MEMORANDUM AND ORDER
Motion to Dismiss; Motion to Strike; Motion for Judgment on the Pleadings
On July 31, 2003, Jerome Sapiro, Jr. and Cornelia Sapiro (“plaintiffs”) filed a complaint against Encompass Insurance Compa
BACKGROUND
I. Plaintiffs’Home
In 1980, plaintiffs hired a contractor to build a substantial addition to their home.
In August 2002, plaintiffs hired another contractor to remodel and to renovate their home. See Compl, at U 8; First Am. Compl, at II9. During renovation, this new contractor discovered the “gap” between the “flashing” and the stucco. Id. Over time, the new contractor reported, moisture had infiltrated this “gap,” causing extensive damage to plaintiffs’ home. Id. None of this damage was perceptible from inside or outside the house; it was only detectable when the contractor exposed the “gap,” so plaintiffs knew nothing of the defect until August 2002. See Compl., at UU 8-10 (adding that the damage required “over $150,000 to repair”); First Am. Compl., 9-11 (same).
II. Insurance Coverage
Beginning on July 1, 1979, plaintiffs insured their home with Continental Insurance Company, the predecessor-in-interest to CNA, which itself was a predecessor-in-interest to Encompass. See, e.g., Compl, at UU 3, 11-12; First Am. Compl., at UU 3, 11; Exh. A. Plaintiffs’ policy with Continental Insurance expressly applied “only to occurrences or losses during the policy period,” see Exh. A, at p. 2, and it expired on June 1,1982. Id. at p. 5.
Beginning in 1993, plaintiffs insured their home with Safeco. See Compl, at U13; First Am. Compl., at U12. Safeco’s policy covers “accidental direct physical loss to property,” but it contains a number of coverage limitations and exclusions. See Compl., at UU 13, 38; First Am. Compl, 12 & 37; Exh. B. For example, Safeco’s policy excludes from coverage any “loss caused directly or indirectly by”
14. planning, construction or maintenance, meaning faulty, inadequate or defective:
a. planning, zoning, development, surveying, siting;
b. design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
c. materials used in repair, construction, renovation or remodeling; or
d. maintenance.
See Exh. B, at p. 4. The policy also excludes from coverage “water damage, meaning ... water which exerts pressure on, or seeps or leaks through a building,” id., and it excludes loss incident to “mold, wet or dry rot.” Id. at p. 3.
After learning of the “gap,” plaintiffs filed insurance claims with both Safeco and En
III. Litigation History
On July 31, 2003, plaintiffs filed a complaint against Encompass, Safeco, and various “Doe” defendants in state court. The complaint states four causes of action and seeks declaratory relief against all defendants. The first two causes of action allege that Encompass breached its contract with plaintiffs, acted in bad faith, and engaged in fraud; the last two causes of action allege that Safeco did the same. On October 9, 2003, Encompass filed an answer to plaintiffs’ complaint in state court.
LEGAL STANDARDS
I. Motions to Dismiss and Motions for Judgment on the Pleadings
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block,
In a like vein, under Federal Rule of Civil Procedure 12(c) permits a court to enter judgment on the pleadings where the moving party clearly establishes that, based on the face of the pleadings, it is entitled to judgment as a matter of law. See, e.g., Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
II. Motions to Strike
Under Federal Rule of Civil Procedure 12(f), a court may strike a pleading — or any portion thereof — that is “redundant, impertinent, or scandalous.” Fed.R.Civ.P. 12(f). Rule 12(f) motions are generally disfa
DISCUSSION
Defendants’ various motions raise three questions: First, whether the court should strike all or part of plaintiffs’ amended complaint; second, whether Encompass is entitled to judgment on the pleadings; and, third, whether plaintiffs fail to state a legally tenable claim against Safeco. The court addresses each question separately below.
