Opinion
3:21-cv-01415-H-KSC
02-10-2022
MARILYN NIEVES, individually, and on behalf of a class, Plaintiffs, v. UNITED OF OMAHA LIFE INSURANCE CO., Nebraska corporation; and DOES 1 thru 10, inclusive, Defendants.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION TO STRIKE
[DOC. NOS. 23, 27-1.]
MARILYN L. HUFF, DISTRICT JUDGE
On July 6, 2021, Plaintiff Marilyn Nieves (“Plaintiff”) filed her Complaint alleging claims for declaratory relief, breach of contract, bad faith, and unfair competition against Defendant United of Omaha Life Insurance Company (“Defendant” or “United”) and unnamed Does 1 through 10 in the Superior Court of California, San Diego County, on behalf of herself and a putative class of similarly situated individuals. (Doc. No. 1-2.) Defendant removed the action to this Court on August 6, 2021 pursuant to the Class Action Fairness Act, 28 U.S.C. §§ 1332, 1441, and 1453 and federal diversity jurisdiction. (Doc. No. 1.) Defendant filed a motion to dismiss on September 13, 2021. (Doc. No. 14.) Plaintiff then filed her First Amended Complaint (“FAC”) on October 18, 2021. (Doc. No. 22.) Defendant filed a subsequent motion to dismiss on November 5, 2021. (Doc. No. 23.)
On January 4, 2022, Plaintiff filed her opposition and a motion to strike several of Defendant's evidentiary submissions. (Doc. Nos. 27, 27-1.) Defendant filed its reply in support of its motion and an opposition to Plaintiff's motion to strike on January 18, 2022. (Doc. Nos. 28, 29.) The Court held a hearing on the motion on January 31, 2022. (Doc. No. 32.) Alex M. Tomasevic and Jack B. Winters appeared on behalf of the Plaintiff and Larry Mark Golub and Vivian Ilana Orlando appeared on behalf of the Defendant. For the foregoing reasons, the Court denies Defendant's motion to dismiss.
The following allegations are taken from Plaintiff's FAC.
I. Plaintiff's Factual Allegations
In June of 2016, Plaintiff, a resident of San Diego County, California, purchased a $30,000 whole life policy (the “Policy”) from United that insured the life of her son. (FAC ¶¶ 42, 72.) Plaintiff is the owner and sole beneficiary of the Policy. (Id. ¶ 42.) United is a Nebraska corporation that administers life insurance policies in California, including Plaintiff's Policy. (Id. ¶ 43.) Plaintiff's individual claims center on United's alleged acts related to the Policy. Plaintiff alleges that United repeated the same unlawful acts across thousands of other life insurance policies. (Id. ¶ 2.)
The Policy requires a premium payment of $224.40 per year. (Id. ¶ 74.) Plaintiff set up an automatic monthly payment from her bank account to pay the Policy premium. (Id. ¶ 77.) Premiums were paid by this method until February of 2018, when an automatic payment was returned. (Id.) On March 16, 2018, Plaintiff received a notice from United that her payment due on February 6, 2018 was returned. (Id.) Plaintiff subsequently provided a new payment authorization for automatic payments and requested that United deduct the premiums due on April 2, 2018. (Id.) On March 26, 2018, United confirmed receipt of her payment authorization by letter. (Id.)
On April 6, 2018, United sent Plaintiff a notice indicating that payment for the February premium had not been received and that as a result, coverage under the Policy had terminated. (Id. ¶ 78.) Plaintiff alleges that no pre-termination notice was sent to any Policy designee or Plaintiff. (Id.) According to Plaintiff, after issuance of the Policy in 2016, she was never advised of her right to designate a second addressee on an annual basis in violation of Cal. Ins. Code § 10113.72(b). (Id. ¶ 75.) Plaintiff contacted United to reinstate her Policy. She was told that “as a condition of seeking reinstatement, she had to pay premiums for the period of time that United had declared her policy void.” (Id. ¶ 79.) On April 16, 2018, United provided Plaintiff with an Application for Reinstatement. (Id. ¶ 81.) Plaintiff alleges that the application requested detailed medical information and the payment of premiums for the uninsured period. (Id.) On May 18, 2018, United received Plaintiff's reinstatement application. (Id. ¶ 83.) At that time, United purportedly “again violated [Cal. Ins. Code § 10113.72(a)] by failing to provide Plaintiff . . . with a right to designate.” (Id.)
