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Infanzon v. Allstate Insurance Co.

United States District Court, C.D. California

November 6, 2019

Fernando Infanzon
Allstate Insurance Company et al.



         Proceedings: (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. Does 11-100

         I. Introduction

         On May 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 1.[1] 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.

         On July 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.

         On 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.

         On 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.

         II. Request for Judicial Notice

         The 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.

         A 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).

         The 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.

         III. Factual Background

         At all 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.

         The 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.

         It is 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 $6359.29. Id.

         Plaintiff 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. ¶¶ 11-13.[2]

         Arbitration 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.

         On 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.[3] Plaintiffs demand that the Allstate Defendants also pay "extra-contractual" expenses was allegedly refused. Id. ¶ 33.

         Through 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 28-29.

         IV. Analysis

         A. Motion to Remand

         1. Legal Standards

         a) Removal and Remand

         A 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 citations omitted).

         b) Timeliness of Removal

         "The 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).

         2. Application

         Plaintiff has challenged both the jurisdictional requirements and the ...

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