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E069428

IN THE COURT OF APPEAL


OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
________________________
RONALD AUSTIN,
Plaintiff and Appellant,

vs.
MUNICH RE AMERICA CORPORATION AND MUNICH
REINSURANCE AMERICA, INC.
Defendants and Respondents.
________________________
ON APPEAL FROM THE SAN BERNARDINO SUPERIOR COURT,
THE HONORABLE KEITH D. DAVIS, JUDGE
CASE NO. CIVDS1711217
________________________

APPELLANT’S REPLY BRIEF


________________________

RONALD AUSTIN

Plaintiff and Appellant, In Pro Per

1
TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES………………………………………... 3
I. INTRODUCTION …………………………………………… 4
II. ARGUMENT…………………………………….…………... 6
A. THIS COURT MAY GRANT LEAVE TO AMEND
IF APPELLANT CAN STATE ANY CAUSE OF
ACTION ON ANY POSSIBLE LEGAL THEORY ...... 6

B. AUSTIN’S CONTRACT AND WARRANTY


CAUSES OF ACTION ARE NOT BASED
ENTIRELY UPON A SINGLE PRESS RELEASE ...... 9

C. AUSTIN HAS ADEQUATELY STATED A


CLAIM AS A THIRD-PARTY BENEFICIARY
OF THE CONTRACT BETWEEN LDK
AND MUNICH RE .……...………...………...…….... 11

D. APPELLANT DID NOT WAIVE HIS


WARRANTY-BASED CLAIMS ON APPEAL
AS SUGGESTED BY RESPONDENTS ………….… 16

E. RESPONDENTS’ ARGUMENTS HAVE EVOLVED


TO PROP UP THE TRIAL COURT DECISION ....… 19

III. CONCLUSION …………………………………...………… 20

CERTIFICATE OF WORD COUNT…………………………….... 23

2
TABLE OF AUTHORITIES
PAGE
CALIFORNIA CASES
Alex Robertson Co. v. Imperial Casualty & Indemnity Co.
(1992) 8 Cal.App.4th 338 ……………….……………..…… 20
City of Stockton v. Superior Court
(2007) 42 Cal.4th 730 …………………………………….….. 8
Community Assisting Recovery, Inc. v. Aegis Security Ins.
(2001) 92 Cal.App.4th 886 ………………………...……….. 18
County of Santa Clara v. Atlantic Richfield Co.
(2006) 137 Cal.App.4th 292……………………..…………… 7
Duran v. Duran
(1983) 150 Cal.App.3d 176 ………..…………..…..……….. 14
Harper v. Wausau Ins. Corp.
(1997) 56 CA4th 1079 …………………………..…….……. 20
Harris v. Rudin, Richman, & Appel
(1999) 74 Cal.App.4th 288 ……………….………… 13, 14, 15
Holiday Matinee, Inc. v. Rambus, Inc.
(2004) 118 Cal.App.4th 1413 ………………………...…….. 18
Johnson v. Holmes Tuttle Lincoln-Mercury, Inc.
(1958) 160 Cal.App.2d 290 ………………………………… 15
Jones v. Aetna Casualty & Surety Co.
(1994) 26 Cal.App.4th 1717 …...……..…...……...………… 21
Moncada v. West Coast Quartz Corp.
(2013) 221 Cal.App.4th 768 .………………...…………… 7, 8
Platt v. Coldwell Banker Residential Real Estate Services
(1990) 217 Cal.App.3d 1439 ………………………………… 8
Tracfone Wireless, Inc. v. County of Los Angeles
(2008) 163 Cal.App.4th 1359 ………………………...…….. 18
Unruh-Haxton v. Regents of University of California
(2008) 162 Cal.App.4th 343 ………………………………... 17
CALIFORNIA STATUTES
Civil Code § 1559 ……………………………………………….. 17
CALIFORNIA RULES
California Rules of Court Rule 8.115 …………………..………..... 15
3
I. INTRODUCTION

Respondents’ Brief utterly fails to explain what it

contends is “long-standing precedent” that the contracting

parties’ intent of an unseen contract may be decided on a

demurrer. Respondents cannot cite even a single case where

any California court has ever determined contractual third-party

beneficiary status at the demurrer stage. The thrust of Munich

Re’s argument is, “There is no contract between Austin and

Munich Re.” [RB 7.] Appellant Austin has never claimed there

was.