On June 8, 2018, United denied reinstatement “based in part on pharmaceutical information we received.” (Id. ¶ 84.) Plaintiff purports that the “pharmaceutical information” indicated that the insured was taking medication to treat his autism-a condition that purportedly existed at the time that the Policy was issued. (Id.) Plaintiff alleges that United used the lapse of insurance coverage as an opportunity to rewrite and renegotiate her Policy. Plaintiff alleges that this practice allows United to remove from its pool of insureds “those individuals who had health issues that were less acute, or that [the insurer] had not fully appreciated, at the time of the original underwriting.” (Id.) Plaintiff alleges that United's conduct violated the California Insurance Code Sections 10113.71 and 10113.72 (commonly known as “the Statutes”), which regulate the termination of life insurance policies for nonpayment of premiums. (Id. ¶ 1.) Plaintiff alleges that United violated the Statues in several respects by: (i) not offering a right of designation to all “applicants” for various forms of life insurance; (ii) not providing a 60-day grace period; (iii) not mailing accurate 30-day pending lapse notices; (iv) not providing annual notifications to policy owners of their rights to designate; (v) not applying the mandates of the Statutes as an absolute condition for termination of any policy for nonpayment of premium; (vi) treating policy owners directly and indirectly as if they were in default for payment of premiums; (vii) demanding the payment of Unearned Premiumson policies that were illegally terminated and repudiated; and (viii) concealing its failure to company with the Statutes. (Id. ¶¶ 65, 99.) According to Plaintiff, when United failed to abide by the Statutes, its termination of her Policy was ineffective. (Id. ¶¶ 9, 53.) Plaintiff states that in May of 2021, United “admitted that it had erred in declaring [Plaintiff's] policy as having been properly terminated.” (Id. ¶ 92.) But United still required Plaintiff to pay the Unearned Premiums. (Id.) Plaintiff alleges that United has unlawfully charged policy owners “tens of millions of dollars” in Unearned Premiums. (Id. ¶¶ 3, 29.) Plaintiff also alleges that United is withholding “tens of millions of dollars of policy benefits . . . on the patently false assertion that the policies were properly and legally terminated.” (Id. ¶ 29.)
Plaintiff uses the term “Unearned Premiums” to describe insurance premiums that Plaintiff would have owed United during the uninsured time period had the Policy remained in effect. Allegedly, United initially demanded that Plaintiff pay these premiums in order for the Policy to be reinstated. (Id. ¶¶ 8, 92.)
On July 23, 2021, after Plaintiff's suit was originally filed and subsequently removed to this Court, United offered to “unconditionally reinstate the policy and waive any demand for payment of prior premiums.” (Id. ¶¶ 94, 98.) Plaintiff calls United's offer a “litigation tactic[]” aimed at “eliminat[ing] Plaintiff's individual and putative Class claims.” (Id. ¶¶ 10, 95.) Plaintiff asserts that the offer does not cure her harm because the Policy is less valuable now than it was prior to reinstatement. (Id. ¶ 59.) Plaintiff accepted the offer under a reservation of rights. In Plaintiff's correspondence with United, she “specifically advised United not to accept premiums if [United] intended to argue that the claims of [Plaintiff] or the Class had somehow been satisfied or no longer existed.” (Id.) Plaintiff labels United's waiver of the Unearned Premiums as an admission of liability. (Id.) United did not respond to Plaintiff's letter. (Id. ¶ 97.) Plaintiff made a new premium payment and completed a third-party designation. (Id.) United accepted Plaintiff's premium payment without objection or condition. (Id.) Plaintiff's policy is now considered to be active and in force. (Id. ¶ 14.)
DISCUSSION
Defendant seeks dismissal of Plaintiff's FAC for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. No. 23 at 2-4.) If the Court denies the motion, Defendant moves the Court to either strike portions of the FAC under Fed.R.Civ.P. 12(f) or order that Plaintiff provide a more definite statement under Fed.R.Civ.P. 12(e). (Id.)
