition to the demurrer, expressly conceding that Defendants should be dismissed for failure to state facts sufficient to constitute a cause of action. Plaintiff requests, in the non-opposition filing, that the Court dismiss these Defendants without prejudice, on the basis that there is a reasonable likelihood of discovery of relevant information that would give rise to liability on these claims, on the basis of a theory that these Defendants are part of a joint venture with Defendant Underwriters, rather than agents. Although it is true that joint venturers may be liable for the contractual obligations of other members of the same venture, (see Medak v. Cox (1970) 12 Cal.App.3d 70, 76), the burden is on Plaintiff to proffer a theory of the case that might give rise to joint venture liability (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) A vague statement that discovery might produce information that would revive these causes of action is not sufficient, even in light of the broad presumption in favor of permitting amendment.

            Defendants’ Demurrer to the First Amended Complaint is therefore SUSTAINED without leave to amend.

As the Court has sustained the demurrer without leave to amend, Plaintiff’s request that the Court dismiss the Defendants without prejudice is moot.

CONCLUSION:

                For the reasons explained above, Defendants’ Demurrer to the First Amended Complaint is SUSTAINED without leave to amend.

            Plaintiff’s request for dismissal of Defendants PIU and DMS is DENIED AS MOOT.

            Moving parties to give notice.

IT IS SO ORDERED.

Dated: October 3, 2022                                   ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.