Judge Alison Mackenzie, Case Number: 22STCV05694, Date: 2024-05-03 Tentative Ruling

Judge: Alison Mackenzie, Case: 22STCV05694, Date: 2024-05-03 Tentative Ruling

Case Number: 22STCV05694 Hearing Date: May 3, 2024 Dept: 55

NATURE OF PROCEEDINGS: Motion of Plaintiffs for Summary Adjudication.

BACKGROUND

ARTHUR ABRAMIAN and RENEA KACHEKYAN (“Plaintiffs”) filed this case against their insurer RESPONSE INDEMNITY COMPANY OF CALIFORNIA (“Defendant”) seeking damages alleging that Defendant denied coverage for damage to Plaintiffs’ Tesla. The causes of action are (1) Breach of Contract and (2) Breach of Implied Covenant of Good Faith and Fair Dealing.

Plaintiffs move for an order summarily adjudicating that Defendant is liable on the First Cause of Action for Breach of Contract, for at least $6,000.00. Defendant opposes the motion.

LEGAL STANDARD

In moving for summary judgment or summary adjudication, a “plaintiff . . . has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action.” Code Civ. Proc., § 437c(p)(1). The burden then shifts to the defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc., § 437c(p)(1). “Summary judgment is proper only where there are no triable issues of material fact and the moving party is entitled to judgment in its favor as a matter of law.” Assad v. Southern Pacific Transportation Co. (1996) 42 Cal.App.4th 1609, 1612.

EVIDENTIARY RULINGS

Defendant’s evidentiary objections to the Declarations of Renea Kachekyan and Arthur Abramian are overruled. Defendant’s evidentiary objection numbers 13-16 to the Declaration of Bruce Warren are sustained. See, e.g., Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 274 (“‘It is for the trial court to determine, in the exercise of a sound discretion, the competency and qualification of an expert witness to give his opinion….’”).

Plaintiffs’ evidentiary objections to the Declarations of Felix Lee and Sean Shideh are overruled. See, e.g., Sargon Ent., Inc. v. Univ. of So. Cal. (2012) 55 Cal.4th 747, 772 (“[T]he court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture.”).

The Court sustains Defendant’s objections to Plaintiff’s reply evidence and disregards the expert Declaration of Kenneth L. Pearl filed untimely with the reply. E.g., Wall Street Network, Ltd. v. N. Y. Times Co. (2008) 164 Cal.App.4th 1171, 1183, 1191, fn. 11 (courts cannot consider moving parties’ new evidence filed for the first time after the opposition to a summary adjudication motion was filed without first considering opposing parties’ due process).

ANALYSIS

Plaintiffs seek summary adjudication as to their breach of contract claim. “An insured can pursue a breach of contract theory against its insurer by alleging the insurance contract, the insured's performance or excuse for nonperformance, the insurer’s breach, and resulting damages.” San Diego Hous. Comm’n v. Indus. Indem. Co. (1998) 68 Cal. App. 4th 526, 536.

It is undisputed that Plaintiffs have an insurance policy with Defendant for their Tesla. Def’s Sep. Stmt. in Oppn, to Pls’ MSA Nos. 2-4. It is also undisputed that Plaintiffs made a claim under their policy for damage to the Tesla and that Defendant denied the claim. Id., Nos. 12-13.

But contrary to Plaintiffs’ contention, there are triable issues of fact as to Plaintiffs’ performance under the contract, which is the third element of their breach of contract claim. The insurance policy requires Plaintiffs to provide “all accident or loss information, including time, place, and how the accident or loss happened.” Def.’s Sep. Stmt. of UMF No. 5. Plaintiff Kachekyan testified that on 11/24/21, she parked the Tesla, went shopping, and discovered damage to her car when she returned. Id., Nos. 5-9. Plaintiffs maintain that the Tesla was struck by another car while parked on 11/24/21. Id., No. 9; Def.’s Sep. Stmt. of UMF No. 1.

Defendant has provided expert witness declarations as well as testimony from Tesla’s person most qualified that disputes Plaintiffs’ recitation of when, where, and how the Tesla sustained damage. Def.’s Sep. Stmt. of UMF Nos. 6-13. Plaintiffs cite opinions for the proposition that expert witness opinions sometimes do not raise triable issues of material fact, including where experts’ suspecting insureds’ misrepresenting is only speculative. See Motion, pp. 6-7. But those cases are inapplicable to this case because the declarations of experts Felix Lee and Sean Shideh are not speculative. The witnesses did physical inspections of the Tesla. The declarations explain, in persuasive detail, physical characteristics of the inspected car damage, beyond the recorded Tesla data, in support of the witnesses’ opinions that the Tesla was moving when it was damaged and that the car had sustained damage before the 11/24/21 reported date. In short, their testimony is sufficient to create a triable issue of fact as to Plaintiffs' performance under the insurance policy.

The Court therefore determines that there are triable issues of material fact, as to the First Cause of Action.

CONCLUSION

The motion is denied.