Sacramento Injury Lawyer Blog

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

ARGUMENT THREE

COURT HAS DISCRETION TO GRANT PLAINTIFF LEAVE TO AMEND COMPLAINT WHERE AMENDMENT CAN CURE DEFECTS IF ANY ARE FOUND

It is judicial policy to liberally construe a pleading's allegation with view to ensure substantial justice for both parties per Code of Civil Procedure, section 452. Daniel Black's relationship with the Halls regarding their policy for Holly Street and their reliance on his advice indicates that there are grounds to make him personally liable for negligence, intentional emotional stress, negligent emotional stress, misrepresentation, negligent misrepresentation.

The premise of Black's demurrer is that he cannot be sued as an agent of the insurer, and the complaints generally states he acted within his scope of employment. The meaning of the statement to plaintiffs is that he committed acts while employed by XYZ, whether some of the acts were outside the scope of his employment. The Halls could not discern at the time the complaint was filed shortly before the statute of limitations all the facts to allege.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Insurance Agent Negligently Causes Couple Enormous Stress And Anxiety, Part 6 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

ARGUMENT TWO

THE HALL'S COMPLAINT ADEQUATELY STATES A CAUSE OF ACTION TO ALLOW COURT THE DISCRETION TO OVERRULE A DEMURRER

Black alleges that several causes of action are not sufficient to state a claim because specificity of facts are not alleged. When a court decides whether a complaint adequately states a cause of action, it must decide whether the allegations of the complaint adequately state a cause of action under any legal theory, or that it states some right to relief. The allegations are limited to the face of the pleading not whether there are facts to be discovered, or evidence that may arise in defense of the complaint. Essentially, are there allegations that present causes of actions despite legal conclusion, or unclear facts, such that a defendant is unable to defend in an answer.

Black's demurrer reads like a motion for summary judgment or affirmative defenses to an answer. Black does not state he does not understand what is being alleged against him but that the law protects him from being sued as the complaint states. Discovery has not been conducted to determine whether Black's acts were "in the scope of his employment.”
Demurrers are not meant to test the sufficiency of the evidence or other matters outside the pleading. Demurrers are improper to where complaint shows some right to relief even though facts are not clearly stated or are intermingled with irrelevant matters, or the plaintiff has demanded relief to which they are not entitled. Gressley v. Williams (1961) 193 CA 2d 636.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Arson Destroys Sacramento Couple's Home But They Still Have To Battle Insurance Company, Part 5 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

The District Court's Order to Remand was filed on October 14, 2008, in the Sacramento County Superior Court. Defendant Black had thirty days to file an answer or a demurrer. Instead a notice of a demurrer was served upon plaintiffs. A notice of intent is not a filing. An intent to do something is not sufficient to satisfy the requirement of the act being completed. Anyone can file a notice to answer, or a notice to dismiss, or a notice to complain. A notice of intent does not satisfy the statute of limitations. A timely filing must occur per codes or statutes. The filing date of the demurrer was set by the date the Order of Remand was received by the state court.

Defendants filed their demurrer on January 8, 2009. This is nearly 90 days after the remand order was received by this Court. Even for argument sake, the defendants cannot rely on the case management order issued in October 2008 as guidance because personal service of the complaint and summons on Daniel Black and Paul Smith had occurred prior the removal by XYZ in August 2008. Service was complete upon these defendants and they were required to answer the complaints after remand within the time per C.C.P. 430.90.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Insurance Company Unfairly Denies Sacramento Couple From Recovering Proceeds, Part 4 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

ARGUMENT ONE

DEFENDANT'S DEMURRER IS UNTIMELY PER CODE OF CIVIL PROCEDURE SECTION 430.90, AND MUST BE OVERRULED AND DISMISSED.

430.90. (a) Where the defendant has removed a civil action to federal court without filing a response in the original court and the case is later remanded for improper removal, the time to respond shall be as follows:

(1) If the defendant has not generally appeared in either the original or federal court, then thirty (30) days from the day the original court receives the case on remand to move to dismiss the action pursuant to Section 583.250 or to move to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, if the court has not ruled on a similar motion filed by the defendant prior to the removal of the action to federal court.

(2) If the defendant has not filed an answer in the original court, then 30 days from the day the original court receives the case on remand to do any of the following:

(A) Answer the complaint.

(B) Demur or move to strike all or a portion of the complaint if:

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Couple Lose Home To Fire Then Sue Insurance Company, Part 3 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

PROCEDURAL HISTORY

The Halls filed a complaint in the Sacramento County Superior Court in May 2008, alleging several causes of actions against defendants XYZ Insurance Company, Paul Smith, and Daniel Black. XYZ answered the complaint in August 2008, and removed the case to the U.S. District Court. In tandem they filed a motion to dismiss Daniel Black and Paul Smith on the premise that plaintiffs intentionally joined these defendants to defeat diversity, alleging they were fraudulently joined for that purpose.

The Halls filed a motion to remand the case back to the state court because it did not meet the jurisdictional requirement for the federal courts. The U.S. District Court agreed and remanded the case to the state court on October 10, 2008, without hearing a dismissal motion for Black and Smith.

On November 3, 2008, XYZ sent notice that they were going to demurrer to the complaint as to Daniel Black and Paul Smith as defendants. The demurrer was not filed until January 8, 2009. This is nearly 90 days after the receipt of the order to remand to the state court. Code of Civil Procedure section 430.90 requires an answer or a demurrer be filed within 30 days after receipt of the remanded case in the state court.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Sacramento Husband And Wife Battle Insurance Company For Damages, Part 2 of 6" »

The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

Plaintiffs William and Susan Hall’s Request for Dismissal and Opposition to the Demurrer

STATEMENT OF CASE

Plaintiffs, William and Susan Hall (hereinafter, “Halls”), file this objection to the demurrer filed by XYZ Insurance Company of behalf of Daniel Black and Paul Smith and request its dismissal.
The Halls met Daniel Black, an agent for XYZ Insurance Company sometime prior to 1982 regarding insurance coverage. The Halls have records of premium payments dating from 1982 to present for automobiles and real property. The Halls and Daniel Black developed a long term relationship regarding their insurance policies. Throughout the years, Black answered the Halls insurance questions on coverage, premium payments, and purchase of various policies.

The Halls relied heavily on Black's advice regarding their policies and a trust developed between them. The Halls had regularly discussions with Black and believed Black would advise them about their policy coverage if it was not in their best interest. As they say, he was their "insurance man," as one would have a private doctor, or lawyer. Due to the length of the relationship, the frequent communications between the parties, and the number of premiums that they held with Black, they relied on the belief that he would take care of them and inform them of any necessary coverage problems.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Continue reading "Insurance Company Denies Coverage To Sacramento Family, Part 1 of 6" »