TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES………………………………………... 3
I. STATEMENT OF FACTS………………………………….... 5
II. PROCEDURAL HISTORY……………………………..….... 7
A. THE PLEADINGS ……………….…………..…..…… 7
B. THE TRIAL COURT’S RULING …………...…..….... 9

III. STATEMENT OF APPEALABILITY…………...………… 11

IV. ISSUE ON APPEAL……………..…………………………. 13
V. STANDARD OF REVIEW…………………………………. 13
VI. ARGUMENT………………………………………………... 14
A. THE TRIAL COURT ERRED IN SUSTAINING
MUNICH RE’S DEMURRER ON THE BASIS
THAT AUSTIN COULD NOT SUE MUNICH RE
AS A THIRD PARTY BENEFICIARY….......……… 14

B. MUNICH RE’S ARGUMENTS ……….....………… 19

C. TWELFTH CAUSE OF ACTION FOR

DECLARATORY RELIEF ………...………...…….... 22

VII. CONCLUSION …………………………………...………… 24

CERTIFICATE OF WORD COUNT…………………………….... 25

CERTIFICATE OF INTERESTED ENTITES OR PERSONS …… 26

PROOF OF SERVICE …………………………………………...... 27

2
 TABLE OF AUTHORITIES
PAGE

CALIFORNIA CASES

Alex Robertson Co. v. Imperial Casualty & Indemnity Co.

(1992) 8 Cal.App.4th 338 ……………….……………… 19, 20
Ashland Chemical Co. v. Provence
(1982) 129 Cal.App.3d 790………………………..……...... 12
Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962…………………………………….…... 14
Bennett v. Hibernia Bank
(1956) 47 Cal.2d 540 ………..…………...…………………. 20
Casey v. Overhead Door Corp.
(1999) 74 Cal.App.4th 112 ……..…………………………… 13
County of Santa Clara v. Atlantic Richfield Co.
(2006) 137 Cal.App.4th 292………………………………… 12
Fireman's Fund Insurance Co. v. Maryland Casualty Co.
(1994) 21 Cal. App. 4th 1586 ………………….……….. 20, 21
Foster v. Masters Pontiac Co.
(1958) 158 Cal.App.2d 481 …………...……………………. 19
Harper vs. Wassau
(1997) 56 Cal.App.4th 1079 ………….…………………….. 16
Jimenez v. Superior Court
(2002) 29 Cal.4th 473 ………………...……………………. 13
Jones v. Aetna Casualty & Surety Co.
(1994) 26 Cal. App. 4th 1717 ………………………………. 18
Medina v. Hillshore Partners
(1995) 40 Cal.App.4th 477 ………………….……………… 14

3
 TABLE OF AUTHORITIES (continued)
PAGE

CALIFORNIA CASES

Murphy v. Allstate Insurance Co.

(1976) 17 Cal. 3d 937 ………………………………………. 21
Northwestern Mutual Insurance Co. v. Farmers' Insurance Group
(1978) 76 Cal. App. 3d 1031 ………………………………. 21
Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074 ………..……………………………. 14
Wirin v. Horrall
(1948) 85 Cal.App.2d 497 ………………………………….. 17

CALIFORNIA STATUTES

Bus. & Prof. Code § 17200 (Unfair Competition Law) ................ 8, 11

Bus. & Prof. Code § 17500 (False Advertising Law) ………...… 8, 11
Civil Code § 1559 ………………………………. 7, 15, 16, 20, 21, 22
Civil Code § 1750 (Consumers Legal Remedies Act) ………....….... 8
Civil Code § 1790 (Song-Beverly Consumer Warranty Act) ...… 7, 10
Code of Civ. Procedure § 1060 ……………..………….……… 10, 24
Insurance Code § 11580(b)(2) ………………………...………. 21, 22

CALIFORNIA RULES

California Rules of Court Rule 8.1115 …………………..………..... 9

4
 I

STATEMENT OF FACTS

In November 2014, Ronald Austin (“Austin”) purchased 40

Photovoltaic (“PV”) Solar Modules manufactured by LDK Solar Tech

USA, Inc. (“LDK”) [CT 16: 7-9.] 1

Each of these PV solar panel modules purchased was covered

by a 25-year ‘performance warranty’ which guaranteed that said

modules would perform to at least 94% advertised in the first five

years. [CT 16: 9-11.]