I. Plaintiffs’Amended Complaint
Federal Rule of Civil Procedure 15(a) allows a party to amend its “pleading once as a matter of course at any time before a responsive pleading is served.” See Fed. R.Civ.P. 15(a). After a responsive pleading has been filed, a party may still amend its pleading, but “only by leave of court or by written consent of the adverse party.” Id. (adding that “leave [to amend] shall be freely given when justice so requires”); see generally Eminence Capital, LLC. v. Aspeon, Inc.,
There is no question that plaintiffs failed to comply with the precise terms of Rule 15(a). Both Encompass and Safeco “served” “responsive pleading[s]” before plaintiffs amended their complaint: Encompass filed an answer to plaintiffs’ complaint in state court, and Safeco filed a motion to dismiss in this court. See also Fed.R.Civ.P. 81(c) (“Repleading is not necessary unless the court so orders.”). There is also no question that plaintiffs amended their complaint without first obtaining leave of the court or the clear consent of all defendants; they amended, instead, in response to Safe-co’s initial motion to dismiss. But cf. PL’s Opp., at p. 2 (contending that Encompass need not have consented because all changes concerned Safeco, which did consent). The only question, then, is whether the court should accept plaintiffs’ amended complaint despite plaintiffs’ failure to abide Rule 15(a). Cf. Bell v. Executive Committee of United Food and Commercial Workers Pension Plan For Employees,
That Rule 12(f) is to be applied sparingly buttresses this conclusion. See Fed. R.Civ.P. 12(f). Courts have long disfavored Rule 12(f) motions, granting them only when necessary to discourage parties from making completely tendentious or spurious allegations. See Augustus,
II. Encompass’ Motion For Judgment On the Pleadings
For the purposes of Encompass’ motion for judgment on the pleadings, however, the amendment to plaintiffs’ complaint makes no significant difference. See Encompass Mot., p. 4 n. 1. (noting that, with respect to Encompass, “the allegations of the First Amended Complaint are largely identical to those found in the original Complaint”). Over ten years ago, the California Supreme Court articulated a “manifestation of loss rule” in the insurance context. See especially Prudential-LMI Commercial Ins. v. Superior Court,
The parties agree that this action is, like Prudential-LMI, a “first party” insurance action. Cf. Montrose Chem. Corp. v. Admiral Ins. Co.,
But plaintiffs do not agree that the relevant loss “manifest” in the way Prudential-LMI requires, nor that this action is, as defendants claim, “progressive loss” case. Id. Both parts of plaintiffs’ argument are unconvincing. The relevant loss(es) did indeed “manifest” in this instance — and they did so in a way fully contemplated by Prudential-LMI. Id. Neither party suggests, and the court does not mean to imply, that the damage to plaintiffs’ home “manifested” — i.e., “reveal[ed] itself’ — unassisted; rather, the damage was discovered through the “direct investigation” of a contractor.’ See PL’s Opp., at p. 4-5. But California’s courts do not require that “manifestation” occur without any human activity or intervention whatsoever. See Prudential-LMI,
And under California law, the relevant damage was “progressive” as well. See Prudential-LMI,
When considering Rule 12 motions, courts are required to accept the allegations in a complaint as true, drawing all reasonable inferences in favor of the non-moving party. See Lewis,
III. Safeco’s Motion to Dismiss
Safeco’s motion to dismiss must be granted as well, albeit for different reasons. Neither party disputes that Safeco’s policy was in effect at the time the relevant loss “manifest.” Id. Nor does either party tenably dispute that negligent workmanship proximately caused
Three provisions of Safeco’s policy are particularly relevant here. The first provision, commonly referred to as a “faulty workmanship” clause, excludes from coverage “building losses” incident to
... planning, construction or maintenance, meaning faulty, inadequate or defective:
a. planning, zoning, development, surveying, siting;
b. design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction;
c. materials used in repair, construction, renovation or remodeling; or
d. maintenance.
See Exh. B, at p. 4. The second provision excludes from coverage “water damage, meaning ... water which exerts pressure on, or seeps or leaks through a building.” Id. And the third excludes loss caused by “mold, wet or dry rot.” Id. at p. 3. According to Safeco, these three exclusions unequivocally prevent plaintiffs from recovering for the types of loss they now allege. All of plaintiffs’ putative losses were a result of negligent construction, Safeco contends, so the policy’s “faulty workmanship” exclusion controls.
The Ninth Circuit has held that unambiguous and conspicuous “faulty workmanship” clauses will exclude “losses caused by defects in the design and construction of a building.” Tzung v. State Farm Fire & Casualty Co.,
Safeco’s “faulty workmanship” clause does, of course, note that “any ensuing loss not excluded or excepted ... is covered.” See Exh. A., at p. 4 (emphasis added); cf. Tento,
California’s courts have long defined an “ensuing loss” as a loss “separate” and “independent” “from [an] original peril.” See Acme Galvanizing Co. v. Fireman’s Fund Ins. Co.,
In addition, plaintiffs’ supposed “ensuing losses” are excluded from coverage by other portions of Safeco’s policy. See First Am. Compl., at HH 7, 9, & 31 (discussing cursorily “moisture,” “fungi,” and health issues); Exh. A, at pp. 3-4. Plaintiffs allege, for example, “moisture”-caused damage based on the intrusion of water into the “gap.” See First Am. Compl., at HH 6-9. Safeco’s policy excludes precisely this type of damage, disclaiming responsibility for “water damage” incident to “pressure ... or seep[age] or leak[age] through a building.” Likewise, Safeeo’s policy excludes losses caused by “mold, wet or dry rot.” See Exh. A, at pp. 3-4. Plaintiffs’ allegations of “fungi damage” are effectively — and legally — identical to such losses, and plaintiffs’ facile pleading does not suggest otherwise. Compare Pl.’s Opp., at p. 8 (“[T]he word mold does not appear anywhere in the complaint.”), with Jordan v. Allstate Ins. Co.,
The court is mindful that exclusions in insurance policies are to be strictly construed. See, e.g., MacKinnon v. Truck Ins. Exchange,
CONCLUSION
For the foregoing reasons, Encompass’ motion to strike is DENIED; Encompass’ motion for judgment on the pleadings is GRANTED; and Safeeo’s motion to dismiss is also GRANTED. Plaintiffs’ complaint is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Notes
. Unless otherwise noted, all facts in this section have been culled from the parties' moving papers.
