Preview
11/13/2020
1 STEPHEN M. HAYES (SBN 83583)
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 CONNER 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, DEFENDANTS ALLMERICA FINANCIAL
15 BENEFIT INSURANCE, JOHN CONNER
vs. ROCHE, GWEN JONES, ARTHUR
16 ANDERSON AND SCOT ERIKSON’S
MATTHEW JOHN BANTANG, [a.k.a., NOTICE OF DEMURRER AND DEMURRER
17 MATT BANTANG], an individual; 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
1185232 -1-
DEFENDANTS’ NOTICE OF DEMURRER AND 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
NOTICE OF DEMURRER
6
TO PLAINTIFF DONALD HUBBARD AND HIS ATTORNEY OF RECORD:
7
NOTICE IS HEREBY GIVEN that on December 11, 2020, at 8:30 a.m., or as soon
8
thereafter as counsel may be heard in Department 3 of the above-entitled Court located at 101
9
Maple Street, Auburn, California, defendants Allmerica Financial Benefit Insurance (sued
10
erroneously as The Hanover Insurance Group, The Hanover American Insurance, and Allmerica
11
Financial Alliance Company), (“Hanover”) John Connor Roche, (“Roche”) Gwen Jones, Arthur
12
Anderson and Scot Erikson (“Claims Defendants”) (collectively “Hanover Defendants”) will and
13
hereby do demur to plaintiff’s Complaint.
14
DEMURRER
15
16 The Complaint is defective, and the Hanover Defendants demur as follows:
17 1. All of plaintiff’s causes of action alleged against the Hanover Defendants arise from
18 plaintiff’s automobile collision with Matthew Bantang on February 18, 2020. None of plaintiff’s
19 causes of action state facts sufficient to constitute any viable cause of action against the Hanover
20 Defendants because plaintiff, as a third party claimant is not entitled to allege causes of action
21 against Mobile Copy Service’s insurer, or its claims representatives based on the Hanover
22 Defendants’ handling of the claim. Moradi-Shalal v. Fireman’s Fund Insur. Co. (1988) 46 Cal.3d
23 287, 311.
24 2. Plaintiff’s causes of action under the Insurance Code, the Fair Claims Settlement
25 Practices Regulations and the Business and Professions Code do not state facts sufficient to
26 constitute a cause of action against the Hanover Defendants because plaintiff does not have a
27 private right of action under those statutes. Moradi-Shalal v. Fireman’s Fund Insur. Co. (1988) 46
28 Cal.3d 287, 304.
1185232 -2-
DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT
CASE NO. S-CV-0045393
1 3. Plaintiff’s causes of action sounding in negligence as alleged against the Hanover
2 Defendants arising from plaintiff’s automobile collision with Bantang on February 18, 2020 do not
3 state facts sufficient to constitute a cause of action against the Hanover Defendants because
4 plaintiff, as a third party claimant is not entitled to allege such causes of action against the Hanover
5 Defendants based on their handling of the claim. Adelman v. Associated Internat. Ins. Co. (2001)
6 90 Cal.App.4th 352, 356.
7 4. Plaintiff’s causes of action sounding in negligence as alleged against the Hanover
8 Defendants arising from plaintiff’s automobile collision with Bantang on February 18, 2020 do not
9 state facts sufficient to constitute a cause of action against the Claims Defendants because plaintiff
10 is not entitled to allege such causes of action against the Claims Defendants based on their
11 handling of the claim. Sanchez v. Lindsey Morden Claims Services, Inc. (1999) 72 Cal.App.4th
12 249, 253-254.
13 5. Plaintiff’s causes of action for intentional and negligent misrepresentation as alleged
14 against the Hanover Defendants arising from plaintiff’s automobile collision with Bantang on
15 February 18, 2020 do not state facts sufficient to constitute a cause of action against the Hanover
16 Defendants because plaintiff has failed to allege: (1) an intentional misrepresentation; (2)
17 knowledge of the falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting
18 damage. Hinesley v. Oakshade Town Ctr., (2005) 135 Cal.App.4th 289, 294.
