MOTIV GROUP, INC. v. CONTINENTAL CASUALTY COMPANY

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8 United States District Court

9 Central District of California

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11 MOTIV GROUP, INC., Case № 2:20-cv-09368-ODW (Ex)

12 Plaintiff, ORDER GRANTING MOTION TO

13 v. DISMISS [51]; and

DENYING MOTION OF AMICUS

14 CONTINENTAL CASUALTY CURIAE TO SUBMIT OPPOSITION

COMPANY,

15 TO MOTION TO DISMISS [60]

Defendant.

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17 I. INTRODUCTION

18 Plaintiff Motiv Group, Inc. (“Motiv”) initiated this putative class action against

19 Defendant Continental Casualty Company (“Continental”) seeking declaratory

20 judgment for insurance coverage. (Compl., ECF No. 1.) Continental moves to dismiss,

21 (Mot. to Dismiss (“Motion” or “Mot.”), ECF No. 51), and non-party United

22 Policyholders (“UP”) moves for leave to file an amicus brief in opposition (“UP

23 Motion”), (UP Mot., ECF No. 60). Both motions are fully briefed. (See Opp’n to Mot.

24 (“Opp’n”), ECF No. 56; Reply, ECF No. 58; Opp’n UP Mot., ECF No. 64; Reply UP

25 Mot., ECF No. 66.) For the reasons below, the Court GRANTS Continental’s Motion

26 to Dismiss and DENIES UP’s Motion for Leave to File an Amicus Brief.1

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28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the

matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D Cal. L.R. 7-15.

1 II. BACKGROUND2

2 Motiv is a corporation operating a “retail establishment” with two locations, a

3 “retail store” and a “warehouse.” (Compl. ¶ 4; Opp’n 1.) On February 8, 2020, Motiv

4 entered into an “all-risk” property insurance policy with Continental. (Compl.

5 ¶¶ 11, 13, Ex. A (“Policy”), ECF No. 1-3.3)

6 In March 2020, the Governor of California and the City of Los Angeles ordered

7 the closure of all “non-essential businesses” due to the COVID-19 pandemic

8 (“COVID-19 Civil Authority Orders”). (Id. ¶¶ 40–41, 43–44.) Motiv “was forced to

9 close its retail businesses” in response to these orders. (Id. ¶ 2.) As a result, Motiv

10 “sustained a suspension of business operations, sustained losses of business income,

11 and incurred extra expenses.” (Id ¶ 47.)

12 Motiv alleges its losses are covered under the Policy and identifies five specific

13 provisions: “Business Income”; “Extended Business Income”; “Extra Expense”; “Civil

14 Authority”; and “Dependent Property.” (Id. ¶¶ 1, 15–22; Policy 40–41, 66, 153.) Motiv

15 filed claims for coverage under these provisions, which Continental denied. (Compl.

16 ¶¶ 2–3.) Accordingly, Motiv commenced this litigation against Continental seeking

17 declaratory judgment that the identified provisions provide coverage. (See Compl.)

18 Continental’s motion to dismiss followed, and thereafter UP moved for leave to file an

19 amicus curiae brief supporting Motiv. (See Mot; UP Mot.)

20 III. PRELIMINARY MATTERS

21 Continental requests, and Motiv does not oppose, that the Court take judicial

22 notice of the COVID-19 Civil Authority Orders and also consider them under the

23 incorporation by reference doctrine. (See Def.’s Req. for Judicial Notice (“RJN”),

24 Exs. B–D, ECF No. 51-1.) The Court GRANTS Continental’s RJN as to these exhibits

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26 2 All factual references derive from Plaintiff’s Complaint or attached exhibits, unless otherwise noted,

and well-pleaded factual allegations are accepted as true for purposes of this Motion. See Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009).

28 3 As the Policy is compiled, with internally repeating pagination, for this document only the Court

cites to the CM/ECF pagination at the top of each page.

1 because the COVID-19 Civil Authority Orders are matters of public record, which are

2 proper subjects of judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688

3 (9th Cir. 2001) (discussing that a court may take judicial notice of “matters of public

4 record” that are not “subject to reasonable dispute”); W. Coast Hotel Mgmt., LLC v.

