Preview
E-FILED
1/8/2021 3:48 PM
1 MATTHEW C. LOVELL (SBN: 189728) Superior Court of California
mlovell@nicolaidesllp.com County of Fresno
2 RANDALL P. BERDAN (SBN: 199623) By: L Peterson, Deputy
rberdan@nicolaidesllp.com
3 MICHAEL POGREBINSKY (SBN: 317682)
4 mpogrebinsky@nicolaidesllp.com
NICOLAIDES FINK THORPE
5 MICHAELIDES SULLIVAN LLP
101 Montgomery Street, Suite 2300
6 San Francisco, CA 94104
Telephone: (415) 745-3770
7 Facsimile: (415) 745-3771
8
Attorneys for Defendant,
9 NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF FRESNO - CIVIL UNLIMITED
13 SHAW CREEK HOMEOWNERS Case No. 20CECG00772
ASSOCIATION, a corporation;
14 DEFENDANT NATIONAL UNION FIRE
Plaintiff, INSURANCE COMPANY OF
15 PITTSBURGH, PA.’S REPLY IN
16 v. SUPPORT OF ITS DEMURRER TO
PLAINTIFF’S FIRST AMENDED
17 ADMIRAL INSURANCE GROUP, LLC, a COMPLAINT
limited liability company; NATIONAL
18 UNION FIRE INSURANCE COMPANY Date: January 15, 2021
OF PITTSBURGH, PA., a corporation; Time: 9:00 a.m.
19
and DOES 1 through 50, inclusive; Dept.: 503
20 Judge: Hon. Kimberly Gaab
Defendants.
21 Complaint filed: March 2, 2020
Trial Date: Not set
22
23
24
25
26
27
28
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
1 TABLE OF CONTENTS
2 I. INTRODUCTION ................................................................................................. 4
3 II. ARGUMENT ........................................................................................................ 5
4
A. The standards governing demurrers ......................................................... 5
5
B. Shaw Creek has failed to plead facts to show a breach of contract. ......... 5
6
1. Shaw Creek has not alleged or attached the material terms
7 of the National Union Policy. .......................................................... 6
8 2. Shaw Creek has not alleged facts to show that any matter is
covered under the National Union Policy. ...................................... 6
9
10 3. There is no coverage under the National Union policy for
first-party claims for property damage caused by the roofing
11 company Absolute Urethane. ......................................................... 7
12 4. There is no lawsuit seeking damages from Shaw Creek................ 8
13 C. Shaw Creek failed to plead a cause of action for breach of the
Implied covenant of good faith and fair dealing......................................... 9
14
D. Shaw Creek failed to plead a cause of action for fraudulent
15
concealment. ............................................................................................ 9
16
1. Shaw Creek has not alleged facts to support a duty to disclose. . 10
17
2. The alleged non-disclosure could not have been material. .......... 10
18
3. The alleged non-disclosure could not have caused damages. ..... 11
19
III. CONCLUSION................................................................................................... 12
20
21
22
23
24
25
26
27
28
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
2
1 TABLE OF AUTHORITIES
2
Cases
3
Cooper v. Leslie Salt Co.,
4 70 Cal. 2d 627 (1969) ................................................................................................. 6
5 Hendy v. Losse,
54 Cal. 3d 723 (1991) ................................................................................................. 6
6
Montrose Chem. Corp. v. Admiral Ins. Co.,
7
10 Cal. 4th 645 (1995) ................................................................................................ 8
8
Newell v. State Farm Gen. Ins. Co.,
9 118 Cal. App. 4th 1094 (2004).................................................................................... 6
10 Prakashpalan v. Engstrom, Lipscomb & Lack,
223 Cal. App. 4th 1105 as modified on denial of reh'g (Feb. 27, 2014) .............. 10, 12
11
Reichert v. General Ins. Co.,
12 68 Cal. 2d 822 (1968) ................................................................................................. 6
13
Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condo. Assn.,
14 166 Cal. App. 4th 103 (2008).................................................................................... 10
15 Royal Globe Ins. Co. v. Whitaker,
181 Cal. App. 3d 532 (1986)....................................................................................... 8
16
Searle v. Allstate Life Ins. Co.,
17 38 Cal. 3d 425 (1985) ................................................................................................. 7
18
Waller v. Truck Ins. Exch.,
19 11 Cal. 4th 1 (1995) .................................................................................................. 10
20
Statutes
21
Cal. Code Civ. Proc. §§ 430.10(e, f)............................................................................... 6
22
Cal. Insurance Code § 790.3........................................................................................ 11
23
Other Authorities
24
Davis-Sterling Common Interest Development Act, Civ. Code § 4000, et seq. .............. 9
25
26
27
28
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
3
1 Defendant National Union Fire Insurance Company of Pittsburgh, Pa. (“National
2 Union”) submits this reply to Plaintiff Shaw Creek Homeowners Association (“Plaintiff”
3 or “Shaw Creek”)’s Opposition to National Union’s Demurrer to Shaw Creek’s First
4 Amended Complaint (“FAC”).
5 I. INTRODUCTION
6 Each of the three causes of action that Shaw Creek attempts to plead fails.
7 First, Shaw Creek has failed to adequately allege the existence, or, more importantly,
8 the terms of any contract National Union is alleged to have breached, or how any act or
9 omission of National Union constituted a breach. To withstand a demurrer, Shaw Creek
10 needs to plead the terms of the policy that Shaw Creek contends obligate National
11 Union to provide benefits to Shaw Creek. Shaw Creek has not done so. Shaw Creek
12 correctly asserts that the National Union policy is a liability policy. Yet, Shaw Creek
13 does not allege that there is any lawsuit against it that could implicate coverage under
14 the National Union Policy or impose any duty on National Union’s part to defend or
15 indemnify Shaw Creek in any proceeding consistent with the nature of a liability
16 insurance policy. Shaw Creek has merely pled unsubstantiated assertions that it is an
17 “insured,” that unspecified “claims” have been made against it, and that, by not paying
18 proceeds, National Union is somehow in breach. This is an unfounded conclusion, not
19 a cause of action. The Opposition fails to negate the fact that the FAC asserts only a
20 first-party claim. Despite Shaw Creek’s contentions, the FAC contains no allegations
21 that Shaw Creek’s members made third-party claims that would trigger coverage.
22 Second, because Shaw Creek did not adequately plead breach of contract,
23 there can be no cause of action for bad faith. The Opposition did nothing to rehabilitate
24 the FAC’s defects.
