Opposition revised

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

JOHN DE HERRERA,

Petitioner

vs.

INTERINSURANCE EXCHANGE OF THE

AUTOMOBILE CLUB

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Case No. 26STCP00952

Judge: Kin

Department: 86

PETITIONER’S OPPOSITION TO

RESPONDENT’S DEMURRER

Respondent.

I. INTRODUCTION

The Petition which Respondent argues ought to be denied without leave to amend is based on key

narrative plot points as testified in Paragraph 2 of Petition’s Statement of Facts: Petitioner was

involved in sub-5mph parallel paint transfer, the following day was informed that bodily injury

claims were being sought by third-party, Petitioner as direct witness declared them fraudulent, asked

IEAC agent what would occur from that point and was told an investigation would commence.

Petitioner brings this Opposition to Respondent’s Demurrer not only to contest a procedural

motion, but in defense of the integrity of statutory laws and public records.

Respondent’s Demurrer rests on a false, factually hollow premise: that Respondent can unilaterally

declare an investigation closed and a regulatory response “complete” despite logical fallacies, red

flags, and silence of public records. Crucially, Respondent’s post-filing conduct, demonstrated by

Petitioner’s Request for Judicial Notice (Exhibit BB), shows Respondent has reopened the Claim

under dispute. This action constitutes a tacit admission that its mandatory investigation under 10 CCR

§ 2695.7(d) was structurally deficient, making Respondent’s January 26, 2026 letter (Exhibit X)

neither final nor a “complete response” under 10 CCR § 2695.5(b).

Respondent contends a writ here improper because civil damages are available. However, a

standard civil suit cannot correct an erroneous or falsified driving record in protection of Petitioner’s

vested property interest in a driver’s license. Here a Writ of Mandate rectifies Respondent’s

administrative failures and non-performance of statutory duties. Because the Verified Petition sets

forth the factual parameters that must be accepted as true at this stage, the Demurrer must be

overruled.

As this matter has evolved through post-filing conduct—specifically Respondent’s voluntary

reopening of the investigation—Petitioner notes that a mere production of documents is an

inadequate remedy. To the extent the current pleadings are deemed narrow, Petitioner requests leave

to amend the Prayer for Relief to explicitly command Respondent to annul erroneous conclusion and

issue a corrected administrative notice to the DMV to Petitioner’s driving record. For the foregoing

reasons, Petitioner respectfully requests that the Demurrer be overruled in its entirety, and/or

alternatively, that leave to amend be granted.

II. STANDARD OF REVIEW

A demurrer tests only the legal sufficiency of the Petition, not the truth of underlying facts or

merits of the dispute. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966). For the purpose of

evaluating a demurrer, the Court must treat all material facts properly pleaded in the Petition as

absolute truths (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), give the pleading a liberal construction

with a view to substantial justice between the parties, drawing all reasonable inferences in the

Petitioner’s favor (Code of Civil Procedure § 452; Perez v. Golden Empire Transit Dist. (2012) 209

Cal.App.4th 1228, 1238); and overrule if verified facts demonstrate Petitioner is entitled to relief

under any viable legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103).

Under Code of Civil Procedure § 1085, a Writ of Mandate will issue to compel performance of an

act which law specially enjoins as duty resulting from office, trust, or station. While Respondent

argues its investigative methods are shielded by absolute administrative discretion, California law

establishes a writ will lie where a private corporation or regulatory entity has abused its discretion,

acted arbitrarily or capriciously, or failed to comply with explicit, mandatory statutory and regulatory

provisions. (Bodinson Mfg. Co. v. California Employment Com. (1941) 17 Cal.2d 321, 328-330). It

establishes that final legal interpretation rests with the courts, and mandamus is the proper remedy to

ensure agencies strictly adhere to statutory requirements and prevent abuses of discretion.

Because Petition sets forth detailed, verified facts indicating both the failure to perform duties

under 10 CCR § 2695.5(b) but also a profound abuse of investigative discretion under 10 CCR §

2695.7(d), the pleading is legally sufficient for the Demurrer to be overruled.

III. EXHAUSTION OF REMEDIES AND THE CDI ADMISSION

January 5, 2026, Petitioner alerted the California Department of Insurance (CDI) to the underlying

third-party claim by submitting a formal Consumer Insurance Fraud Reporting Form (CDI File No.

8695364). Following an administrative impasse the CDI Senior Insurance Compliance Officer issued

a formal response on April 15, 2026, submitted via Petitioner’s Request for Judicial Notice (Exhibit

AA). In that official writing the CDI states: “We are unable to resolve this particular dispute... the

ultimate decision is left to a court of law... Only a court of law has the authority to weigh the evidence

and the merits of each party’s position and arrive at a formal binding decision.”