I. Motion to Dismiss
A. Legal Standard
Under Fed.R.Civ.P. 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief may be granted. To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Dismissal under Rule 12(b)(6) is appropriate where “the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Courts must “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But courts do not accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
B. Breach of Contract Claim
Under California law, a claim for breach of contract requires (i) the existence of the contract; (ii) plaintiff's performance of the contract or excuse from non-performance; (iii) defendant's breach of the contract; and (iv) the resulting damage to the plaintiff. D'Arrigo Bros. of Cal. v. United Farmworkers of Am., 169 Cal.Rptr.3d 171, 178 (Cal.Ct.App. 2014). United asserts that Plaintiff did not sufficiently plead the damages element. Plaintiff sets forth several theories of damages in her detailed FAC. Plaintiff states that she suffered monetary loss, diminution in the value of the Policy, and a reduced ability to insure her son. FAC ¶¶ 41, 141. She claims that the reinstated Policy is less valuable than her original Policy because of a new contestability period. Plaintiff asserts damages relating her efforts to remedy the termination. Id. Plaintiff alleges that these damages are ongoing because of Defendant's “past and ongoing failure to uphold the terms of the policy.” Id. ¶ 165. Plaintiff argues that United's actions fall within the anticipatory breach doctrine. Plaintiff asserts that if United committed an anticipatory breach, she may recover damages before performance is due under the Policy. “Anticipatory breach [or anticipatory repudiation] occurs when one of the parties to a bilateral contract repudiates the contract.” Taylor v. Johnson, 15 Cal.3d 130, 137 (Cal. 1975). “When a promisor repudiates a contract, the injured party . . . can treat the repudiation as an anticipatory breach and immediately seek damages for breach of contract . . . .” Id.
Plaintiff alleges that the reinstatement created a new contestability period, which reduces the value of the Policy. Id. ¶¶ 59, 106. United represented that no new contestability period applies. (Doc. No. 23 at 14, 16, 31 n.12; Doc. No. 28 at 5, 10.) United's claim is counter to Plaintiff's well-pled allegations. (FAC ¶¶ 59, 106.) At the motion to dismiss stage, the Court takes Plaintiff's well-pled allegations as true and draws inferences in the Plaintiff's favor. Manzarek, 519 F.3d at 1031. Plaintiff's allegations are not merely conclusory or unreasonable. See In re Gilead Scis. Secs. Litig., 536 F.3d at 1055.
In Caminetti v. Manierre, 23 Cal.2d 94, 104 (1943), the California Supreme Court concluded that “[t]he wrongful cancellation of a contract of insurance . . . is somewhat analogous to a breach by anticipatory repudiation[.]” Plaintiff argues that she, like the insured in Caminetti, can bring a suit for anticipatory breach for immediate damages. United argues that Caminetti is distinguishable and should be limited to its facts. (Doc. No. 28 at 5-7.) The Court considers Caminetti to be analogous to this case. In Caminetti, the insureds lost their non-cancellable disability insurance coverage and experienced difficulty finding replacement coverage. Plaintiff likewise alleges that her insurance coverage was improperly terminated and that she encountered difficultly replacing the Policy through a new underwriting process. FAC ¶¶ 41, 80-84. Plaintiff asserts numerous allegations indicating that United breached their agreement prior to performance. Id. ¶¶ 76-93. These allegations are sufficient to state a claim for anticipatory breach at this stage.
Defendant's argument that Caminetti is limited to its specific facts is unpersuasive. Defendant largely relies on Garage and Serv. Emps. Union v. Pacific Mutual Life Ins. Co., 82 Cal.Rptr. 821 (Cal.Ct.App. 1969), in which the California Court of Appeal distinguished Caminetti, in part, because the insurer properly denied coverage. The Court concluded that the “[insurer] was not repudiating its obligation under the policy. It was adhering to its terms when it advised the member that the policy had been cancelled by the [policy holder.]” Id. at 824. Plaintiff's allegations are the opposite here and the Court does not reach any conclusion as to their truth on a motion to dismiss. The remainder of Defendant's argument depends on the Policy being a “unilateral contract, ” but the contract was not unilateral at the time of the alleged breach. Thus, the Defendant's support regarding anticipatory breach and unilateral contracts are inapplicable.
United argues that Plaintiff's allegations are insufficient plead damages because of Section 10111 of the California Insurance Code and Plaintiff's acceptance of the reinstatement offer. (Doc. No. 23 at 22-23.) Section 10111 states that “[i]n life . . . insurance, the only measure of liability and damage is the sum or sums payable in the manner and at the times as provided in the policy to the person entitled thereto.” Cal. Ins. Code § 10111. United asserts that Section 10111 requires that an insured must be deceased for a plaintiff to receive any damages. (Doc. No. 23 at 23.)
