Preview
STEPHEN M. HAYES (SBN 83583) 11/13/2020
1
STEPHEN P. ELLINGSON (SBN 136505)
2 JAMIE A. RADACK (SBN 221000)
TYLER R. AUSTIN (SBN 293977)
3 HAYES SCOTT BONINO ELLINGSON
GUSLANI SIMONSON & CLAUSE, LLP
4 999 Skyway Road, Suite 310
San Carlos, California 94070
5 Telephone: (650) 637-9100
Facsimile: (650) 637-8071
6
7 Attorneys for Defendant
ALLMERICA FINANCIAL BENEFIT INSURANCE (Sued
8 erroneously as The Hanover Insurance Group, The Hanover American
Insurance, and Allmerica Financial Alliance Company), JOHN
9 CONNOR ROCHE, GWEN JONES, ARTHUR ANDERSON and
SCOT ERIKSON
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 IN AND FOR THE COUNTY OF PLACER
13
DONALD HUBBARD, CASE NO. S-CV-0045393
14
Plaintiff, DECLARATION OF JAMIE A. RADACK IN
15 SUPPORT OF DEFENDANTS ALLMERICA
vs. FINANCIAL BENEFIT INSURANCE, JOHN
16 CONNOR ROCHE, GWEN JONES, ARTHUR
MATTHEW JOHN BANTANG, [a.k.a., ANDERSON AND SCOT ERIKSON’S
17 MATT BANTANG], an individual; DEMURRER TO PLAINTIFF’S COMPLAINT
MOBILE COPY SERVICES, INC., a
18 California Corporation; DONOVAN Date: December 11, 2020
RICKETTS, an individual and managing Time: 8:30 a.m.
19 employee of MOBILE COPY SERVICE, Dept.: 3
INC.; FREDERICK RICKETTS, an
20 individual and managing employee of
MOBILE COPY SERVICE, INC.; THE
21 HANOVER INSURANCE GROUP, an
unknown business entity; THE HANOVER
22 AMERICAN INSURANCE COMPANY, a
foreign stock company; JOHN CONNER
23 ROCHE an individual and managing
employee of THE HANOVER
24 INSURANCE GROUP; GWEN JONES,
an individual and Agent of THE
25 HANOVER AMERICAN INSURANCE
COMPANY; ALLMERICA FINANCIAL
26 ALLIANCE, an unknown business entity;
ARTHUR ANDERSON, an individual and
27 Agent of THE HANOVER AMERICAN
INSURANCE COMPANY; SCOT A.
28 ERIKSON, an individual and Agent of
1185780 -1-
DECLARATION OF JAMIE A. RADACK IN SUPPORT OF THE DEMURRER TO PLAINTIFF’S
COMPLAINT – CASE NO. S-CV-0045393
1 THE HANOVER AMERICAN
INSURANCE COMPANY; SUTTER
2 HEALTH AND AETNA
ADMINISTRATIVE SERVICES LLC
3 dba, SUTTER DIAGNOSTIC IMAGING
and, DOES 1 through 50, inclusive,
4
Defendants.
5
6 I, Jamie A. Radack, declare as follows:
7 1. I have personal knowledge of each matter stated herein and, if called as a witness, I
8 could and would competently testify thereto.
9 2. I am an attorney at law duly licensed to practice in all of the courts of the State of
10 California and I am an associate of the law firm Hayes Scott Bonino Ellingson Guslani Simonson &
11 Clause, LLP, counsel for defendants Allmerica Financial Benefit Insurance (sued erroneously as The
12 Hanover Insurance Group, The Hanover American Insurance, and Allmerica Financial Alliance
13 Company), John Connor Roche, Gwen Jones, Arthur Anderson and Scot Erikson (“Hanover
14 Defendants”) in the above-referenced matter filed by plaintiff Donald Hubbard.
15 3. I submit this declaration in support of the Hanover Defendants’ demurrer to plaintiff’s
16 Complaint.
17 4. The phone number plaintiff provided on his Complaint does not appear to be a
18 working number.
19 5. Attached hereto as Exhibit A is a true and correct copy of the email exchange my
20 office had with plaintiff on September 28 and 29, 2020. It has been redacted to remove plaintiff’s
21 settlement demand.