19 6. Plaintiff’s causes of action for negligent infliction of emotional distress as alleged
20 against the Hanover Defendants arising from plaintiff’s automobile collision with Bantang on
21 February 18, 2020 do not state facts sufficient to constitute a cause of action against the Hanover
22 Defendants because the Hanover Defendants did not owe him any duties under Insurance Code
23 section 790.03. Taylor v. California State Auto. Assn. Inter-Ins. Bureau (1987) 194 Cal.App.3
24 1214, 1223.
25 7. Plaintiff’s causes of action for intentional infliction of emotional distress as alleged
26 against the Hanover Defendants arising from plaintiff’s automobile collision with Bantang on
27 February 18, 2020 do not state facts sufficient to constitute a cause of action against the Hanover
28 Defendants because plaintiff has failed to allege that (1) the Hanover Defendants engaged in
1185232 -3-
DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT
CASE NO. S-CV-0045393
1 extreme and outrageous conduct; and (2) that he suffered severe or extreme emotional distress as a
2 result. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.
3 8. Plaintiff’s causes of action as alleged against the Hanover Defendants arising from
4 plaintiff’s automobile collision with Bantang on February 18, 2020, are improper. It is not proper
5 to name these insurance defendants in the motor vehicle negligence action against the insured,
6 Mobile. The Hanover Defendants have been misjoined to this action. Royal Surplus Lines Ins.
7 Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 200.
8 The demurrer is based on this Notice of Demurrer and Demurrer, and Memorandum of
9 Points and Authorities in support thereof, the Declaration of Jamie A. Radack, and on such other
10 matters as the Court deems appropriate.
11 Dated: November 3, 2020 HAYES SCOTT BONINO ELLINGSON
GUSLANI SIMONSON & CLAUSE, LLP
12
13
By
14 STEPHEN M. HAYES
STEPHEN P. ELLINGSON
15 JAMIE A. RADACK
TYLER R. AUSTIN
16 Attorneys for Defendants
ALLMERICA FINANCIAL BENEFIT
17 INSURANCE (Sued erroneously as The Hanover
Insurance Group, The Hanover American
18 Insurance, and Allmerica Financial Alliance
Company), JOHN CONNOR ROCHE, GWEN
19 JONES, ARTHUR ANDERSON and SCOT
ERIKSON
20
21
22
23
24
25
26
27
28
1185232 -4-
DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT
CASE NO. S-CV-0045393
1 CASE NAME: Hubbard v. Bantang, et al.
CASE NUMBER: Placer County Superior Court No.: SCV-0045393
2
PROOF OF SERVICE
3
I am a resident of the State of California. My business address is 999 Skyway Road, Suite
4 310, San Carlos 94070. I am employed in the County of San Mateo where this service occurs. I am
over the age of 18 years, and not a party to the within cause. I am readily familiar with my
5 employer’s normal business practice for collection and processing of correspondence for mailing
with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S.
6 Postal Service the same day as the day of collection in the ordinary course of business.
7 On the date set forth below, following ordinary business practice, I served a true copy of the
foregoing document(s) described as:
8
DEFENDANTS ALLMERICA FINANCIAL BENEFIT INSURANCE, JOHN CONNER
9 ROCHE, GWEN JONES, ARTHUR ANDERSON AND SCOT ERIKSON’S NOTICE OF
DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT
10
11 (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be
placed in the United States mail at Redwood City, California.
12
(BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand
this date to the offices of the addressee(s).
13
14 (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an
overnight delivery carrier with delivery fees provided for, addressed to the
person(s) on whom it is to be served.
15
(BY EMAIL) by transmitting via email the document(s) listed above to the
16 corresponding email address(es), or as stated on the attached service list, on this
date before 5:00 p.m.
17
18 Lyle D. Solomon, Esq.
P.O. Box 1411
19 Rocklin, CA 95677
Telephone: (916) 532-2726
20
Attorney for Plaintiff
21
DONALD HUBBARD
22
23 (State) I declare under penalty of perjury under the laws of the State of
California that the above is true and correct.
24
Executed on November 3, 2020 at San Carlos, California.
