November 22, 2017
Special Set Matters Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

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In the Superior Court of the State of California

In and for the County of San Mateo

 

Special Set Calendar

Judge: Honorable V. RAYMOND swope

Department 23

 

400 County Center, Redwood City

Courtroom 7B

 

Friday, November 3, 2017

 

IF YOU INTEND TO APPEAR ON ANY CASE ON THIS CALENDAR YOU MUST DO THE FOLLOWING:

1.  YOU MUST CALL (650) 261-5123 BEFORE 4:00 P.M. TO INFORM THE COURT OF YOUR INTENT TO APPEAR.

2.  You must give notice before 4:00 P.M. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).

 

Failure to do both items 1 and 2 will result in no oral presentation.

 

N.B. Notifying CourtCall with your intent to appear is not an alternative to notifying the court.  

 

Case                   Title / Nature of Case

10:00

Line: 1 & 2

16-CIV-02607     DONNA MARIE MESCHI, et al. vs. MERCURY CASUALTY COMPANY

 

 

CAROLE GIANFERMO                       J. EDWARD KERLEY

MERCURY CASUALTY COMPANY                ian fraser-thompson

 

 

1. PLAINTIFFS’ FIRST AMENDED PETITION TO STAY APPRAISAL PURUSANT TO CCP 1281.2

TENTATIVE RULING:

 

The Court DENIES, WITHOUT PREJUDICE, plaintiffs Donna Marie Meschi, Junior Eddy Joseph, Vincent Andrew Meschi, and Dominique Chesere Sharleen Joseph's (collectively "Plaintiffs") First Amended Petition to Stay Appraisal.

 

Although unopposed, in its discretion, the Court finds that a stay is not warranted at this juncture. "[T]he decision whether to stay the appraisal is committed to the trial court's sound discretion." (Alexander v. Farmers Ins. Co., Inc. (2013) 219 Cal.App.4th at 1190. See Croskey, Cal. Prac. Guide: Ins. Litigation (Rutter, Aug. 2017 Update) ¶ 15:359.5.)

 

The sole basis for Plaintiffs' petition is a pre-litigation letter dated July 29, 2016 from defendant Mercury Casualty Company's ("Defendant") following up its June 1, 2016 request for appraisal.  (Kerley Dec., filed Oct. 10, 2017, ¶ 6, Ex. A, p. 1.) Plaintiffs' claim is based on a fire loss.  (Id. at ¶ 2. See also Complaint, filed Nov. 29, 2016, ¶ 60.) Standard form language applies to fire policies in California. (Ins. Code § 2070.) The standard form language is codified in Insurance Code section 2071, subdivision (a). Within 20 days of receiving Defendant's request, Plaintiffs were required to select their appraiser to proceed with the enumerated appraisal procedure.  (Ins. Code § 2071, subd. (a). See Complaint, supra, Ex. A. p. 16, § 6.)  According to that letter, Plaintiffs had failed to do so, and Defendant then requested a response by August 10, 2016. (Id. at p. 2.) Plaintiffs do not address whether they responded by the request date, but do state that repairs were completed "on or about December 1, 2017 [sic]." (Kerley Dec., supra, at ¶ 7.) The instant action was then filed on November 29, 2016. 

 

In Kirkwood v. California State Automobile Association Inter-Insurance Bureau, the defendant demanded dismissal of the lawsuit and moved to compel the appraisal.  (Kirkwood v. California State Auto. Assn. Inter-Insurance Bureau (2011) 193 Cal.App.4th 49, 56–57 (affirming the order denying, without prejudice, CSAA's motion to compel appraisal). See Memo. Pts & Auth., filed Oct. 10, 2017, p. 3:16 – 6:3.)  Kirkwood is distinguishable.  In the instant action, other than sending a follow-up letter on July 29, 2016 to its June 1, 2016 request, Defendant has made no effort to enforce its right to appraisal pursuant to Insurance Code section 2071, subdivision (a). 

 

2. DEFENDANT’S MOTION FOR JUDGEMENT ON THE PLEADINGS

TENTATIVE RULING:

 

The Court DENIES defendant Mercury Casualty Company's ("Defendant") Motion for Judgment on the Pleadings. 

 

The motion is procedurally flawed.  Generally, the Court may only consider the grounds stated in the notice of motion.  (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277. See Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110(a).) In its Notice of Motion, Defendant moves "for judgment on the pleadings in favor of defendant as to the entire Complaint and each cause of action" rather than moving for judgment on the pleadings as to the class allegations only. (Notice of Motion, filed Sept. 15, 2017, p. 1:26-27 (emphasis added).) However, in its Memorandum of Points and Authorities, Defendant addresses only the sufficiency of the class allegations. (See, e.g., Memo. Pts. & Auth., filed Sept. 15, 2017, p. 9:15-16.) Defendant does not address the sufficiency of any of the individual allegations. Furthermore, the fifth cause of action is pled by the plaintiffs individually, and not on behalf of the class. (Complaint, filed Nov. 29, 2016, p. 15:1 – 17:10. See Opp., filed Oct. 26, 2017, p. 1:18-20, fn. 1.) Furthermore, in the two cases cited by Defendant supporting a demurrer (or judgment on the pleadings) to class allegations, the defendants in those cases demurred to the class allegations, and not the causes of action. (Newell v. State Farm Gen. Ins. Co. (2004) 118 Cal.App.4th 1094, 1099 (affirming sustaining of demurrer to the class action allegations in the third amended complaint) ("Newell"); Schermer v. Tatum (2016) 245 Cal.App.4th 912, 920 (affirming sustaining of demurrer to the class action allegations in the SAC). See Memo. Pts & Auth., supra, at p. 2:8-15.)

 

Although the court may weed out legally meritless class actions prior to certification by demurrer or judgment on the pleadings, "if there is a reasonable possibility that plaintiffs can establish a community of interest among the class members, the court should defer decision on the propriety of the class action until an evidentiary hearing." (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter, Jun. 2017 Update) ¶ 7:42.13.) Defendant has not sufficiently demonstrated that Plaintiffs have no reasonable possibility at the pleadings stage.

 


 

 

 

 

 


POSTED:  3:00 PM

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