22 6. Attached hereto as Exhibit B is a true and correct copy of the initial meet and confer
23 letter dated October 1, 2020 from my office to plaintiff outlining the basis for the instant demurrer
24 and accompanying motion to sever plaintiff’s Complaint pursuant to Code Civ. Proc. 430.41(a)(2)
25 and Placer County Local Rule 20.2.1. That letter explained that based on the argumentative and
26 unprofessional emails received from plaintiff, our office determined that meeting and conferring in
27 writing would be more fruitful than a telephone conference.
28 7. On or about October 12, 2020, the Hanover Defendants file a Notice that Plaintiff is
1185780 -2-
DECLARATION OF JAMIE A. RADACK IN SUPPORT OF THE DEMURRER TO PLAINTIFF’S
COMPLAINT – CASE NO. S-CV-0045393
1 a Vexatious Litigant Subject to a Prefiling Order.
2 8. On or about October 15, 2020, plaintiff filed a Substitution of Attorney naming Lyle
3 D. Solomon as his counsel.
4 9. On October 16, 2020, co-defendants John Bantang, Mobile Copy Service, Inc., and
5 Donovan and Frederick Ricketts filed a Second Notice that Plaintiff is a Vexatious Litigant Subject
6 to a Prefiling Order on the grounds that filing the Substitution of Attorneys naming Solomon as
7 counsel did not cure the requirement of plaintiff to obtain a prefiling order.
8 10. The Hanover Defendants joined that Notice.
9 11. Attached hereto as Exhibit C is the letter dated October 23, 2020, my office sent to
10 Solomon in an effort to meet and confer regarding the basis for the demurrer to the Complaint.
11 12. On October 28, 2020, I had a telephone conversation with Solomon regarding the
12 grounds for the Hanover Defendants’ demurrer and accompanying motion to sever. Solomon
13 explained that he was counsel for plaintiff’s company and he had not seen the Complaint.
14 Counsels’ meet and confer efforts did not resolve the issues raised by the instant demurrer and
15 motion to sever.
16 Executed this 3rd day of November 2020, at Livermore, California.
17 I declare under the penalty of perjury under the laws of the State of California that the
18 foregoing is true and correct.
19
20 Jamie A. Radack
21
22
23
24
25
26
27
28
1185780 -3-
DECLARATION OF JAMIE A. RADACK IN SUPPORT OF THE DEMURRER TO PLAINTIFF’S
COMPLAINT – CASE NO. S-CV-0045393
EXHIBIT A
From: Don Hubbard
Sent: Tuesday, September 29, 2020 9:44 AM
To: Tyler R. Austin
Cc: d.hubbard@west1equity.com; homes@west1equity.com
Subject: H v. Bantang - PMQ, Offer, & Notice of Unavailability
[EXTERNAL SOURCE]
Mr. Austin,
I apologize if the email below hurt your feelings. Was it the lawyer joke? C’mon man. That was funny! Was it the fact I
expressed concerns [and scientifically supported my feelings with facts] about your signature? Your letter of September
28, 2020 states, “do not use profanity”. It might be difficult for me counsel. I already indicated to you: I am not that
polished and I am a non-attorney. Sometimes things just slip... Moreover, I would have thought an legal war-worn
attorney such as yourself would be indifferent what anyone says. Maybe you drive a Prius? I dunno. But, I would have
thought you’d be tough. I am truly sorry and apologize that I offended you and your delicate sensibilities. Mea culpa.
Please do not run to court and tell on me for using a bad word.
I have two children ages six and nine. The older daughter on an occasion about a year ago saw her little brother drawing
a picture. Now, I love my son. I do. He is a smart kid and has many great qualities – drawing is not one of them. And
while mom and I both very work hard to teach our children respect, manners, politeness, to stand-up for themselves
and so on – every child has their moments when they say something that will just make you laugh aloud. Our children do
it on the regular. [No doubt because I am a hoot! And they take after me.] However, in this particular instance when we
asked our daughter if she knew what her brother was doing, she made a slight about his drawing! The slight was
hilarious within itself, but mom and I were both a shocked because my daughter is truly a sweet little girl. She is, “The
Good One”. After asking her why she made the slight, she looked at us straight faced and stated, “I said what I said…”
and then walked off with her head held high. I laughed my ass off and thought good for you girl. Mom, did not laugh.
Nonetheless, “I said what I said” – the phrase stuck. You are hardly the first adversary that I have offended and likely will
not be the last. Are you surprised that I have a finger for the people that want me to dial it down?
