United States District Court, E.D. California
DUE: 21 DAYS
FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S
APPLICATION FOR DEFAULT JUDGMENT BE GRANTED IN PART (Doc.
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
April 11, 2018, Plaintiff Atain Specialty Insurance Company
(“Plaintiff”) filed a “Notice of Motion and
Motion to Enter Judgment by Default” (the
“Motion”) against Defendant Firebaugh Business
Association (“FBA”). (Doc. 8.) No opposition to
the Motion has been filed. (See Docket.)
Motion is therefore deemed unopposed. After having reviewed
the papers and supporting material, the matter is deemed
suitable for decision without oral argument pursuant to Local
Rule 230(g), and the Court hereby VACATES the hearing set for
May 9, 2018. For the reasons set forth below, the undersigned
RECOMMENDS that the Motion be GRANTED.
initiated this diversity action by filing its complaint
against FBA on January 29, 2018. (See Doc. 1
(“Compl.”).) The Complaint asserts one claim for
rescission of two insurance policies issued by Plaintiff.
(See id.) Plaintiff does not seek monetary damages.
April 2, 2015, FBA submitted a Commercial Insurance
Application (the “Application”) to Plaintiff.
(Compl. ¶ 15.) The Application was signed by Carla
Delgado on behalf of FBA. (See Id. and Ex. 4 to
Compl.) Based on answers provided by FBA in the Application,
Plaintiff issued a Commercial Lines Policy, No. CIP247552
(“Policy No. CIP247552”), providing coverage for
a “non profit community service” business located
at 1599 Q St., Firebaugh, CA 93622, and with a policy period
beginning April 8, 2015, to April 8, 2016. (Compl.
¶¶ 16-19 and Ex. 5 to Compl.) Plaintiff also issued
a Commercial Lines Policy, No. CIP286132 (“Policy No.
CIP286132), the renewal of Policy No. CIP247552, for the
policy period April 4, 2016 through April 4, 2017, based on
the Application. (Id. ¶19.)
Application included the following questions:
Question No. 8: “Is a fee charged for parking?
Question No. 9: “Recreation facilities provided?”
Question No. 12: “Are social events sponsored?”
Question No. 13. “Are athletic teams sponsored?”
(If the answer is yes, the application requests the following
information: “Type of sport, ” whether the sport
is a “contact sport, ” “age group” of
participants in sport, and “extent of
sponsorship” of the sport.)
(See Ex. 4 to Compl. at 37.) In response to Question
Nos. 8, 9, and 12, FBA answered “N” for
“no.” FBA left Question No. 13 blank on the
Policy No. CIP247552 provided that:
This policy was issued based on the information supplied on
an application and other correspondence, including your
claims or loss history. This information is attached to and
considered to be part of this policy. You should review this
information carefully because the truth of this information
was of paramount importance in influencing our decision to
issue this policy. You, for all the insureds under this
policy, do warrant the truth of such information to the best
of your and their knowledge at the ...