In 2017, less than 2 ½ years from the date of purchase, Austin

tested each of the 40 PV solar panel modules and found that ten of the

panels did not output 94 percent of their guaranteed rated capacity.

[CT 16: 9-11.]

Austin attempted to exercise his rights under the performance

warranty set forth hereinabove but was unable to do so because LDK

failed to respond to Austin’s attempts at communication with LDK.

1
References to the Clerk’s Transcript for this appeal
shall be designated by page and line number(s) (where
applicable) as “CT__:__.”

5
[CT 19: 4-9.] Unbeknownst to Austin, LDK had fallen into

bankruptcy. 2 [CT 18: 20-26.]

The two Respondents in this appeal, Munich RE America

Corporation and Munich Reinsurance America, Inc. (collectively

“Munich RE”) are insurance companies that have insured Austin’s

solar panel modules. Munich RE guaranteed that it “will cover the

performance warranty of photovoltaic modules for LDK solar” and

replace any under-performing in the event LDK became insolvent or

otherwise unable to honor its product warranty. [CT 17: 13 – CT 18:

19.]

Austin requested directly of Munich RE that Munich RE make

good on its performance warranty coverage for Austin’s PV solar

modules on numerous occasions but Munich RE failed to respond.

[CT 19: 10-19.]

Austin is the intended third-party beneficiary of the contract

between LDK and Munich RE guaranteeing the performance of

Austin’s 40 PV solar panel modules and, as permitted under

2
On information and belief LDK, though still listed as an active
corporation with the California Secretary of State, is defunct in
that it has suspended all operations, no longer conducts any
business and cannot meet its warranty obligations to its
customers.
6
California Civil Code § 1559, Austin has sued Munich RE on that

stated basis. [CT 20: 27 – CT 21: 3.]

II

PROCEDURAL HISTORY

A. THE PLEADINGS

On June 8, 2017, Austin filed his Verified Complaint alleging

three causes of action for Breach of Contract against LDK, Breach of

Implied Contract against Munich RE, and Negligent

Misrepresentation against all Defendants. On July 26, 2017 the

Munich RE defendants demurred to Austin’s Verified Complaint.

[CT:2.] These documents have not been not designated for the record

by the parties because they are not directly relevant to the instant

appeal.

On July 31, 2017 Austin responded to Munich RE’s demurrer

by filing his Verified First Amended Complaint (“FAC”). Austin’s

FAC alleged twelve causes of action for; (1) Breach of Contract; (2)

Breach of Implied Contract; (3) Breach of Implied Covenant of Good

Faith and Fair Dealing; (4) Intentional Misrepresentation; (5)

Negligent Misrepresentation; (6) Breach of Express Warranty; (7)

Breach of Implied Warranty; (8) Breach of Warranty under the Song-

7
Beverly Consumer Warranty Act; (9) Violation of the California

Unfair Competition Law, Bus. & Prof. Code §17200; (10) Violation

of the California False Advertising Law, Bus. & Prof. Code § 17500;

(11) Violation of the California Consumers Legal Remedies Act, Civ.

Code §1750 and; (12) Declaratory Relief. [CT 13 – CT 62.]

All causes of action were brought against all defendants with the

exception of the second cause of action for Breach of Implied

Warranty which was brought against the Munich RE defendants only.

On August 31, 2017 Munich RE filed their Demurrer to

Austin’s FAC [CT 63 – CT 85.] On that same date Munich RE filed

a Compendium of Foreign Authorities in Support of its Demurrer.

[CT 97 – CT 152.] Concurrently therewith Munich RE filed a

Request for Judicial Notice for the trial court to judicially recognize

an unpublished and non-citable California Court of Appeal Opinion

from the Second Appellate District. [CT 86 – CT 96.]

On September 6, 2017 Austin filed an Opposition and

Objection to Munich RE’s Request for Judicial Notice in support of

its Demurrer. [CT 153 – CT 157.]

On September 27, 2017 Austin filed his Opposition to Munich

RE’s Demurrer. [CT 158 – CT 178.]

8
 On October 3, 2017 Munich RE filed its Reply to Austin’s

Opposition to Munich RE’s Demurrer. [CT 159 – CT 194.]