25 Third, Shaw Creek has failed to plead the elements of fraud (nondisclosure) with
26 the requisite specificity. Because there is no lawsuit against Shaw Creek that could
27 implicate the National Union policy, Shaw Creek cannot state a claim of fraud based on
28 an alleged failure to disclose that it was not an insured under the National Union Policy.
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
4
1 Whether Shaw Creek is or is not an insured (it is not) is not a material fact because
2 there are no facts to support a claim for coverage under the National Union Policy.
3 Finally, the absence of allegations about the terms of the settlement between Shaw
4 Creek and Absolute Urethane (“AU,” the roofing company that allegedly caused the
5 property damage) make Plaintiff’s claims that it sustained damages conclusory and
6 invalid. Because Plaintiff cannot cure these defects through amendment, the Court
7 should sustain National Union’s Demurrer without leave to amend.
8 II. ARGUMENT
9 A. The standards governing demurrers
10 A demurrer is properly sustained where the pleading does not state facts
11 sufficient to constitute a cause of action, or is uncertain. Cal. Code Civ. Proc.
12 §§ 430.10(e, f). “Uncertain” includes ambiguous and unintelligible. Id., § 430.10(f).
13 Because the causes of action that Shaw Creek attempts to plead in the FAC fail these
14 tests, the Court should sustain National Union’s Demurrer.
15 In opposing a demurrer, the burden is on a plaintiff to demonstrate the manner
16 in which a complaint might be amended. Hendy v. Losse, 54 Cal. 3d 723, 742 (1991)
17 accord, Cooper v. Leslie Salt Co., 70 Cal. 2d 627, 636 (1969) (plaintiff “must show in
18 what manner he can amend his complaint and how that amendment will change the
19 legal effect of his pleading”). Here, because Shaw Creek is fundamentally trying to fit
20 the square peg of a first party claim into the round hole of the National Union liability
21 policy, Shaw Creek cannot show that any amendment could cure its fatally defective
22 pleading, and leave to amend should be denied. See Newell v. State Farm Gen. Ins.
23 Co., 118 Cal. App. 4th 1094, 1100 (2004) (leave to amend should not be granted
24 where amendment would be futile).
25 B. Shaw Creek has failed to plead facts to show a breach of contract.
26 To state a cause of action for breach of contract, a plaintiff must plead the terms
27 of a contract, the defendant’s breach, and damages. Reichert v. General Ins. Co., 68
28 Cal. 2d 822, 830 (1968). As demonstrated in National Union’s Demurrer and below,
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
5
1 Shaw Creek has failed to adequately plead any of these elements, as necessary to
2 implicate coverage under the National Union Policy under any theory.
3
1. Shaw Creek has not alleged or attached the material terms of the
4 National Union Policy.
5 Shaw Creek’s opposition asserts that “National Union’s demurrer primarily
6 challenges the sufficiency of the Complaint based on its contention that the Complaint
7 cannot allege facts showing that is an additionally named insured under the Umbrella
8 Policy.” Opp. at 5:23-25. Not so. The fundamental basis of National Union’s Demurrer
9 is Shaw Creek’s failure to allege any of the terms of any insurance policy issued by
10 National Union, or the nature of any alleged, actionable breach of contract attributed to
11 National Union. See Memo. re National Union’s Demurrer at 4:16-19.
12 Under California law, the insured has the burden of proving both the existence of
13 the insurance contract and its material terms. Searle v. Allstate Life Ins. Co., 38 Cal. 3d
14 425, 438 (1985). At best, the FAC consists of conclusory assertions of the elements of
15 the claim. It is worth noting that Shaw Creek has failed to plead the terms of the
16 National Union policy despite having ample opportunity to do so. As set forth in the
17 Declaration of Matthew C. Lovell in support of the Demurrer, Shaw Creek has had a
18 copy of the National Union Policy issued to AU since September 4, 2020, two weeks
19 before National Union filed its demurrer. Yet, Shaw Creek declined to amend the FAC
20 to include allegations based on the terms of the policy and instead chose to file an
21 opposition to the Demurrer. National Union should not have to suffer the consequences
22 of Shaw Creek’s failure to plead contractual terms and confront another round of
23 pleading, when Shaw Creek has had the opportunity to do so yet has chosen not to.
24 2. Shaw Creek has not alleged facts to show that any matter is covered
25 under the National Union Policy.
26 Shaw Creek argues that because its claim for coverage “relates to claims made
27 by Shaw Creek’s members, who are third parties, relating to damage to their separate
28 property interests within the development, coverage under the Umbrella Policy would
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
6
1 not be excluded under the Policy as National Union contends.” Opp. at 11:9-11. Shaw
2 Creek has put the analytical cart before the horse: to state a claim for coverage under a
3 liability policy, the burden is on the insured initially to plead – and ultimately to prove --
4 that an event is within the scope of the basic coverage of an insurance policy. Royal
5 Globe Ins. Co. v. Whitaker, 181 Cal. App. 3d 532, 537 (1986). At the pleading stage,
6 that bar is not very high, but Shaw Creek has failed to clear it. What’s more, even if the
7 Court were to grant Shaw Creek leave to amend, Shaw Creek would still be unable to
8 cure the defects in the FAC.
9 3. There is no coverage under the National Union policy for first-party
claims for property damage caused by the roofing company Absolute
10 Urethane.
11 What Shaw Creek has pled to date actually defeats Shaw Creek’s own claims.
12 The National Union Policy is a liability policy, as Shaw Creek recognizes. See FAC,
13 ¶¶ 19, 22. In the typical third-party liability policy, the carrier assumes a contractual
14 duty to pay judgments the insured becomes legally obligated to pay as damages
15 because of bodily injury or property damage caused by the insured.” Montrose Chem.
16 Corp. v. Admiral Ins. Co., 10 Cal. 4th 645, 663 (1995) (citation omitted, emphasis
17 added). Yet, Shaw Creek is inexplicably seeking coverage for losses that it alleges it
18 sustained, which were caused by AU. Shaw Creek admits as much, arguing that
19 “National Union [was] obligated to … provide coverage for any damages caused to
20 Shaw Creek’s property arising from the work of the Roofing Company.” See FAC, ¶ 44
21 (emphasis added); id. at ¶ 51 (alleging that National Union is “obligated to pay for any
22 property damage to the Development arising from the Roofing Project” that AU
23 performed). To the extent Shaw Creek has a claim for damages to its property, it
24 should submit that claim to its first party property insurer.