5 Berkshire Hathaway Guard Ins. Cos., No. 2:20-cv-05663-VAP (DFMx), 2020 WL

6 6440037, at *2–3 (C.D. Cal. Oct 27, 2020) (taking judicial notice of city and

7 state-issued COVID-19 orders). Additionally, the Court finds it appropriate to consider

8 the COVID-19 Civil Authority Orders under the incorporation by reference doctrine.

9 See Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (discussing that a document

10 may be incorporated by reference if neither party disputes its authenticity and the

11 pleading necessarily relies on the document).

12 The Court SUSTAINS Continental’s Objection to Motiv’s “Composite

13 Exhibit C,” which Motiv offers in support of its opposition, as the materials in this

14 exhibit are not relevant to Motiv’s claims or the pending Motion. (Objs. to Pl.’s Evid.,

15 ECF No. 59; see Decl. of Victor J. Jacobellis ISO Opp’n ¶ 4, Ex. C, ECF No. 56-1.)

16 Finally, the parties submit numerous notices of supplemental authorities, many

17 of which appear to request judicial notice of various court decisions across the country,

18 as well as objections and responses thereto. (See ECF Nos. 51-1, 57, 59, 68–71, 73–76,

19 78–80.) The Court need not take judicial notice of decisions within this District and

20 beyond, but nevertheless considers them. However, the Court declines to consider any

21 improper arguments made in these submissions.

22 IV. LEGAL STANDARD

23 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable

24 legal theory or insufficient facts pleaded to support an otherwise cognizable legal

25 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To

26 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading

27 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v. Jones,

28 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to raise a

1 right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

2 555 (2007). That is, the complaint must “contain sufficient factual matter, accepted as

3 true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678

4 (internal quotation marks omitted).

5 The determination of whether a complaint satisfies the plausibility standard is a

6 “context-specific task that requires the reviewing court to draw on its judicial

7 experience and common sense.” Id. at 679. A court is generally limited to the pleadings

8 in ruling on a Rule 12(b)(6) motion but may consider “attached exhibits, documents

9 incorporated by reference, and matters properly subject to judicial notice.” In re

10 NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014); see Lee, 250 F.3d

11 at 688–89. When considering the pleadings, a court must construe all “factual

12 allegations set forth in the complaint . . . as true and . . . in the light most favorable” to

13 the plaintiff. Lee, 250 F.3d at 679. However, a court need not blindly accept conclusory

14 allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v.

15 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

16 Where a district court grants a motion to dismiss, it should generally provide

17 leave to amend unless it is clear the complaint could not be saved by any amendment.

18 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025,

19 1031 (9th Cir. 2008). Leave to amend may be denied when “the court determines that

20 the allegation of other facts consistent with the challenged pleading could not possibly

21 cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393,

22 1401 (9th Cir. 1986). Thus, leave to amend “is properly denied . . . if amendment would

23 be futile.” Carrico v. City and Cnty. of San Francisco, 656 F.3d 1002, 1008 (9th Cir.

24 2011).

25 V. DISCUSSION

26 The Court first addresses Continental’s Motion to Dismiss before turning to UP’s

27 Motion for Leave to File an Amicus Brief.

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1 A. Motion to Dismiss

2 Continental argues Motiv’s Complaint should be dismissed because the Policy

3 provisions on which Motiv relies provide coverage for only “direct physical loss of or

4 damage to” the premises, and Motiv cannot recover because it fails to allege the insured

5 premises was “physically damaged.” (Mot. 10–12.) In opposition, Motiv contends it

6 is entitled to coverage under these Policy provisions because COVID-19 Civil Authority

7 Orders forced Motiv to “close its location” and this constitutes a “physical loss” of

8 property that “result[ed] in major losses in revenue.” (Opp’n 1.) The Court agrees with

9 Continental for the following reasons.4

10 To begin, the Policy provisions at issue all contain identical language

11 conditioning recovery on “direct physical loss of or damage to property.” (See Compl.

12 ¶¶ 15–21; Policy 40–41, 66, 153.) Indeed, both the Business Income and Extended

13 Business Income provisions state that coverage is contingent on “the necessary

14 ‘suspension’ of [business] ‘operations’” caused by “direct physical loss of or damage to

15 the [insured] property.” (Compl. ¶¶ 15–16; Policy 40–41.) Similarly, Extra Expense

16 coverage is available only for losses that the insured “would not have incurred if there

17 had been no direct physical loss of or damage to property.” (Compl. ¶ 17; Policy 41.)

