Miletak v. Nationwide Mutual Insurance Company

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 NICK MILETAK, Case No. 5:25-cv-03931-PCP 8 Plaintiff, ORDER DENYING MOTIONS FOR A 9 v. PRELIMINARY INJUNCTION AND SUMMARY JUDGMENT AND TO 10 NATIONWIDE MUTUAL INSURANCE STRIKE AFFIRMATIVE DEFENSES COMPANY, et al., 11 Re: Dkt. Nos. 2, 15, 16 Defendants. [12] 13 Pro se plaintiff Nick Miletak brings a declaratory judgment action against defendants 14 Nationwide Mutual Insurance Company and AMCO Insurance Company regarding defendants’ 15 duty to defend and indemnify Miletak, pursuant to a homeowner’s insurance policy that Miletak’s 16 mother purchased, in a California state court malicious prosecution lawsuit. Before the Court are 17 Miletak’s motions for a preliminary injunction and summary judgment and to strike defendants’ 18 affirmative defenses. For the following reasons, Miletak’s motions are denied. 19 BACKGROUND 20 This case concerns Miletak’s appeal of a malicious prosecution judgment against him in 21 California state court and a homeowners’ insurance policy that Miletak’s mother purchased in the 22 early 2000s. 23 Miletak resided at 14745 Conway Avenue, San Jose, CA 95124 from September 1993 to 24 April 10, 2021 with his mother Filka Miletak and his brother Vlaho Miletak. According to 25 Miletak, his mother died on April 10, 2021, and Miletak continued living at that address with his 26 brother until May 5, 2023. 27 Sometime in the early 2000’s—around 2004, according to Miletak—Filka Miletak 1 Agency, LCC. Defendants assert that the policy listed 14745 Conway Avenue, San Jose, CA 2 95124 as the “insured location” and named Filka Miletak and Vlaho Miletak as insureds. The 3 policy also covered other residents at the insured location. Miletak asserts that he is also a “named 4 insured” under the policy, while defendants contend that if Miletak is covered by the policy it is 5 only as a resident. According to defendants, the policy included personal injury coverage for 6 malicious prosecution and required that an insured requesting coverage for an “occurrence” 7 provide defendants timely written notice of a claim as soon as practicably reasonable. 8 In April 2015, Miletak filed a lawsuit against Royal Coach Tours, Inc. in Santa Clara 9 County Superior Court for intentional misrepresentation, breach of contract, promissory estoppel, 10 and constructive damages. The court dismissed Miletak’s claims with prejudice and the California 11 Court of Appeal affirmed. On March 4, 2020, Royal Coach filed a lawsuit against Miletak for 12 malicious prosecution related to Miletak’s 2015 case against the company. In June 2024, Royal 13 Coach obtained a monetary judgment against Miletak at trial in the amount of $257,197.53: 14 $52,879.01 in compensatory damages, $79,318.52 in reputational harm damages, and $125,000 in 15 exemplary damages pursuant to California Civil Code section 3294. Miletak appealed to the 16 California Court of Appeal, and that appeal is ongoing. 17 Miletak asserts that defendants are obligated to provide him with appellate defense counsel 18 in that lawsuit and to indemnify him against any judgment pursuant to the homeowners’ insurance 19 policy. 20 Miletak contacted defendants about personal injury coverage under the insurance policy on 21 February 4, 2022. At approximately 4:21 p.m., Miletak called defendants’ claim department and 22 spoke to an intake representative. The parties dispute the substance of that call. Miletak claims that 23 the call lasted 35 minutes and that the representative incorrectly informed him that he did not have 24 personal liability coverage. He states that the representative refused to process his claim and 25 referred him to his insurance agent, Patrick Eilert. 26 Defendants claim that Miletak asked the intake representative whether the homeowner 27 policy in question would cover a property owner being sued. The representative explained that a 1 coverage. The representative offered to obtain information from Miletak to open a claim but 2 Miletak declined and asked to speak to a manager instead. The representative transferred Miletak 3 to her manager. Miletak did not file a claim. 4 On October 17, 2024, approximately four months after the judgment against him at trial, 5 Miletak filed a written claim with defendants. Defendants denied that claim due to untimely 6 notice. They explained that Miletak’s failure to notify them of Royal Coach’s lawsuit against him 7 until more than four years after it was filed deprived them of an opportunity to investigate, hire 8 defense counsel, and attempt to settle the lawsuit, which constituted substantial prejudice. 9 Miletak filed this lawsuit and an ex parte application for emergency relief on May 6, 2025. 10 The Court converted that application into a motion for preliminary injunction. Miletak proceeded 11 to file a motion for summary judgment and a motion to strike defendants’ affirmative defenses. 12 LEGAL STANDARDS 13 I. Preliminary Injunction 14 “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on 15 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the 16 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. 