B. THE TRIAL COURT’S RULING

The hearing on Munich RE’s Demurrer came on regularly for

hearing on October 20, 2017 in Department S25 of the San

Bernardino Superior Court before the Honorable Keith D. Davis. A

court reporter was present and a transcript of the hearing has been

made a part of the record in this appeal.3

Preliminarily, the trial court denied Munich RE’s Request for

Judicial Notice on the basis that the document attached to said

Request was an unpublished and non-citable case and Judicial Notice

of same would be in violation of California Rules of Court Rule

8.1115. [RT 2: 11-25.] The court also ruled that it had refused to

consider Munich RE’s Compendium of Foreign Authorities as

“unnecessary.” [RT 2: 26 – RT 3: 1-2.]

The court sustained with leave to amend Munich RE’s

Demurrer as to the following causes of action: The First, Second,

3
References to the Reporter’s Transcript for this appeal
shall be designated by page and line number(s) (where
applicable) as “RT__:__.”

9
Third, Sixth, Seventh, Eighth and Twelfth for breach of contract,

breach of implied contract, breach of the implied covenant of good

faith and fair dealing, breach of express warranty, breach of implied

warranty, breach of warranty pursuant to the Song-Beverly Consumer

Warranty Act of California and declaratory relief pursuant to Code

Civ. Proc. §1060. [RT 3: 21-26, RT 193: 7-13.]

The court overruled Munich RE’s Demurrer as to the Fourth,

Fifth, Ninth, and Tenth causes of action for intentional

misrepresentation, negligent misrepresentation, violation of the

California Unfair Competition Act Bus. & Prof. Code §17200 et seq.

and violation of the California False Advertisement Law of Bus. &

Prof. Code §17500. [RT 3: 21-26, RT 193 14-18.]

The gravamen of the trial court’s ruling as to those causes of

action upon which Munich RE’s Demurer was sustained was

essentially that Austin “was a party to the contract with LDK and

being a party to that contract he cannot simultaneously be a third-

party beneficiary” of any contract between LDK and Munich RE

which guaranteed the output of Austin’s PV solar panel modules. [RT

4: 8-16.]

10
 The causes of action upon which Munich RE’s Demurrer was

sustained with leave to amend cannot not be cured by amendment

because Austin could not allege he was in privity of contract with

Munich RE, but only an intended third-party beneficiary to the

contract between Munich RE and LDK as already adequately pleaded.

Therefore, Austin opted to stand on his pleadings and dismiss his

entire action as to Munich RE for the express purpose of expediting an

appeal in this matter. [RT 13: 7 – RT 14: 4, RT 22: 25 – RT 23: 14,

RT 186-191.]

On October 23, 2017 Austin filed his Request for Final

Judgment and Order of Dismissal of Action with Prejudice as to the

Munich RE Defendants for the Express Purpose of Expediting

Appeal. [CT 186-191.] The instant appeal ensued.

III

STATEMENT OF APPEALABILITY

Appellant appeals the trial court’s order of dismissal of the

action with prejudice on October 30, 2017.

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

11
the intermediate ruling sustaining the demurrer. (County of Santa

Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 312.)

However, because no immediate appeal lies where a demurrer

is sustained as to some but not all causes of action in a complaint

Austin was faced with a real dilemma, i.e. (1) proceed with his case

against Munich RE as to the handful of ancillary consumer law causes

of action remaining or, (2) dismiss his entire action as to Munich RE

for the express purpose of expediting an appeal of the trial court’s

dismissal of Austin’s primary causes of action regarding Munich RE’s

contractual obligations to provide warranty service and solar panel

replacement to Austin and others.

Under the circumstances set forth hereinabove Austin’s

request for an order of dismissal from the trial court does not

constitute a truly voluntary abandonment of his case. "[M]any courts

have allowed appeals by plaintiffs who dismissed their complaints

after an adverse ruling by the trial court, on the theory the dismissals

were not really voluntary, but only done to expedite an appeal."

(Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790,

793, 181 Cal.Rptr. 340; see also Stewart v. Colonial Western

Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012, 105 Cal.Rptr.2d

12
115 ["appellate courts treat a voluntary dismissal with prejudice as

an appealable order if it was entered after an adverse ruling by the

trial court in order to expedite an appeal of the ruling"]; Casey v.

Overhead Door Corp. (1999) 74 Cal.App.4th 112, 116, fn. 2, 87

Cal.Rptr.2d 603, disapproved on another point by Jimenez v.