25 Shaw Creek does not articulate how such first-party claims could ever be
26 covered under the National Union policy (they cannot). To avoid the conclusion that it
27 is seeking first-party property coverage under third-party liability policies, Shaw Creek
28 resorts to mischaracterizing the allegations of its own complaint. Despite Shaw
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
7
1 Creek’s claims to the contrary, Paragraphs 9, 10, 28, 29, 30, 47, 48, 49, and 63 of the
2 FAC do not constitute potentially covered claims made by Shaw Creek’s members
3 seeking damages from Shaw Creek. Broadly, these paragraphs allege that, following
4 AU’s work, Shaw Creek received notices from some of its members that their roofs
5 continued to leak, that Shaw Creek is obligated to pay its members for all property
6 damage to their roofing systems, and that Shaw Creek put Admiral Insurance
7 Company (“Admiral”) on notice of these complaints. There are no allegations that
8 Shaw Creek’s members made claims against Shaw Creek seeking damages for
9 potentially covered property damage (i.e., property damage caused by Shaw Creek).
10 Thus, there can be no coverage for Shaw Creek under the National Union Policy. 1
11 4. There is no lawsuit seeking damages from Shaw Creek.
12 Shaw Creek has not alleged that there was ever any lawsuit filed against it that
13 could give rise to a claim for insurance policy proceeds. The only lawsuit referenced in
14 the FAC is a “dispute … between the Roofing Company and Shaw Creek which
15 resulted in litigation[.].” See FAC, ¶ 23. Shaw Creek does not identify what was pled in
16 that “dispute”, by whom, against whom, or what the allegations were. National Union is
17 left to guess as to these questions, because the FAC is silent. At the very least, Shaw
18 Creek has failed to make a showing that it was ever a defendant in a lawsuit that
19 implicates coverage under the National Union Policy – or any liability policy.
20 Shaw Creek spends about a page of its Opposition recounting its alleged duties
21 under its Covenants, Conditions and Restrictions and the Davis-Sterling Common
22 Interest Development Act, Civ. Code § 4000, et seq. (“Davis-Sterling”). See Opp. at
23 10:4-11:1. This is irrelevant. Whatever duties Shaw Creek may have in the abstract, it
24 has not pled that it has been sued for violating any of those obligations, or that any
25
26 1
This conclusion also renders moot Shaw Creek’s allegation that by denying Shaw Creek’s
complaint, Top Contractor Insurance Services, Inc. created a factual question as to whether
27 Shaw Creek was an additional insured under the National Union Policy. As there are no
allegations of claims that would be covered under the National Union Policy, it is irrelevant
28 whether Shaw Creek was an insured under that policy.
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
8
1 person or entity has sought damages from Shaw Creek because of property damage
2 that could be covered under the National Union Policy. Shaw Creek’s reliance on Ritter
3 & Ritter, Inc. Pension & Profit Plan v. The Churchill Condo. Assn., 166 Cal. App. 4th 103
4 (2008) is misplaced. At most, that case stands for the unremarkable proposition that
5 HOA members can (and sometimes do) sue their HOA: “the Ritters sued The Churchill
6 [HOA] … The Ritters' first amended complaint set forth causes of action for nuisance
7 [and] negligence … They sought financial damages ….” Id. at 111-12 (emphasis
8 added). None of those things happened here. Ritter & Ritter does not provide any
9 support for Shaw Creek’s allegations that the alleged “claims” made by the HOA
10 members arising out of AU’s work implicate coverage under the National Union Policy.
11
C. Shaw Creek failed to plead a cause of action for breach of the
12 Implied covenant of good faith and fair dealing.
13 As set forth in National Union’s Demurrer, a cause of action for bad faith
14 depends on the existence of a valid claim for breach of contract. The insurer must
15 breach the contract, and that breach must be unreasonable or without proper cause.
16 Waller v. Truck Ins. Exch., 11 Cal. 4th 1, 35-36 (1995). Because there is no valid
17 breach of contract claim here, there can be no bad faith claim.
18
D. Shaw Creek failed to plead a cause of action for fraudulent
19 concealment.
20 To prove a fraud based on concealment, a plaintiff must demonstrate that (1) the
21 defendant concealed or suppressed a material fact, (2) the defendant had a duty to
22 disclose the fact to the plaintiff, (3) the defendant intentionally concealed or suppressed
23 the fact with intent to defraud the plaintiff, (4) the plaintiff was unaware of the fact and
24 would not have acted as it did if it had known of the concealed or suppressed fact, and
25 (5) as a result of the concealment or suppression of the fact, the plaintiff sustained
26 damage. Prakashpalan v. Engstrom, Lipscomb & Lack, 223 Cal. App. 4th 1105, 1129,
27 as modified on denial of reh'g (Feb. 27, 2014) (citation omitted). As Shaw Creek
28 recognizes, each element must be pled with specificity. Opp. at 11:24-25.
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
9
1 At the outset, National Union notes that Shaw Creek’s failure to plead a claim for
2 breach of contract also dooms its “fraud – failure to disclose” claims. This is because,
3 if there is no coverage under the National Union Policy, then (1) nothing National Union
4 allegedly failed to disclose to Shaw Creek could have been material to any decision
5 Shaw Creek made about whether and on what terms to resolve its (undescribed)
6 lawsuit against AU (because there would be no coverage regardless of whether Shaw
7 Creek was an insured in some contexts not present here); and (2) for similar reasons,
8 the alleged non-disclosure could not cause damages.
9 Shaw Creek’s Opposition does not cure the defects in the FAC, it merely
10 restates the facts alleged in the FAC that Shaw Creek believes give rise to a cause of
11 action for Fraud. As explained in the Demurrer, this claim fails for many reasons.
12 1. Shaw Creek has not alleged facts to support a duty to disclose.
13 Shaw Creek has not demonstrated that National Union, an excess insurer, was
14 under an affirmative duty to correct Shaw Creek’s mistaken assumption that National
15 Union considered it an additional insured under the National Union Policy. Shaw
16 Creek’s citation to Insurance Code 790.3 is inapposite as there is no language in that
17 section creating an affirmative duty to correct. 2
18 2. The alleged non-disclosure could not have been material.