REDACTED
Next. Quid pro quo counselor. I requested that you do not call me, “Mr. Hubbard” and yet you continue to disrespect my
request. Again, please, pretty please, call me Donald or Don. I told you that Mr. Hubbard is a title is for my father. You
want some reciprocation counselor? You will respect my fucking requests too. We are not going to play the unilateral
game. Fair enough?
As to your requested November 6, 2020 responsive pleading date. In light of your willingness to dance a jig, I am
amendable to the requested date. However, the November 6, 2020 will not prohibit the discovery process moving
forward. To that end, I am hopeful to avoid setting unilateral deposition dates and having to compel a person most
qualified (“PMQ”). I am placing PMQ discovery into varies categories to be noticed. Because there is no real limit to both
general and surgically crafted categories, I would like to preemptively determine the appropriate PMQ for our initial
rounds of discovery. Please indicate who the PMQ is for defendant Hanover Insurance Group (“Company”) as to: (1)
1
Company’s agent “Adjustor” licensing in California, (2) Company’s licensing in California ; and (3) Company Supervisors
handling the claim at issue.
Further, please provide three proposed examination dates of said PMQ(s) for October 2020.
Lastly, please find attached a copy of my notice of unavailability. Notice of Preservation to follow.
Again, please accept my most humble apologies for hurting your feelings. I am sorry, the signature is cute. That little star
you so cleverly place at the end of your signature surely makes a statement! Good for you!
https://www.youtube.com/watch?v=WR1UiNdQnDw
Kind regards,
Don Hubbard | Principal
West 1 Equity & W1 Holdings
Local: 916-836-8306
Toll Free: 833-88 West 1 (833-889-3781)
Fax: 916-836-3886
Find me on online:
www.linkedin.com/in/donaldhubbard
http://connectedinvestors.com/member/donald-hubbard
Find us online:
www.West1Equity.com
https://www.facebook.com/West1Equity
https://www.linkedin.com/company/west-1-equity
Please consider the environment before printing this email
West 1 Equity is a real estate investment company conducting acquisitions of single-family and multi-family properties through wholly
owned subsidiary entities and joint-venture partnerships. As such, this communication may contain confidential information and legal
documentation that is intended solely for the attention of the recipient. The information and/or attachments herein are protected by 18
U.S.C. 2510-2521 and this communication should be treated as legally privileged. This communication must not be used, in any
manner, without the express written permission and authorization of the addressee. If you are not the intended recipient, or a person
responsible for delivering this communication to the intended recipient, you are not authorized and must not disclose, copy, distribute,
or effectuate any other use of this communication and/or any other part therein. If you have received this communication erroneously,
or intentionally without right of lawful receipt, please notify the sender and discard any and all pertaining information contained herein.
From: Tyler R. Austin
Sent: Monday, September 28, 2020 2:01 PM
To: d.hubbard@west1equity.com
Cc: Stephen M. Hayes
Subject: RE: Hubbard v. Bantang - Representation and acceptance of service for Hanover defendants
Donald,
Please see the attached correspondence and signed notices of acknowledgment.
Thanks,
2
Tyler R. Austin
taustin@hayesscott.com
Direct: 650.486.2879
www.hayesscott.com
Hayes Scott Bonino Ellingson Guslani Simonson & Clause, LLP
999 Skyway Road, Suite 310
San Carlos, CA 94070
Receptionist (650) 637-9100 Fax: (650) 637-8071
** Notice**
This e-mail message is confidential, is intended only for the named recipient(s) above, and may contain information that is
privileged, attorney work product or exempt from disclosure under applicable law. If you have received this message in error, or are
not a named recipient(s), you are hereby notified that any dissemination, distribution or copying of this e-mail is strictly prohibited.
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From: Don Hubbard
Sent: Friday, September 25, 2020 10:50 AM
To: Tyler R. Austin
Cc: d.hubbard@west1equity.com
Subject: RE: Hubbard v. Bantang - Representation and acceptance of service for Hanover defendants
[EXTERNAL SOURCE]
Settlement Correspondence Under Cal. Evid. Code Sect. 1152 & 1154
Mr. Austin,
It is Friday. So, what do you say we start off with a lawyer joke? Here we go:
Q. What happens to a lawyer when you give him Viagra?
A. He gets taller…
I am in receipt of your email and attached correspondence dated 9/23/2020. As an initial matter, this email is in part and
parcel as I have couched a settlement offer in my response to your request that I waive time.
