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July 21, 2023
Creative Pleading Does not Avoid Punishment for Sloth

Suing for Unfair Competition and an Injunction to Avoid Private Limitation of Action Provision Dismissed

Barry Zalma
Jul 21, 2023

Read the full article at https://lnkd.in/gweU4EEp, see the full video at https://lnkd.in/gJJmw4zF and at https://lnkd.in/gRpzFsBu; and at https://zalma.com/blog plus more than 4550 posts.

Katherine Rosenberg-Wohl had a homeowners insurance policy with State Farm Fire and Casualty Company (State Farm), providing coverage on her home in San Francisco. The policy has a limitation provision that requires lawsuits to be “started within one year after the date of loss or damage.”

In Katherine Rosenberg-Wohl v. State Farm Fire And Casualty Company, A163848, California Court of Appeals, First District, Second Division (July 11, 2023) she sought indemnity to remedy a defect in the home. State Farm refused to pay because there was no insurable event and because the suit was filed more than a year after the alleged loss.

FACTS

In late 2018 or early 2019, plaintiff noticed that on two occasions an elderly neighbor stumbled and fell as she descended plaintiff’s outside staircase and learned that the pitch of the stairs had changed and that to make the stairs safe the staircase needed to be replaced. In late April 2019, plaintiff authorized the work and contacted State Farm, and on August 9, she submitted a claim for the money she had spent.

The denial was based on the investigation findings and concluded there was no evidence of a covered cause for accidental direct physical damage to the property. The denial also stated that the policy does not provide coverage for preventative nor safety measures to the property. Maintenance would be the responsibility of the property owner to properly maintain the property to keep it safe.

Plaintiff submitted a claim to State Farm for her construction expenses, which by then were approximately $52,600, with another $16,800 in anticipated expenses for additional work. By letter dated August 26-plaintiff alleged, without any investigation-State Farm denied the claim. The letter also specifically referenced “the suit limitation period” as a “policy defense.”

Plaintiff filed two lawsuits against State Farm in San Francisco Superior Court. One alleged two causes of action for breach of the policy and for bad faith. That lawsuit was removed to federal court and was resolved against plaintiff on a motion to dismiss based on the one-year limitation provision. It is currently on appeal in the Ninth Circuit.

The second suit before the the Superior Court purports to allege a claim for violation of California’s unfair competition law. This case was also resolved against plaintiff, also based on the limitation provision, when the trial court sustained a demurrer to the second amended complaint without leave to amend. Plaintiff appealed.

On October 22, 2020-some 18 months after she had replaced the staircase, 14 months after State Farm had denied her claim the first time, and nearly six months after the one-year limitation period of the policy had expired-plaintiff filed two lawsuits in San Francisco County Superior Court.

On April 20, 2021, Judge Massullo sustained the demurrer with leave to amend to add additional facts supporting waiver. On May 21, plaintiff filed a second amended complaint (SAC), adding, apparently without leave of court, a claim for false advertising. The SAC then states, again in capitalized boldface, that “This Is Not A Lawsuit For Damages For Breach Of Contract; Rather It Is A Challenge To How State Farm Does Business.”

State Farm filed a demurrer and a motion to strike the SAC. On July 29, Judge Massullo entered her order sustaining the demurrer without leave to amend, a comprehensive order indeed, eight pages of thoughtful analysis. She held that “the Court is persuaded that Plaintiff’s claims are nonetheless ‘on the policy’ because they are ‘grounded upon [State Farm’s] failure to pay policy benefits.’” She also concluded that “[a]ll of the alleged acts which form the basis of Plaintiff’s claims occurred during the claim handling process.” Finally, Judge Massullo held that State Farm had not waived the limitation provision.

DISCUSSION

The one-year limitation provision in the State Farm policy is there because it was required by statute. [Califonria Insurance Code section 2071] The one-year limitation provisions have long been held valid as mandated by statute.

