On September 29, 2022 a
Motion-Secondary
was filed
involving a dispute between
Clean Initiative Llc,
and
California Automobile Insurance Company,
Does 1-10,
Mercury Insurance Services, Llc,
for Other non-PI/PD/WD Tort Unlimited
in the District Court of San Bernardino County.
Preview
Darren S. Schwartz, Esq. (SBN 290297)
The Morgan Law Group of California dba The Morgan Law Group
2041 Rosecrans Avenue, Ste. 395
El Segundo, California 90245
Telephone: (3 10) 946-0051
MAWN
F LED
I
Email: dschwartz@morganlawgroup.net SUPERIOR COURT 0F CALIFORNIA
COUNTY 0F SAN BERNARDINO
SAN BERNARDINo DnSTRICT
Robert A. Waller, Jr. (SBN 169604)
LAW OFFICE OF ROBERT A. WALLER, JR. APR 17 2023
P.O. Box 999
Cardiff-by-the-Sea, California 92007
\OWNON
Telephone: (760) 753-31 18 oHnnsTmE wcmm. Daputy
Facsimile: (760) 753-3206
Email: robert@robertwallerlaw.com
Attorneys for Plaintiff
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SAN BERNARDINO
13
CLEAN INITIATIVE LLC, Case N0. CIVSB222 1 528
14
Plaintiff, CLEAN INITIATIVE LLC’S OPPOSITION TO
15 DEMURRER TO THE FIRST AMENDED
COMPLAINT
16
17 MERCURY INSURANCE SERVICES,
LLC, and DOES 1 through 10, inclusive,
18 Date: April 27, 2023
Time: 8:30 am
Defendants.
19 Dept: $25
20
21
22 Plaintiff CLEAN INITIATIVE LLC (“Plaintiff”) submits the following brief in Opposition
23 to the Demurrer of Defendant MERCURY INSURANCE SERVICES, LLC (“Defendant”) to
24 Plaintiff‘s First Amended Complaint (“FAC”). Defendant has demurred to the First and Second
25 Causes of Action in the FAC.
26 Because Plaintiff has alleged facts sufficient t0 establish acts of bad faith by Defendant, and
27 because a cause of action for tortious breach of the covenant of good faith and fair dealing (a.k.a.
28
Clean Initiative v. Mercury Insurance Services.
CIV832221528
“bad faith” claims) associated with an insura'nce carrier’s denial of claims benefits are assignable as
N a matter of California law (see, Essex Insurance Company v. Five Star Dye House, Inc. (2006) 38
Ca1.4th 1252), the demurrer should be overruled.
Likewise, because attorney fees are recoverable in an action for insurance bad faith as an
element of damages sustained by the party seeking t0 enforce the insurance contract (see, Essex,
KOOOQONUI-bw
ibid, 38 Ca1.4th at 1255; citing Brandt v. Superior Court (1985) 37 Cal.3d 813 (referred to as
“Brandt fees”)), Plaintiff has standing to seek recovery of attorney fees as an element of damages,
and the FAC is not uncertain and should be overruled on that ground as well.
Alternatively, if the Court is inclined to sustain the demurrer 0n any ground, Plaintiff can,
10 and has, cured any such defects as set forth in the proposed Second Amended Complaint (“SAC”)
11 attached as Exhibit “l” to the Declaration of Attorney Robert A. Waller, Jr (“Waller Decl”)
12 submitted herewith.
13 I. STANDARD OF REVIEW ON DEMURRER
14 A demurrer tests the legal sufficiency of the complaint. Hahn v. Mira’a (2007) 147
15 Ca1.App.4th 740, 747. For purposes of ruling on a demurrer, all facts (but not contentions,
16 deductions, or conclusions of fact/law) properly plead in the complaint are accepted as true.
17 Engstrom v. Kallins (1996) 49 Cal.App.4th 773, 778. In passing on the sufficiency 0f a pleading, the
18 allegations must be liberally construed with substantial justice between both parties. Richard H. v.
19 Larijy D. (1988) 198 Cal.App.3d 591, 594. The question of a plaintiff’s ability to prove unlikely
20 allegations or possible difficulties in making such proof, is of no concern in ruling 0n a demurrer.
21 Committee 0n Children’s Television, Inc. vs. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.
22 The test is whether the complaint states any valid claim entitling plaintiff to relief. Therefore, a
23 plaintiff may be mistaken as the nature of the case, or the legal theory on which he or she can
24 prevail, but if the essential facts of some valid cause of action are alleged, the complaint is good
25 against a general demurrer. Gruenberg vs. Aetna Insurance Co. (1973) 9 Cal.3d 566, 572;
26 Quelimane C0. Inc. vs. Stewart Title Guaranty C0. (1998) 19 Ca1.4th 26, 38-39.
27
28
Clean Initiative v. Mercury Insurance Services.