But first, when I received said email and attached correspondence I sat (with my feet up on the desk) and starred at your
signature for damn near 20 minutes. No kidding. Has anyone ever expressed concern for your signature? Between you
and I(?) – go home, crack a couple beers, watch some football and start trying to draft a new signature. Candidly, and
with all deference due to the laundry list of accolades that you possess, I thought you wore a dress until I saw your
picture. I do not say that as a slight, I was seriously just surprised. I am one who believes that our signatures, the clothes
we wear, the cars we drive, et cetera, et cetera are reflections of who we are as individuals. For instance, I would rather
ride public transportation or push my lifted-rig up a fucking hill, barefoot, over broken glass than drive a Prius. A Tesla? A
Tesla is only an overpriced Prius. When I hear a Telsa start its engine, I am reminded of the first-time I heard a queef. I
am more a truck or Gallardo kind of guy. When I start my car and truck I want to hear it – to feel it; when I shake a hand,
I want you to know I am there; the same goes for when I sign my name.
So, when I stumbled upon some of the research on signatures, I knew I had to share it with you. This signature content
below was adopted from an online bit written by Vanessa Edwards. She is a national bestselling author & founder at
Science of People. While I do believe there are clues in signatures, I do not believe a signature defines us. The clues are
merely symbols of personality traits. Now, just to be clear, the “science” on signatures is a wee-bit iffy. Some studies are
more reliable than others but, I do believe there is some truth to the science. So, take the following with a grain of salt.
3
A lot more research still needs to be done, but I think some of these cues and signs are intriguing. I found the analysis of
my signature incredibly accurate. So here are some of the patterns.
Angle. The angle of your signature is telling. When you signed a totally blank piece of paper did you follow any invisible
lines? You have an ascending signature—meaning it goes up toward the end. This is a sign of ambition, optimism,
creativity, and vitality. This makes sense, right? If you are feeling good, you angle upward.
Or, do you have a descending signature—meaning it goes down toward the end? A descending signature is a sign of a
skeptic—are you a little more pessimistic? Are you struggling right now? Sometimes these feelings of being down can
come out in your signature.
Or is your signature as straight as an arrow, such as mine? A straight signature on a blank piece of paper is a sign of
balance and control. Basically, even though your paper did not have lines, you created one in your head. You are
likely very organized and self-sufficient.
Size. Here is the important one. No matter what the ladies say, size does apparently matter. There is some intriguing
research on the size of signatures. One study looked at the signatures of 500 chief financial officers. They found that the
CFOs with the largest signatures were more likely to “bend the truth”. Specifically, they were more likely to misreport
the company’s earnings or relax internal controls. Ouch! Dr. Charles Ham, one of the study’s authors, said that this
research establishes a link between signature size and narcissism. Ouch, again. Now, if you have a big signature, this is
not a certain sign you are a narcissist, but there is a link between signature size and confidence.
The bigger the signature, the more confidence. If you had a huge signature that took up your whole page, you have A
LOT of confidence, maybe too much to go around.
Since you have a tiny signature, you might need to work on claiming your space a little more, and pumping yourself up.
Don’t stick yourself in a small box if you don’t have to!
4
Legibility. Is your signature easy to read? Or is it a mishmash of lines? Illegible signatures tend to signal quick minds.
They also tend to mean you are not bogged down by details and feel your actions will speak for themselves, so your
signature doesn’t have to do so. Your signature seems to have a little star at the end of it – all I could think was, “that is
cute”.
Next, as to your proposed “response date to the complaint of November 6, 2020”. My immediate reply is, no. You waive
time first. You can return my Notice and Acknowledgments, in a prompt and timely manner detailed below and then we
will discuss if I will waive time for you to file an alternative pleading or answer.
