United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS [ECF No. 5]
Ted Moskowitz Chief Judge
have filed a motion seeking partial dismissal of
Plaintiff's complaint. (ECF No. 5.) For the reasons
below, Defendants' motion will be granted in part and
denied in part.
Mehdi Vossoughi sues defendants AIG Property Casualty Company
(“AIG”) and National Union Fire Insurance Company
of Pittsburgh Pennsylvania (collectively,
“Defendants”) for claims sounding in insurance
bad faith. He alleges his sister purchased insurance policies
from Defendants (the “policies”) that provided a
death benefit to be paid to him as her sole beneficiary in
the event of her accidental death. Compl. ¶ 6.
Plaintiff's sister was struck by a vehicle and killed,
Plaintiff submitted a claim to Defendants seeking benefits
under the policies' accidental death provisions. Compl.
¶ 7. Defendants requested further information, which
Plaintiff provided. Id. Defendants thereafter
represented “that no coverage existed” and denied
Plaintiff's claim. Id.
retained counsel, who “reviewed such Policies as
Plaintiff had available to him” and concluded they
provided coverage. Compl. ¶ 8. Counsel sent a letter to
Defendants demanding payment. Id.
“[D]efendants responded, first, with a claim that the
insurance Policies provided no such coverage” and later
took the position that the policies “had been canceled
for non-payment of the premiums.” Id.
Plaintiff determined that contrary to these contentions, all
premiums had, in fact, been paid, via Defendants'
automatic withdrawals from his sister's bank account,
which had continued months after her death. Id.
counsel also asked Defendants to provide copies of the
relevant policies so he could investigate their coverage
positions. Compl. ¶ 9. Despite these requests,
Defendants refused and have continued to refuse to provide
copies of the policies or pay Plaintiff's benefits.
December 21, 2016, Plaintiff filed this action in state
court. Not. of Removal. He states four claims for relief: (1)
insurance bad faith; (2) breach of contract; (3) breach of
the implied covenant of good faith and fair dealing; and (4)
breach of fiduciary duty; and he seeks general and punitive
February 8, 2017, Defendants removed the action to this Court
on the basis of diversity jurisdiction. Not. of Removal (ECF
February 15, 2017, Defendants filed the instant motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6), seeking dismissal
of Plaintiff's first, third, and fourth claims for
relief. Plaintiff opposes the motion.
Rule of Civil Procedure 12(b)(6) allows a court to dismiss a
complaint in whole or in part if the plaintiff has failed to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). A district court's dismissal for failure to
state a claim under Rule 12(b)(6) is proper if there is a
“‘lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal
theory.'” Conservation Force v. Salazar,
646 F.3d 1240, 1241 (9th Cir. 2011) (quoting Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir.1988)). A complaint will survive a motion to dismiss if
it contains "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). "A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
court dismisses a claim, it must consider whether to allow
plaintiff the opportunity to amend it to cure the
deficiencies. Rule 15 advises that "leave shall be
freely given when justice so requires, ” a policy that
is “to be applied with extreme liberality.”
Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d
708, 712 (9th Cir. 2001) (quoting Morongo Band of Mission
Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)).
“Dismissal without leave to amend is improper unless it
is clear…that the complaint could not be saved by any
amendment." Thinket Ink Info Res., Inc. v. Sun
Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004)
(citation omitted). A “district court does not err in
denying leave to amend where the amendment would be
futile.” Id. (internal quotation marks
omitted). An amendment is ...