19 Shaw Creek alleges that, in reliance on its belief that it was a named insured
20 under the National Union Policy, “it agreed to settle the litigation with the Roofing
21 Company[,]” and, had it known it was not a named insured, it would not have settled.
22 (FAC., ¶¶ 84-85). These assertions are irrelevant. Even if they accurately reflect
23 Shaw Creek’s state of mind, National Union’s alleged failure to disclose that Shaw
24 Creek was not an insured cannot be a material failure to disclose because, as
25 demonstrated above and in the Demurrer, there was no coverage under the National
26
2
Whether Shaw Creek may be “an insured” under the National Union Policy in some contexts
27 is a fact that means nothing in the abstract. That status would only matter if a claim were made
against Shaw Creek that could be covered under the National Union policy. There was no
28 such claim.
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
10
1 Union Policy in the first instance for the claims against Shaw Creek. In other words,
2 whether Shaw Creek was “an insured” in the abstract under the National Union Policy,
3 that status, as a matter of law, could not have been objectively material to Shaw
4 Creek’s decision to settle AU’s lawsuit against Shaw Creek, because there was no
5 claim made against Shaw Creek that is within the scope of coverage of the National
6 Union Policy. Furthermore, Shaw Creek’s belief that the claims made against it by its
7 members are within the scope of the National Union Policy is itself unreasonable.
8 3. The alleged non-disclosure could not have caused damages.
9 In addition, Shaw Creek’s fraud claims are inadequate because they lack
10 sufficient facts to conclude that any nondisclosure by National Union caused Shaw
11 Creek damages, an element of the cause of action. See Prakashpalan, 223 Cal. App.
12 4th at 1129. Shaw Creek argues that “[b]y settling with the Roofing Company, Shaw
13 Creek was damaged by foregoing the right to proceed to trial on its claims against the
14 Roofing Company.” Opp. at 14:9-10. This statement is purely conclusory as it does
15 not actually explain how Shaw Creek was damaged by settling with AU. Furthermore,
16 this contention raises more questions than it answers. For example, the reference to
17 Shaw Creek’s “claims against the Roofing Company” suggest that somehow, Shaw
18 Creek is seeking “coverage” of an unknown nature, under liability policies, for Shaw
19 Creek’s affirmative claims against AU.
20 The FAC’s most glaring omission with respect to the “Fraud – Failure to
21 Disclose” cause of action is Shaw Creek’s failure to describe any of the terms of its
22 settlement with the Roofing Company, or even to describe the nature of the dispute in
23 the first instance. The FAC does not answer any of the following questions that could
24 conceivably support a claim for fraud based on non-disclosure (for example, if the
25 answers suggested that Shaw Creek was sued for damages):
26 • What was the nature of AU’s claim(s) against Shaw Creek – or Shaw Creek’s
27 claims against AU?
28
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
11
1 • Did Shaw Creek pay money under its settlement with AU, such that Shaw
2 Creek’s alleged damages are the differential between its actual settlement
3 and the amount it would have paid if were an insured?
4 • Was Shaw Creek paid money under the settlement, such that its alleged
5 damages are the lesser amount that it recovered than it would have
6 recovered if it were an insured?
7 • How and why would Shaw Creek’s decision to settle have been different
8 depending on whether it was or was not a named insured (under a policy that
9 provides no coverage for anything alleged in the FAC),
10 • How and why would Shaw Creek’s decision to settle have been different due
11 to National Union’s alleged “failure to disclose”?
12 The FAC provides no answers to these questions. Therefore, Shaw Creek has
13 not stated an intelligible claim of entitlement to damages resulting from National
14 Union’s alleged failure to disclose, a necessary element of a cause of action for fraud.
15 III. CONCLUSION
16 For the reasons set forth above, National Union requests that the Court sustain
17 the demurrer to each cause of action alleged against National Union in Shaw Creek’s
18 First Amended Complaint, without leave to amend.
19 Dated: January 8, 2021 NICOLAIDES FINK THORPE
MICHAELIDES SULLIVAN LLP
20
21 By:
Matthew C. Lovell
22 Randall P. Berdan
Michael Pogrebinsky
23 Attorneys for Defendant, National Union
Fire Insurance Company of Pittsburgh, Pa.
24
25
26
27
28
National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint
12
1 PROOF OF SERVICE
Shaw Creek Homeowners Association v. Admiral Insurance Group, et al.
2 Fresno Superior Court, Case No. 20CECG00772
3 I am a resident of the State of California, over the age of eighteen years, and not
a party to the within action. My business address is Nicolaides Fink Thorpe
4
Michaelides Sullivan LLP, 4250 Executive Square, Suite 540, La Jolla, CA 92037. My
5 electronic notification address is sweidemann@nicolaidesllp.com. On January 8, 2021 I
served the within documents:
6
DEFENDANT NATIONAL UNION FIRE INSURANCE COMPANY
7 OF PITTSBURGH, PA.’S REPLY IN SUPPORT OF ITS DEMURRER
TO PLAINTIFF’S FIRST AMENDED COMPLAINT
8
9 by electronically transmitting the document(s) listed above through One Legal to
all parties set forth below.
10
11 George J. Vasquez Dion N. Cominos
CLOVIS LAW GROUP LLP Laura G. Ryan
12 725 Pollasky Avenue, Suite 101 GORDON REES SCULLY
Clovis, CA 93612 MANSUKHANI, LLP
13 Phone: (559) 900-2806 275 Battery Street, Suite 2000
Fax: (559) 314-6214 San Francisco, CA 94111
14
Email: george@clovislawgroup.com Phone: (415) 875-3133
15 Attorneys for Plaintiff, Shaw Creek Fax: (415) 986-8054
Homeowners Association Email: dcominos@grsm.com
16 lryan@grsm.com
Attorneys for Defendant, Top
17 Contractors Insurance Services, Inc.
18
James T. Derfler
19 Marlene J. Torres
20 WALSH MCKEAN FURCOLO LLP
550 West C. Street, Suite 950
21 San Diego, CA 92101
Phone: (619) 232-8486
22 Fax: (619) 232-2691
Email: jderfler@wmfllp.com
23
mtorres@wmfllp.com
24 Attorneys for Defendant, Admiral
Insurance Company
25
26
27
28
PROOF OF SERVICE
1
1 I declare under penalty of perjury under the laws of the State of California that
2 the above is true and correct.