Mr. Austin, I sincerely appreciate the professionalism in your initial correspondence, but I find too many of you
attorney’s are pent-up and stuffy. You say Mr. Hubbard and I look around the room for my father. My father’s practice
bears the same name, please call me Don, or Donald. Further, I understand your undergrad degree is in English. Well I
am not nearly as polished as you. Indeed, when I reached law school, I damn near jumped out of my chair in joy when I
learned students would not be graded on grammar, syntax and spelling. My undergrad was in business management as
was the MBA program – easy. Ioften misspell words and rarely proof read my informal correspondence. I ask in
advance that you forgive my English errors. Also, I am inclined to ask that we forego any legal gamesmanship that you
might be tempted to engage me in. I tend to play nice with those who play nice with me. Alternatively, any dirtball
tactics will reciprocated in like fashion. So let’s not. It would be a mistake for you to treat me as though I am some
simpleton. As indicated by my big ol’ signature, I am confident in my ability to prosecute this matter and see that matter
through. You on the other hand have been given a zero sum gain case. You’re engagement is with a pro per litigant. So,
if you win: So fucking what… If you lose: Ya got beat by a pro per. You will likely need to rethink the Partner track at your
firm. To that end, I make it a point to know everything about my adversaries and you are without exception. I reviewed
your professional, work and education history. I have asked for a full file on you. You have impressive career path but
you have everything to lose here and nothing to gain. I am sure you are an excellent attorney and a swell-fella but, have
you thought about why you were assigned a pro per case? Have you thought about what you are going to say to your
supervising attorney and client when you lose the tentative ruling on demurrer to a pro per? Just sayin’, ya might wanna
start thinking about it.
REDACTED
I will be candid. As if I haven’t already been… I do not give two shits if your client settles this fucking case. At this point,
what I want more than anything is to have Uncle Sam open investigations into Hanover and dig into the allegations of
wrongdoings. This is my resolve. Notwithstanding, the offer will remain open for ten business days. At which time, I will
be in the office of CDI with our general counsel being a squeaky wheel and pushing the investigation forward. And, CDI is
just the beginning. I ask you – do I strike you as some passive pussy that is going to be backing down?
You are an attorney of stellar reputation thus, I do not need to remind you of your legal obligation to present my
settlement offer in full to your clients. If I learn at a later date that you failed to present this offer, I will report you to
The Cal. Bar. I am intolerant of attorney’s violating their canons of ethics and legal obligations. I am sure you understand.
Please find attached a copy of the notice and acknowledgments for defendants, The Hanover Group, Jones, Anderson,
Erickson and Roche. I anticipate the attached notice and acknowledgments returned and executed by close of business
Monday 9/28/2020. And yes I am aware that you have 20 days – you will waive time. Then we can then discuss if I will
waive time. If not, I will have defendant Roche served via a process server or sheriff at his home. Your call.
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I thank you in advance for your time and understanding and look forward to seeing that new signature on the Notice
and Acknowledgements.
Have a great weekend Mr. Austin.
Kind regards,
Don Hubbard | Principal
West 1 Equity & W1 Holdings
Local: 916-836-8306
Toll Free: 833-88 West 1 (833-889-3781)
Fax: 916-836-3886
Find me on online:
www.linkedin.com/in/donaldhubbard
http://connectedinvestors.com/member/donald-hubbard
Find us online:
www.West1Equity.com
https://www.facebook.com/West1Equity
https://www.linkedin.com/company/west-1-equity
Please consider the environment before printing this email
West 1 Equity is a real estate investment company conducting acquisitions of single-family and multi-family properties through wholly
owned subsidiary entities and joint-venture partnerships. As such, this communication may contain confidential information and legal
documentation that is intended solely for the attention of the recipient. The information and/or attachments herein are protected by 18
U.S.C. 2510-2521 and this communication should be treated as legally privileged. This communication must not be used, in any
manner, without the express written permission and authorization of the addressee. If you are not the intended recipient, or a person
responsible for delivering this communication to the intended recipient, you are not authorized and must not disclose, copy, distribute,
or effectuate any other use of this communication and/or any other part therein. If you have received this communication erroneously,
or intentionally without right of lawful receipt, please notify the sender and discard any and all pertaining information contained herein.
From: Tyler R. Austin
Sent: Wednesday, September 23, 2020 11:27 AM
To: d.hubbard@west1equity.com
Cc: Stephen M. Hayes ; Stephen P. Ellingson ; Jamie Radack
; Dolores A. Mayorga
Subject: Hubbard v. Bantang - Representation and acceptance of service for Hanover defendants
Mr. Hubbard,
Please see the attached correspondence regarding the above referenced matter.
Best,
Tyler R. Austin
taustin@hayesscott.com
Direct: 650.486.2879
www.hayesscott.com
Hayes Scott Bonino Ellingson Guslani Simonson & Clause, LLP
999 Skyway Road, Suite 310
San Carlos, CA 94070
6
Receptionist (650) 637-9100 Fax: (650) 637-8071
** Notice**
This e-mail message is confidential, is intended only for the named recipient(s) above, and may contain information that is
privileged, attorney work product or exempt from disclosure under applicable law. If you have received this message in error, or are
not a named recipient(s), you are hereby notified that any dissemination, distribution or copying of this e-mail is strictly prohibited.