18 The Civil Authority provision also provides coverage only for losses caused by an

19 “action of civil authority that prohibits access to the described premises . . . due to direct

20 physical loss of or damage to property.” (Compl. ¶ 19; Policy 66.) And the Dependent

21 Property provision provides coverage only for losses incurred as a result of “direct

22 physical loss or damage” to the insured premises. (Compl. ¶ 21; Policy 153.) Thus, the

23 question becomes whether Motiv has alleged “direct physical loss or damage” sufficient

24 to trigger coverage under one of these provisions.

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28 4 As the Court finds the failure to allege direct physical loss of or damage to the property dispositive,

it need not consider the parties’ additional arguments, and declines to do so.

1 Under California law,5 “losses from inability to use property do not amount to

2 ‘direct physical loss of or damage to property’ within the ordinary and popular meaning

3 of the phrase.” 10E, LLC v. Travelers Indem. Co. of Conn., 483 F. Supp. 3d 828,

4 835–36 (C.D. Cal. 2020). Further, only a “distinct, demonstrable, physical alteration”

5 of property will amount to physical loss or damage that may trigger coverage. MRI

6 Healthcare Ctr. of Glendale, Inc. v. State Farm Gen. Ins. Co., 187 Cal. App. 4th 766,

7 779 (2010). “Detrimental economic impact” alone is insufficient. 10E, 483 F. Supp.

8 3d at 836. Several courts in this jurisdiction have recently considered cases with facts

9 nearly identical to this one, and these courts have reached a consensus—where an

10 insurance policy conditions recovery on “direct physical loss or damage,” economic

11 business impairments caused by COVID-19 safety orders do not fall within the scope

12 of coverage. 10E, 483 F. Supp. 3d at 835–37; see, e.g., Mark’s Engine Co. No. 28 Rest.,

13 LLC v. Travelers Indem. Co. of Conn., No. 2:20-cv-04423-AB (SKx), 2020 WL

14 5938689, at *4 (C.D. Cal. Oct. 2, 2020) (holding a business could not recover for

15 pandemic-related economic losses under an insurance policy requiring “direct physical

16 loss” or “direct physical damage” for coverage); W. Coast Hotel Mgmt., 2020 WL

17 6440037, at *4–7 (same).

18 Here, the Policy provisions on which Motiv relies clearly condition recovery on

19 “direct physical loss of or damage to” the insured premises. (See Compl. ¶¶ 15–21;

20 Policy 40–41, 66, 153.) But Motiv alleges only that COVID-19 restrictions have

21 required it to “close its retail businesses.” (Compl. ¶ 2.) Nowhere in the Complaint

22 does Motiv sufficiently allege direct physical loss or damage such as would trigger

23 coverage. (See generally Compl.); see also 10E, 483 F. Supp. 3d at 835–37.

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25 5 It is undisputed that California law governs this case. See Intri-Plex Techs., Inc. v. Crest Grp., Inc.,

499 F.3d 1048, 1052 (9th Cir. 2007) (“[In] a diversity action the law of the forum state, California,

26 applies.”). Under California law, “interpretation of an insurance policy is a question of law.” Waller

v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 18 (1995). “When interpreting a policy provision, [courts] must

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give its terms their ordinary and popular sense, unless used by the parties in a technical sense or a

28 special meaning is given to them by usage.” Palmer v. Truck Ins. Exch., 21 Cal. 4th 1109, 1115 (1999)

(internal quotation marks omitted).

1 Nevertheless, Motiv insists “direct physical loss” should be read to encompass

2 the type of economic business impairments it has suffered. (Opp’n 9–10 (citing Total

3 Intermodal Servs. Inc. v. Travelers Prop. Cas. Co. of Am., No. CV 17-04908-AB (KSx),

4 2018 WL 3829767 (C.D. Cal. July 11, 2018)).) But Motiv’s reliance on Total

5 Intermodal is misplaced. The Total Intermodal court merely held that an insured need

6 not show lost cargo is damaged if the cargo has been permanently dispossessed. Total

7 Intermodal, 2018 WL 3829767, at *3–4. That holding is entirely inapplicable to the

8 present facts; the court in Total Intermodal acknowledged as much when it noted that

9 “the same phrase in a different kind of insurance contract could mean something else.”6