3 Executed on January 8, 2021 at Oceanside, California.
4
5 Shellie Weidemann
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PROOF OF SERVICE
2
Preview
E-FILED 1/8/2021 3:48 PM 1 MATTHEW C. LOVELL (SBN: 189728) Superior Court of California mlovell@nicolaidesllp.com County of Fresno 2 RANDALL P. BERDAN (SBN: 199623) By: L Peterson, Deputy rberdan@nicolaidesllp.com 3 MICHAEL POGREBINSKY (SBN: 317682) 4 mpogrebinsky@nicolaidesllp.com NICOLAIDES FINK THORPE 5 MICHAELIDES SULLIVAN LLP 101 Montgomery Street, Suite 2300 6 San Francisco, CA 94104 Telephone: (415) 745-3770 7 Facsimile: (415) 745-3771 8 Attorneys for Defendant, 9 NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF FRESNO - CIVIL UNLIMITED 13 SHAW CREEK HOMEOWNERS Case No. 20CECG00772 ASSOCIATION, a corporation; 14 DEFENDANT NATIONAL UNION FIRE Plaintiff, INSURANCE COMPANY OF 15 PITTSBURGH, PA.’S REPLY IN 16 v. SUPPORT OF ITS DEMURRER TO PLAINTIFF’S FIRST AMENDED 17 ADMIRAL INSURANCE GROUP, LLC, a COMPLAINT limited liability company; NATIONAL 18 UNION FIRE INSURANCE COMPANY Date: January 15, 2021 OF PITTSBURGH, PA., a corporation; Time: 9:00 a.m. 19 and DOES 1 through 50, inclusive; Dept.: 503 20 Judge: Hon. Kimberly Gaab Defendants. 21 Complaint filed: March 2, 2020 Trial Date: Not set 22 23 24 25 26 27 28 National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 1 TABLE OF CONTENTS 2 I. INTRODUCTION ................................................................................................. 4 3 II. ARGUMENT ........................................................................................................ 5 4 A. The standards governing demurrers ......................................................... 5 5 B. Shaw Creek has failed to plead facts to show a breach of contract. ......... 5 6 1. Shaw Creek has not alleged or attached the material terms 7 of the National Union Policy. .......................................................... 6 8 2. Shaw Creek has not alleged facts to show that any matter is covered under the National Union Policy. ...................................... 6 9 10 3. There is no coverage under the National Union policy for first-party claims for property damage caused by the roofing 11 company Absolute Urethane. ......................................................... 7 12 4. There is no lawsuit seeking damages from Shaw Creek................ 8 13 C. Shaw Creek failed to plead a cause of action for breach of the Implied covenant of good faith and fair dealing......................................... 9 14 D. Shaw Creek failed to plead a cause of action for fraudulent 15 concealment. ............................................................................................ 9 16 1. Shaw Creek has not alleged facts to support a duty to disclose. . 10 17 2. The alleged non-disclosure could not have been material. .......... 10 18 3. The alleged non-disclosure could not have caused damages. ..... 11 19 III. CONCLUSION................................................................................................... 12 20 21 22 23 24 25 26 27 28 National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 2 1 TABLE OF AUTHORITIES 2 Cases 3 Cooper v. Leslie Salt Co., 4 70 Cal. 2d 627 (1969) ................................................................................................. 6 5 Hendy v. Losse, 54 Cal. 3d 723 (1991) ................................................................................................. 6 6 Montrose Chem. Corp. v. Admiral Ins. Co., 7 10 Cal. 4th 645 (1995) ................................................................................................ 8 8 Newell v. State Farm Gen. Ins. Co., 9 118 Cal. App. 4th 1094 (2004).................................................................................... 6 10 Prakashpalan v. Engstrom, Lipscomb & Lack, 223 Cal. App. 4th 1105 as modified on denial of reh'g (Feb. 27, 2014) .............. 10, 12 11 Reichert v. General Ins. Co., 12 68 Cal. 2d 822 (1968) ................................................................................................. 6 13 Ritter & Ritter, Inc. Pension & Profit Plan v. The Churchill Condo. Assn., 14 166 Cal. App. 4th 103 (2008).................................................................................... 10 15 Royal Globe Ins. Co. v. Whitaker, 181 Cal. App. 3d 532 (1986)....................................................................................... 8 16 Searle v. Allstate Life Ins. Co., 17 38 Cal. 3d 425 (1985) ................................................................................................. 7 18 Waller v. Truck Ins. Exch., 19 11 Cal. 4th 1 (1995) .................................................................................................. 10 20 Statutes 21 Cal. Code Civ. Proc. §§ 430.10(e, f)............................................................................... 6 22 Cal. Insurance Code § 790.3........................................................................................ 11 23 Other Authorities 24 Davis-Sterling Common Interest Development Act, Civ. Code § 4000, et seq. .............. 9 25 26 27 28 National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 3 1 Defendant National Union Fire Insurance Company of Pittsburgh, Pa. (“National 2 Union”) submits this reply to Plaintiff Shaw Creek Homeowners Association (“Plaintiff” 3 or “Shaw Creek”)’s Opposition to National Union’s Demurrer to Shaw Creek’s First 4 Amended Complaint (“FAC”). 5 I. INTRODUCTION 6 Each of the three causes of action that Shaw Creek attempts to plead fails. 7 First, Shaw Creek has failed to adequately allege the existence, or, more importantly, 8 the terms of any contract National Union is alleged to have breached, or how any act or 9 omission of National Union constituted a breach. To withstand a demurrer, Shaw Creek 10 needs to plead the terms of the policy that Shaw Creek contends obligate National 11 Union to provide benefits to Shaw Creek. Shaw Creek has not done so. Shaw Creek 12 correctly asserts that the National Union policy is a liability policy. Yet, Shaw Creek 13 does not allege that there is any lawsuit against it that could implicate coverage under 14 the National Union Policy or impose any duty on National Union’s part to defend or 15 indemnify Shaw Creek in any proceeding consistent with the nature of a liability 16 insurance policy. Shaw Creek has merely pled unsubstantiated assertions that it is an 17 “insured,” that unspecified “claims” have been made against it, and that, by not paying 18 proceeds, National Union is somehow in breach. This is an unfounded conclusion, not 19 a cause of action. The Opposition fails to negate the fact that the FAC asserts only a 20 first-party claim. Despite Shaw Creek’s contentions, the FAC contains no allegations 21 that Shaw Creek’s members made third-party claims that would trigger coverage. 