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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 PET FOOD EXPRESS LTD., a California corporation, on behalf of itself and all those similarly situated, v. 15 17 18 19 ORDER RE: MOTION TO DISMISS Plaintiff, 14 16 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. 20 ----oo0oo---- 21 Defendants have moved to dismiss plaintiff’s claims “to 22 23 the extent that they seek to void [defendants’ Reinsurance 24 Payment Agreement] on the theory that the RPA should have been 25 filed” with the California Department of Insurance before being 26 used. 27 Defendants argue that use of an unfiled insurance rate is not 28 unlawful under California Insurance Code section 11735. (Defs.’ Mot., Mem. (“Defs.’ Mem.”) at iv (Docket No. 15).) 1 (See id. 1 at 8.) In response, plaintiff points out that it does not rely 2 3 in its Complaint on section 11735. (See Pl.’s Opp’n at 5 (Docket 4 No. 26).) 5 about whether plaintiff could rely upon the failure to file a 6 form pursuant to section 11658, upon reviewing the record the 7 court notes that section was not part of plaintiff’s motion, 8 Accordingly, the court will deny defendants’ motion with respect 9 to section 11735 as moot. Although there was some discussion at oral argument IT IS THEREFORE ORDERED that defendants’ motion to 10 11 dismiss plaintiff’s Complaint to the extent the Complaint relies 12 upon California Insurance Code section 11735 be, and the same 13 hereby is, DENIED AS MOOT because plaintiff does not rely upon 14 that section. 15 Dated: October 18, 2016 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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