Superior Court (2002) 29 Cal.4th 473, 481, fn. 1, 127 Cal.Rptr.2d

614, 58 P.3d 450 ["a party may agree to dismiss an action after an

adverse ruling by the trial court, if the dismissal is intended to

expedite the appeal and is not truly a voluntary relinquishment of

the action"].)

IV

ISSUE ON APPEAL

The sole issue raised in this appeal is whether the trial court

erred in sustaining Munich RE’s Demurrer on the basis that Austin

was a party to a contract with LDK and cannot simultaneously be a

third-party beneficiary of any contract between LDK and Munich RE.

STANDARD OF REVIEW

The decision to sustain a demurrer is a purely legal one, and

review in the appellate court is de novo. “When reviewing a dismissal

13
of a complaint after a demurrer has been sustained without leave to

amend, we accept the factual allegations of the complaint as true and

review the pleading de novo to determine whether the facts as pleaded

state a cause of action.” (Medina v. Hillshore Partners (1995) 40

Cal.App.4th 477, 481; Aubry v. Tri-City Hospital Dist. (1992) 2

Cal.4th 962, 966-967.) “If we determine that an amendment would

cure the defect, we conclude the trial court abused its discretion and

reverse.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074,

1081.)

VI

ARGUMENT

A. THE TRIAL COURT ERRED IN SUSTAINING MUNICH

RE’S DEMURRER ON THE BASIS THAT AUSTIN

COULD NOT SUE MUNICH RE AS A THIRD PARTY

BENEFICIARY

Austin alleges in his FAC he has a contract with LDK for

LDK to provide warranty service as a part of Austin’s

November 2014 purchase purchased 40 PV Solar Modules

manufactured by LDK. [CT 16: 7-16.]

14
 Austin also alleges in his FAC that in March 2010 LDK

entered into a contract with Munich RE such that in the event

LDK would become defunct or insolvent Munich RE would be

obligated to undertake LDK’s warranty service obligations to

purchasers of LDK’s solar panel modules, which would come

to include Austin. [CT 15: 20-25, CT 17: 24-28 – CT 18: 1-

19.]

Austin contends that he is an intended-third party

beneficiary of said contract between LDK and Munich RE and,

on that basis, he is entitled to bring direct action against Munich

RE to enforce its terms as permitted by Civil Code § 1559. [CT

20: 23-28 – CT 21: 3.]

The trial court ruled that because Austin was a party to

the contract regarding LDK’s product he could not

simultaneously be a third-party beneficiary of the contract

between LDK and Munich RE, one which Austin alleges was

made to directly benefit him. [RT 4: 8-16.]

At the October 20, 2017 hearing on Demurrer Austin

attempted at the outset to gain some clarification of the trial

court’s reasoning behind this ruling; “If I understand what the

15
Court said at the outset was that I cannot simultaneously be a

third-party beneficiary under a contract under 1559 if I also

have a direct contract with LDK. And this I do not understand,

because I think they're two different contracts. My contract was

purchased as a product with LDK, but with regard to the

contract between LDK and Munich Re I'm alleging that I am

the third-party beneficiary to that contract.” (emphasis added)

[RT 13: 21-26 – RT: 14: 1-4.]

Thinking perhaps the trial court was under the impression

that Austin must first sue and obtain a judgment against LDK

before proceeding directly against Munich RE, which is what

Munich RE had argued, Austin directed the court to the factual

circumstances in Harper vs. Wassau (1997) 56 Cal.App.4th

1079 wherein the plaintiff was permitted to sue an insurer

directly under Civil Code § 1559 without first obtaining a

judgment against the insured. [RT 14: 11-20.]

In response to arguments by Austin and opposing counsel

the trial court did not elaborate further upon its ruling at all

except to recite its own three decades of legal experience and to

add, “And having handled cases involving self-represented

16
litigants in all of those capacities, I'm here to tell you that I am

still waiting for such an individual to get the sort of result that

they hoped for with respect to their matter.” [RT 16: 16-20.]

On appeal from a judgment sustaining a demurrer to a

complaint the allegations of the complaint must be regarded as

true. Because third party beneficiary status is a matter of

contractual interpretation Plaintiff need only allege he is an

express third-party beneficiary to withstand attack on demurrer.