. Plaintiffs’ home is located at 30 Balceta Avenue, San Francisco, California. See Compl, 111.
. To the court's knowledge, Safeco did not file an answer to plaintiffs' complaint.
. If "a district court considers evidence outside the pleadings” when deciding a Rule 12(b)(6) motion, the court "must normally convert the [Rule] 12(b)(6) motion into a [Federal Rule of Civil Procedure] 56 motion for summary judgment, and it must give the nonmoving party an opportunity to respond." United States v. Rit-chie,
. Throughout their opposition papers, plaintiffs devote substantial attention to supposed procedural problems with the pending motions, accusing Encompass and Safeco of "sharp” litigation practices. But neither defendant has behaved inappropriately, and none of the pending motions are improperly before the court. Encompass’ motion for judgment on the pleadings is not premature or deserving of sanctions; both defendants have responded to plaintiffs’ complaint (Encompass’ with an answer, Safeco with a motion to dismiss), and the relevant issues are suitably defined for court review. Likewise, Safeco's resubmission of its motion to dismiss after plaintiffs amended their complaint does not prejudice plaintiffs or bespeak a problematic approach to this litigation. If anything, plaintiffs’ focus on defendants’ litigation practice attempts to obscure the deficiencies in plaintiffs’ own pleadings. If anything, in fact, it is plaintiffs who are flouting this court’s rules.
. The court is mindful, of course, that plaintiffs' complaint contends that the Encompass policy "was an occurrence policy, the terms of which did not require that damage be discovered during the actual term of the policy.” See First Am. Compl., at 1116. Encompass does not, regrettably, even mention this "occurrence policy” argument in its papers. California law does occasionally distinguish between "occurrence” and "claims-made” policies, noting that the former are generally not subject to Prudential-LMI’s "manifestation rule." See Montrose,
. The "gap,” plaintiffs claim, may have permitted water and fungal infiltration, which caused extensive damage somehow independently.
. Nor is this a "grafting” of particular facts into plaintiffs’ complaint. Plaintiffs have pled — and repled — a type of "progressive” loss. At this stage of litigation, the court is obligated to take plaintiffs’ pleadings as true. Plaintiffs' reference to facts omitted (perhaps intentionally) from the complaint does not change the court's task, particularly when those supposed omissions are more strategic and illusory than real.
. Plaintiffs' supposed silence is substantially overstated; the complaint says far more than plaintiffs now suggest. But even if plaintiffs' claims of silence were valid, the court would not be compelled to deny Encompass' Rule 12(c) motion. Rule 12 requires courts to read all allegations in the light most favorable to the non-moving party, but it does not demand that courts create entirely new, unsupported allegations on the non-moving party's behalf. At a minimum, a complaint is required to “set[ ] forth who is being sued, for what relief, and on what theory, with enough detail to guide discovery.” McHenry v. Renne,
. Because the court grants Encompass' motion on the pleadings in full, it need not consider Encompass' alternative motion for partial judgment on the pleadings.
. As Safeco correctly notes, analysis of "efficient proximate cause” is largely irrelevant where, as here, plaintiffs have alleged but one cause. See Pieper v. Commercial Underwriters Ins. Co.,
. In their first amended complaint, plaintiffs do suggest that some loss is attributable to "other accidental causes covered by the policies.” See First Am. Compl., at 11 7. But nowhere in any of their papers do plaintiffs identify these putative “other accidental causes,” nor how such causes might have impacted the relevant property damage or insurance policy. As Safeco correctly notes, allegations of “other accidental causes” do not, without more, warrant coverage under Safe-co's policy, and they do not overcome a Rule 12 motion.
. Any recoveiy plaintiffs are due, Safeco adds, must come from the negligent contractor.
. Despite plaintiffs repeated protestations during oral argument, Palub v. Hartford Underwriters Insurance Company, 92 Cal.App.4th 645,
. In briefing the motions sub judice, plaintiffs attempt to cure the deficiencies in their complaint by making a round of new allegations; e.g., plaintiffs argue that a series of "discreet [sic]" events caused damage to their home, not one "progressive" event. Given plaintiffs' avowed "silence” in their complaint, these arguments are both novel and curiously opportunistic. Plaintiffs seem inclined to use inexpert complaint drafting as a litigation strategy. Such gamesmanship displeases the court, and plaintiffs are directed to avoid it.
. The court is mindful that plaintiffs have already amended their complaint once, adding a number of vague allegations not always consistent with their original complaint. Still, to give plaintiffs the opportunity to amend in light of the court's analysis, the court dismisses plaintiffs’ complaint without prejudice. This disposition best comports with prevailing Ninth Circuit practice, see, e.g., Nevijel v. North Coast Life Ins. Co.,