On the contrary, Austin has repeatedly stated at great

length that the very reason for the instant appeal is that he

cannot amend his lawsuit to assert privity of contract between

Austin and Munich Re. Austin has plainly alleged verbatim in

his verified amended complaint that he is a third-party

beneficiary of a contract between Munich Re and LDK

guaranteeing solar panel output of Austin’s solar panels in the

event of LDK’s demise. [CT 20:23 – CT 21:3] This contract

was obviously made expressly for the benefit of solar panel

purchasers in the event of LDK’s collapse, including Austin.

4
Austin need not prove specific terms of the contract in

his complaint, much less provide hard evidence of the parties’

intent. As may be expected with many contracts wherein the

intended third-party beneficiary is not the contracting party,

Austin does not possess a copy. But the existence of the

contract, and its terms, is still advertised in many places on the

internet and not just in a single press release as argued by

Munich Re. [CT 17:24 – CT 18:19]

Again, Munich Re argues, “Austin does not allege that he

is an insured or additional insured under any Munich Re

policy.” [RB 9.] There is no requirement that Austin

additionally allege he is an insured under any sort of insurance

policy to withstand demurrer. Whether or not Austin is an

intended third-party beneficiary, be it under a contract for

traditional insurance or one for an “innovative photovoltaic

module guarantee cover,” is a factual matter that is clearly

never decided on a demurrer.

Munich Re never explains why it believes the factual

matter of third-party beneficiary status can be adjudicated on a

demurrer when the alleged contract has yet to be produced in

5
discovery by Munich Re. Instead Munich Re alleges its own

alternate facts as to the existence and intent of the subject

contract, telling us the contract does not cover Austin or his

purchase, who Munich Re’s press releases are not directed to,

and even that no such contract exists. However, a moving party

on a demurrer asserting its own facts is entirely improper.

Nothing Munich Re says in this regard merits any consideration

on demurrer.

Munich Re cannot continue to pretend that, because it is

an insurance company, every contract it enters into must be

interpreted sight unseen as a standard contract of insurance

between an insurer and its insured which can never be created

for the benefit of a third party.

II. ARGUMENT

A. This Court May Grant Leave to Amend if Appellant Can


State Any Cause of Action on Any Possible Legal Theory

Preliminarily, Respondents urge this Court to hold Appellant

to a heightened pleading standard they now imagine to exist

and deny leave to amend, even if Austin can state a cause of

action on any possible legal theory, since Austin elected not to

amend his complaint. [RB 11.]


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Notwithstanding the fact that Appellant could not amend his

complaint to assert the privity of contract between Austin and

Munich Re which the trial court correctly opined did not exist,

and the fact that Appellant would have waived his right to ever

appeal the trial court’s decision on that point by attempting to

do so 1, Respondents are just plain wrong to suggest that this

Court may not grant leave to amend. This Court need look no

further than Respondents’ own citation.

Respondents point to the decision in Moncada v. West Coast

Quartz Corp. (2013) 221 Cal. App. 4th 768 (“Moncada”),

wherein the court held, “Where, as here, the plaintiff is given

the opportunity to amend his or her complaint and elects not to

do so, strict construction of the complaint is required and it

must be presumed that the plaintiff has stated as strong a case

as he or she can.” (Moncada at 792.) [RB 11.]

1
“When a demurrer is sustained with leave to amend, and the plaintiff chooses
not to amend but to stand on the complaint, an appeal from the ensuing dismissal
order may challenge the validity of the intermediate ruling sustaining the
demurrer. [Citation.] On the other hand, where the plaintiff chooses to amend,
any error in sustaining the demurrer is ordinarily waived.” County of Santa
Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312.