It must be assumed that plaintiff can prove all the facts as

alleged. Wirin v. Horrall (1948) 85 Cal.App.2d 497, 500.

Significantly, the trial court’s ruling that Austin cannot

be a third-party beneficiary of any contract between LDK and

Munich RE is based upon a contract that neither the trial court

nor Austin has even seen. The existence of the contract is

widely advertised by both LDK and Munich RE but has yet to

be produced in discovery by any defendant. [RT 17:13-28 –

RT 18: 1-19.]

As argued by Austin in his Opposition to Demurrer:

“Regardless, whether or not AUSTIN is a third-party beneficiary

is not decided at the demurrer stage in any event because third party

17
status is a matter of contractual interpretation to be decided after

discovery on summary judgment or at trial. "A third party may qualify

as a beneficiary under a contract where the contracting parties must

have intended to benefit that third party and such intent appears on the

terms of the contract . . . 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.) None of the cases cited by MUNICH RE decided

third party beneficiary status at the demurrer stage. At this stage of the

proceedings the Court must accept that AUSTIN has pleaded a contract

which was made expressly for his benefit and one in which it clearly

appears that he is a beneficiary. It is noteworthy that for all the

superfluous material MUNICH RE did include with its Demurrer it

opted not to request judicial notice of its own contract at the heart of

this matter to demonstrate who and/or what was insured.” [CT 167: 5-

18.]

18
B. MUNICH RE’S ARGUMENTS

Because the trial court did not elaborate whatsoever on its

ruling or otherwise respond to Plaintiff’s legal arguments Austin is

left to speculate what cases Munich RE cited that convinced the trial

court to hold that Austin could not sue Munich Re directly. Austin set

forth his position on the matter at great length in his Opposition.

[CT 165: 1 – CT 167:18.]

In Munich RE’s Reply brief Munich RE attempts to rebut

Austin’s arguments by citing the same handful of cases, once again

mischaracterizing the facts of those cases and the actual rulings

therein. [CT 180:3 – CT 181:7.] Because Munich RE is likely to rely

on these cases on appeal, a very brief discussion of each is appropriate

as to whether these cases actually hold, as Munich RE asserts, that

direct action against an insurance company is not permitted in

California.

Munich RE relies primarily upon Alex Robertson Co. v.

Imperial Casualty & Indemnity Co. (1992) 8 Cal.App.4th 338 (“Alex

Robertson Co.”) for the proposition that Austin cannot sue Munich

RE unless Austin is a named insured within Munich RE’s contract

with LDK. This case does not involve a third-party beneficiary at all.

19
Robertson was not an insured under Imperial’s policy nor did he even

claim he was the third-party beneficiary thereof under Cal Civ. Code §

1559. Significantly, the trial court in Alex Robertson Co. decided

Robertson’s status under the contract therein on a summary judgment

motion by which time the contract was in evidence and its terms could

be evaluated by the parties and the courts. In the case at bar, because

the contract had not been provided by Munich RE at or before

demurrer, no one really knows what it says . . . save for Munich RE

which has not produced it.

Munich RE likewise relies upon Fireman's Fund Insurance Co.

v. Maryland Casualty Co., 21 Cal. App. 4th 1586 (Ct. App. 1994)

(“Fireman’s Fund”) in its demurrer because it holds that, “to qualify

as a third-party beneficiary, the contract must be made expressly for

the benefit of the third person.” [CT 75: 9-14.] Yet this is precisely

what Austin claims in his FAC, i.e. “AUSTIN alleges the MUNICH

RE defendants, its agents, principals, partners, joint venturers,

employees, and/or alter-egos arc the de facto insurer of said

performance warranty contract, of which AUSTIN is the intended

third-party beneficiary and on that basis AUSTIN hereby sues

MUNICH RE under this cause of action for Breach of Contract as

20
permitted under California Civ. Code § 1559.” [CT 20: 27-28 – CT

21: 1-3.] And, just as in Alex Robertson, the Fireman’s Fund

Insurance Co. case involved an appeal of a summary judgment

motion where the parties, the trial court and the Court of Appeal all

had the benefit of evaluating the contract therein to determine third-

party beneficiary status.

In its Reply Munich RE goes on to attack Austin’s citations,

arguing that “Plaintiff misconstrues California case law in Murphy v.

