United States District Court, E.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
(DOC. NO. 5)
matter is before the court on defendant's motion to
dismiss. (Doc. No. 5.) Oral argument was heard on April 18,
2017. Attorney Brian Folland appeared on behalf of plaintiff,
Alphonso Iniguez. Attorney Glenn M. Kenna appeared on behalf
of defendant, GEICO Indemnity Company. For the reasons set
forth below, the court grants defendant's motion to
dismiss without prejudice.
originally filed suit in Fresno County Superior Court
alleging breach of contract and breach of the covenant of
good faith and fair dealing. (Doc. No. 7.) Defendant removed
this action to federal court on March 14, 2017. (Doc. No. 1.)
Defendant filed the pending motion to dismiss for failure to
state a claim on March 21, 2017. (Doc. No. 5.)
Plaintiff's opposition was due on April 4, 2017; however,
plaintiff did not file his opposition until April 7, 2017.
(Doc. No. 13.) Defendant filed its reply on April 12, 2017.
(Doc. No. 14.)
complaint, plaintiff Alphonso Iniguez alleges as follows.
Plaintiff was insured by defendant, GEICO Indemnity Company
(“GEICO”) under Policy Number 4220-80-46-62.
(Doc. No. 7 at 3, ¶ 4.) Under that policy plaintiff was
insured for up to $30, 000 per person and $60, 000 per
occurrence with respect to underinsured and uninsured motor
vehicle coverage. (Doc. Nos. 5-1 at 1; 7 at 3, ¶ 4.) On
April 20, 2016, plaintiff attempted to purchase a tractor
from the business of Mr. James Bill, located at 9945 West
Barstow Avenue in Fresno, California. (Doc. No. 7 at 3,
¶ 5.) Plaintiff sat on the tractor while Mr. Bills
pushed it with his forklift to load the tractor onto the
flatbed trailer which was hitched to plaintiff's 2007
Tundra truck. (Id.) The Tundra truck and flatbed
were both situated on Barstow Avenue. (Id.) Mr.
Bills had to drive the forklift onto Barstow Avenue to access
the flatbed trailer. (Id. at 3-4, ¶ 6.) As the
tractor began to ascent up, “the forks on the forklift
suddenly slipped off the tractor and hit Alphonso in the
back.” (Id. at 4, ¶ 7.) The tractor began
to roll back and the forklift briefly stalled before jerking
forward and “pinning [plaintiff] between the forks of
the forklift and the steering wheel of the tractor.”
(Id.) Plaintiff was taken to the hospital and
complained of “severe pain in his lower back and
abdomen and inability to move or feel his left leg.”
(Id. at ¶ 8.) Plaintiff's symptoms continue
to persist. (Id.)
these events, plaintiff submitted a claim for uninsured
motorist benefits. (Doc. No. 5-1 at 2.) Defendant denied the
claim for lack of coverage. (Id.)
moves to dismiss this action because: (1) plaintiff failed to
file a timely opposition to the motion; and (2)
plaintiff's complaint fails to state a claim upon which
relief can be granted.
second argument is well-taken. The purpose of a motion to
dismiss pursuant to Rule 12(b)(6) is to test the legal
sufficiency of the complaint. N. Star Int'l v. Ariz.
Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983).
“Dismissal can be based on the lack of a cognizable
legal theory or the absence of sufficient facts alleged under
a cognizable legal theory.” Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A
claim for relief must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Though Rule 8(a) does
not require detailed factual allegations, a plaintiff is
required to allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft
v. Iqbal, 556 U.S. 662, 677-78 (2009). “A claim
has facial plausibility when the pleaded factual content
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678.
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Novak v.
United States, 795 F.3d 1012, 1017 (9th Cir. 2015). It
is inappropriate to assume that the plaintiff “can
prove facts that it has not alleged or that the defendants
have violated the . . . laws in ways that have not been
alleged.” Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526
argues plaintiff's complaint is subject to dismissal
because “he has not met the statutory prerequisites to
a cause of action for breach of contract” arising from
defendant's failure to pay uninsured motorist benefits.
(Doc. No. 5-1 at 2.) California Insurance Code § 11580.2
governs uninsured motorist policies and provides,
(i)(1) No cause of action shall accrue to the insured under
any policy or endorsement provision issued pursuant to this
section unless one of the following actions have been taken
within two years from the date of the accident:
(A) Suit for bodily injury has been filed against the
uninsured motorist, in a court of competent jurisdiction.
(B) Agreement as to the amount due under the policy has been
(C) The insured has formally instituted arbitration
proceedings by notifying the insurer in writing sent by
certified mail, ...