Professional Documents
Culture Documents
vs.
MUNICH RE AMERICA CORPORATION AND MUNICH
REINSURANCE AMERICA, INC.
Defendants and Respondents.
________________________
ON APPEAL FROM THE SAN BERNARDINO SUPERIOR COURT,
THE HONORABLE KEITH D. DAVIS, JUDGE
CASE NO. CIVDS1711217
________________________
RONALD AUSTIN
1
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES………………………………………... 3
I. INTRODUCTION …………………………………………… 4
II. ARGUMENT…………………………………….…………... 6
A. THIS COURT MAY GRANT LEAVE TO AMEND
IF APPELLANT CAN STATE ANY CAUSE OF
ACTION ON ANY POSSIBLE LEGAL THEORY ...... 6
2
TABLE OF AUTHORITIES
PAGE
CALIFORNIA CASES
Alex Robertson Co. v. Imperial Casualty & Indemnity Co.
(1992) 8 Cal.App.4th 338 ……………….……………..…… 20
City of Stockton v. Superior Court
(2007) 42 Cal.4th 730 …………………………………….….. 8
Community Assisting Recovery, Inc. v. Aegis Security Ins.
(2001) 92 Cal.App.4th 886 ………………………...……….. 18
County of Santa Clara v. Atlantic Richfield Co.
(2006) 137 Cal.App.4th 292……………………..…………… 7
Duran v. Duran
(1983) 150 Cal.App.3d 176 ………..…………..…..……….. 14
Harper v. Wausau Ins. Corp.
(1997) 56 CA4th 1079 …………………………..…….……. 20
Harris v. Rudin, Richman, & Appel
(1999) 74 Cal.App.4th 288 ……………….………… 13, 14, 15
Holiday Matinee, Inc. v. Rambus, Inc.
(2004) 118 Cal.App.4th 1413 ………………………...…….. 18
Johnson v. Holmes Tuttle Lincoln-Mercury, Inc.
(1958) 160 Cal.App.2d 290 ………………………………… 15
Jones v. Aetna Casualty & Surety Co.
(1994) 26 Cal.App.4th 1717 …...……..…...……...………… 21
Moncada v. West Coast Quartz Corp.
(2013) 221 Cal.App.4th 768 .………………...…………… 7, 8
Platt v. Coldwell Banker Residential Real Estate Services
(1990) 217 Cal.App.3d 1439 ………………………………… 8
Tracfone Wireless, Inc. v. County of Los Angeles
(2008) 163 Cal.App.4th 1359 ………………………...…….. 18
Unruh-Haxton v. Regents of University of California
(2008) 162 Cal.App.4th 343 ………………………………... 17
CALIFORNIA STATUTES
Civil Code § 1559 ……………………………………………….. 17
CALIFORNIA RULES
California Rules of Court Rule 8.115 …………………..………..... 15
3
I. INTRODUCTION
Munich Re.” [RB 7.] Appellant Austin has never claimed there
was.
length that the very reason for the instant appeal is that he
4
Austin need not prove specific terms of the contract in
5
discovery by Munich Re. Instead Munich Re alleges its own
purchase, who Munich Re’s press releases are not directed to,
on demurrer.
II. ARGUMENT
Munich Re which the trial court correctly opined did not exist,
and the fact that Appellant would have waived his right to ever
Court may not grant leave to amend. This Court need look no
1
“When a demurrer is sustained with leave to amend, and the plaintiff chooses
not to amend but to stand on the complaint, an appeal from the ensuing dismissal
order may challenge the validity of the intermediate ruling sustaining the
demurrer. [Citation.] On the other hand, where the plaintiff chooses to amend,
any error in sustaining the demurrer is ordinarily waived.” County of Santa
Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312.
7
The actual ruling underlying Respondents’ truncated citation
8
B. Austin’s Contract and Warranty Causes of Actions
Are Not Based Entirely Upon A Single Press Release
50.]
9
Austin goes on to specifically detail the terms of what
10
that it has not yet produced the subject contract to Austin in
discovery.
Brief regarding the fact that Austin is not a party to the contract
enforce the terms of a contract unless its terms show that the
produced it.
11
“the trial court correctly noted that the Complaint contains no
ruled. The trial court never made any such statement at all that
the trial court ruled that a contract exists between Austin and
LDK, i.e. for the purchase of solar panels. [RT 4: 3-7.] The trial
[RT 4: 9-12.] But Austin never claimed at any time that he was
LDK for the purchase of solar panels. Such a claim would not
12
between LDK and Munich Re I'm alleging that I am the third-
plaintiff may not rely on bare allegations but must allege facts
Richman, & Appel (1999) 74 Cal. App. 4th 288, 307.” [RB 14.]
13
on this point does not deal with a third-party beneficiary claim
all of that, the appellate court reverses the trial court’s granting
(See Duran v. Duran (1983) 150 Cal. App. 3d 176, 181 [197
on demurrer.
14
Surprisingly, Harris v. Rudin, Richman, & Appel (1999)
2
As an example of just how far Respondents are willing to stretch case law this
Court is encouraged to read Munich Re’s Request for Judicial Notice supporting
its demurrer wherein Munich Re has the temerity to claim that C.R.C. Rule 8.115
prohibiting citation to unpublished cases is unconstitutional. [CT 86-96.] See,
also, Austin’s Opposition thereto [CT 153-157.]
15
D. Appellant Did Not Waive His Warranty-based Claims
On Appeal as Suggested by Respondents
claims and his (twelfth) claim for declaratory relief.” [RB 15.]
action because Austin has forfeited the right to contest the trial
ruled with regard to the warranty claims which has not been
consumer law causes of action upon which the trial court has
mention of these, yet that does not mean this court may not re-
17
evaluate these as well and conceivably find for Respondents as
1359, 1363.) This court need not be concerned with the ruling
in the trial court, or any issues raised prior, and this Court may
court at all. This doesn’t mean that this Court should have no
interest in what the trial court ruled, but its order is not binding
on the appellate court and it does not prevent this Court from
886, 891.)
18
E. Respondents’ Arguments Have Evolved To Prop Up
The Trial Court Decision
argued by the parties at length in the trial court are not at all the
beneficiary.”)
argument was that Austin could not bring a direct action against
19
an insurer pursuant to Alex Robertson Co. v. Imperial Casualty
Austin will not cut and paste from the many pages of his
III. CONCLUSION
lawsuit filed against the wrong party.” [RB 16.] The trial court
clearly did not think so when it denied Munich Re’s request for
The bottom line is that the trial court made a simple error
20
purchase of solar panels and the contract Munich Re has with
complaint.
The trial court did not rule as Munich Re would have this
Court believe, nor does any case law cited actually hold, that
Casualty & Surety Co. (1994) 26 Cal. App. 4th 1717, 1724-
21
Tech USA, Inc. was not insured by Munich Re…” and have the
Munich Re.
_________/s/____________
RONALD AUSTIN
Appellant, in pro per
22
CERTIFICATE OF WORD COUNT
which is less than the total words permitted by the Rules of Court.
23
PROOF OF SERVICE BY MAIL
24