United States District Court, C.D. California
Present: The Honorable JOHN A. KRONSTADT, UNITED STATES
CIVIL MINUTES - GENERAL
(IN CHAMBERS) ORDER RE PLAINTIFF'S MOTION TO REMAND (DKT.
7); DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST,
FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH AND ELEVENTH CLAIMS FOR
RELIEF (DKT. 15) JS-6: Case Terminated as to the Following
Defendants Only: Leticia Pomes Pomes Insurance Services, Inc.
29, 2019, Fernando Infanzon ("Plaintiff) brought this
action in Los Angeles Superior Court against Allstate
Insurance Company ("Allstate"), Allstate Northbrook
Indemnity Company ("Allstate Northbrook") (together
with Allstate, the "Allstate Defendants"), Leticia
Pomes ("Pomes"), Pomes Insurance Services Inc.
("PIS") (together with Pomes, the "Agent
Defendants"), and Does 1-100. Dkt. 1-1 at
The Complaint advances the following causes of action: (i)
breach of contract, against the Allstate Defendants; (ii)
breach of the implied covenant of good faith and fair
dealing, against the Allstate Defendants; (iii) breach of
contract, against the Agent Defendants; (iv) breach of
fiduciary duty, against the Agent Defendants; (v) violation
of Cal. Bus. & Prof. Code § 17200 ("UCL"),
against all Defendants; (vi) intentional infliction of
emotional distress, against all Defendants; (vii) fraud,
against all Defendants; (viii) negligent misrepresentation,
against all Defendants; (ix) concealment, against all
Defendants; (x) violation of the Consumer Legal Remedies Act
("CLRA"), Cal. Civ. Code § 1750 et
seq., against the Agent Defendants; and (xi) violation
of Cal. Code Regs. tit. x, § 2695.7, against the
Allstate Defendants. Id.
24, 2019, the Agent Defendants answered the Complaint with a
general denial of all allegations, and raised 29 affirmative
defenses. Dkt. 1-4. On July 26, 2019, the Allstate Defendants
removed the action on the basis of diversity jurisdiction.
Dkt. 1 ¶ 8. On July 29, 2019, Plaintiff filed an Ex
Parte Motion to Remand Case to State Court and Application
for Immediate Stay ("Motion to Remand"). Dkt. 7.
The Allstate Defendants opposed the Motion to Remand on July
31, 2019. Dkt. 9. On August 5, 2019, an Order issued that
construed the ex parte motion as a regular one, and set it
for hearing. Dkt. 18. On August 19, 2019, Plaintiff filed a
reply. Dkt. 20.
August 2, 2019, the Allstate Defendants filed a Motion to
Dismiss Plaintiffs First, Fifth, Sixth, Seventh, Eighth,
Ninth and Eleventh Claims for Relief ("Motion to
Dismiss"). Dkt. 15. Plaintiff opposed the Motion to
Dismiss on August 23, 2019. Dkt. 22. The Allstate Defendants
replied on September 6, 2019. Dkt. 23.
October 28, 2019, the Motion to Remand and Motion to Dismiss
were taken under submission pursuant to L.R. 7-15. Dkts. 25,
26. For the reasons stated in this Order, the Motion to
Remand is DENIED and the Agent Defendants
dismissed as fraudulently joined, and the Motion to Dismiss
is GRANTED, with prejudice as to the
eleventh cause of action and without prejudice to the six
remaining causes of action that were challenged.
Request for Judicial Notice
Allstate Defendants have filed a Request for Judicial Notice
("RJN"). Dkt. 16. Notice is requested of Exhibit 1.
Exhibit 1 is Allstate Automobile Insurance Policy 934 257 427
(the "Policy"), together with its Declarations Page
and Endorsements to the Policy. Dkt. 16 at 2. The Allstate
Defendants state that the Policy was issued to Plaintiff and
is at issue in this action. Id. at 3.
motion to dismiss is generally "limited to the contents
of the complaint, materials incorporated into the complaint
by reference, and matters of which the court may take
judicial notice." Metzler Inv. GMBH v. Corinthian
Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008).
However, the court may consider "evidence on which the
complaint 'necessarily relies' if: (1) the complaint
refers to the document; (2) the document is central to the
plaintiffs claim; and (3) no party questions the authenticity
of the copy attached to the 12(b)(6) motion." Marder
v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).
