Legal Question in Civil Litigation in California

The case: Insurance bad faith, failure to pay and inspect. Complaint was dismissed on demurrers for statute of limitation, one year, due to alleged judicial admission, which was a lie. The claim was tolled until Aug. 28, 2008, when a written denial was issued and claimed was filed July 1, 2009.

Defense claims that a judicial admission by plaintiff in the 2nd amended complaint was that a denial was issued in May 2007. This is ridiculous and no written denial has ever been produced, because it does not exist. The alleged judicial admission was based on a verbal comment by the insurance's companies chosen contractor, that they would not be paid for any more damages that they discovered.

The Appellate court upheld this, now it is going to the Supreme Court, because I feel that the complaint can be amended. Also, California Fair Plan, the defendant never issued a policy handbook which specified the statute of limitation. It was not provided until after the complaint was filed.

What must be focused on when the matter is presented to the California Supreme Court? I think that the misuse of an alleged judicial admission and the demurrer process has denied the plaintiff due process.


Asked on 10/28/11, 10:34 pm

2 Answers from Attorneys
Anthony Roach Law Office of Anthony A. Roach

I think you are wasting your time. You are not allowed to plead one date in a second amended complaint, and then ask leave to omit that date in an attempt to evade a demurrer. That's a textbook case of sham pleading.

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Answered on 10/28/11, 10:56 pm
Herb Fox Law Office of Herb Fox

As I know nothing about your case, I will not comment on its merits.

Your ask about the focus in a Petition for Review at the state Supreme Court. The most important consideration to keep in mind is that the purpose of the Supreme Court is not to correct errors made by the Court of Appeal or the trial court. Its purpose instead is to hear and resolve significant disputes about law (usually in the context of conflicting appellate court decisions) and/or public policy as affected by law.

Therefore the focus of the petition should not be limited to your case and the effect of the decision on you. The only way to get the Supreme Court's attention is to demonstrate that your issue is one that affects many people, and that it turns on an interpretation of law that is unsettled. Nothing less than that will get through the door - which is why 99% of civil petitions are summarily denied.

Further, you do not state whether you have an attorney working for you on this. If not, you should get one - preferably an appellate specialist who knows how to write a Supreme Court petition.

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Answered on 10/29/11, 4:08 pm


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