Writ 26STCP00952 filed today; note department number, was told by clerk at-window that 836 is now the department; AI says, yeah, the just went through a restructuring, but wonder if have been put in penalty box, otherwise why wouldn't that department's admins send notice to all present litigants? hopefully just evidence of us living in a system breaking down; had the thought though, because posting this, someone sent letter to court petitioner is a criminal; far-fetched but did cross my mind; hoping to proceed to the merits

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

JOHN DE HERRERA, Petitioner vs. INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB Respondent.

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Case No. 26STCP00952 Judge: Kin Department: 86 PETITIONER’S OPPOSITION TO RESPONDENT’S DEMURRER AND REQUEST FOR LEAVE TO AMEND

I. INTRODUCTION

    The Petition which Respondent argues ought to be dismissed 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 bodily injury claims were being sought, Petitioner as direct witness declared them fraudulent 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 discovery and post-filing conduct, specifically Respondent’s voluntary reopening of the investigation, Petitioner now recognizes that a mere production of claim notes is an inadequate remedy. To the extent the current pleadings are deemed narrow, Petitioner requests leave to amend Prayer for Relief to explicitly command Respondent to annul erroneous conclusion and issue a corrected administrative notice to the DMV in regards to Petitioner’s driving record. For the foregoing reasons, Petitioner respectfully requests that the Demurrer be overruled in its entirety, and 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 a ministerial duty. 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 that 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, preventing abuses of discretion.

    Because Petition sets forth detailed, verified facts indicating Respondent’s failure to perform duties under 10 CCR § 2695.5(b) and 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 and 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, possessing no adequate remedy at law, making a writ here, proper.

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 other driver does not, the DMV automatically issues an immediate warning to that driver 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 in good faith noted them as part of its “complete response” under 10 CCR § 2695.5(b) January 26 of this year.

    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 and instead 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, obscuring 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—the complete response is directly tied to Petitioner’s and any other of Respondent’s 1.4+ million 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 where a professional stunt person was injured by a 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—peppered with other 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 such abuses 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 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 there failed to identify any law requiring that County to act in an explicit, non-discretionary manner. Here, by contrast, Petitioner’s position rests 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). Here, the invasion of this right is not hypothetical and 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. POST-FILING CONDUCT CONFIRMS INCOMPLETENESS OF PURPORTED INVESTIGATION AND 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 resultant injuries persist and this Court maintains jurisdiction to adjudicate the necessary remedy to 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 onto a policyholder’s public driving record defies the clear intent of California auto insurance consumer protection regulations. 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, the evidence establishes a thorough investigation under 10 CCR § 2695.7(d) never took place and Respondent’s “complete response” under 10 CCR § 2695.5(b) was a narrative fiction. The true, necessary remedy here and now is not a production of claim notes, but a Peremptory Writ commanding Respondent to annul its previous determination and issue an immediate corrective notice to the DMV.

    Petitioner respectfully requests Demurrer be overruled in its entirety with leave to amend to correct and conform Prayer for Relief for an equitable adjudication of this case.  

DATED:

______________________________

JOHN DE HERRERA, IN PRO PER