7
The actual ruling underlying Respondents’ truncated citation

becomes apparent the very next sentence:

“However, the issue of leave to amend is

always open on appeal, even if not raised by the

plaintiff. [Citation.] (City of Stockton v. Superior

Court (2007) 42 Cal.4th 730, 746.) “[L]eave to

amend is properly granted where resolution of the

legal issues does not foreclose the possibility that

the plaintiff may supply necessary factual

allegations.” (Id. at p. 747.)” (Moncada at 792.)

Indeed, the appellate court in Moncada actually reversed the

trial court order sustaining a demurrer to a first amended

complaint with leave to amend. And this Court must reverse

the dismissal of the case at bar if it determines that Appellant

can state a cause of action on any possible legal theory. (Platt

v. Coldwell Banker Residential Real Estate Services (1990) 217

Cal.App.3d 1439, 1444.)

8
B. Austin’s Contract and Warranty Causes of Actions
Are Not Based Entirely Upon A Single Press Release

Respondents continue to maintain that all of Austin’s

contract and warranty causes of action are predicated upon a

single internet press release which Munich Re contends is not

directed at Austin, does not cover Austin’s purchased product

from LDK, and is too outdated for Austin to reasonably rely

upon in any event. [RB 8; RT 17, 13-23]

However, Austin has additionally alleged in his amended

complaint that, “Since the time AUSTIN began to shop for PV

solar panel modules in or around August 2014 and through the

present day, advertisements for LDK's solar panels of the

specific 280P Series model purchased by AUSTIN continue to

appear across the internet from U.S. vendors of LDK's PV solar

panel modules which advertise performance warranty

insurance policy for modules by Munich RE." (emphasis

added) [RT 17:24 – 18:4.] Austin attached one such

advertisement to his amended complaint as Exhibit D. [RT 49-

50.]

9
Austin goes on to specifically detail the terms of what

Munich Re agrees to do under a “performance warranty

insurance policy” guaranteeing Austin’s solar panels because,

Austin alleges, the terms are ‘the same or similar’ to the

representations set forth in Exhibit E attached to his amended

complaint. [RT 18:5-19; RT 52-53.]

Austin thus alleges the existence of a contract, specific terms

of the contract including what solar panel outputs are

guaranteed to Austin within what specific time periods, the

terms of said contract with regard to when Munich Re has the

obligation to perform, that Austin “is the intended third-party

beneficiary” of the contract between LDK and Munich Re, as

well as all essential elements of his causes of action related to

breach of contract and breach of warranty.

Yet Appellant’s amended complaint need not even state any

of this detail at all to withstand demurrer. Even absent any

exhibits at all, Austin’s current operative complaint contains all

required elements for each and every cause of action. It

remains unclear what greater factual detail of the contracting

parties' intent Munich Re believes is necessary given the fact

10
that it has not yet produced the subject contract to Austin in

discovery.

C. Austin Has Adequately Stated A Claim as a


Third-Party Beneficiary of the Contract Between
LDK and Munich Re

Following several pages of discussion in Respondents’

Brief regarding the fact that Austin is not a party to the contract

between LDK and Munich Re, Respondents at last address

Austin’s claimed third-party beneficiary status. Respondents

cite numerous cases demonstrating that “a third party cannot

enforce the terms of a contract unless its terms show that the

contract was ‘made expressly for the benefit of [the] third

person.’” [RB 12-13.]

Here again, Austin does not disagree. But the salient

flaw in Appellant’s argument is that the terms the contract in

question, and the intent of the parties to that contract, cannot be

evaluated on a demurrer if the contracting parties have not

produced it.

Respondents finally arrive at the issue of whether Austin

states a claim as a third-party beneficiary of the contract

between LDK and Munich Re. Respondents first claim that

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“the trial court correctly noted that the Complaint contains no

factual allegations to support Austin’s assertion that he is an

intended third-party beneficiary as a creditor beneficiary.

(R.T.4.)” [RB 14.]

