The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER (1) GRANTING DEFENDANTS' MOTION TO DISMISS THE FOURTH AND FIFTH CAUSE OF ACTION OF THE FAC; (2) DENYING DEFENDANTS' MOTION TO DISMISS THE SIXTH CAUSE OF ACTION OF THE FAC; (3) ASSOCIATED UNDERWRITERS; DENYING DEFENDANTS' MOTION TO STRIKE
Plaintiffs filed a First Amended Complaint ("FAC") on April 20, 2009. Defendants now move the Court to dismiss the Fourth, Fifth and Sixth causes of action of the FAC pursuant to FRCP 12 (b)(6) for failure to state a claim. Defendants' also move to strike portions of the FAC pursuant to FRCP 12(f). For the reasons stated below, the Court GRANTS defendants' motion to dismiss the fourth and fifth causes of action of the FAC WITHOUT PREJUDICE. The Court DENIES defendants' motion to dismiss the sixth cause of action of the FAC. The Court further DENIES defendants' motion to strike.
On February 15, 2007, Robert Hall applied for an occupational accident insurance policy using a form providedby Associated Underwriters, an insurance broker for the trucking industry, allegedly creating a temporary policy of insurance. (FAC ¶ 10 & Ex. 1.) Miles Hall ("plaintiff"), Robert Hall's son, was designated as the sole beneficiary of the policy. (Id.) A few weeks later, on March 6, 2007, Robert Hall died in a trucking accident, and Plaintiff applied for the insurance benefits under the policy of temporary insurance. (FAC ¶ 11, 12.) However, National Union Fire Insurance Co. of Pittsburgh, the insurer, instead began making payments to Phyllis Benjamin, who Plaintiff alleges was the estranged wife of Robert Hall. (FAC ¶ 13.) Subsequently, National Union paid a $50,000 lump sum to Plaintiff and has continued to pay $250,000 in monthly installments to Benjamin. (FAC ¶ 13.) On November 15, 2007, plaintiff renewed his objection to payment of policy benefits to Benjamin and reserved his rights to receive payment of all benefits payable up to the $1,000,000 limit of liability. (FAC ¶ 15.)
Plaintiff filed a lawsuit in San Diego County Superior Court against National Union, Associated Underwriters, and United Truckers Association ("Defendants") on June 2, 2008, with causes of action for (1) declaratory relief; (2) intentional misrepresentation and concealment; (3) negligent misrepresentation; (4) unfair business practices; (5) breach of contract; and (6) breach of the duty of good faith and fair dealing. (Doc. No. 1.) The action was removed to this Court on July 3, 2008. (Id.)
On July 11, 2008, defendants filed their Answer to the Complaint. (Doc. No. 4.) Plaintiff filed a motion to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a)(2) on November 24, 2008. (Doc. No. 14.) A response in opposition to this motion was filed by defendants on December 24, 2008, and plaintiff filed a reply on December 31, 2008 (Doc. Nos. 17 & 18.) This Court granted Defendants' request to amend the Complaint on April 13, 2009. (Doc. No. 23.) Plaintiff subsequently filed his First Amended Complaint ("FAC") on April 20, 2009. (Doc. No. 27.) The FAC claimed (1) Declaratory Relief; (2) Breach of Contract; (3) Breach of the Duty of Good Faith and Fair Dealing; (4) Intentional Misrepresentation and Concealment; (5) Negligent Misrepresentations; (6) Violation of California Business and Professions Code § 17200 et seq. (Id.)
On April 30, 2009, defendants filed the present motion to dismiss. (Doc. No. 33.) A response in opposition to the motion was filed by Plaintiff on July 16, 2009. (Doc. No. 37.) A reply to the opposition was filed on July 23, 2009. (Doc. No. 39.) A hearing was set for July 30, 2009. This was subsequently vacated and the Court took the matter under submission without oral argument pursuant to Local Civil Rule 7.1(d)(1).
MOTION TO DISMISS PURSUANT TO RULE 12(B)(6)
Federal Rule of Civil Procedure 12(b)(6) permits courts to dismiss a complaint for two reasons: (1) lack of a cognizable legal theory or (2) pleading of insufficient facts under an adequate theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (internal citation omitted). In reviewing a Rule 12(b)(6) motion to dismiss, the Court must assume the truth of all allegations of material fact and construe inferences in the light most favorable to the nonmoving party. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of the U.S., 497 F.3d 972, 975 (9th Cir. 2007). While the complaint need not contain detailed factual allegations, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964--65 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In other words, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Associated Gen. Contractors of Am. v. Metro. Water Dist., 159 F.3d 1178, 1181 (9th Cir. 1998) (quoting Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998)).
Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.
A. Fourth and Fifth Causes of Action for Intentional/Negligent Misrepresentation
Defendant moves to dismiss plaintiff's fourth and fifth causes of action for intentional and negligent misrepresentation and concealment, respectively, pursuant to Rule 12(b)(6). Defendant primarily argues that plaintiff has failed to plead actual reliance by plaintiff himself on the alleged misrepresentations. For the reasons stated below, the Court agrees and ...