10 Total Intermodal, 2018 WL 3829767, at 4 n.4. Moreover, even if the Policy did cover

11 “permanent dispossession,” which it does not, Motiv has not alleged any such

12 permanent dispossession, nor could it, as COVID-19 safety orders have only

13 temporarily restricted Motiv’s use of its premises. See 10E, 483 F. Supp. 3d at 836;

14 Plan Check, 485 F. Supp. 3d at 1231–32.

15 While the Court is sympathetic that Motiv is suffering economically from the

16 unprecedented COVID-19 pandemic, an economic business impairment does not

17 qualify as physical loss or damage to the premises. See 10E, LLC, 483 F. Supp. 3d

18 at 836. As Motiv does not allege direct physical loss or damage to the property, its

19 claims are not covered and its causes of action for declaratory judgment fail. Thus, the

20 Court GRANTS Continental’s Motion to Dismiss. Additionally, the Court finds that

21 leave to amend would be futile because allegations of other facts consistent with the

22 Complaint could not cure these deficiencies. See Schreiber Distrib. Co., 806 F.2d

23 at 1401; Carrico, 65 F.3d at 1008. As such, dismissal is without leave to amend.

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26 6 Notably, the same court that decided Total Intermodal later commented that “rel[iance] on . . . Total

Intermodal [to interpret the policy language] ‘direct physical loss of’ [as] encompass[ing] deprivation

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of property without physical change in the condition of the property . . . would be without any

28 ‘manageable bounds.’” Mark’s Engine, 2020 WL 5938689, at *4 (quoting Plan Check Downtown III,

LLC v. AmGuard Ins. Co., 485 F. Supp. 3d 1225, 1231 (C.D. Cal. 2020)).

1 B. Motion for Leave to File an Amicus Brief

2 In response to Continental’s Motion to Dismiss, UP moved for leave to file an

3 amicus curiae brief supporting Motiv. (UP’s Mot.) Continental opposes UP’s motion.

4 (Opp’n UP Mot.)

5 “The district court has broad discretion to appoint amici curiae.” Hoptowit v.

6 Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v.

7 Conner, 515 U.S. 472 (1995). To qualify for amicus status, an individual or

8 organization seeking to appear as amicus must merely “make a showing that his

9 participation is useful to or otherwise desirable to the court.” In re Roxford Foods Litig.,

10 790 F. Supp. 987, 997 (E.D. Cal. 1991) (quoting United States v. Louisiana, 751 F.

11 Supp. 608, 620 (E.D. La. 1990)); Congregation Etz Chaim v. City of Los Angeles,

12 No. CV 97-5042 CAS (Ex), 2009 WL 1293257, at *5 n.4 (C.D. Cal. May 5, 2009).

13 However, amicus status may be denied where the amicus lacks “unique information or

14 perspective that can help the court beyond the help that the lawyers for the parties are

15 able to provide.” Io Grp., Inc. v. Veoh Networks, Inc., No. C06-03926 HRL, 2007 WL

16 2433385, at *1 (N.D. Cal. Aug. 22, 2007) (quoting NGV Gaming, Ltd. v. Upstream

17 Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005)).

18 Here, UP’s participation would not be beneficial to the Court. UP’s proposed

19 brief is filed in support of Motiv’s position and in opposition to Continental’s, and sets

20 forth arguments similar to those in Motiv’s pleading and opposition. It does not offer a

21 unique perspective or information beyond that provided by the parties. See Io Grp.,

22 2007 WL 2433385, at *1; see also NGV Gaming, 355 F. Supp. 2d at 1068 (“Motions to

23 file ‘oppositions’ to [a party’s] briefs . . . will not be considered . . . .”). Consequently,

24 granting UP’s motion would not change the outcome of Continental’s Motion to

25 Dismiss as discussed above. Therefore, although the standards concerning amicus

26 status are liberal, UP’s participation in this case would not serve the purposes of an

27 amicus, and the Court DENIES UP’s Motion for Leave to File an Amicus Brief.

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1 VI. CONCLUSION

2 For the reasons discussed above, the Court GRANTS Continental’s Motion to

3 || Dismiss without leave to amend (ECF No. 51) and DENIES UP’s Motion for Leave to

4|| File an Amicus Brief (ECF No. 60). The Court will issue Judgment.

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6 IT IS SO ORDERED.

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8 April 1, 2021 N .

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10 Gia i

11 OTIS D. GHT, II

b UNITED STATES,DISTRICT JUDGE

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