Respondents entirely misstate what the trial court

ruled. The trial court never made any such statement at all that

there are no allegations in the Austin’s amended complaint to

support his assertions of third-party beneficiary status. Rather,

the trial court ruled that a contract exists between Austin and

LDK, i.e. for the purchase of solar panels. [RT 4: 3-7.] The trial

court goes on to state that Austin “was, in fact, a party to the

contract with LDK and being a party to that contract he

cannot simultaneously be a third-party beneficiary thereof.”

[RT 4: 9-12.] But Austin never claimed at any time that he was

somehow a third-party beneficiary of his own contract with

LDK for the purchase of solar panels. Such a claim would not

make any sense at all.

Austin informed the trial court in oral argument

immediately after the court issued its tentative ruling, “they’re

two different contracts” and “with regard to the contract

12
between LDK and Munich Re I'm alleging that I am the third-

party beneficiary to that contract.” [RT 14: 1-4.]

Respondents surely understand that they had confused

the trial court. And what they’ve presently chosen to do is take

the trial court’s misunderstanding, run with it, and even

misstate the trial court’s ruling in an attempt to confuse this

Court of Appeal. Again, the trial court never said Appellant’s

complaint contained no evidence to support Austin’s third-party

beneficiary status. Rather, the trial court said it was impossible

for Austin to be a third-party beneficiary because Austin had a

contract with LDK.

Next Respondents boldly assert, “Thus, to survive a

motion for demurrer on a third-party beneficiary claim, the

plaintiff may not rely on bare allegations but must allege facts

to show that it was the intended beneficiary. Harris v. Rudin,

Richman, & Appel (1999) 74 Cal. App. 4th 288, 307.” [RB 14.]

Thinking this case may actually provide some insight on what

facts could conceivably be alleged in a complaint to

demonstrate the intent of the parties to a contract, Appellant

read this case beginning to end. Respondents’ sole case cited

13
on this point does not deal with a third-party beneficiary claim

at all. The term ‘third-party beneficiary’ appears nowhere

therein. The case involves a standard contract claim between

contracting parties, where the case sets no standard for what a

plaintiff must show in a complaint alleging third-party

beneficiary status, where the alleged contract between the

contracting parties is attached to the complaint and, even with

all of that, the appellate court reverses the trial court’s granting

of a demurrer because, “Whether the parties intended their

communications to be a binding settlement agreement or an

agreement to further negotiate after a formal draft was prepared

is a factual question not properly the subject of a demurrer.

(See Duran v. Duran (1983) 150 Cal. App. 3d 176, 181 [197

Cal. Rptr. 497]” Harris v. Rudin, Richman, & Appel (1999) 74

Cal. App. 4th 288, 308. (Emphasis added.)

Thus, Respondents’ own citation demonstrates that,

contrary to Munich Re’s argument that Austin must somehow

demonstrate facts evidencing intent in making a contract, the

intentions of the parties is a question of fact not to be decided

on demurrer.

14
Surprisingly, Harris v. Rudin, Richman, & Appel (1999)

74 Cal. App. 4th 288 is not the only instance where

Respondents cite case law that stands for a proposition which is

the exact opposite of what Respondents assert. Respondents

further assert, “A creditor beneficiary exists only when the

contract demonstrates the parties’ intent to confer a benefit on a

particular third person. Johnson v. Holmes Tuttle Lincoln-

Mercury, Inc. (1958) 160 Cal.App.2d 290, 296-297.” [RB 13.]

But the case mentions nothing about a ‘particular third person’

and actually holds quite the opposite:

“It is not necessary that the beneficiary be named and

identified as an individual; a third party may enforce a contract

if he can show he is a member of a class for whose benefit it

was made. [citations]” (Johnson v. Holmes Tuttle Lincoln—

Mercury, Inc. (1958) 160 Cal. App. 2d 290, 297.) 2

2
As an example of just how far Respondents are willing to stretch case law this
Court is encouraged to read Munich Re’s Request for Judicial Notice supporting
its demurrer wherein Munich Re has the temerity to claim that C.R.C. Rule 8.115
prohibiting citation to unpublished cases is unconstitutional. [CT 86-96.] See,
also, Austin’s Opposition thereto [CT 153-157.]
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D. Appellant Did Not Waive His Warranty-based Claims
On Appeal as Suggested by Respondents

Respondents assert that “Austin does not challenge the trial

court’s demurrer on his warranty-based (sixth through eighth)

claims and his (twelfth) claim for declaratory relief.” [RB 15.]