If you have received this message in error, please immediately notify the sender by return e-mail and delete this e-mail message
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7
EXHIBIT B
Stephen M. Hayes, Esq. | Direct Line: 650.486.2868 | Email: shayes@hayesscott.com | www.hayesscott.com
Tyler R. Austin, Esq. | Direct Line: 650.486.2879 | Email: taustin@hayesscott.com | www.hayesscott.com
October 1, 2020
Via Email, Facsimile, and U.S. Mail
Donald Hubbard
1017 L. St., No. 485
Sacramento, CA 95814
d.hubbard@west1equity.com
Facsimile: 916-836-3886
Re: Hubbard v. Bantang, et al., Placer County Superior Court
Dear Donald,
We write to meet and confer regarding the Hanover defendants’ demurrer to your
Complaint pursuant to Code Civ. Proc. 430.41(a)(2) and Placer County Local Rule 20.2.1.
Normally, we would request a telephone conference to discuss the grounds for Hanover’s
demurrer. However, given the temperament of your emails, we prefer that all communications
between you and our office be in writing.
Hanover’s demurrer will be based on the following grounds:
First, it is well settled under California law that a third party claimant, such as yourself,
may not maintain a cause of action against the insurer of a tortfeasor, such as Hanover. Moradi-
Shalal v. Fireman’s Fund Ins. Companies, (1988) 46 Cal.3d 287, 311. As such, all of your
claims against the Hanover defendants arising from the handling of your claim against a Hanover
insured fail as a matter of law.
Second, Moradi-Shalal also held that there is no private right of action against an insurer
under Insurance Code section 790.03. Moradi-Shalal, supra, at 304. It is also well settled that
the California Fair Claims Settlement Practices Regulations, which were adopted under the
authority of the Insurance Code, do not provide a private right of action for their alleged
violation. Rattan v. United Service Auto Ass’n (2000) 84 Cal.App.4th 715, 724. Therefore, your
claims under the Insurance Code and the Regulations fail.
Further, even if the Court somehow finds that you have a private right of action to
enforce the Insurance Code’s regulation of claims adjusters, your claim under Insurance Code
section 14021 fails because that section does not apply to Hanover’s adjusters. Insurance Code
section 14022 states:
999 Skyway Road, Suite 310 | San Carlos, CA 94070
Phone: 650.637.9100 | Facsimile: 650.637.8071
Donald Hubbard
Re: Hubbard v. Bantang, et al.
October 1, 2020 Page 2
“This chapter does not apply to:
(a)(1) A person employed exclusively and regularly by one
employer in connection with the affairs of the employer only
and if there exists an employer-employee relationship, except as
provided in paragraph (2). Ins. Code § 14022 (a)(1) 1.”
As the Complaint specifically alleges, the Hanover claims adjusters were working in the
course and scope of their employment for Hanover during the handling of your claim. Section
14021, therefore does not apply.
Third, the law does not impose bad faith liability on insurance companies for negligence.
Aceves v. Allstate Ins. Co. (9th cir. 1996) 68 F.3d 1160, 1166. Sanchez v. Lindsey Morden Claims
Services, Inc. (1999) 72 Cal.App.4th 249, 254. Accordingly, all of your causes of action
sounding in negligence fail.
Fourth, you have failed to adequately allege your fraud causes of action. To prevail on a
cause of action for fraud, the plaintiff must establish: (1) an intentional misrepresentation; (2)
knowledge of the falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting
damage. Nelson v. Gaunt, (1981) 125 Cal.App.3d 623, 635; Hinesley v. Oakshade Town Ctr.,
(2005) 135 Cal.App.4th 289, 294.
A statement that is too vague cannot be enforced as an actionable misrepresentation.
Rochlis v. Walt Disney Co., (1993) 19 Cal. App. 4th 201, 213–14 disapproved of on other
grounds by Turner v. Anheuser-Busch, Inc., (1994) 7 Cal. 4th 1238 (“Promises too vague to be
enforced will not support a fraud claim any more than they will one in contract;”) see also Lim v.
The.TV Corp. Internat., (2002) 99 Cal. App. 4th 684, 694 (statement that auction would be “fair
and open” was “too vague to form a basis for fraud.”)
