ELIZABETH KARNAZES v. VSA, ET AL.
Case No.: 1-10-CV-185856
DATE: May 29, 2014
TIME: 9:00 a.m.
DEPT.: 3

A Motion for Judgment on the Pleadings (“JOP”) is the functional equivalent of a general demurrer. The Court in ruling on a demurrer or JOP motion considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted. Any purported requests for judicial notice that do not comply with Rule of Court 3.1113(l) are denied. The Court cannot consider extrinsic evidence in ruling on a demurrer or motion to strike.

The request for judicial notice of five documents (exhibits A-E) by Defendant Petplan Insurance Agency LLC (“Petplan”) is GRANTED as follows.

Notice of exhibits A and B, the Oct. 28, 2007 declarations page of insurance policy number ANP0002424-00 and the Pet Health Insurance Policy itself is GRANTED pursuant to Evid. Code §452(h). Plaintiff in her opposition does not dispute that this is the pet insurance policy that is the basis for her various allegations that “Pet Plan Def. owed a duty to Plaintiff to pay Plaintiff for covered health care and related expenses for the dog,” in relation to medical services provided to the family dog on October 30, 2007. See attachment for 4th Amended Complaint (“4AC”), second cause of action. Plaintiff does not oppose notice of the policy documents. Petplan is correct that under such circumstances courts may take judicial notice of insurance policies. See Cal. Emergency Physicians Med. Group v. Pacificare of Cal. (2003) 111 Cal App 4th 1127, 1138; Ascherman v. Gen. Reinsurance Corp. (1986) 183 Cal App 3d 307, 310-311; Purcell v. Colonial Ins. Co. (1971) 20 Cal App 3d 807. The Court further finds that exhibits A and B are incorporated by reference into the 4AC through its repeated references to insurance and coverage as the basis for Plaintiff’s claims against Petplan and thus become part of the face of the pleading.

Notice of exhibit C, a copy of a Jan. 2, 2014 Opinion and Order of the State Bar Court, is GRANTED pursuant to Evid. Code §452(d) as it establishes that 1) Zachary Karnazes, the named insured on the Declarations page for the Pet Plan policy, is Plaintiff’s adult son, and 2) Plaintiff is not currently permitted to represent others and may only bring an action on her own behalf in pro per.

Notice of exhibits D and E, the Court’s prior orders in this matter dated Dec. 13, 2013 and Feb, 27, 2014 respectively, is GRANTED pursuant to Evid. Code §452(d).

Defendant Petplan’s Motion for JOP is GRANTED on the basis that Petplan has established that Plaintiff has no standing to bring any of the claims against it in the 4AC. Pet Plan is correct that all causes of action in the 4AC alleged against it: the 2nd cause of action for General Negligence (alleging that Petplan failed and refused to pay Plaintiff, not Zachary, for covered health care expenses), 4th cause of action for Breach of Contract (the insurance policy), 6th cause of action for Intentional Tort (alleging that Petplan owed Plaintiff a duty to pay for covered health care expenses for the dog and intentionally refused to do so) and 9th, 13th, 14th, and 15th causes of action (various fraud claims alleging that Plaintiff agreed to have health services performed on the family dog in reliance on the obligation of Petplan to pay her the cost of those services), are dependent on the assertion that Plaintiff is Petplan’s insured on the policy covering the family dog (“Peanut”) who was given medical care by Defendant VSA. Petplan has established that Zachary Karnazes is the only named insured under the policy and that the insurance policy is an integrated contract. See Ex. A listing “Mr. Zachary Karnazes” as named insured and Ex. B, page 8, numbered paragraph 4 (“Entire Policy”). If a plaintiff’s lack of standing to sue appears on the face of the pleading or from matters judicially noticeable, a general demurrer (or here a JOP motion) lies for failure to state a cause of action in that plaintiff. See County of Fresno v. Shelton (1998) 66 Cal App 4th 996, 1009.

Plaintiff in opposition does not deny that policy number ANP0002424-00 is the Petplan policy that is the basis for her claims against Petplan or that the sole named insured under the policy is Zachary Karnazes. The only discernible argument that Plaintiff makes in opposition to the motion’s attack on her standing assumes that these facts are true and depends upon extrinsic evidence. Attached to (but not authenticated by) her own declaration Plaintiff has submitted (as Exhibit A) a document that purports to be an Assignment of “a claim for insurance benefits” from Zachary Karnazes to Plaintiff dated Jan. 5, 2009. The purported Assignment does not identify Petplan as the insurer or identify the policy purportedly assigned. Even if it is assumed for purposes of argument that the document is what it is purported to be, it has no legal effect here. The Petplan policy issued to Zachary Karnazes expressly states that “Assignment of this policy will not be valid unless we give our written consent.” See Ex. B page 7, numbered paragraph 11, “Transfer of Your Rights and Duties.” Accordingly leave to amend is DENIED.