The Court does not view Section 10111 as precluding Plaintiff from stating a claim for damages at the motion to dismiss stage. Further, United's reinstatement of the Policy does not eliminate Plaintiff's damages. Wrongful cancellation of a life insurance policy is more than a nominal injury. See generally Kim v. AXA Fin., Inc., 2008 WL 11388671, at *4 (D. Nev. 2008); Bennett v. Am. Gen. Life Ins. Co., 2015 WL 12661909, at *6 (C.D. Cal. 2015); Siino v. Foresters Life Ins. & Annuity Co., 2020 WL 8410449, at *4 (N.D. Cal. 2020). Defendant's argument is better suited for a motion for summary judgment when the record is more fully developed. Accordingly, the Court concludes that Plaintiff sufficiently stated a claim breach for contract.
None of the authorities cited by United are persuasive on the narrow issue before the Court, i.e., whether Plaintiff's allegations of damages are sufficient to survive a motion to dismiss. (Doc. No. 23 at 22-23.)
C. Claim for Declaratory Relief
Plaintiff requests declaratory relief from the Court. FAC ¶ 132. Defendant seeks to dismiss this claim on the basis that no actual controversy exists between the parties. (Doc. No. 23 at 25-28.) Plaintiff argues that Defendant is improperly and prematurely attacking her class certification. (Doc. No. 27 at 23-25.)
The Declaratory Judgment Act permits district courts to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” 28 U.S.C. § 2201. Under federal and California law, an actual controversy must exist for courts to issue declaratory relief. Id.; Cal. Civ. Pro. § 1060. “The decision to grant declaratory relief is a matter of discretion, even when the court is presented with a justiciable controversy.” U.S. v. State of Wash., 759 F.2d 1353, 1356 (9th Cir. 1985) (citations omitted). Actions for declaratory relief must be “carefully limited in scope to meet the ‘case and controversy' requirements of Article III of the Constitution.” Pac. Merch. Shipping Ass'n v. Aubry, 918 F.2d 1409, 1414 (9th Cir. 1990) (citations omitted).
United asserts that there is no controversy between the parties on Plaintiff's declaratory relief claim. (Doc. No. 23 at 26.) But Plaintiff sufficiently pled allegations of a dispute between the parties concerning the contestability period. FAC ¶ 132 (“Plaintiff also desires a judicial determination that her policy did not become contestable by virtue of the improper forced ‘reinstatement.'”). Plaintiff alleges that reinstatement created a “new contestability period it did not have before[, ]” which allegedly reduces the value of the Policy. Id. ¶¶ 59, 106.
Under Cal. Ins. Code § 10113.5(a), an individual life insurance policy is generally incontestable “after it has been in force, during the lifetime of the insured, for a period of not more than two years after its date of issue[.]” But “upon reinstatement, [a policy] may be contested on account of fraud or misrepresentation of facts material to the reinstatement only for the same period following reinstatement, and with the same conditions and exceptions, as the policy provides with respect to contestability after original issuance.” Id. The Court concludes that Plaintiff pled the existence of a controversy between the parties sufficient for standing to bring her declaratory relief claim.
Defendant alternatively moves the Court to strike portions of Plaintiff's request for declaratory relief. (Doc. No. 23 at 28.) But this argument is also based on standing and as discussed, the Court disagrees with Defendant's view. Accordingly, the Court denies Defendant's motion to strike portions of Plaintiff's declaratory relief claim.
D. Bad Faith Claim
Defendant moves to dismiss Plaintiff's bad faith claim on three grounds: (i) it is precluded by the statute of limitations; (ii) it necessarily fails because Plaintiff does not state a claim for breach of contract; and (iii) it does not relate to an improper failure to pay benefits. (Doc. No. 23 at 15-17.)
“Under California law, ‘insurance bad faith' refers to a breach of the implied covenant of good faith and fair dealing as that covenant applies to insurance policies.” Gentry v. State Farm Mut. Auto. Ins. Co., 726 F.Supp.2d 1160, 1166 (E.D. Cal. 2010). “In order to establish a breach of the implied covenant of good faith and fair dealing under California law, a plaintiff must show: (1) benefits due under the policy were withheld; and (2) the reason for withholding benefits was unreasonable or without proper cause.” Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001). “The key to a bad faith claim is whether or not the insurer's denial of coverage was reasonable.” Id. A claim for insurance bad faith can sound in contract and in tort. Gentry, 726 F.Supp.2d at 1166.