17 Res. Def. Council, Inc., 555 U.S. 7, 21 (2008). Under the “sliding scale” variant of the same 18 standard, “if a plaintiff can only show that there are ‘serious questions going to the merits’—a 19 lesser showing than likelihood of success on the merits—then a preliminary injunction may still 20 issue if the ‘balance of hardships tips sharply in the plaintiff's favor,’ and the other 21 two Winter factors are satisfied.” All. for the Wild Rockies v. Peña, 865 F.3d 1211, 1217 (9th Cir. 22 2017) (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)). 23 Under either version of the standard, a plaintiff must demonstrate that they are likely to suffer 24 irreparable injury in the absence of preliminary relief. “The grant of a preliminary injunction is the 25 exercise of a very far reaching power never to be indulged in except in a case clearly warranting 26 it.” Dymo Indus., Inc. v. Tapeprinter, Inc., 326 F.2d 141, 143 (9th Cir. 1964). 27 II. Summary Judgment 1 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 2 56(a). A fact is material if it “might affect the outcome of the suit under the governing law,” and a 3 dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return 4 a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 5 The moving party bears the initial burden to demonstrate a lack of genuine factual 6 dispute. Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets that burden, the 7 burden shifts to the opposing party to set forth facts showing that a genuine issue of disputed fact 8 remains. Id. The evidence and inferences drawn from the facts must be viewed in the light most 9 favorable to the nonmoving party. Anderson, 477 U.S. at 255 . 10 A party moving for summary judgment must identify for Court the portions of material on 11 file that demonstrate the absence of any genuine issues of material fact. T.W. Electric Service, Inc. 12 v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). “The district court need not 13 examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not 14 set forth in the … papers with adequate references so that it could conveniently be 15 found.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026 , 1031 (9th Cir. 2001). 16 III. Strike Affirmative Defenses 17 Rule 12(f) allows the Court to “strike from a pleading an insufficient defense or a 18 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “The key to 19 determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair 20 notice of the defense.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979). Motions 21 to strike are “generally not granted unless it is clear that the matter to be stricken could have no 22 possible bearing on the subject matter of the litigation.” LeDuc v. Kentucky Cent. Life Ins. Co., [23] 814 F. Supp. 820, 830 (N.D. Cal. 1992). “Ultimately, whether to grant a motion to strike lies 24 within the sound discretion of the district court.” Kanaan v. Yaqub, 709 F.Supp.3d 864 , 867 (N.D. 25 Cal. Dec. 26, 2023) (cleaned up); see Fed. R. Civ. P. 12(f) (emphasis added) (“The court may 26 strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or 27 scandalous matter.”). 1 ANALYSIS 2 I. Miletak’s motion for a preliminary injunction is denied. 3 Miletak has not carried his burden to show that the four preliminary injunction factors 4 favor granting an injunction. 5 A. Miletak has not shown that he is likely to succeed on the merits. 6 The parties acknowledge that the insurance policy in question included personal injury 7 coverage for malicious prosecution. Defendants assert that the policy required an insured 8 requesting coverage for an “occurrence” to provide defendants timely written notice of a claim as 9 soon as practicably reasonable. Specifically, the policy states: 10 We have no duty to provide coverage under this policy if the person seeking coverage fails to comply with the following duties …. : [11] 1. Give written notice to us or our agent as soon as is practical which [12] sets forth: a. The identity of the policy and “named Insured” shown in [13] the Declarations; 14 b. Reasonably available information on the time, place and circumstances of “occurrence”; and 15 c. Names and addresses of any claimants and witnesses 16 2. Cooperate with us in the investigation, settlement, or defense of any claim or suit; [17] 3. Promptly forward to us every notice, demand, summons or other 18 process relating to the “occurrence.” [19] 20 Miletak argues that he met the requirements of the policy because he gave notice immediately 21 upon discovering that the policy included coverage for malicious prosecution, presumably in 22 reference to his February 4, 2022 phone call to defendants’ claim department. 23 This theory is flawed for multiple reasons. Miletak has not shown that his communication 24 with defendants on February 4, 2022 met the specific requirements of the insurance policy. 