25
_____________________________________
26 Abigail Calderon
27
28
PROOF OF SERVICE - CASE NO. SCV-0045393
Preview
11/13/2020 1 STEPHEN M. HAYES (SBN 83583) 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 CONNER 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, DEFENDANTS ALLMERICA FINANCIAL 15 BENEFIT INSURANCE, JOHN CONNER vs. ROCHE, GWEN JONES, ARTHUR 16 ANDERSON AND SCOT ERIKSON’S MATTHEW JOHN BANTANG, [a.k.a., NOTICE OF DEMURRER AND DEMURRER 17 MATT BANTANG], an individual; 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 1185232 -1- DEFENDANTS’ NOTICE OF DEMURRER AND 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 NOTICE OF DEMURRER 6 TO PLAINTIFF DONALD HUBBARD AND HIS ATTORNEY OF RECORD: 7 NOTICE IS HEREBY GIVEN that on December 11, 2020, at 8:30 a.m., or as soon 8 thereafter as counsel may be heard in Department 3 of the above-entitled Court located at 101 9 Maple Street, Auburn, California, defendants Allmerica Financial Benefit Insurance (sued 10 erroneously as The Hanover Insurance Group, The Hanover American Insurance, and Allmerica 11 Financial Alliance Company), (“Hanover”) John Connor Roche, (“Roche”) Gwen Jones, Arthur 12 Anderson and Scot Erikson (“Claims Defendants”) (collectively “Hanover Defendants”) will and 13 hereby do demur to plaintiff’s Complaint. 14 DEMURRER 15 16 The Complaint is defective, and the Hanover Defendants demur as follows: 17 1. All of plaintiff’s causes of action alleged against the Hanover Defendants arise from 18 plaintiff’s automobile collision with Matthew Bantang on February 18, 2020. None of plaintiff’s 19 causes of action state facts sufficient to constitute any viable cause of action against the Hanover 20 Defendants because plaintiff, as a third party claimant is not entitled to allege causes of action 21 against Mobile Copy Service’s insurer, or its claims representatives based on the Hanover 22 Defendants’ handling of the claim. Moradi-Shalal v. Fireman’s Fund Insur. Co. (1988) 46 Cal.3d 23 287, 311. 24 2. Plaintiff’s causes of action under the Insurance Code, the Fair Claims Settlement 25 Practices Regulations and the Business and Professions Code do not state facts sufficient to 26 constitute a cause of action against the Hanover Defendants because plaintiff does not have a 27 private right of action under those statutes. Moradi-Shalal v. Fireman’s Fund Insur. Co. (1988) 46 28 Cal.3d 287, 304. 1185232 -2- DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT CASE NO. S-CV-0045393 1 3. Plaintiff’s causes of action sounding in negligence as alleged against the Hanover 2 Defendants arising from plaintiff’s automobile collision with Bantang on February 18, 2020 do not 3 state facts sufficient to constitute a cause of action against the Hanover Defendants because 4 plaintiff, as a third party claimant is not entitled to allege such causes of action against the Hanover 5 Defendants based on their handling of the claim. Adelman v. Associated Internat. Ins. Co. (2001) 6 90 Cal.App.4th 352, 356. 7 4. Plaintiff’s causes of action sounding in negligence as alleged against the Hanover 8 Defendants arising from plaintiff’s automobile collision with Bantang on February 18, 2020 do not 9 state facts sufficient to constitute a cause of action against the Claims Defendants because plaintiff 10 is not entitled to allege such causes of action against the Claims Defendants based on their 11 handling of the claim. Sanchez v. Lindsey Morden Claims Services, Inc. (1999) 72 Cal.App.4th 12 249, 253-254. 13 5. Plaintiff’s causes of action for intentional and negligent misrepresentation as alleged 14 against the Hanover Defendants arising from plaintiff’s automobile collision with Bantang on 15 February 18, 2020 do not state facts sufficient to constitute a cause of action against the Hanover 16 Defendants because plaintiff has failed to allege: (1) an intentional misrepresentation; (2) 17 knowledge of the falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting 18 damage. Hinesley v. Oakshade Town Ctr., (2005) 135 Cal.App.4th 289, 294. 