Respondents go on to argue that this Court therefore cannot

reverse the trial court’s grant of demurrer as to those causes of

action because Austin has forfeited the right to contest the trial

court’s ruling thereon. This argument fails for two reasons;

First, Austin very clearly does challenge the court’s

ruling on demurrer on his warranty-based claims [AOB 14-18.]

As to the twelfth claim for declaratory relief, Austin devoted an

entire enumerated section in his opening brief challenging the

ruling on that cause of action alone. [AOB 22.]

Appellant takes Munich Re’s argument to mean that Austin

did not somehow further distinguish between the trial court’s

ruling on the contract claims and the warranty claims in the

instant appeal. But there is no need to do so because the trial

court itself did not do so. Austin brought these breach of

warranty causes of action against Munich Re explicitly

claiming third-party beneficiary status under California Civ.


16
Code § 1559. [CT 26: 19-22, CT 28: 24-28.] Recognizing that

warranty claims are contract claims, the court applied identical

reasoning in ruling upon the warranty claims, i.e. “There is no

contractual relationship between these moving defendants and

plaintiff. Hence, there is no privity.” [RT 7:4-6.] Thus, there is

no unique and distinct argument upon which the trial court

ruled with regard to the warranty claims which has not been

addressed by Appellant in this appeal.

Second, and perhaps more importantly, this Court is not

constrained to any particular legal arguments thus far made

with regard to any particular cause of action. This Court will

determine if Austin can state facts sufficient to constitute a

cause of action under any legal theory. (Unruh-Haxton v.

Regents of University of California (2008) 162 Cal.App.4th

343, 349.) This Court is free to independently evaluate

Appellant’s amended complaint and apply any legal reasoning

whatsoever, raised by the parties or not, even as to those

consumer law causes of action upon which the trial court has

overruled Respondents’ demurrer. Respondents made no

mention of these, yet that does not mean this court may not re-

17
evaluate these as well and conceivably find for Respondents as

to those causes of action.

On a de novo appeal of an order sustaining a demurrer the

appellate court conducts an independent review of the judgment

of dismissal, including the substantive issues. (Tracfone

Wireless, Inc. v. County of Los Angeles (2008) 163 Cal.App.4th

1359, 1363.) This court need not be concerned with the ruling

in the trial court, or any issues raised prior, and this Court may

treat review as if Appellant never even appeared before the trial

court at all. This doesn’t mean that this Court should have no

interest in what the trial court ruled, but its order is not binding

on the appellate court and it does not prevent this Court from

looking at Appellant’s complaint entirely anew. (Holiday

Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413,

1421.) An appellate court generally ignores the trial court’s

reasoning with regard to a demurrer and it is not limited by the

theories raised in the pleadings. (Community Assisting

Recovery, Inc. v. Aegis Security Ins. (2001) 92 Cal.App.4th

886, 891.)

18
E. Respondents’ Arguments Have Evolved To Prop Up
The Trial Court Decision

In closing, it bears mentioning that the case law and issues

argued by the parties at length in the trial court are not at all the

same arguments now being made before this Court. Because

Respondents must find a way to ‘prop up’ a windfall trial court

decision in its favor, Austin now finds himself arguing on

Reply against arguments not asserted in the court below in

order to address statements the trial court never actually made

(e.g. “[T]he trial court correctly noted that the Complaint

contains no factual allegations to support Austin’s assertion that

he is an intended third-party beneficiary as a creditor

beneficiary.”)

Respondents’ argument was never that Austin’s complaint

was factually deficient as to the intent of Munich Re and LDK

entering into an alleged contract. Respondents never argued

that if Austin had a contract with LDK, he could not

simultaneously be a third-party beneficiary of the contract

between Munich Re and LDK. Rather, Respondents’ entire

argument was that Austin could not bring a direct action against

19
an insurer pursuant to Alex Robertson Co. v. Imperial Casualty

& Indemnity Co. (1992) 8 Cal.App.4th 338.

