Davis v. Combined Insurance

Filing 44

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS. Signed by Judge Maxine M. Chesney on 03/07/2018. (mmclc2, COURT STAFF) (Filed on 3/7/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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KEITH DAVIS,
Plaintiff,

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United States District Court
Northern District of California

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v.
COMBINED INSURANCE,

Case No. 17-cv-02655-MMC
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS
Re: Dkt. No. 39

Defendant.

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Before the Court is defendant Combined Insurance’s (“Combined”) Motion to

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Dismiss, filed February 7, 2018. Plaintiff Keith Davis (“Davis”) has filed opposition, to

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which Combined has replied. The Court, having read and considered the papers filed in

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support of an in opposition to the motion, deems the matter appropriate for determination

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on the parties’ respective written submissions, hereby VACATES the hearing scheduled

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for March 16, 2018, and rules as follows.

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The initial complaint in the above-titled action was filed on May 8, 2017, alleging a

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single cause of action for breach of contract, specifically, Combined’s denial of Davis’s

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claim for death benefits under an insurance policy written by Combined. On August 2,

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2017, Davis filed a First Amended Complaint (“FAC”), again alleging a single cause of

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action for the same asserted breach. By order filed January 10, 2018, the Court found

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the “insurance policy at issue does not afford death benefits,” dismissed Davis’s cause of

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action for breach of contract, and afforded Davis leave to plead, if he could do so, a claim

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based on representations made by Combined’s agent. (See Order, filed January 10,

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2018, at 1:20-26.)

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On January 26, 2018, Davis filed a Second Amended Complaint (“SAC”), in which

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he asserts the following three causes of action: (1) “Breach of Contract”; (2)

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“Misrepresentation”; and (3) “Fraud”. By the instant motion, Combined moves to dismiss

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the SAC in its entirety.

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First, as Combined points out, Davis was not afforded leave to amend to reassert

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his cause of action for breach of contract. (See id. at 1:23 (dismissing breach of contract

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claim without leave to amend).)

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Accordingly, to the extent Combined seeks dismissal of Davis’s claim for breach of

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contract, the motion is hereby GRANTED and said cause of action is hereby

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DISMISSED.

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Combined next argues that each of the two remaining causes of action is barred

United States District Court
Northern District of California

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by the applicable statute of limitations. See Butcher v. Truck Ins. Exch., 77 Cal. App. 4th

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1442, 1470 (Cal. Ct. App. 2000) (holding two-year statute of limitations applies to

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negligent misrepresentation claims); Ivanoff v. Bank of Am., N.A., 9 Cal. App. 5th 719,

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734 (Cal. Ct. App. 2017) (holding fraud claims “governed by” three-year statute of

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limitations). As set forth below, the Court agrees.

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Davis’s misrepresentation and fraud claims are based on his allegation that, at the

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time he purchased the policy here at issue, Combined’s agent falsely told him the policy

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provided death benefits. Combined denied Davis’s claim for death benefits on April 3,

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2014 (see SAC at 1:26-27), on the express ground that the policy “does not provide any

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death benefits” (see FAC Ex. B); see also Rodriguez v. Sony Computer Entm’t Am., LLC,

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801 F.3d 1045, 1054 (9th Cir. 2015) (holding allegations made in amended complaint

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must be “consistent with the [prior] pleading”) (internal quotation and citation omitted);

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Sharp v. Fresno Cty. Jail, No. 15-CV-0001-DLB, 2015 WL 6689915, at *4 (E.D. Cal. Oct.

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28, 2015) (holding plaintiff “cannot omit prior factual allegations in an attempt to state a

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claim” in amended pleading). Such denial was sufficient to put Davis on inquiry notice as

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to the falsity of the statements he alleges were made by Combined’s agent regarding

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coverage, and, consequently, Davis’s misrepresentation and fraud claims accrued more

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than three years before the instant action was filed. See Kline v. Turner, 87 Cal. App. 4th
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1369, 1374 (Cal. Ct. App. 2001) (holding cause of action accrues and statute of

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limitations begins to run on date plaintiff has information that would put reasonable

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person on “inquiry” notice). Thus, assuming, arguendo, Davis’s misrepresentation and

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fraud claims relate back to the date on which Davis filed his initial complaint, those claims

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are, in each instance, time-barred.

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Accordingly, to the extent Combined seeks dismissal of Davis’s claims for

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misrepresentation and fraud, the motion is hereby GRANTED and said causes of action

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are hereby DISMISSED.

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Lastly, Davis’s request for leave to amend to add the California Department of
Corrections and Rehabilitation (“CDCR”) as a defendant is unavailing. Davis seeks such

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United States District Court
Northern District of California

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leave on the ground that “CDCR allowed [Combined] to set up a sales center at San

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Quentin State Prison,” thereby “tacitly endors[ing]” Combined’s allegedly fraudulent sale,

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which was made at that facility. (See Opp. at 1:21-23.) For the reasons stated above

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with respect to Davis’s misrepresentation and fraud claims against Combined, any such

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claim against CDCR likewise would be time-barred.

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Accordingly, Davis’s request for further leave to amend is hereby DENIED.

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IT IS SO ORDERED.

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Dated: March 7, 2018
MAXINE M. CHESNEY
United States District Judge

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