Pet Food Express Ltd. v. Applied Underwriters Inc. et al

Filing 35

ORDER signed by Senior Judge William B. Shubb on 10/18/2016 re 15 Defendants' Motion to Dismiss: IT IS ORDERED that defendants' motion to dismiss plaintiff's Complaint to the extent the Complaint relies upon California Insurance Code Section 11735 be, and the same hereby is, DENIED AS MOOT because plaintiff does not rely upon that section. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PET FOOD EXPRESS LTD., a
California corporation, on
behalf of itself and all
those similarly situated,

v.

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ORDER RE: MOTION TO DISMISS

Plaintiff,

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CIV. NO. 2:16-1211 WBS AC

APPLIED UNDERWRITERS, INC.;
APPLIED UNDERWRITERS CAPTIVE
RISK ASSURANCE COMPANY, INC.;
CALIFORNIA INSURANCE COMPANY,
INC.; and DOES 1 through 50
inclusive;
Defendants.

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Defendants have moved to dismiss plaintiff’s claims “to

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the extent that they seek to void [defendants’ Reinsurance

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Payment Agreement] on the theory that the RPA should have been

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filed” with the California Department of Insurance before being

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used.

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Defendants argue that use of an unfiled insurance rate is not

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unlawful under California Insurance Code section 11735.

(Defs.’ Mot., Mem. (“Defs.’ Mem.”) at iv (Docket No. 15).)

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(See id.

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at 8.)
In response, plaintiff points out that it does not rely

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in its Complaint on section 11735.

(See Pl.’s Opp’n at 5 (Docket

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No. 26).)

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about whether plaintiff could rely upon the failure to file a

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form pursuant to section 11658, upon reviewing the record the

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court notes that section was not part of plaintiff’s motion,

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Accordingly, the court will deny defendants’ motion with respect

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to section 11735 as moot.

Although there was some discussion at oral argument

IT IS THEREFORE ORDERED that defendants’ motion to

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dismiss plaintiff’s Complaint to the extent the Complaint relies

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upon California Insurance Code section 11735 be, and the same

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hereby is, DENIED AS MOOT because plaintiff does not rely upon

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that section.

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Dated:

October 18, 2016

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