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Johnston v. Allstate Insurance Co.

United States District Court, Ninth Circuit

May 23, 2013

PATRICIA JOHNSTON, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS Doc. No. 4.

MICHAEL M. ANELLO, District Judge.

Defendant Allstate Insurance Company ("Allstate") moves the Court to dismiss Plaintiff's fourth and fifth claims for violation of the California Elder Abuse and Dependant Civil Protection Act, Cal. Welf. & Inst. Code §§ 15600 et seq., and California Civil Code section 3345, respectively. The Court finds this matter suitable for decision on the papers, without oral argument, pursuant to Local Civil Rule 7.1. Allstate's motion to dismiss is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Plaintiff Patricia Johnston is an 84-year-old resident of San Diego County. Allstate is an Illinois-incorporated insurance company that transacts business as a homeowner's insurance carrier.

In July 2012, while Plaintiff was on vacation, a gentleman who had been conducting fire-abatement work on Plaintiff's property suddenly died in Plaintiff's house. The body went undiscovered for five to seven days, by which time post-mortem fluids had caused damaged to the home's living room carpet, carpet padding, and wood sub-floor. Plaintiff was eventually presented with a $17, 476.61, bill for cleaning services performed by a third party.

Plaintiff's home was covered by an insurance policy issued by Allstate. Plaintiff alleges she filed a claim with Allstate, but the claim was denied. As relevant to the pending motion to dismiss, Plaintiff alleges Allstate knew she was a senior citizen and used this fact to the company's financial advantage in improperly and wrongfully denying her claim without investigation or legitimate basis in law or fact.

On December 17, 2012, Plaintiff filed suit in the San Diego County Superior Court, bringing claims for (1) "declaratory relief, " (2) breach of contract, (3) breach of the covenant of good faith and fair dealing, (4) breach of the "California elder abuse act, " and (5) "California Civil Code protecting senior citizens." Defendant's pending motion concerns only the fourth and fifth claims above. On March 12, 2013, Defendant removed the action to this Court.

II. LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks, brackets and citations omitted).

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Similarly, "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).

III. DISCUSSION

A. Claim Four: Financial Elder Abuse

The California Elder Abuse Act makes additional damages available to a prevailing plaintiff who proves abuse of an elder, or a person age 65 years or older. The Act defines various acts as "abuse of an elder, " including "[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering." Cal. Welf. & Inst. Code § 15610.07(a). Each of these types of elder abuse is further defined elsewhere in the Act.

As relevant here, California Welfare & Institutions Code section 15610.30 states in relevant part: "(a) Financial abuse' of an elder or dependent adult occurs when a person or entity does any of the following: (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both." Section 15610.30 references "real or personal property." Under California law, "[t]he words real property' are ...


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