When being alleged against a corporation, such as an insurance company, fraud
allegations must include the names of the persons who made the allegedly fraudulent
misrepresentations, their authority to speak, to whom they spoke, what they said or wrote and
why it was said or written. Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153,
155.
Your Complaint alleges that the Hanover Defendants made three misrepresentations.
First, you allege that they misrepresented the value of your vehicle, and that you relied on that
opinion until you spoke with a Mercedes Benz dealer. Even if Hanover’s valuation of the
vehicle was somehow an intentional misrepresentation, however, you do not allege how you
1
Subsection (2) only applies during a declared state of emergency. Ins. Code § 14022(2).
999 Skyway Road, Suite 310 | San Carlos, CA 94070
Phone: 650.637.9100 | Facsimile: 650.637.8071
Donald Hubbard
Re: Hubbard v. Bantang, et al.
October 1, 2020 Page 3
relied on that alleged misrepresentation to your actual detriment. In fact, you have not relied on
the valuation, you are disputing it by virtue of this lawsuit. Thus, this alleged misrepresentation
cannot support your fraud claims.
You further allege that the Hanover defendants misrepresented that Hanover would
reimburse you for a “comparable” vehicle, but that it only paid for a portion of the rental invoice.
This statement, however, is far too vague to support a claim for fraud. You do not allege that
Hanover agreed to pay for a specific rental, or even that it agreed to pay for any rental. The facts
as alleged merely support the conclusion that you did not rent a “comparable” vehicle, but a
more expensive one, and Hanover only paid for what would have been a “comparable” vehicle.
This statement is too vague to constitute an intentional misrepresentation of fact.
You further allege that The Hanover Group and Hanover Insurance Company
misrepresented that they are registered with the Department of Insurance. You, however, do not
allege who told you this information, by what authority, when it was said, etc. Your allegation
that they “hold themselves out” as being so registered is entirely too vague to support a claim for
fraud. Nor have you alleged that you relied on this “holding out” to your detriment. Thus, your
fraud claims are subject to demurrer.
Fifth, your claims against Hanover’s claims adjusters, Gwen Jones, Arthur Anderson and
Scot Erikson, fail. It is well settled under California law that insurance claims handlers cannot
be held personally liable for negligent claims handling. Sanchez, supra, at 253-254.
Sixth, regarding your claim for intentional infliction of emotional distress, (“IIED”) to
allege such a cause of action, a plaintiff must allege facts showing that (1) the defendant engaged
in extreme and outrageous conduct; and (2) plaintiff suffered severe or extreme emotional
distress. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050; Schlauch v. Hartford Acc. & Indem.
Co. (1983) 146 Cal.App.3d 926, 936. The emotional distress must be so severe that “no
reasonable man could be expected to endure it.” Fletcher v. Western National Life Ins. Co.
(1970) 10 Cal.App.3d 376, 397. Delay or denial of an insurance claim alone does not constitute
such outrageous conduct. Coleman v. Republic Indem. Ins. Co. of California (2005) 132
Cal.App.4th 403, 417. Indeed, where a cause of action for IIED is based on the same conduct
giving rise to a plaintiff’s claim for unfair settlement practices under Insurance Code 790.03, “it
must fail.” Id.
The gravamen of your Complaint against the Hanover Defendants is your claim that you
were underpaid for your claim against Mobile. Your cause of action for IIED alleges that all
defendants, “but moreover Bantang” intentionally breached various duties owed to you. The
only purported duties that appear to even potentially apply to the Hanover defendants seem to
include failing to: 1) determine if you had been harmed; 2) exercise any duty of care; 3) act in
good faith; and 4) act promptly when you contacted them. You also allege that you suffered the
999 Skyway Road, Suite 310 | San Carlos, CA 94070
Phone: 650.637.9100 | Facsimile: 650.637.8071
Donald Hubbard
Re: Hubbard v. Bantang, et al.
October 1, 2020 Page 4
loss of use of your vehicle for two weeks and were not fully reimbursed for your rental car.
Elsewhere in the Complaint, you allege that Hanover underpaid your vehicle and injury claims.
These allegations all arise out of plaintiff’s claim for unfair settlement practices under
Insurance Code section 790.03. Thus, they cannot support your claim for IIED.