First, Defendant asserts that a two-year statute of limitations for bad faith sounding in tort applies and that this bars Plaintiff's claim. (Doc. No. 28 at 12.) However, Plaintiff repeatedly alleges that United breached the Policy; this breach is the basis for her bad faith claim. See, e.g., FAC ¶¶ 157-58, 160-61, 165. A four-year statute of limitations applies to claims for bad faith that sound in contract. Frazier v. Metro. Life Ins. Co., 169 Cal.App.3d 90, 102 (Cal.Ct.App. 1985). Accordingly, Plaintiff alleges a timely claim for bad faith.
Plaintiff filed suit on July 6, 2021 and her policy was allegedly terminated on April 6, 2018. (Doc. No. 1-2, FAC ¶ 78.)
Second, the Court concludes that Plaintiff sufficiently pled an underlying claim for breach of contract. Defendant's argument is better suited for a motion for summary judgment when the record is more fully developed.
Third, Defendant asserts that Plaintiff's bad faith claim does not relate to an improper failure to pay benefits. (Doc. No. 23 at 30.) But the authority cited by the Defendant only states that “benefits due under the policy must have been withheld” for a party to state a claim for bad faith, not that there must be a failure to pay benefits. Love v. Fire Ins. Exch., 221 Cal.App.3d 1136, 1151-52 (Cal.Ct.App. 1990). Plaintiff asserts that United withheld certain benefits due under the Policy, i.e., the “benefit of her initial bargain with United, ” like the ability to maintain her Policy “without the need of further underwriting and on the same conditions as originally set[.]” FAC ¶ 102. Plaintiff alleges that she lost the benefit of a policy that complies with the Statutes. Id. Other courts have concluded that similar claims are viable as suits in bad faith. See, e.g., Egan v. Mut. of Omaha Ins. Co., 24 Cal.3d 809, 818-19 (Cal. 1979) (disability insurer breached the implied covenant of good faith and fair dealing when it failed to properly investigate plaintiff's insurance claim); Spindle v. Travelers Ins. Cos., 66 Cal.App.3d 951, 958 (Cal.Ct.App. 1977) (insurance cancellation can be the basis for a bad faith claim).
Plaintiff sufficiently alleges that United improperly withheld certain policy benefits within the appropriate statute of limitations. Accordingly, Defendant's motion to dismiss the bad faith claim is denied. Defendant's arguments are better suited for a motion for summary judgment when the record is more fully developed.
E. Unfair Competition Law Claim
Plaintiff asserts a claim pursuant to California's Unfair Competition Law (“UCL”). Cal. Bus. & Prof. Code § 17200, et seq. The UCL prohibits “unfair competition, ” which includes “any unlawful, unfair or fraudulent business act or practice.” Id. Each prong of the UCL is a separate and distinct theory of liability. Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718, 731 (9th Cir. 2007). Plaintiff alleges that United engaged in “unlawful, unfair, and deceptive acts” in violation of the UCL. FAC ¶ 144. United attacks Plaintiff's UCL claim two on grounds: (i) Plaintiff lacks standing because she cannot show an injury-in-fact; and (ii) Plaintiff failed to state a claim for restitution or an injunction, which are the only relief available to her in a UCL claim. (Doc. No. 23 at 30-35.) The Court addresses each of these arguments in turn.
First, standing for UCL claims is restricted to persons who have “suffered injury in fact and ha[ve] lost money or property as a result of the unfair competition.” Cal. Bus. & Prof. Code § 17204; Hinojos v. Kohl's Corp., 718 F.3d 1098, 1104 (9th Cir. 2013). The “lost money or property” requirement means that a plaintiff must demonstrate “some form of economic injury” as a result of the plaintiff's transactions with the defendant. Hinojos, 718 F.3d at 1104. The amount of lost money or property necessary to show standing is the same that would be required to establish an injury-in-fact for Article III standing. Id. There are “innumerable ways” that a consumer can show economic injury from unfair competition; at the pleading stage, “allegations of economic injury suffice.” Id. n. 4.
