Esquibel v. Kinder Morgan, Inc.

• Court: District Court, N.D. California
• Decided: August 24, 2023
• Docket: 3:21-cv-02510
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARK ESQUIBEL, et al., Case No. 21-cv-02510-WHO Plaintiffs, 8 ORDER ON MOTION TO DISMISS v. 9 Re: Dkt. No. 64 10 KINDER MORGAN, INC., et al., Defendants. 11 12 On June 15, 2023, I dismissed with leave to amend plaintiff Mark Esquibel’s promissory 13 fraud claim, which is based on allegedly false representations by defendant Kinder Morgan, his 14 former employer, that Esquibel was covered by its uninsured/underinsured insurance when driving 15 a vehicle during the course and scope of his employment. Dkt. No. 60 (June 2023 Order). I 16 directed Esquibel to allege additional facts “to show the claim is not time-barred and additional 17 facts regarding the initial representations and his discovering the truth.” Id. at 20.1 Esquibel filed 18 his Third Amended Complaint (TAC) on July 5, 2023. Kinder Morgan again moves to dismiss the 19 promissory fraud claim.2 20 In 2008, when Esquibel received a promotion, he specifically asked about insurance 21 coverage. TAC ¶ 76. Two employees of defendant confirmed coverage. Id. He alleges that those 22 employees knew that providing such insurance coverage was material to employees and that there 23 was no coverage. Esquibel relied on their promise in accepting a job and moved his family to the 24 Bay Area. Id. ¶¶ 77-79. He also states that “Kinder Morgan management informed Esquibel that 25 1 I denied the motion to dismiss Esquibel’s termination in violation of public policy cause of 26 action and dismissed, also with leave to amend, his False Claims Act (FCA) causes of action. Id. Esquibel dropped the FCA causes of action in his TAC. 27 1 he was insured when he did the annual pilot training and when he drove a company vehicle. 2 Esquibel had numerous times requested the written policy but was never provided with any 3 information.” Id. ¶ 58. He asserts that his “reliance” on the promises of insurance coverage was 4 “justifiable because it is not unusual for an employer to offer insurance coverage” given the 5 “dangerous employment” and it was reasonable to expect that “defendant Kinder Morgan would 6 not allow thousands of employees to drive within the State of California without State-mandated 7 uninsurance/underinsurance coverage.” Id. ¶ 80. Finally, he contends that he “did not learn, nor 8 could he have reasonably learned, that he had no such corporate insurance coverage within three 9 years of the filing of this civil action or otherwise in accordance with California law.” Id. These 10 allegations generally satisfy Rule 9(b) for the who, what, where, and when required to plausibly 11 state this claim, as well as the scienter and reliance elements of promissory fraud. 12 What Esquibel did not add in his TAC – despite being instructed to do so in the June 2023 13 Order – were facts supporting why he did not or could not have reasonably discovered that 14 defendants had not provided the promised insurance back in 2013, when Esquibel had the accident 15 in a company truck and had to pay out of pocket for his expenses, leading to the damages he seeks 16 to recover from the promissory fraud claim. See June 2023 Order at 19-20; see also ¶ TAC 82 17 (“Esquibel was damaged in reliance on the false promise made by Rounds, Murphy and Kinder 18 Morgan insofar as he was physically injured with a concussion, and the vehicle was damaged. 19 Esquibel was told that there was no insurance coverage for the accident caused by a third party 20 while in a company vehicle because the purported uninsurance/underinsurance coverage did not 21 actually exist.”). Given that failure, Kinder Morgan again moves to dismiss the promissory fraud 22 claim as barred by the statute of limitations. Dkt. No. 64. 23 In Esquibel’s opposition and accompanying request for judicial notice, he finally identifies 24 why he did not or was unable to discover sooner that he was not insured by Kinder Morgan. 25 Esquibel was pursuing litigation against the other driver in the accident from 2013 through 2019, 26 began a claim for underinsurance in 2020, and only learned that Kinder Morgan had not provided 27 him with underinsurance coverage in June 2021. Oppo. at 4 [Dkt. No. 71] & Request for Judicial 1 In Reply, Kinder Morgan argues that information is not properly incorporated into the 2 || TAC and is too little too late, given my prior admonishment that plaintiff had one more chance to 3 amend. It also argues that even if I take judicial notice of the insurance proceedings, that still does 4 || not explain why Esquibel was not reasonably able to discover the lack of coverage earlier. 5 The motion to dismiss is DENIED. The information regarding the insurance coverage 6 || proceedings provides plausible explanations for why Esquibel did not and perhaps could not have 7 || discovered Kinder Morgan’s failure to provide insurance coverage until 2021. True, Esquibel did 8 || not discuss these insurance proceedings in his TAC. However, I may take judicial notice that the 9 || proceedings occurred, just not of disputed facts contested in those proceedings.*? Drawing the 10 || inferences in the TAC in Esquibel’s favor with judicial notice of the existence and timing of the 11 difference insurance-related proceedings, it is plausible that he did not or could not have 12 || reasonably discovered the lack of insurance. Kinder Morgan may, of course, test this issue on an 13 || evidentiary record. While I cautioned Esquibel in my June 2023 Order that he had “one last 14 chance” to amend to address this issue in the TAC, I will not throw out what appears to be a 3 15 || plausible claim based on Esquibel’s lawyer’s actions. 16 Accordingly, the motion to dismiss is DENIED. 3 17 Pursuant to ADR L.R. 6-2, and pursuant to the parties’ agreement Dkt. No. 72, the parties 18 are referred to the Court’s ADR unit for appointment to a panel mediator. Any request to appear 19 || at the mediation by videoconference shall be made to the ADR unit/appointed mediator. 20 IT IS SO ORDERED. 21 Dated: August 24, 2023 V.Q2 23 . liam H. Orrick 24 United States District Judge 25 26 27 3 See, e. g., Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n. 2 (9th Cir. 2002) (“[W]e ‘may take 2g || notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.””).