2 '
CIVSB222 1 528
Document Filed Date
April 17, 2023
Case Filing Date
September 29, 2022
Category
Other non-PI/PD/WD Tort Unlimited
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
Darren S. Schwartz, Esq. (SBN 290297) The Morgan Law Group of California dba The Morgan Law Group 2041 Rosecrans Avenue, Ste. 395 El Segundo, California 90245 Telephone: (3 10) 946-0051 MAWN F LED I Email: dschwartz@morganlawgroup.net SUPERIOR COURT 0F CALIFORNIA COUNTY 0F SAN BERNARDINO SAN BERNARDINo DnSTRICT Robert A. Waller, Jr. (SBN 169604) LAW OFFICE OF ROBERT A. WALLER, JR. APR 17 2023 P.O. Box 999 Cardiff-by-the-Sea, California 92007 \OWNON Telephone: (760) 753-31 18 oHnnsTmE wcmm. Daputy Facsimile: (760) 753-3206 Email: robert@robertwallerlaw.com Attorneys for Plaintiff 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN BERNARDINO 13 CLEAN INITIATIVE LLC, Case N0. CIVSB222 1 528 14 Plaintiff, CLEAN INITIATIVE LLC’S OPPOSITION TO 15 DEMURRER TO THE FIRST AMENDED COMPLAINT 16 17 MERCURY INSURANCE SERVICES, LLC, and DOES 1 through 10, inclusive, 18 Date: April 27, 2023 Time: 8:30 am Defendants. 19 Dept: $25 20 21 22 Plaintiff CLEAN INITIATIVE LLC (“Plaintiff”) submits the following brief in Opposition 23 to the Demurrer of Defendant MERCURY INSURANCE SERVICES, LLC (“Defendant”) to 24 Plaintiff‘s First Amended Complaint (“FAC”). Defendant has demurred to the First and Second 25 Causes of Action in the FAC. 26 Because Plaintiff has alleged facts sufficient t0 establish acts of bad faith by Defendant, and 27 because a cause of action for tortious breach of the covenant of good faith and fair dealing (a.k.a. 28 Clean Initiative v. Mercury Insurance Services. CIV832221528 “bad faith” claims) associated with an insura'nce carrier’s denial of claims benefits are assignable as N a matter of California law (see, Essex Insurance Company v. Five Star Dye House, Inc. (2006) 38 Ca1.4th 1252), the demurrer should be overruled. Likewise, because attorney fees are recoverable in an action for insurance bad faith as an element of damages sustained by the party seeking t0 enforce the insurance contract (see, Essex, KOOOQONUI-bw ibid, 38 Ca1.4th at 1255; citing Brandt v. Superior Court (1985) 37 Cal.3d 813 (referred to as “Brandt fees”)), Plaintiff has standing to seek recovery of attorney fees as an element of damages, and the FAC is not uncertain and should be overruled on that ground as well. Alternatively, if the Court is inclined to sustain the demurrer 0n any ground, Plaintiff can, 10 and has, cured any such defects as set forth in the proposed Second Amended Complaint (“SAC”) 11 attached as Exhibit “l” to the Declaration of Attorney Robert A. Waller, Jr (“Waller Decl”) 12 submitted herewith. 13 I. STANDARD OF REVIEW ON DEMURRER 14 A demurrer tests the legal sufficiency of the complaint. Hahn v. Mira’a (2007) 147 15 Ca1.App.4th 740, 747. For purposes of ruling on a demurrer, all facts (but not contentions, 16 deductions, or conclusions of fact/law) properly plead in the complaint are accepted as true. 17 Engstrom v. Kallins (1996) 49 Cal.App.4th 773, 778. In passing on the sufficiency 0f a pleading, the 18 allegations must be liberally construed with substantial justice between both parties. Richard H. v. 19 Larijy D. (1988) 198 Cal.App.3d 591, 594. The question of a plaintiff’s ability to prove unlikely 20 allegations or possible difficulties in making such proof, is of no concern in ruling 0n a demurrer. 21 Committee 0n Children’s Television, Inc. vs. General Foods Corp. (1983) 35 Cal.3d 197, 213-214. 22 The test is whether the complaint states any valid claim entitling plaintiff to relief. Therefore, a 23 plaintiff may be mistaken as the nature of the case, or the legal theory on which he or she can 24 prevail, but if the essential facts of some valid cause of action are alleged, the complaint is good 25 against a general demurrer. Gruenberg vs. Aetna Insurance Co. (1973) 9 Cal.3d 566, 572; 26 Quelimane C0. Inc. vs. Stewart Title Guaranty C0. (1998) 19 Ca1.4th 26, 38-39. 27 28 Clean Initiative v. Mercury Insurance Services. 2 ' CIVSB222 1 528