22 Second, because Shaw Creek did not adequately plead breach of contract, 23 there can be no cause of action for bad faith. The Opposition did nothing to rehabilitate 24 the FAC’s defects. 25 Third, Shaw Creek has failed to plead the elements of fraud (nondisclosure) with 26 the requisite specificity. Because there is no lawsuit against Shaw Creek that could 27 implicate the National Union policy, Shaw Creek cannot state a claim of fraud based on 28 an alleged failure to disclose that it was not an insured under the National Union Policy. National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 4 1 Whether Shaw Creek is or is not an insured (it is not) is not a material fact because 2 there are no facts to support a claim for coverage under the National Union Policy. 3 Finally, the absence of allegations about the terms of the settlement between Shaw 4 Creek and Absolute Urethane (“AU,” the roofing company that allegedly caused the 5 property damage) make Plaintiff’s claims that it sustained damages conclusory and 6 invalid. Because Plaintiff cannot cure these defects through amendment, the Court 7 should sustain National Union’s Demurrer without leave to amend. 8 II. ARGUMENT 9 A. The standards governing demurrers 10 A demurrer is properly sustained where the pleading does not state facts 11 sufficient to constitute a cause of action, or is uncertain. Cal. Code Civ. Proc. 12 §§ 430.10(e, f). “Uncertain” includes ambiguous and unintelligible. Id., § 430.10(f). 13 Because the causes of action that Shaw Creek attempts to plead in the FAC fail these 14 tests, the Court should sustain National Union’s Demurrer. 15 In opposing a demurrer, the burden is on a plaintiff to demonstrate the manner 16 in which a complaint might be amended. Hendy v. Losse, 54 Cal. 3d 723, 742 (1991) 17 accord, Cooper v. Leslie Salt Co., 70 Cal. 2d 627, 636 (1969) (plaintiff “must show in 18 what manner he can amend his complaint and how that amendment will change the 19 legal effect of his pleading”). Here, because Shaw Creek is fundamentally trying to fit 20 the square peg of a first party claim into the round hole of the National Union liability 21 policy, Shaw Creek cannot show that any amendment could cure its fatally defective 22 pleading, and leave to amend should be denied. See Newell v. State Farm Gen. Ins. 23 Co., 118 Cal. App. 4th 1094, 1100 (2004) (leave to amend should not be granted 24 where amendment would be futile). 25 B. Shaw Creek has failed to plead facts to show a breach of contract. 26 To state a cause of action for breach of contract, a plaintiff must plead the terms 27 of a contract, the defendant’s breach, and damages. Reichert v. General Ins. Co., 68 28 Cal. 2d 822, 830 (1968). As demonstrated in National Union’s Demurrer and below, National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 5 1 Shaw Creek has failed to adequately plead any of these elements, as necessary to 2 implicate coverage under the National Union Policy under any theory. 3 1. Shaw Creek has not alleged or attached the material terms of the 4 National Union Policy. 5 Shaw Creek’s opposition asserts that “National Union’s demurrer primarily 6 challenges the sufficiency of the Complaint based on its contention that the Complaint 7 cannot allege facts showing that is an additionally named insured under the Umbrella 8 Policy.” Opp. at 5:23-25. Not so. The fundamental basis of National Union’s Demurrer 9 is Shaw Creek’s failure to allege any of the terms of any insurance policy issued by 10 National Union, or the nature of any alleged, actionable breach of contract attributed to 11 National Union. See Memo. re National Union’s Demurrer at 4:16-19. 12 Under California law, the insured has the burden of proving both the existence of 13 the insurance contract and its material terms. Searle v. Allstate Life Ins. Co., 38 Cal. 3d 14 425, 438 (1985). At best, the FAC consists of conclusory assertions of the elements of 15 the claim. It is worth noting that Shaw Creek has failed to plead the terms of the 16 National Union policy despite having ample opportunity to do so. As set forth in the 17 Declaration of Matthew C. Lovell in support of the Demurrer, Shaw Creek has had a 18 copy of the National Union Policy issued to AU since September 4, 2020, two weeks 19 before National Union filed its demurrer. Yet, Shaw Creek declined to amend the FAC 20 to include allegations based on the terms of the policy and instead chose to file an 21 opposition to the Demurrer. National Union should not have to suffer the consequences 22 of Shaw Creek’s failure to plead contractual terms and confront another round of 23 pleading, when Shaw Creek has had the opportunity to do so yet has chosen not to. 24 2. Shaw Creek has not alleged facts to show that any matter is covered 25 under the National Union Policy. 26 Shaw Creek argues that because its claim for coverage “relates to claims made 27 by Shaw Creek’s members, who are third parties, relating to damage to their separate 28 property interests within the development, coverage under the Umbrella Policy would National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 6 1 not be excluded under the Policy as National Union contends.” Opp. at 11:9-11. Shaw 2 Creek has put the analytical cart before the horse: to state a claim for coverage under a 3 liability policy, the burden is on the insured initially to plead – and ultimately to prove -- 4 that an event is within the scope of the basic coverage of an insurance policy. Royal 5 Globe Ins. Co. v. Whitaker, 181 Cal. App. 3d 532, 537 (1986). At the pleading stage, 6 that bar is not very high, but Shaw Creek has failed to clear it. What’s more, even if the 7 Court were to grant Shaw Creek leave to amend, Shaw Creek would still be unable to 8 cure the defects in the FAC. 9 3. There is no coverage under the National Union policy for first-party claims for property damage caused by the roofing company Absolute 10 Urethane. 11 What Shaw Creek has pled to date actually defeats Shaw Creek’s own claims. 12 The National Union Policy is a liability policy, as Shaw Creek recognizes. See FAC, 13 ¶¶ 19, 22. In the typical third-party liability policy, the carrier assumes a contractual 14 duty to pay judgments the insured becomes legally obligated to pay as damages 15 because of bodily injury or property damage caused by the insured.” Montrose Chem. 16 Corp. v. Admiral Ins. Co., 10 Cal. 4th 645, 663 (1995) (citation omitted, emphasis 17 added). Yet, Shaw Creek is inexplicably seeking coverage for losses that it alleges it 18 sustained, which were caused by AU. Shaw Creek admits as much, arguing that 19 “National Union [was] obligated to … provide coverage for any damages caused to 20 Shaw Creek’s property arising from the work of the Roofing Company.” See FAC, ¶ 44 21 (emphasis added); id. at ¶ 51 (alleging that National Union is “obligated to pay for any 22 property damage to the Development arising from the Roofing Project” that AU 23 performed). To the extent Shaw Creek has a claim for damages to its property, it 24 should submit that claim to its first party property insurer. 