McRae v. National General Insurance, et. al.

the Public Records Act request, POST complaint follow-up to city officials and chief of police, and the police report submitted to the Orange County Sheriff’s Department (Compl. ¶¶ 12, 13, 21, 22, 24, 26-28, 33, 34, 36, 37, 41-43, 45, 50, 52) are protected activity under the anti-SLAPP statute. (Code of Civ. Proc. § 425.16, subd. (e)(1),(2); see also Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439; Chabak v. Monry (2007) 154 Cal.App.4th 1502, 1512; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115; DuPont Merck Pharmaceutical Co. v. Sup. Ct. (2000) 78 Cal.App.4th 562, 566.) Plaintiffs’ claim for abuse of administrative process and defamation rely exclusively on these allegations. (Compl. ¶¶ 55, 61.) These allegations also support, in part, Plaintiffs’ claims for civil harassment and aiding and abetting. (Compl. ¶¶ 68, 77.)

The burden therefore shifts to Plaintiff to show probability of success on the merits of these claims, including producing admissible evidence sufficient to overcome any privilege or defense. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) Defendants are correct the litigation privilege under Civil Code section 47, subdivision (b)(2) bars all of Plaintiff’s claims arising out of the protected activity. (McNair v. City and County of San Francisco (2016) 5 Cal.App.5th 1154, 1164 [“An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing”]; Bonni v.

St. Joseph Health System (2022) 83 Cal.App.5th 288, 300-301 [litigation privilege applies regardless of whether the communications at issue were made with malice or intent to harm].) Plaintiff failed to overcome the privilege. The Court therefore strikes paragraphs 12, 13, 21, 22, 24, 26-28, 33, 34, 36, 37, 41-43, 45, 50, 52, the 1st and 2nd causes of action.

2. Activity Not Protected by Anti-SLAPP statute Defendants failed to show the remaining allegations, including the middle finger incident, the threat to defame Plaintiff in the media, and miscellaneous allegations (Comp. ¶¶ 23, 35, 49, 51, 53) arise out of any protected activity. These allegations continue to support the 3rd and 4th causes of action. Defendants’ having failed to meet their moving burden, the burden never shifts to Plaintiff to show probability of success on the merits. The motion is therefore DENIED as to paragraphs 23, 35, 49, 51, 53, the 3rd cause of action and 4th cause of action.

Counsel for Defendants shall give notice of this ruling. 8 Catanzarite v. Cont. City of Newport Beach 9 McRae v. The Demurrer by defendants Integon National Insurance Company National (Integon) and Jackie Nash to the 3rd – 5th causes of action in the General first amended complaint (FAC) filed by Plaintiff Willie Rae McRae, Jr. Insurance, et. is SUSTAINED, without leave to amend. al.

3rd Cause of Action – Fraud; 5th Cause of Action – Negligent Misrepresentation

The elements of fraud are: "(a) [a] misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or "scienter"); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638) The elements of a negligent misrepresentation cause of action are the same as the ones for fraud except for the requirement of scienter. (Bains v. Moores (2009) 172 Cal.App.4th 445, 454.) In a claim for negligent misrepresentation, the plaintiff need not allege that the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true. (Ibid.)

“Fraud allegations ‘involve a serious attack on character’ and therefore are pleaded with specificity. [Citation.] General and conclusory allegations are insufficient. [Citation.] The particularity requirement demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation.]” (Cansino v. Bank of Am. (2014) 224 Cal.App.4th 1462, 1469.) This is to provide the defendant with notice and to give the court enough information to assess whether there is a foundation for the charge of fraud. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)

Here, the alleged misrepresentations are listed in paragraph 49(a)- (l) of the FAC. These factual allegations are insufficient. For all of the alleged misrepresentations, there is no date on which they were made other than the general assertion they began “in or about August 2024.” (FAC ¶49) Also, many of the “misrepresentations” are only vague assertions. For example, ¶49(a) refers to “repeated and constant misrepresentations” about benefits without providing detail. Para. 49(b) refers to “misrepresentations designed to create new and different obstacles to processing” without detail.

Further, some of the statements vaguely refer to opinions of value of the claim which are not actionable. (See, Gentry v. eBay, Inc. (2002) 99 Cal. App. 4th 816, 835) For example, “minimizing the nature and extent of plaintiff’s injuries” (¶49(d)), stating an opinion of value (¶49(f)) and standing by a settlement offer (¶49(g)) are not misrepresentations of fact. While plaintiff alleges a dissatisfaction with the claims handling process, the identified “misrepresentations” are insufficient to state a cause of action for fraud.

Moreover, the allegations of reliance are vague. Plaintiff alleges that because of the foregoing “misrepresentations” he delayed prosecution of his case and surgery. (FAC ¶53) There is no explanation as to what misrepresentation of fact caused him to delay a surgery or when such occurred.

Accordingly the demurrer to the 3rd and 5th causes of action is SUSTAINED, without leave to amend.

4th Cause of Action - Intentional Infliction of Emotional Distress

The elements of a cause of action for intentional infliction of emotional distress are that: (1) defendant engaged in extreme and outrageous conduct; (2) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (3) as a result, plaintiff suffered extreme or severe emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001)

Defendants allege outrageous conduct has not been alleged. Plaintiff concedes that "delay or denial alone is not sufficiently outrageous.” (Opp. at 7:14-16, citing Coleman v. Republic Indem. Ins. Co., 132 Cal. App. 4th 403.) However, plaintiff claims the new allegations included in the FAC which demonstrate outrageous conduct are that the defendants “demanded records and an Examination Under Oath while threatening to “pull coverage” and threatening criminal prosecution” to coerce settlement. (Opp. at 7:7-8) Plaintiff points to three paragraphs in the FAC (49(d), 49(g) and 65) to demonstrate outrageous conduct.

First, these allegations are very vague. Second, the fact that an expert hired by an insurer is biased is hardly surprising and not outrageous conduct. Third, demanding documents and an examination under oath (EUO) are not unusual. Further, a threat to “pull coverage” is a normal result if the insured is unwilling to provide information about the claim or submit to an EUO. Finally, the fact plaintiff was advised that submitting a fraudulent claim may result in criminal prosecution is not sufficient to state a claim for intentional infliction of emotional distress. (See FAC ¶18)

Accordingly, the demurrer to the 4th cause of action for Intentional Infliction of Emotional Distress is SUSTAINED without leave to amend.

Integon shall give notice. 10 Wyant v. Cont. Marks 11 Medina vs. Defendant American Multi-Cinema Inc.’s (“AMC”) motion to strike American punitive damages language from plaintiff Raul Medina’s (“Plaintiff”) Multi-Cinema First Amended Complaint (“FAC”) is GRANTED. Inc. “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. . .” (Civ. Proc. Code § 435(b)(1).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Civ. Proc. Code § 436(a).)

Regarding punitive damages under Civ. Code § 3294: “(a) In an action for the breach of an obligation not arising from contract,