The State regulatory body tasked with overseeing insurance mandates has explicitly conceded it

lacks mechanism to compel Respondent’s compliance, confirming Petitioner has exhausted

administrative remedies and possesses no adequate remedy at law.

IV. THE SILENCE OF PUBLIC RECORDS

Under California Vehicle Code § 20008 any motor vehicle accident resulting in bodily injury shall

be reported to the Department of the California Highway Patrol or local police department within 24

hours, and Vehicle Code § 16000 mandates the driver of every motor vehicle involved in an accident

resulting in bodily injury and/or damage over $1,000 must file a Report of Traffic Accident Occurring

in California (Form SR-1) with the Department of Motor Vehicles (DMV) within 10 days. Further,

pursuant to mandatory DMV administrative guidelines, when one driver files an SR-1 and reciprocal

driver does not, the DMV automatically issues an immediate warning notice that failure to file an

SR-1 within 10 days results in mandatory one-year driver’s license suspension. Yet Petitioner has

never received any such warning from the DMV. If Respondent’s investigation was authentic,

objective public records would exist, and Respondent would have noted them as part of its “complete

response” on January 26.

The absence of law enforcement accident reports under CVC § 20008 and failure of third party to

file SR-1 under CVC § 16000 constitute direct proof Respondent settled bodily injury claims based

on unverified assertions. Here, Respondent possessed the power and regulatory obligation to verify

the factual foundation of the Claim, instead Respondent ignored the silence of public records,

choosing to rely exclusively on unsworn, self-serving statements of a third party.

Because California Insurance Code § 1875.20 requires every auto insurer to maintain a Special

Investigations Unit (SIU), under the Credible Referral Standard of 10 CCR § 2698.36(c) the SIU

must investigate each alert to fraud. This same regulation allows an SIU to refrain from launching an

investigation if after preliminary review such referral lacks substance. Most importantly here, if the

SIU decides not to open an investigation it must document why, and which is why Petitioner has now

twice served and filed Notice to Prepare and Transmit those notes to ensure the Court is not forced to

adjudicate this case in a vacuum.

Within the four corners of this verified Petition, Petitioner properly pleads an evidentiary void that,

taken as true, demonstrates Respondent’s failure to investigate. Respondent’s purported investigation

under the law was not objective nor thorough, providing evidentiary proof ministerial and mandatory

laws were broken.

V. THE INTERDEPENDENT DUTIES OF 10 CCR § 2695.5(b) AND 10 CCR § 2695.7(d)

In Respondent’s Demurrer “claim file” and “complete response” are used interchangeably, where

Respondent obscures its ministerial duty to provide a factual response tied directly to the duty to

conduct a thorough investigation. Here Respondent treats the “complete response” as a disembodied

formality, when its purpose is to validate Respondent’s assertions of a thorough investigation. Under

the Fair Claims Settlement Practices Regulations (10 CCR § 2695.1 et seq.), a response is only

complete if it provides a comprehensive explanation based on the facts as then known by the insurer

—a duty directly tied to Petitioner’s or any other of Respondent’s 1.4+ policyholders’ beneficial

interest in a driving record free of erroneous points.

In addition, Respondent’s “complete response” of January 26 included the false claims that

Petitioner made illegal recordings and demanded compensation—and most importantly—that

Respondent explained the investigation process to Petitioner—all of which are untrue. To allow a

letter of logical fallacies—that a professional stunt person was injured by a parallel paint transfer, and

a four year old child remained motionless, silent, and hidden for over three minutes while Petitioner

stood directly in front of vehicle with unobstructed view through windshield—underlying the false

claims—to satisfy statutory law is to grant absolution simply by mailing a piece of paper.

As established by the California Supreme Court in Bodinson Mfg. Co. v. California Employment

Com. (1941) 17 Cal.2d 321, an administrative or corporate entity cannot use “discretion” to breach

statutory mandates. When a mandatory investigation ignores physical and behavioral realities atop

missing public records, a Writ of Mandate under CCP § 1085 is the precise and proper instrument to

correct this abuse of discretion.

Furthermore, underlying Respondent’s Demurrer is the fallacy that this is an equal-power contract

dispute, that Respondent fulfilled its duties and Petitioner is simply disgruntled with its

determinations. California law recognizes that the relationship between an insurer and insured is

inherently unbalanced due to the adhesive nature of insurance contracts (Egan v. Mutual of Omaha

Ins. Co. (1979) 24 Cal.3d 809, 819-20). Respondent utilized its superior position in this case to hold

Petitioner in an information vacuum while available exculpatory evidence in the form of security

content from two separately owned and operated cameras advanced towards being overwritten and

destroyed. This single example here of the exploitation of power asymmetry is exactly what the

Implied Covenant of Good Faith is designed to check. Respondent contends its contractual discretion

to resolve claims completely immunizes its internal processes from review. However, California law

establishes that the implied covenant of good faith and fair dealing exists specifically to secure the

insured’s peace of mind, protecting the benefits of the contractual relationship (Jonathan Neil &

Associates, Inc. v. Jones (2004) 33 Cal.4th 917, 937). While contractual discretion permits an insurer

to settle third-party financial liability, that discretion is bounded by the mandatory requirements of 10

CCR § 2695.5(b) and 10 CCR § 2695.7(d). These administrative regulations provide the explicit legal

architecture required to ensure an insurer’s discretion does not corrupt a public DMV driving record.