25 Shaw Creek does not articulate how such first-party claims could ever be 26 covered under the National Union policy (they cannot). To avoid the conclusion that it 27 is seeking first-party property coverage under third-party liability policies, Shaw Creek 28 resorts to mischaracterizing the allegations of its own complaint. Despite Shaw National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 7 1 Creek’s claims to the contrary, Paragraphs 9, 10, 28, 29, 30, 47, 48, 49, and 63 of the 2 FAC do not constitute potentially covered claims made by Shaw Creek’s members 3 seeking damages from Shaw Creek. Broadly, these paragraphs allege that, following 4 AU’s work, Shaw Creek received notices from some of its members that their roofs 5 continued to leak, that Shaw Creek is obligated to pay its members for all property 6 damage to their roofing systems, and that Shaw Creek put Admiral Insurance 7 Company (“Admiral”) on notice of these complaints. There are no allegations that 8 Shaw Creek’s members made claims against Shaw Creek seeking damages for 9 potentially covered property damage (i.e., property damage caused by Shaw Creek). 10 Thus, there can be no coverage for Shaw Creek under the National Union Policy. 1 11 4. There is no lawsuit seeking damages from Shaw Creek. 12 Shaw Creek has not alleged that there was ever any lawsuit filed against it that 13 could give rise to a claim for insurance policy proceeds. The only lawsuit referenced in 14 the FAC is a “dispute … between the Roofing Company and Shaw Creek which 15 resulted in litigation[.].” See FAC, ¶ 23. Shaw Creek does not identify what was pled in 16 that “dispute”, by whom, against whom, or what the allegations were. National Union is 17 left to guess as to these questions, because the FAC is silent. At the very least, Shaw 18 Creek has failed to make a showing that it was ever a defendant in a lawsuit that 19 implicates coverage under the National Union Policy – or any liability policy. 20 Shaw Creek spends about a page of its Opposition recounting its alleged duties 21 under its Covenants, Conditions and Restrictions and the Davis-Sterling Common 22 Interest Development Act, Civ. Code § 4000, et seq. (“Davis-Sterling”). See Opp. at 23 10:4-11:1. This is irrelevant. Whatever duties Shaw Creek may have in the abstract, it 24 has not pled that it has been sued for violating any of those obligations, or that any 25 26 1 This conclusion also renders moot Shaw Creek’s allegation that by denying Shaw Creek’s complaint, Top Contractor Insurance Services, Inc. created a factual question as to whether 27 Shaw Creek was an additional insured under the National Union Policy. As there are no allegations of claims that would be covered under the National Union Policy, it is irrelevant 28 whether Shaw Creek was an insured under that policy. National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 8 1 person or entity has sought damages from Shaw Creek because of property damage 2 that could be covered under the National Union Policy. Shaw Creek’s reliance on Ritter 3 & Ritter, Inc. Pension & Profit Plan v. The Churchill Condo. Assn., 166 Cal. App. 4th 103 4 (2008) is misplaced. At most, that case stands for the unremarkable proposition that 5 HOA members can (and sometimes do) sue their HOA: “the Ritters sued The Churchill 6 [HOA] … The Ritters' first amended complaint set forth causes of action for nuisance 7 [and] negligence … They sought financial damages ….” Id. at 111-12 (emphasis 8 added). None of those things happened here. Ritter & Ritter does not provide any 9 support for Shaw Creek’s allegations that the alleged “claims” made by the HOA 10 members arising out of AU’s work implicate coverage under the National Union Policy. 11 C. Shaw Creek failed to plead a cause of action for breach of the 12 Implied covenant of good faith and fair dealing. 13 As set forth in National Union’s Demurrer, a cause of action for bad faith 14 depends on the existence of a valid claim for breach of contract. The insurer must 15 breach the contract, and that breach must be unreasonable or without proper cause. 16 Waller v. Truck Ins. Exch., 11 Cal. 4th 1, 35-36 (1995). Because there is no valid 17 breach of contract claim here, there can be no bad faith claim. 18 D. Shaw Creek failed to plead a cause of action for fraudulent 19 concealment. 20 To prove a fraud based on concealment, a plaintiff must demonstrate that (1) the 21 defendant concealed or suppressed a material fact, (2) the defendant had a duty to 22 disclose the fact to the plaintiff, (3) the defendant intentionally concealed or suppressed 23 the fact with intent to defraud the plaintiff, (4) the plaintiff was unaware of the fact and 24 would not have acted as it did if it had known of the concealed or suppressed fact, and 25 (5) as a result of the concealment or suppression of the fact, the plaintiff sustained 26 damage. Prakashpalan v. Engstrom, Lipscomb & Lack, 223 Cal. App. 4th 1105, 1129, 27 as modified on denial of reh'g (Feb. 27, 2014) (citation omitted). As Shaw Creek 28 recognizes, each element must be pled with specificity. Opp. at 11:24-25. National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 9 1 At the outset, National Union notes that Shaw Creek’s failure to plead a claim for 2 breach of contract also dooms its “fraud – failure to disclose” claims. This is because, 3 if there is no coverage under the National Union Policy, then (1) nothing National Union 4 allegedly failed to disclose to Shaw Creek could have been material to any decision 5 Shaw Creek made about whether and on what terms to resolve its (undescribed) 6 lawsuit against AU (because there would be no coverage regardless of whether Shaw 7 Creek was an insured in some contexts not present here); and (2) for similar reasons, 8 the alleged non-disclosure could not cause damages. 9 Shaw Creek’s Opposition does not cure the defects in the FAC, it merely 10 restates the facts alleged in the FAC that Shaw Creek believes give rise to a cause of 11 action for Fraud. As explained in the Demurrer, this claim fails for many reasons. 12 1. Shaw Creek has not alleged facts to support a duty to disclose. 