19 6. Plaintiff’s causes of action for negligent infliction of emotional distress as alleged 20 against the Hanover Defendants arising from plaintiff’s automobile collision with Bantang on 21 February 18, 2020 do not state facts sufficient to constitute a cause of action against the Hanover 22 Defendants because the Hanover Defendants did not owe him any duties under Insurance Code 23 section 790.03. Taylor v. California State Auto. Assn. Inter-Ins. Bureau (1987) 194 Cal.App.3 24 1214, 1223. 25 7. Plaintiff’s causes of action for intentional infliction of emotional distress as alleged 26 against the Hanover Defendants arising from plaintiff’s automobile collision with Bantang on 27 February 18, 2020 do not state facts sufficient to constitute a cause of action against the Hanover 28 Defendants because plaintiff has failed to allege that (1) the Hanover Defendants engaged in 1185232 -3- DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT CASE NO. S-CV-0045393 1 extreme and outrageous conduct; and (2) that he suffered severe or extreme emotional distress as a 2 result. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050. 3 8. Plaintiff’s causes of action as alleged against the Hanover Defendants arising from 4 plaintiff’s automobile collision with Bantang on February 18, 2020, are improper. It is not proper 5 to name these insurance defendants in the motor vehicle negligence action against the insured, 6 Mobile. The Hanover Defendants have been misjoined to this action. Royal Surplus Lines Ins. 7 Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 200. 8 The demurrer is based on this Notice of Demurrer and Demurrer, and Memorandum of 9 Points and Authorities in support thereof, the Declaration of Jamie A. Radack, and on such other 10 matters as the Court deems appropriate. 11 Dated: November 3, 2020 HAYES SCOTT BONINO ELLINGSON GUSLANI SIMONSON & CLAUSE, LLP 12 13 By 14 STEPHEN M. HAYES STEPHEN P. ELLINGSON 15 JAMIE A. RADACK TYLER R. AUSTIN 16 Attorneys for Defendants ALLMERICA FINANCIAL BENEFIT 17 INSURANCE (Sued erroneously as The Hanover Insurance Group, The Hanover American 18 Insurance, and Allmerica Financial Alliance Company), JOHN CONNOR ROCHE, GWEN 19 JONES, ARTHUR ANDERSON and SCOT ERIKSON 20 21 22 23 24 25 26 27 28 1185232 -4- DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT CASE NO. S-CV-0045393 1 CASE NAME: Hubbard v. Bantang, et al. CASE NUMBER: Placer County Superior Court No.: SCV-0045393 2 PROOF OF SERVICE 3 I am a resident of the State of California. My business address is 999 Skyway Road, Suite 4 310, San Carlos 94070. I am employed in the County of San Mateo where this service occurs. I am over the age of 18 years, and not a party to the within cause. I am readily familiar with my 5 employer’s normal business practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. 6 Postal Service the same day as the day of collection in the ordinary course of business. 7 On the date set forth below, following ordinary business practice, I served a true copy of the foregoing document(s) described as: 8 DEFENDANTS ALLMERICA FINANCIAL BENEFIT INSURANCE, JOHN CONNER 9 ROCHE, GWEN JONES, ARTHUR ANDERSON AND SCOT ERIKSON’S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT 10 11 (BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail at Redwood City, California. 12 (BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand this date to the offices of the addressee(s). 13 14 (BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an overnight delivery carrier with delivery fees provided for, addressed to the person(s) on whom it is to be served. 15 (BY EMAIL) by transmitting via email the document(s) listed above to the 16 corresponding email address(es), or as stated on the attached service list, on this date before 5:00 p.m. 17 18 Lyle D. Solomon, Esq. P.O. Box 1411 19 Rocklin, CA 95677 Telephone: (916) 532-2726 20 Attorney for Plaintiff 21 DONALD HUBBARD 22 23 (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 24 Executed on November 3, 2020 at San Carlos, California. 25 _____________________________________ 26 Abigail Calderon 27 28 PROOF OF SERVICE - CASE NO. SCV-0045393