United argues that Plaintiff's claims only concern United's conduct after Plaintiff made her last premium payment. (Doc. No. 23 at 31.) United's theory is that since Plaintiff never paid a premium for the period in which the Policy was terminated, there are no economic losses. (Id.) But this is an overly restrictive view of Plaintiff's allegations. First, Plaintiff alleges that her Policy is less valuable after reinstatement because of a new contestability period. FAC ¶¶ 59, 106. Second, Plaintiff alleges that United “wrongfully collected” premiums and unlawfully failed to refund premiums. Id. ¶¶ 147-48. Third, Plaintiff alleges that United withheld benefits due to her. Id. ¶¶ 148-49. As Plaintiff explains in her opposition, she “paid for a policy that should have had several valuable characteristics, ” i.e., conformity with the Statutes, “but received a much less valuable policy. She overpaid.” (Doc. No. 27 at 19.) At the motion to dismiss stage, these allegations establish an economic injury that is sufficient for standing. See Kwikset Corp. v. Superior Ct. of Orange Cty., 246 P.3d 877, 885-86 (Cal. 2011).
Second, Plaintiff also sufficiently pleads a claim for restitution or an injunction at the motion to dismiss stage. Remedies available to private plaintiffs under the UCL “are generally limited to injunctive relief and restitution.” Cel-Tech Commc'ns, Inc. v. L.A. Cellular Tel. Co., 973 P.2d 527, 539 (Cal. 1999). Plaintiffs may not seek damages or attorneys' fees. Id. Under the remedy of restitution for a UCL claim, the Court compels the defendant “to return money obtained through an unfair business practice to those persons in interest from whom the property was taken[.]” Korea Supply Co. v. Lockheed Martin Corp., 63 P.3d 937, 944 (Cal. 2003). Restitution “is broad enough to allow a plaintiff to recover money or property in which he or she has a vested interest, ” not just the recovery of money or property that was once in the possession of a plaintiff. Id. at 947.
Defendant asserts that the “unrefunded premiums, withheld benefits and diminution of value of policies” that Plaintiff seeks is not restitution, but contract damages. (Doc. No. 23 at 32.) But Defendant misconstrues Plaintiff's claims. Under Plaintiff's theory, she paid for a life insurance policy that would conform to the legal obligations of the Statutes. She asserts a vested interest in such a policy because of her payments. But United allegedly did not provide such a policy. Moreover, when United reinstated the Policy, the reinstated Policy was allegedly worth less in value because of the new contestability policy. United allegedly retains Plaintiff's premiums, but Plaintiff no longer has the same policy she paid for. At this stage, Plaintiff has adequately pled a claim for restitution pursuant to the UCL. See, e.g., Ariste v. Am. Int'l Grp., Inc., 2020 WL 4037219, at *5 (C.D. Cal. 2020) (“the Court is persuaded that at this preliminary stage Plaintiff . . . may plausibly demonstrate that a form of restitution based on insurance premiums paid to the Defendants may be appropriate.”). Plaintiff also sufficiently alleged that an injunction is necessary to prevent irreparable injury and United's alleged engagement in unlawful practices in violation of the UCL. FAC ¶¶ 150-51. Defendant disputes these allegations and argues that (i) Plaintiff has a remedy at law, (ii) there is no likelihood of irreparable future injury, and (iii) any injunction is unworkable. (Doc. No. 23 at 34-35.) But Defendant's arguments are premature at this stage of the case. Defendant's arguments concerning injunctive relief are better addressed on a motion for summary judgment when the record is more fully developed.
II. Defendant's Motions to Strike and Motion for a More Definite Statement
Defendant moves to strike Plaintiff's class definition pursuant to Fed.R.Civ.P. 12(f) or, alternatively, for a more definite statement pursuant to Fed.R.Civ.P. 12(e). Defendant raises three arguments against the class definition: (i) the class includes persons who cannot presently be ascertained for purposes of class treatment; (ii) the class includes individuals whose insurance policies may lapse in the future; and (iii) the class includes insurance policies that were originally issued and delivered outside of California and renewed in California after January 1, 2013.