13 Shaw Creek has not demonstrated that National Union, an excess insurer, was 14 under an affirmative duty to correct Shaw Creek’s mistaken assumption that National 15 Union considered it an additional insured under the National Union Policy. Shaw 16 Creek’s citation to Insurance Code 790.3 is inapposite as there is no language in that 17 section creating an affirmative duty to correct. 2 18 2. The alleged non-disclosure could not have been material. 19 Shaw Creek alleges that, in reliance on its belief that it was a named insured 20 under the National Union Policy, “it agreed to settle the litigation with the Roofing 21 Company[,]” and, had it known it was not a named insured, it would not have settled. 22 (FAC., ¶¶ 84-85). These assertions are irrelevant. Even if they accurately reflect 23 Shaw Creek’s state of mind, National Union’s alleged failure to disclose that Shaw 24 Creek was not an insured cannot be a material failure to disclose because, as 25 demonstrated above and in the Demurrer, there was no coverage under the National 26 2 Whether Shaw Creek may be “an insured” under the National Union Policy in some contexts 27 is a fact that means nothing in the abstract. That status would only matter if a claim were made against Shaw Creek that could be covered under the National Union policy. There was no 28 such claim. National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 10 1 Union Policy in the first instance for the claims against Shaw Creek. In other words, 2 whether Shaw Creek was “an insured” in the abstract under the National Union Policy, 3 that status, as a matter of law, could not have been objectively material to Shaw 4 Creek’s decision to settle AU’s lawsuit against Shaw Creek, because there was no 5 claim made against Shaw Creek that is within the scope of coverage of the National 6 Union Policy. Furthermore, Shaw Creek’s belief that the claims made against it by its 7 members are within the scope of the National Union Policy is itself unreasonable. 8 3. The alleged non-disclosure could not have caused damages. 9 In addition, Shaw Creek’s fraud claims are inadequate because they lack 10 sufficient facts to conclude that any nondisclosure by National Union caused Shaw 11 Creek damages, an element of the cause of action. See Prakashpalan, 223 Cal. App. 12 4th at 1129. Shaw Creek argues that “[b]y settling with the Roofing Company, Shaw 13 Creek was damaged by foregoing the right to proceed to trial on its claims against the 14 Roofing Company.” Opp. at 14:9-10. This statement is purely conclusory as it does 15 not actually explain how Shaw Creek was damaged by settling with AU. Furthermore, 16 this contention raises more questions than it answers. For example, the reference to 17 Shaw Creek’s “claims against the Roofing Company” suggest that somehow, Shaw 18 Creek is seeking “coverage” of an unknown nature, under liability policies, for Shaw 19 Creek’s affirmative claims against AU. 20 The FAC’s most glaring omission with respect to the “Fraud – Failure to 21 Disclose” cause of action is Shaw Creek’s failure to describe any of the terms of its 22 settlement with the Roofing Company, or even to describe the nature of the dispute in 23 the first instance. The FAC does not answer any of the following questions that could 24 conceivably support a claim for fraud based on non-disclosure (for example, if the 25 answers suggested that Shaw Creek was sued for damages): 26 • What was the nature of AU’s claim(s) against Shaw Creek – or Shaw Creek’s 27 claims against AU? 28 National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 11 1 • Did Shaw Creek pay money under its settlement with AU, such that Shaw 2 Creek’s alleged damages are the differential between its actual settlement 3 and the amount it would have paid if were an insured? 4 • Was Shaw Creek paid money under the settlement, such that its alleged 5 damages are the lesser amount that it recovered than it would have 6 recovered if it were an insured? 7 • How and why would Shaw Creek’s decision to settle have been different 8 depending on whether it was or was not a named insured (under a policy that 9 provides no coverage for anything alleged in the FAC), 10 • How and why would Shaw Creek’s decision to settle have been different due 11 to National Union’s alleged “failure to disclose”? 12 The FAC provides no answers to these questions. Therefore, Shaw Creek has 13 not stated an intelligible claim of entitlement to damages resulting from National 14 Union’s alleged failure to disclose, a necessary element of a cause of action for fraud. 15 III. CONCLUSION 16 For the reasons set forth above, National Union requests that the Court sustain 17 the demurrer to each cause of action alleged against National Union in Shaw Creek’s 18 First Amended Complaint, without leave to amend. 19 Dated: January 8, 2021 NICOLAIDES FINK THORPE MICHAELIDES SULLIVAN LLP 20 21 By: Matthew C. Lovell 22 Randall P. Berdan Michael Pogrebinsky 23 Attorneys for Defendant, National Union Fire Insurance Company of Pittsburgh, Pa. 24 25 26 27 28 National Union’s Reply ISO Demurrer to Plaintiff’s First Amended Complaint 12 1 PROOF OF SERVICE Shaw Creek Homeowners Association v. Admiral Insurance Group, et al. 2 Fresno Superior Court, Case No. 20CECG00772 3 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Nicolaides Fink Thorpe 4 Michaelides Sullivan LLP, 4250 Executive Square, Suite 540, La Jolla, CA 92037. My 5 electronic notification address is sweidemann@nicolaidesllp.com. On January 8, 2021 I served the within documents: 6 DEFENDANT NATIONAL UNION FIRE INSURANCE COMPANY 7 OF PITTSBURGH, PA.’S REPLY IN SUPPORT OF ITS DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 8 9 by electronically transmitting the document(s) listed above through One Legal to all parties set forth below. 10 11 George J. Vasquez Dion N. Cominos CLOVIS LAW GROUP LLP Laura G. Ryan 12 725 Pollasky Avenue, Suite 101 GORDON REES SCULLY Clovis, CA 93612 MANSUKHANI, LLP 13 Phone: (559) 900-2806 275 Battery Street, Suite 2000 Fax: (559) 314-6214 San Francisco, CA 94111 14 Email: george@clovislawgroup.com Phone: (415) 875-3133 15 Attorneys for Plaintiff, Shaw Creek Fax: (415) 986-8054 Homeowners Association Email: dcominos@grsm.com 16 lryan@grsm.com Attorneys for Defendant, Top 17 Contractors Insurance Services, Inc. 18 James T. Derfler 19 Marlene J. Torres 20 WALSH MCKEAN FURCOLO LLP 550 West C. Street, Suite 950 21 San Diego, CA 92101 Phone: (619) 232-8486 22 Fax: (619) 232-2691 Email: jderfler@wmfllp.com 23 mtorres@wmfllp.com 24 Attorneys for Defendant, Admiral Insurance Company 25 26 27 28 PROOF OF SERVICE 1 1 I declare under penalty of perjury under the laws of the State of California that 2 the above is true and correct. 3 Executed on January 8, 2021 at Oceanside, California. 4 5 Shellie Weidemann 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE 2