Antl v. AGA Service Co. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Boris Antl, No. 2:22-cv-00504-KJM-AC 12 Plaintiff, ORDER 13 v. AGA Service Company, et al., 1S Defendants. 16 17 In 2014, Boris Antl began planning a vacation to Chile. First Am. Compl. § 16, ECF 18 | No. 5. He bought travel insurance from AGA Service Company, which does business as Allianz 19 | Global Assistance. /d. The policy included coverage for emergency medical care. /d. □□ 18-22. 20 | Later, in a small Chilean village, Antl felt pain in his chest. /d. 4 25. He went to aclinic. /d. He 21 | was having a heart attack. Jd. The clinic could not treat him, so he was taken first to a local 22 | hospital, then to a private hospital in a nearby city, where he was admitted to the intensive care 23 | unit. Jd. 26-27. He called Allianz and asked it to fast track any necessary approvals, and he 24 | and the doctors repeatedly pleaded Allianz for payment; they would not operate without Allianz’s 25 | promise to pay. Jd. 26, 28. It took five days before Allianz’s approval arrived. /d. □□□□ The 26 | doctors then operated. See id. 432. Antl was eventually discharged, recovered, and returned 27 | home on Christmas Day in 2014. See id. 1 Antl did not know it at the time, but the five-day delay permanently damaged his heart. 2 See id. ¶¶ 31, 34, 36. He first learned this fact in late 2021, when a doctor advised him not to do 3 many of the athletic things he had long enjoyed. Id. ¶ 35. He risked heart failure and death if he 4 did. Id. The delay had probably also shortened his life. See id. ¶¶ 35, 37. This news caused him 5 great stress, anxiety, and depression, and he has incurred and will incur costs treating the damage 6 to his heart. Id. ¶¶ 37–38. 7 A few months after learning Allianz’s delay had permanently damaged his heart, Antl 8 filed this lawsuit. See Compl., ECF No. 1. He claims Allianz breached the insurance policy, First 9 Am. Compl. ¶¶ 40–44, acted in bad faith, id. ¶¶ 45–56, falsely promised expeditious care, id. 10 ¶¶ 57–64, wrongfully subjected him to emotional distress, id. ¶¶ 65–77, and violated California’s 11 Unfair Competition Law, id. ¶¶ 78–82. He seeks damages, an injunction, attorneys’ fees, and 12 other relief. See id. at 13. Allianz now moves to dismiss under Rule 12(b)(6). See generally 13 Mot., ECF No. 6. The matter is fully briefed and was submitted after a motion hearing and 14 scheduling conference on July 8, 2022. See generally Opp’n, ECF No. 9; Reply, ECF No. 12; 15 Mins., ECF No. 13. Rowennakete Barnes appeared for Antl, and Helen Luetto appeared for the 16 defense. 17 Allianz primarily faults Antl for filing this case so many years after he returned from 18 Chile. See Mot. at 6–12. It contends the statute of limitations has expired. For that argument to 19 succeed at this early stage, “it must appear ‘beyond doubt that the plaintiff can prove no set of 20 facts that would establish the timeliness of the claim.’” Rand v. Midland Nat’l Life Ins., 857 21 F. App’x 343, 347 (9th Cir. 2021) (unpublished) (quoting Supermail Cargo, Inc. v. United States, 22 68 F.3d 1204, 1207 (9th Cir. 1995)). It is not necessary to detail the various statutes that place 23 limits on the time Antl had to file this case. None of those limits began to tick away until late 24 2021, and none is so short that it would have run out before this case began. 25 Ordinarily, the clock starts running when a claim is “complete with all its elements,” that 26 is, when there has been some “wrongdoing or wrongful conduct, cause or causation, and harm or 27 injury.” Norgart v. Upjohn Co., 21 Cal. 4th 383, 397 (1999) (quotation marks and citations 28 omitted). The “discovery rule” is an exception to this general rule. Id. Under the discovery rule, 1 the clock does not start running until a person actually discovers or has reason to discover the 2 potential claim. Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 807 (2005). California 3 courts “do not take a hypertechnical approach” to enforcing this rule. Id. They consider whether 4 the person had “reason to at least suspect that a type of wrongdoing has injured them.” Id. 5 Antl alleges his heart was damaged in 2014 because Allianz delayed necessary approvals. 6 See First Am. Compl. ¶¶ 30–31. The generic “elements” of his claims were, as a result, 7 “complete” in 2014. Norgart, 21 Cal. 4th at 397. But Antl also alleges that despite regular 8 follow-up appointments with cardiologists, he did not learn about any permanent damage until 9 late 2021. Id. ¶ 34. Nor did he know the cause of that damage before then. Id. It is plausible to 10 infer that if Antl ultimately proves these allegations, he could rely on the discovery rule, and if so, 11 this lawsuit would not have come too late. Allianz has not proven “beyond doubt” that Antl filed 12 this lawsuit too late, so its motion is denied in this respect. Rand, 857 F. App’x at 347 (quoting 13 Supermail, 68 F.3d at 1207). 14 Allianz raises two further defenses specific to two of Antl’s claims. First, it argues Antl 15 cannot move forward with his claim of false promises because he does not explain the 16 circumstances of these false promises “with particularity,” as required by Federal Rule of Civil 17 Procedure 9(b). See Mot. at 12–15. “Particularity,” as that word is used in Rule 9(b), means the 18 complaint must explain the circumstances of the alleged fraud specifically enough to give the 19 defendants “notice of the particular misconduct” so “they can defend against the charge and not 20 just deny that they have done anything wrong.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 21 (9th Cir. 2009) (quoting Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001)). A 22 common gloss on this standard explains that a complaint must detail “the who, what, when, 23 where, and how” of the alleged fraud. See, e.g., Vess v. Ciba–Geigy Corp. USA, 317 F.3d 1097, 24 1106 (9th Cir. 2003) (quoting Cooper v. Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). Antl’s 25 complaint does not meet that standard. He alleges he relied on a promise to cover emergency 26 care, but he does not say what was promised, when, and by whom. He refers only to the executed 27 policy’s language. See First Am. Compl. ¶¶ 16–23, 57–64. The policy, however, is the alleged 28 result of the fraud, not its cause. This claim is dismissed. 1 Second, Allianz argues the complaint does not explain why it is liable under the Unfair 2 Competition Law. See Mot. at 15–17. Antl explains in opposition and confirmed at hearing that 3 his unfair competition claim rests on the same foundation as his promissory fraud claim. See 4 Opp’n at 13. The court has dismissed the fraud claim, so the unfair competition claim is likewise 5 dismissed. 6 Antl could overcome the shortcomings in his fraud and unfair competition claims with 7 additional allegations about what led him to buy insurance from Allianz. See, e.g., Cafasso, U.S. 8 ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (“[W]hen a viable 9 case may be pled, a district court should freely grant leave to amend.”). The motion to dismiss 10 (ECF No. 6) is therefore granted in part. Claims four and eight are dismissed with leave to 11 amend. Any amended complaint must be filed within twenty-one days. 12 IT IS SO ORDERED. 13 DATED: July 12, 2022.