Austin will not cut and paste from the many pages of his

Opposition to Demurrer since Respondents appear to have

abandoned their main argument, or at least declined to address

it to any degree in this appeal. However, to be completely clear

in the event it remains an issue, a third-party beneficiary may

bring a direct action against an insurer in California using

traditional contract principles. (Harper v Wausau Ins. Corp.

(1997) 56 Cal.App. 4th 1079, 1086.)

III. CONCLUSION

Respondents’ own conclusion begins, “This was a

lawsuit filed against the wrong party.” [RB 16.] The trial court

clearly did not think so when it denied Munich Re’s request for

misjoinder [RT 3: 3-10.] and it did not think so when it

overruled Munich Re’s demurrer as to almost half of the causes

of action alleged. [RT 3: 21-16.]

The bottom line is that the trial court made a simple error

of fact, resulting in an error of law. The court below failed to

distinguish between Austin’s agreement with LDK for the

20
purchase of solar panels and the contract Munich Re has with

LDK to service those solar panels, under which Austin

contends he is an intended beneficiary. No further amendment

would cure the trial court’s perceived defect in Austin’s

complaint.

The trial court did not rule as Munich Re would have this

Court believe, nor does any case law cited actually hold, that

Austin needs to allege additional facts not in his possession in

order to claim he is a third-party beneficiary. Rather, our courts

have universally held that third-party beneficiary status is a

factual matter of contractual interpretation. “Whether a third

party is an intended beneficiary or merely an incidental

beneficiary to the contract involves construction of the parties'

intent, gleaned from reading the contract as a whole in light of

the circumstances under which it was entered." (Jones v. Aetna

Casualty & Surety Co. (1994) 26 Cal. App. 4th 1717, 1724-

1725 33 Cal. Rptr. 2d 291.)

Appellant has not had his day in court. Respondents are

not entitled to simply declare by fiat in a demurrer that,

“[Austin’s] purchase of photovoltaic cells from LDK Solar

21
Tech USA, Inc. was not insured by Munich Re…” and have the

case against them disappear [RB 7.] Austin respectfully

requests that this Honorable Court reverse the judgment of

dismissal in this case as to both Munich RE defendants and

evaluate Austin’s amended complaint anew to determine if

Austin can state contract and warranty causes of action against

Munich Re.

Dated: March 18, 2018 Respectfully submitted,

_________/s/____________
RONALD AUSTIN
Appellant, in pro per

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CERTIFICATE OF WORD COUNT

Appellant hereby certifies that pursuant to Rule 8.204(c) of the

California Rules of Court, Appellant’s Reply Brief is produced using

14-point Roman type and contains 3,399 words, including footnotes,

excluding the cover information listed in Rule 8.204(b)(10), table of

contents, table of authorities, this certificate and the signature block,

which is less than the total words permitted by the Rules of Court.

Appellant relies on the word count of the Microsoft Word computer

program used to prepare this Brief.

Dated: March 18, 2018 ________/s/______________


RONALD AUSTIN

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PROOF OF SERVICE BY MAIL

I am employed in the County of Los Angeles, State of


California. I am over the age of 18 and not a party to the within
action; my business address is

On March 18, 2018, I served the foregoing document described


as: Appellants Reply Brief on the parties in this action by serving:

The Honorable Keith D. Davis


Clerk of the Superior Court of California
for the County of San Bernardino
247 W. 3rd Street
San Bernardino, CA 92415-0210

BY MAIL: As follows: I am “readily familiar” with this firm’s


practice of collection and processing correspondence for mailing.
Under that practice, it would be deposited with the United States
Postal Service on that same day with postage thereon fully prepaid at
Los Angeles, California in the ordinary course of business. I am aware
that on motion of party served, service is presumed invalid if postal
cancellation date or postage meter date is more than 1 day after date
of deposit for mailing in affidavit.

Executed on March 18, 2018, at Los Angeles California

I declare under penalty of perjury under the laws of the State of


California that the foregoing is true and correct.

24