When a dominant drafting party like Respondent chooses to ignore or remain silent about

information, the policyholder becomes powerless to defend their public record (Wilson v. 21st

Century Ins. Co. (2007) 42 Cal.4th 713). That Respondent has exercised asymmetric dominion over

facts, by remaining silent regarding them or outright withholding them, to facilitate and allow

unsupported penalties to a driving record, constitutes a severe abuse of discretion. Judicial

intervention here restores balance and ensures consumer protections do not become meaningless to

insurers. If the law is shield for the individual’s security, there is no security when an insurer can,

with a wand of discretion, forward penalties to the DMV which have no basis.

VI. PETITIONER’S REBUTTAL TO RESPONDENT’S AUTHORITIES

Respondent’s Demurrer relies on a number of inapplicable authorities to construct a false premise:

that an insurance policy’s “right to settle” clause creates an absolute shield against judicial review.

Incidentally, Exhibit V, Petitioner’s policy does not explicitly contain such a clause, and Petitioner’s

only knowledge of such appeared in Exhibit O, an email, and the January 26 final response.

Regardless, this argument conflates contractual discretion in private disputes with an insurer’s non-

discretionary, ministerial obligations to obey California regulatory law.

Respondent relies on Baldwin v. AAA (2016) 1 Cal.App.5th 545 and Love v. Fire Insurance

Exchange (1990) 221 Cal.App.3d 1136 for the proposition that courts cannot interfere with an

insurer’s discretion to settle claims. Both cases are easily distinguishable. Baldwin addressed a

narrow dispute over whether a policy exclusion barred monetary valuation for a vehicle’s

depreciation. Love addressed whether an insured could bring a bad faith claim when no benefits were

due under the policy. Neither case featured a plaintiff seeking to compel compliance with mandatory

administrative regulations. As stated above, here an insurer’s contractual discretion is bounded by the

mandatory requirements of 10 CCR § 2695.5(b) and 10 CCR § 2695.7(d). Indeed, Love explicitly

notes that the covenant of good faith exists so “neither party will do anything which will injure the

right of the other to receive the benefits of the agreement.” A core benefit of Petitioner’s auto

insurance policy is a lawful, fair investigation so a driving record is not marred by a grave,

uncorrected error.

Respondent’s reliance on Siskiyou Hospital, Inc. v. County of Siskiyou (2025) 109 Cal.App.5th 14

is entirely misplaced. In Siskiyou, writ relief was unavailable only because the petitioner failed to

identify any law requiring that County to act in an explicit, non-discretionary manner. Here, by

contrast, Petitioner’s claims rest on 10 CCR § 2695.5(b) and 10 CCR § 2695.7(d), which impose

clear, mandatory obligations. A ministerial duty arises when an entity is required to perform an act “in

a prescribed manner in obedience to the mandate of legal authority and without regard to [its] own

judgment.” (Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501). Because the text of these regulations

is explicitly mandatory, Respondent possesses no administrative discretion to ignore them.

Respondent’s reliance on Loeber v. Lakeside Joint School Dist. (2024) 103 Cal.App.5th 552 to

challenge Petitioner’s standing entirely misinterprets the Public Interest Exception. In Loeber, the

Court of Appeal explicitly recognized that a citizen possesses standing under this exception when the

object of the writ is to compel enforcement of a public duty, even if the petitioner lacks a personal

beneficial interest. Petitioner meets the exact standard protected by Loeber. If Respondent is

permitted to use settlements to entirely bypass its regulatory investigative duties, the due process

rights of Respondent’s 1.4+ million policyholders’ vested right in a driver’s license is left

unprotected. Where a writ seeks to enforce a public duty—here, the structural integrity of regulated

insurance practices and accuracy of public DMV records—that duty is owed to the public at large,

and standing is fully established.