Under Fed.R.Civ.P. 12(f), a district court “may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” The purpose of a motion to strike is to avoid the expenditure of time and money that arises from litigating spurious issues. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). Motions to strike are “generally disfavored because they are often used as delaying tactics and because of the limited importance of pleadings in federal practice.” Cortina v. Goya Foods, Inc., 94 F.Supp.3d 1174, 1182 (S.D. Cal. 2015) (citation omitted). A motion to strike should not be granted unless “the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Smith v. Specialized Loan Servicing, LLC, 2017 WL 4181395, at *1 (S.D. cal. 2017) (citation omitted). When ruling on a motion to strike, the court views the pleading under attack in the light most favorable to the pleader. Id. “While class allegations may be stricken at the pleading stage, the granting of a motion to dismiss or strike class allegations before discovery has commenced should be done rarely.” Id. at *2 (citing In re Wal-mart Stores, Inc. Wage and Hour Litig., 505 F.Supp.2d 609, 615 (N.D. Cal. 2007) (the “better course is to deny such a motion because the shape and form of a class action evolves only through the process of discovery.”))
Rule 12(e) permits a party to “move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.” Like a motion to strike, a motion for a more definite statement is “disfavored and rarely granted.” Griffin v. Cedar Fair, L.P., 817 F.Supp.2d 1152, 1156 (N.D. Cal. 2011) (citation omitted). “The rule is aimed at unintelligibility rather than a lack of detail and is only appropriate when the defendants cannot understand the substance of the claim asserted.” Id. (citation omitted).
United's motion to strike the class definition is premature at this stage as no discovery has occurred in this case and many factual issues remain. Even if United's motion were not premature, it has not shown that Plaintiff's proposed definition is properly subject to a strike. United's argument is primarily aimed at the scope of Plaintiff's proposed class definition, not the materiality or pertinence of the class definition to Plaintiff's claim. See Whittlestone, 618 F.3d at 974. Likewise, a more definite statement is not warranted. Defendant's challenges are to the scope of the proposed class definition, not the definition's intelligibility. Accordingly, the Court denies Defendant's motion to strike portions of Plaintiff's class definition and denies Defendant's motion for a more definite statement.
III. Requests for Judicial Notice
Defendant requests the Court to take judicial notice of various exhibits under the incorporation by reference doctrine. Plaintiff filed corresponding objections and a motion to strike. “Generally, district courts may not consider material outside the pleadings when assessing the sufficiency of a complaint under [Fed. R. Civ. P. 12(b)(6)].” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018). The Ninth Circuit has cautioned courts that “unscrupulous use of extrinsic documents to resolve competing theories against the complaint risks premature dismissals of plausible claims that may turn out to be valid after discovery.” Khoja, 899 F.3d at 998. The incorporation-by-reference doctrine is an exception to this general rule. It is “a judicially created doctrine that treats certain documents as though they are part of the complaint itself.” Id. at 1002. A defendant “may seek to incorporate a document into the complaint ‘if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.'” Id. (citing U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003)).
Defendant requests that the Court take judicial notice of several documents that are purportedly related to Plaintiff's claim. (Doc. No. 23-3.) These documents include the following exhibits attached to Defendant's motion: (1) the “Third Party Notice Request Form” purportedly completed by the Plaintiff; (2) a March 25, 2021 letter from United to Plaintiff's counsel; (3) a November 17, 2020 letter from United to Plaintiff; (4) a July 23, 2021 letter from United to Plaintiff's counsel; and (5) a declaration of a United employee. (Docs. No. 23-1, 23-3.)
In its discretion, the Court declines to take judicial notice of these documents. See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir. 2012). Plaintiff does not refer any of the document extensively or rely on them as a basis for its claims. Khoja, 899 F.3d at 1002. Further, Defendant only submits a limited selection of the letters exchanged between the parties. The Court is mindful that a review of only a partial selection of related documents would “risk[] premature dismissals of plausible claims that may turn out to be valid after discovery.” Khoja, 899 F.3d at 998. Finally, there is no basis for the Court to consider the representations in the United employee's declaration under judicial notice or the incorporation-by-reference doctrine. Defendant's request is better suited on a motion for summary judgment when the record is more fully developed. Since the Court declines to take notice of Defendant's submissions in its discretion, Davis, 691 F.3d at 1160, the Court denies Plaintiffs corresponding motion to strike and objections as moot.
CONCLUSION
For the foregoing reasons, the Court denies Defendant's motions to dismiss, to strike, and for a more definite statement. The Court also denies Plaintiffs motion to strike as moot.
IT IS SO ORDERED.