The One-Year Policy Limitation Provision Applies

State Farm asserted that “the Legislature has expressly endorsed the provision under Insurance Code section 2071” and argued that because the allegations here all concern how it handled plaintiff’s claim, the suit is subject to the policy limitation period under applicable law. In sum, the crux of plaintiff’s claim is grounded upon a failure to pay policy benefits.

An insured cannot plead around the one-year limitations provision by labeling her cause of action something different than breach of contract which, of course, includes claims for bad faith. Conduct by the insurer after the limitation period has run cannot, as a matter of law, amount to a waiver or estoppel.

The policy requires any waiver to be in writing. Plaintiff does not allege State Farm agreed to waive anything in writing. Therefore, the judgment was affirmed and State Farm was allowed to recover its costs on appeal.

ZALMA OPINION

The Court of Appeal spent many pages resolving this fairly simple dispute. The plaintiff sued to collect benefits she believed were owed under a policy of insurance only to find that the suit was filed to late. To avoid that problem she amended the suit to allege unfair business practices and sought an injunction, all of which were seen to be an alternative way to obtain policy benefits and failed again. For more than 120 years the California Supreme Court and Courts of Appeal have upheld the private limitation of action provision required by statute and no amount of creative pleading can avoid its effect.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

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00:09:38
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August 27, 2026
Offer Made and Accepted Creates Enforceable Contract

Policy Limits Demand Accepted Settles Claim

Post 5434

Posted on August 26, 2026 by Barry Zalma

See the full video at https://lnkd.in/g-ZtsSgK and at https://lnkd.in/ghMBdYWR
A Contingent Offer Accepted Ends the Dispute

In Farmers Insurance Exchange, a California Reciprocal Insurance Exchange,  The Superior Court For The County Of San Bernardino, Kathleen Ann Wood, E087128, California Court of Appeals, (July 9, 2026) Farmers Insurance Exchange insured Doyle Archer under an automobile policy with bodily injury limits of $15,000 per person and $30,000 per accident.

FACTUAL BACKGROUND

Archer rear-ended Kathleen Ann Wood at a red light, causing Wood to assert a bodily injury claim against him. Wood’s counsel sent Farmers a pre-litigation settlement demand offering to resolve Wood’s claim for the available policy limits, stating that if the $100,000 demand exceeded the policy, the offer was for the policy limits.

Farmers timely responded in writing, agreed to pay Wood the $15,000 per-person policy limit, and provided the requested ...

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August 26, 2026
Offer Made and Accepted Creates Enforceable Contract

Policy Limits Demand Accepted Settles Claim

Post 5434

Posted on August 26, 2026 by Barry Zalma

See the full video at https://lnkd.in/g-ZtsSgK and at https://lnkd.in/ghMBdYWR
A Contingent Offer Accepted Ends the Dispute

In Farmers Insurance Exchange, a California Reciprocal Insurance Exchange,  The Superior Court For The County Of San Bernardino, Kathleen Ann Wood, E087128, California Court of Appeals, (July 9, 2026) Farmers Insurance Exchange insured Doyle Archer under an automobile policy with bodily injury limits of $15,000 per person and $30,000 per accident.

FACTUAL BACKGROUND

Archer rear-ended Kathleen Ann Wood at a red light, causing Wood to assert a bodily injury claim against him. Wood’s counsel sent Farmers a pre-litigation settlement demand offering to resolve Wood’s claim for the available policy limits, stating that if the $100,000 demand exceeded the policy, the offer was for the policy limits.

Farmers timely responded in writing, agreed to pay Wood the $15,000 per-person policy limit, and provided the requested ...

00:08:28
July 22, 2026
The Real Cost of Fraud

The Largest Residential Burglary of All Time
Post 5407

Fraud & the Fear of Bad Faith Suits
Posted on July 22, 2026 by Barry Zalma

See the full video at https://lnkd.in/gWQQEySW and at https://lnkd.in/gyhdK6wv

This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.