VII. IRREPARABLE PERSONAL, PROFESSIONAL, AND FINANCIAL HARM

Respondent’s Demurrer rests on a selective and incomplete reading of the Petition, omitting the

following facts establishing irreparable harms:

1. Imminent Threat to a Vested Fundamental Right: Petitioner is presently forced to drive with zero

margin for error for the next 30 months, operating just one minor incident away from a “negligent

operator” suspension. California law explicitly recognizes a driver’s license as a vested, fundamental

right (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392). The invasion of this right

is not hypothetical, has occurred the moment Respondent reported an unfounded bodily injury point

to the DMV, creating an active, present precursor to the suspension of Petitioner’s license.

2. Present and Ongoing Financial Injury: The erroneous bodily injury designation has directly

resulted in an increase in Petitioner’s insurance premiums—a present-day, non-speculative invasion

of Petitioner’s property interests, not a prospective or deferred harm.

3. Present Disqualification from Professional Advancement: As set forth in the Petition, the

erroneous bodily injury designation functions as an active administrative barrier to international

teaching opportunities, where strict character and conduct regulations govern visa issuance.

Respondent incorrectly argues that Petitioner must first formally apply and be rejected to state a

cause of action. To the contrary, forcing Petitioner to undergo an application process when an

unlawful administrative record assures disqualification in countries with strict guidelines, constitutes

an ongoing, irreparable injury to Petitioner’s livelihood.

VIII. RESPONDENT’S POST-FILING CONDUCT CONFIRMS INCOMPLETENESS OF

PURPORTED RESPONSE AND DOES NOT MOOT THIS PROCEEDING

While a demurrer is generally confined to the face of the pleadings, a court may take judicial notice

of post-filing facts to evaluate an entity’s compliance. (Joint Logistics Experts, LLC v. Superior Court

(2020) 50 Cal.App.5th 759). As demonstrated by Exhibit BB, Respondent reopened the Claim during

the pendency of litigation. This post-filing action constitutes an explicit, objective admission that

Respondent’s January 26, 2026 letter (Exhibit X) was neither final nor a “complete response” under

10 CCR § 2695.5(b).

However, under California law, an entity cannot defeat mandamus or strip a court of its jurisdiction

by engaging in partial, unverified post-filing actions while leaving the underlying injuries

uncorrected. (Save the Plastic Bags Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 165

[holding that a writ proceeding is not mooted by subsequent agency action where a material portion

of the requested relief remains unfulfilled]; VCSoCal, Inc. v. State Dept. of Public Health (2023) 93

Cal.App.5th 1240, 1261 [ruling that a respondent’s voluntary cessation of challenged conduct does

not moot a mandate proceeding unless it is entirely clear that the legality of the practice has been

fully resolved and cannot recur]; Hardie v. EU (1970) 5 Cal.App.3d 297, 301 [establishing that

voluntary partial compliance after a petition is filed does not remove a court’s jurisdiction to compel

full, unfulfilled performance of a legal duty]). Here, post-filing conduct is an incomplete compliance

and/or attempt to evade judicial review. The spirit of these collective authorities is clear: Respondent

cannot strategically adjust its behavior mid-litigation to escape judicial oversight while Petitioner

continues to suffer harms. Because the erroneous bodily injury point remains active on Petitioner’s

public DMV record, the injuries persist, and this Court maintains jurisdiction to adjudicate the

necessary remedy to these present and ongoing injuries.

IX. CONCLUSION AND REQUEST TO AMEND

The Verified Petition sets forth specific, material facts establishing that Respondent failed to

perform its non-discretionary ministerial duties under 10 CCR § 2695.5(b) and 10 CCR § 2695.7(d).

Because these allegations must be accepted as absolute truths at the demurrer stage, the pleading is

legally sufficient (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966).

As established by the California Supreme Court in Bodinson Manufacturing Co. v. California

Employment Commission (1941) 17 Cal.2d 321, the ultimate purpose of a mandate proceeding under

CCP § 1085 is to review final decisions which violate clear regulatory mandates, preventing a failure

of justice where no other adequate legal remedy is available. Allowing an insurer to insert unverified,

arbitrary penalties into a policyholder’s public driving record defies the clear intent of California

consumer protection regulations.

Petitioner has no adequate remedy at law to correct a compromised public record or to preserve the

fundamental vested property interest in a driver’s license. To ensure state-mandated protections are

not rendered illusory, the Court must allow this matter to be decided on the merits.

As the scope of this case has broadened, a mere production of claim notes cannot remedy the

situation. By voluntarily reopening the Claim, Respondent has indisputably documented its initial

investigation was a non-performance of duties. Because the record establishes a thorough

investigation under 10 CCR § 2695.7(d) never took place, the “complete response” under 10 CCR §

2695.5(b) was a narrative fiction. The true, necessary remedy is not a production of notes, but a

Peremptory Writ commanding Respondent to annul its erroneous conclusion and issue an immediate

corrective notice to the DMV.

DATED:

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JOHN DE HERRERA, IN PRO PER