Complaint refers to the Policy, and certain claims are
premised on "a material and unreasonable breach of the
written contract, the Policy." Dkt. 1-1 ¶ 44. Thus,
the Policy is both referred to in the Complaint and is
central to the claims presented. Plaintiff has not challenged
the authenticity of the copy of the Policy and other related
materials. Accordingly, the RJN is GRANTED.
relevant times, Plaintiff was allegedly a named insured under
the Policy, which was issued by the Allstate Defendants
through the Agent Defendants. Dkt. 1-1 ¶¶ 2-4. The
Policy provided automobile collision and comprehensive
coverage with a limit of "actual cash value," and
bodily injury coverage of $50, 000 per person. Dkt. 16-1 at
8. The Policy states that where "an insured person is
legally entitled to recover from the owner or operator of an
uninsured auto," Allstate will pay damages in respect of
"bodily injury sustained by an insured person."
Dkt. 16-2 at 7. "The bodily injury ... must be caused by
accident.... We will not pay any punitive or exemplary
damages. The right to benefits and the amount payable will be
decided by agreement between the insured person and Allstate.
If an agreement can't be reached, the decision will be
made by arbitration." Id.
Policy also includes the following arbitration clause:
If you and we disagree on your right to receive any damages
or on the amount of damages, then upon written request of
either party, the disagreement will be settled by a single
neutral arbitrator. If arbitration is used, any arbitration
award will be binding up to your policy limits and may be
entered as a judgment in a proper court. All expenses of
arbitration will be shared equally. However, attorney fees
and fees paid to medical or other expert witnesses are not
considered arbitration expenses and are to be paid by the
party incurring them.
Id. at 22-23.
alleged that, on January 7, 2017, Plaintiffs automobile was
struck by an uninsured motorist, and that the collision
caused severe injury and emotional distress to Plaintiff.
Dkt. 1-1 ¶ 8. The uninsured motorist was allegedly
driving a stolen car, and the insurer of the car's lawful
owner allegedly denied coverage. Id. ¶¶
9-10. Plaintiffs vehicle was allegedly repaired at a cost of
allegedly demanded that Defendants submit to the arbitration
of an uninsured motorist claim he had submitted pursuant to
the Policy. Id. ¶ 11. Defendants responded by
offering $6000 with respect to that claim. Plaintiff did not
accept that offer. Id. ¶¶
proceedings allegedly commenced. Id. ¶¶
15, 18. After the arbitration had been scheduled, the
Allstate Defendants allegedly increased their settlement
offer to $7500, which Plaintiff again declined. Id.
¶ 16. The Allstate Defendants had allegedly disputed
Plaintiffs medical expenses, as a result of which
"Plaintiff had no choice but to seek further medical
care that was not on lien." Id. ¶¶
15, 17. The Allstate Defendants also allegedly delayed
discovery in the arbitration proceedings, and sought to
recuse the arbitrator. Id. ¶¶ 21-28.
October 29, 2019, the Allstate Defendants allegedly offered
to pay to Plaintiff the Policy limit, which is $50, 000.
Id. ¶ 32. The offer required that Plaintiff
agree to release of all of his claims. Id. Plaintiff
allegedly refused to sign the release, and the Allstate
Defendants allegedly stated that the release was unnecessary
to their offer. Id. Plaintiffs demand that the
Allstate Defendants also pay "extra-contractual"
expenses was allegedly refused. Id. ¶ 33.
the Complaint, Plaintiff seeks general and special damages,
interest, compensatory damages, punitive damages,
attorney's fees, treble damages pursuant to Cal. Civ.
Code § 3345, costs, other relief, and accounting. The
prayer for relief states that each category of damages
"shall not exceed $1, 000, 000." Id. at
Motion to Remand
Removal and Remand
motion to remand is the procedural means to challenge the
removal of an action. Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). In general, a
state civil action may be removed only if, at the time of
removal, it is one over which there is federal jurisdiction.
28 U.S.C. § 1441(a). The removing party has the burden
of establishing that removal is proper, including that there
is federal jurisdiction over one or more of the claims.
Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.
1992). "If a case is improperly removed, the federal
court must remand the action because it has no subject matter
jurisdiction to decide the case." ARCO Envtl.
Remediation, LLC. v. Dep't of Health & Envtl. Quality
of Mont, 213 F.3d 1108, 1113 (9th Cir. 2000) (internal
Timeliness of Removal
notice of removal of a civil action or proceeding shall be
filed within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based." 28 U.S.C. §
1446(b)(1). "When a civil action is removed solely under
section 1441(a), all defendants who have been properly joined
and served must join in or consent to the removal of the
action. Each defendant shall have 30 days after receipt by or
service on that defendant of the initial pleading or summons
described in paragraph (1) to file the notice of
removal." Id. § (b)(2).
has challenged both the jurisdictional requirements and the