Allstate Insurance Co., 17 Cal. 3d 937 (1976), and Northwestern

Mutual Insurance Co. v. Farmers' Insurance Group, 76 Cal. App. 3d

1031 (Ct. App. 1978)” [CT 180: 4-7.] Munich RE argues that Austin

must first obtain a judgment against LDK in order to sue Munich RE.

[CT 180: 12-16.]

Austin cited these two cases in his Opposition to Demurrer

because they quite plainly explain the general proposition that a third-

party beneficiary may directly sue an insurer if he is a third-party

beneficiary under an insurance contract pursuant to Civil Code §

1559. [CT 165: 9-24.] Munich RE goes on to attempt to distinguish

these cases on the basis that they were ostensibly brought under

Insurance Code § 11580(b)(2) which permits a person who has

21
obtained a judgment against an insured to sue an insurer. [CT 180:

12-16.] This is a distinction without a difference because nothing in

these two cases holds that such judgment must first be obtained by an

intended third party beneficiary in order to gain standing to sue under

Cal Civ. Code § 1559.

Because these arguments made by way of Munich RE’s Reply

was perhaps what persuaded the trial court to rule that Austin could

not sue Munich RE directly over its contract with LDK, Austin cited

Harper vs. Wassau (1997) 56 Cal.App.4th 1079 as but one example

wherein a plaintiff was permitted to sue an insurer directly under Civil

Code § 1559 without first obtaining a judgment against the insured.

[RT 14: 11-20.] It is fair to characterize the trial courts ensuing

comments as a complete disregard for Austin’s legal arguments on the

basis that Austin is appearing in pro per. [CT 15: 21- CT 20: 4.]

C. TWELFTH CAUSE OF ACTION FOR DECLARATORY

RELIEF

As to Austin’s twelfth and last cause of action for declaratory

relief the trial court stated it would “sustain the demurrer to this cause

of action with leave to amend because, frankly, it seems to me this

cause of action is unnecessary and superfluous since the issues that

22
are involved in the other causes of action are going to be issues that

the determination of which will fully resolve all of the disputes

between the parties.” [RT 9: 1-8.]

The rule that a complaint is to be liberally construed is

particularly applicable to one for declaratory relief. Foster v. Masters

Pontiac Co. (1958) 158 Cal.App.2d 481, 486, 322 P.2d 592. It is the

general rule that in an action for declaratory relief the complaint is

sufficient if it sets forth facts showing the existence of an actual

controversy relating to the legal rights and duties of the respective

parties under a deed, will or other instrument, or under a contract and

requests that the rights and duties be adjudged. If these requirements

are met, the court must declare the rights of the parties whether or not

the facts alleged establish that the plaintiff is entitled to a favorable

declaration. Bennett v. Hibernia Bank (1956) 47 Cal.2d 540, 549–550,

305 P.2d 20.

The trial court’s reasoning that the twelfth cause of action for

declaratory relief is “unnecessary” or “superfluous” is belied by the

fact that the trial court had just sustained Munich RE’s demurrer as to

all of those other causes action which might be deemed duplicative.

Alternatively stated, because the trial court ruled that Austin cannot

23
sue Munich RE as a third-party beneficiary over contract and warranty

claims, Austin should have at least been able to obtain some

declaration from the court as to what rights he did or did not have with

regard to obtaining warranty service from Munich RE.

VII

CONCLUSION

For all the foregoing reasons, Appellant RONALD AUSTIN

respectfully requests that this Honorable Court reverse the judgment of

dismissal in this case as to both Munich RE defendants. Appellant

further requests this Honorable Court reverse the lower court’s ruling

on Munich RE’s Demurrer as to the First, Second, Third, Sixth,

Seventh, Eighth and Twelfth for breach of contract, breach of implied

contract, breach of the implied covenant of good faith and fair dealing,

breach of express warranty, breach of implied warranty, breach of

warranty pursuant to the Song-Beverly Consumer Warranty Act of

California and declaratory relief pursuant to Code Civ. Proc. §1060.

Dated: February 4, 2018 Respectfully submitted,

_________/s/____________
RONALD AUSTIN
Appellant, in pro per
24
 CERTIFICATE OF WORD COUNT

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

California Rules of Court, Appellant’s Opening Brief is produced

using 14-point Roman type and contains 3,792 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: February 4, 2018 ________/s/______________

RONALD AUSTIN

25
27