Moreover, these facts do not constitute “outrageous conduct” that might cause such
severe emotional distress that “no reasonable man could be expected to endure it.” On its face,
the Complaint merely establishes that you were in an auto collision, you submitted a claim to the
tortfeasor’s employer’s insurer, Hanover, which adjusted the claim. While disputes may have
arisen regarding the value of your vehicle and the cost of the rental vehicle, those disputes do not
amount to outrageous conduct, and your claim for IIED is subject to demurer.
Lastly, in California it is generally deemed improper for a third party claimant, such as
yourself, to join the insurer in a personal injury action against the tortfeasor insured. Royal
Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 200. Allowing the
third party claimant to name the insurer in such an action would necessarily allow the prejudicial
use of evidence of liability insurance, which is prohibited by Evidence Code section 1155.
Industrial Indemnity Co. v. Mazon (1984) 158 Cal.App.3d 862, 865. Moreover, joining the
insurer in an action against the insured may seriously hamper the insured’s defense by allowing
the claimant to initiate discovery against the insurer providing the insured’s defense. Id.
Here, you have improperly named the Hanover defendants in your personal injury action
against Hanover’s insured, Mobile. If the court somehow allows any of your claims against the
Hanover defendants to proceed, we are requesting that they be severed from your claims against
Mobile arising from the accident.
In light of Hanover’s intention to file a demurrer and related motion to sever, we do not
intend to participate in discovery, including depositions, before the demurrer and motion are
ruled upon. If necessary, we will seek a protective order preventing any such discovery.
Finally, we have received your notice of unavailability for dates in October. We will
assume that you are available for all other dates and will set the hearing on the demurrer and
motion to sever accordingly.
Please let us know, in writing, if you are willing to dismiss your Complaint against the
Hanover defendants by October 9, 2020.
Sincerely,
Stephen M. Hayes
Tyler R. Austin
999 Skyway Road, Suite 310 | San Carlos, CA 94070
Phone: 650.637.9100 | Facsimile: 650.637.8071
EXHIBIT C
Stephen M. Hayes, Esq. | Direct Line: 650.486.2868 | Email: shayes@hayesscott.com | www.hayesscott.com
Stephen P. Ellingson, Esq. | Direct Line: 650-486-2873 | Email: sellingson@hayesscott.com | www.hayesscott.com
Jamie A. Radack Esq. | Direct Line: 925-292-9234 | jradack@hayesscott.com | www.hayesscott.com
October 23, 2020
Via Email and U.S. Mail
Lyle D. Solomon
P.O. Box 1411
Rocklin, CA 95677
lyleds56@yahoo.com
Re: Hubbard v. Bantang, et al., Placer County Superior Court
Case No.: S-CV-0045393
Dear Mr. Solomon,
We represent the Hanover defendants (“Hanover”) in the above-referenced matter. We have
received the Substitution of Counsel identifying you as plaintiff’s counsel in the matter.
As you may already be aware, we sent a letter to plaintiff on October 1, 2020 in an effort
to begin meet and confer discussions regarding the Hanover’s demurrer to his Complaint and
motion to sever pursuant to Code Civ. Proc. 430.41(a)(2) and Placer County Local Rule 20.2.1.
After you have reviewed the grounds Hanover’s demurrer and motion to sever set forth below,
we would like to schedule a meet and confer telephone conference.
Hanover’s demurrer will be based on the following grounds:
First, it is well settled under California law that a third party claimant, such as plaintiff,
may not maintain a cause of action against the insurer of a tortfeasor, such as Hanover. Moradi-
Shalal v. Fireman’s Fund Ins. Companies, (1988) 46 Cal.3d 287, 311. As such, all of plaintiff’s
claims against the Hanover arising from the handling of his claim against a Hanover insured fail
as a matter of law.
Second, Moradi-Shalal also held that there is no private right of action against an insurer
under Insurance Code section 790.03. Moradi-Shalal, supra, at 304. It is also well settled that
the California Fair Claims Settlement Practices Regulations, which were adopted under the
authority of the Insurance Code, do not provide a private right of action for their alleged
violation. Rattan v. United Service Auto Ass’n (2000) 84 Cal.App.4th 715, 724. Therefore,
plaintiff’s claims under the Insurance Code and the Regulations fail.
999 Skyway Road, Suite 310 | San Carlos, CA 94070
Phone: 650.637.9100 | Facsimile: 650.637.8071
Lyle D. Solomon
Re: Hubbard v. Bantang, et al.
October 23, 2020 Page 2