25 Further, even if that call were sufficient to constitute notice, it did not occur until more than a year 26 and a half after the commencement of the malicious prosecution lawsuit against Miletak. Miletak 27 claims that he was unaware that his policy might provide coverage before that point. But an 1 Loan Assn. v. Nat’l Sur. Corp, 115 Cal. App. 3d 336 (holding that “ignorance of policy 2 provisions” does not “excuse late claim filing”); Jamestown Builders, Inc. v. Gen. Star Indem. Co., [3] 77 Cal. App. 4th 341, 349 (1999) (“[Plaintiff’s] ignorance of its policy rights does not extend the 4 time in which it was required to take action.”); Dietz Int’l Pub. Adjusters of California, Inc. v. 5 Evanston Ins. Co., 796 F. Supp. 2d 1197 (C.D. Cal. 2011), aff’d, 515 F. App’x 680 (9th Cir. 2013) 6 (“Failure to investigate and assess potential coverage does not support a finding that payments 7 made prior to tender were involuntary.”). 8 Under California’s notice-prejudice rule, an insurance company may not deny an insured’s 9 claim based on untimely notice unless it can show actual prejudice. Collin v. Am. Empire Ins. Co., [10] 21 Cal. App. 4th 787, 819 (1994) (explaining California’s notice-prejudice rule). Defendants have 11 shown that due to the significant delay in Miletak’s notice of the action against him they were 12 deprived of an opportunity to hire counsel to defend Miletak at trial, investigate potential defenses 13 and minimize Miletak’s potential liabilities, and potentially settle the claim for less than the 14 amount of the judgment that was ultimately entered against Miletak. These consequences 15 constitute prejudice. See, e.g., Earle v. State Farm Fire & Cas. Co., 935 F. Supp. 1076 , 1080 16 (N.D. Cal. 1996); Select Ins. Co. v. Sup. Ct., 226 Cal. App. 3d 631, 638 (1990); Collin, 21 Cal. 17 App. 4th at 819-820. 18 Accordingly, Miletak’s significant delay in providing notice to defendants of Royal 19 Coach’s malicious prosecution lawsuit against due to his ignorance of the policy provisions and 20 the substantial prejudice caused to defendants by that delay makes success on the merits in this 21 action highly unlikely. 22 B. Miletak has not shown that he is likely to suffer irreparable harm in the absence of preliminary injunctive relief. [23] 24 Miletak claims that without a preliminary injunction he will “lose the right to meaningfully 25 pursue an appeal” and he faces a risk of harm to his legal position and property interests. The 26 specific harm that Miletak alleges he faces is that he will have to proceed in appellate proceedings 27 without counsel and may be forced to pay the $257,197.53 judgment against him. Miletak has not 1 history of representing himself in litigation, including both in his original lawsuit against Royal 2 Coach and in Royal Coach’s lawsuit against him, suggests that he will not be prevented from 3 participating in his appeal if he is unable to retain counsel.1 Further, Miletak has not shown that in 4 the absence of a preliminary injunction compelling defendants to provide counsel he has no other 5 way of obtaining representation. He states that he has reached out to attorneys and legal 6 organizations to request pro bono representation but has not been successful. He also states that he 7 is not in a financial position to retain private counsel without accessing equity in [his] homestead 8 property in Florida. He provides no reason, however, why he is unable to access equity in that 9 property in order to finance his appeal. While doing so may be inconvenient or burdensome, such 10 circumstances do not constitute irreparable harm. Miletak has been a plaintiff in at least several 11 dozen prior lawsuits and his purportedly limited financial resources have not prevented his 12 participation in that litigation. 13 C. The balance of equities and public interest do not weigh for or against granting a preliminary injunction. [14] 15 Miletak argues that the balance of equities and public interest favor granting a preliminary 16 injunction because the potential loss of property and “appeals rights” that Miletak faces far exceed 17 the cost to defendants of providing representation to Miletak in state appellate proceedings. 18 “In considering the balance of equities, a court considering a preliminary injunction must 19 assess the degree of harm that will be suffered by the plaintiff or the defendant if the injunction is 20 improperly granted or denied.” Novus Optimum Labs v. Tamayo, No. 13-CV-01119-JST, 2013 21 WL 3354566 , at *7 (N.D. Cal. July 2, 2013) (cleaned up). 22 As discussed above, Miletak has not shown that he will be deprived of an opportunity to 23 participate in his appeal in the absence of a preliminary injunction because he has not 24 demonstrated that he is unable to obtain counsel by other means. While he faces the potential 25 enforcement of the $257,197.53 judgment against him, if no injunction is granted that harm may [27] 1 The Court takes judicial notice of Miletak’s prior lawsuits because their occurrence “can be 1 still be remedied by a later damages award. That harm is also speculative, as Miletak has not 2 shown that granting the preliminary injunction is likely to prevent the California Court of Appeal 3 from affirming the judgment. The harm that defendants face is attorneys’ fees and costs in 4 Miletak’s appeal. Because the only harm that any party faces if an injunction is improperly granted 5 or denied is economic, and therefore capable of being remedied by a damages award, this factor is 6 neutral. 7 “The public interest inquiry primarily addresses impact on non-parties rather than parties. 