This is a Fictionalized True Crime Story of Insurance Fraud explaining why Insurance Fraud is a “Heads I Win, Tails You Lose” situation for Insurers. The story is one of a collection designed to help to Understand How Insurance Fraud in America is Costing Everyone who Buys Insurance Thousands of Dollars Every year and Why Insurance Fraud is Safer and More Profitable for the Perpetrators than any Other Crime.

After ...

00:12:33
11 hours ago
Res Judicata Produces Certainty

Posted on September 3, 2026 by Barry Zalma

You Only Get One Chance to Sue

Post 5484

In David Cromp v. Johnny Harkrider, Monique Harkrider, and their Marital Community, dba Able Plumbing Plus, No. 61678-5-II, Court of Appeals of Washington, Division 2 (August 25, 2026) David Cromp hired Able Plumbing Plus in 2018 to install plumbing, including two toilets, at his residence. In 2019, both toilets allegedly leaked, causing damage. Insurance claims were submitted through Able’s contractor policy, but the insurer eventually denied the claims.

Cromp sued Able in 2022 for breach of contract based on the allegedly defective toilet installation. During that case, Cromp attempted to add claims related to Able’s conduct during the insurance claim process, including fraud, bad faith, tortious conduct, and bond-related claims, but the superior court denied leave to amend. The 2022 breach-of-contract claim was later dismissed with prejudice on summary judgment as time-barred.

On the same day the 2022 case was dismissed, Cromp filed a ...

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September 02, 2026
A Charge of Insurance Fraud is not Grounds for Deportation

Habeas Corpus Petition Granted

Post 5483

Posted on September 2, 2026 by Barry Zalma

Over Staying Visa & Charge of Insurance Fraud Still Entitled to Habeas Relief and a Bond Hearing

In Hernan Guillermo Palomino-Crespo v. Warden, Glades County Detention Center et al., No. 2:26-cv-02322-SPC-NPM, United States District Court, M.D. Florida, Fort Myers Division (August 26, 2026) Hernan Guillermo Palomino-Crespo’s Amended Petition for Writ of Habeas Corpus, the government’s response and Palomino-Crespo’s reply.

FACTUAL BACKGROUND

Palomino-Crespo is a native and citizen of Colombia who lawfully entered the United States on a B-2 non-immigrant visa on February 24, 2017. He resides in Miami, Florida with his wife and two minor children, owns and operates a residential restoration and remodeling business, and files U.S. tax returns.
On June 4, 2026, the State of Florida charged Palomino-Crespo with insurance fraud.

Palomino-Crespo claimeds he did not meet the requirements for mandatory detention under § ...

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September 01, 2026
Zalma’s Insurance Fraud Letter –September 1, 2026

ZIFL Volume 30, Issue 17

THE SOURCE FOR THE INSURANCE FRAUD PROFESSIONAL

Posted on September 1, 2026 by Barry Zalma

Zalma’s Insurance Fraud Letter (ZIFL) continues its 30th year of publication dedicated to those involved in educing the effect of insurance fraud. ZIFL is published 24 times a year by ClaimSchool and is written by Barry Zalma. It is provided FREE to anyone who visits the site at http://zalma.com/zalmas-insurance-fraud-letter-2/

This issue contains the following articles about insurance fraud:

Bad Faith Suit Fails

State Farm Must Try Breach of Contract Claim Only

Breach of Condition is Ground to Deny Claim and Void Policy

In Arutyun Darakchyan v. State Fann General Insurance Company et al., No. 2:25-cv-03880-CAS-AJRx, United States District Court, C.D. California (August 11, 2026) Plaintiff Arutyun Darakchyan sued State Farm General Insurance Company after State Farm denied his homeowners burglary claim for losses allegedly sustained at his Tarzana residence.

Read the rest of the article and the full issue of ZIFL at ...

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