8 It embodies the Supreme Court’s direction that in exercising their sound discretion, courts of 9 equity should pay particular regard for the public consequences in employing the extraordinary 10 remedy of injunction.” Bernhardt v. Los Angeles Cnty., 339 F.3d 920 , 931–32 (9th Cir. 2003) 11 (cleaned up). “When the reach of an injunction is narrow, limited only to the parties, and has no 12 impact on non-parties, the public interest will be at most a neutral factor in the analysis rather than 13 one that favors granting or denying the preliminary injunction.” Stormans, Inc. v. Selecky, 586 14 F.3d 1109 , 1138–39 (9th Cir. 2009) (cleaned up). 15 The reach of the injunction sought is limited to the parties and no broader public interest is 16 implicated. Accordingly, this factor is neutral. 17 Because none of the preliminary injunction factors favors granting an injunction, Miletak’s 18 motion for preliminary injunction is denied. 19 II. Miletak’s motion for summary judgment is denied. 20 Miletak asserts that the following facts are undisputed: 21 • Miletak is the named insured under Policy No. HA 0022407268-4. 22 • The policy explicitly includes “malicious prosecution” under the definition of covered personal injury. [23] • Miletak contacted Nationwide’s claims department on February 4, 2022 to report the [24] lawsuit, as confirmed by Defendants’ April 1,2025 letter. [25] • Defendants denied coverage, falsely asserting that no notice was provided until 26 October 2024. 27 • On July 26, 2022, Miletak received a settlement demand of $10,000 which would have fully resolved the claim. • The matter proceeded to judgment, resulting in a $257,197.53 award, including [1] punitive damages. [2] Pursuant to Federal Rule of Civil Procedure 56(c)(1), “[a] party asserting that a fact cannot [3] be … genuinely disputed must support the assertion by … citing to particular parts of materials in [4] the record.” Miletak offers no support for his claim that the above facts are undisputed. Neither his [5] motion nor his reply includes any citations to the record. Although he states that there are no [6] genuine issues of material fact, he fails to “identify[] for court the portions of the materials on file [7] that … demonstrate the absence of any genuine issues of material fact.” T.W. Electrical, 809 F.2d 8 at 1157 . It is not the job of the district court “to scour the record in search of a genuine issue [9] of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996). It was instead Miletak’s [10] responsibility to identify the relevant portions of the record and he has failed to do so here. [11] Further, even if Miletak had cited to the relevant portions of the record, he would not have [12] been able to meet his burden of showing that there is no genuine dispute as to any material fact. At [13] the very least, the parties dispute whether Miletak provided timely notice and whether defendants [14] were prejudiced by any untimeliness. Such disputes are sufficient to preclude summary judgment. [15] Accordingly, Miletak’s motion for summary judgment is denied. [16] III. Miletak’s motion to strike affirmative defenses is denied. [17] Miletak moves to strike several of defendants’ affirmative defenses, asserting that they are [18] not properly asserted as defenses in general or in the particular circumstances of this case. [19] “The function of a motion to strike under Rule 12(f) is to avoid the expenditure of time and [20] money that must arise from litigating spurious issues by dispensing of those issues before trial.” [21] Free Speech Sys., LLC v. Menzel, 390 F. Supp. 3d 1162, 1169 (N.D. Cal. 2019). Where a motion [22] to strike would not actually streamline the litigation, however, it serves little purpose. Generally, [23] “motions to strike are disfavored because they are often used as delaying tactics and because of the [24] limited importance of pleadings in federal practice.” Gallardo v. AT & T Mobility, LLC, 937 F. 25 Supp. 2d 1128, 1134 (N.D. Cal. 2013). A motion to strike “should not be granted unless it is clear [26] that the matter to be stricken could have no possible bearing on the subject matter of the [27] litigation.” Smith v. Levine Leichtman Cap. Partners, Inc., 723 F. Supp. 2d 1205, 1212 (N.D. Cal. 1 2010); see Lee v. Hertz Corp., 330 F.R.D. 557 , 562 (N.D. Cal. 2019) (“Proceeding with 2 a motion to strike almost inevitably is a less efficient way of moving towards a resolution on the 3 merits .... While a court has the authority to grant a motion to strike ... at the pleading stage, such 4 || motions are rarely successful.”); see also Prime Focus Creative Servs. Canada Inc. v. Legend3D, 5 || Inc., No. CV152340MWFPLAX, 2016 WL 6678009 , at *6 (C.D. Cal. Mar. 1, 2016) (“Striking a 6 || party’s pleadings is an extreme measure that is infrequently granted.”). 7 Given the general policy against striking portions of pleadings and absent any showing that 8 || doing so would meaningfully streamline this litigation, the Court denies Miletak’s motion to 9 strike. 10 CONCLUSION 11 For the foregoing reasons, Miletak’s motions for a preliminary injunction and summary 12 || judgment and to strike defendants’ affirmative defenses are denied. 5 13 IT IS SO ORDERED. |} Dated: July 11, 2025 16 Aa le P. Casey Pats 17 United States District Judge