Judge Bruce G. Iwasaki, Case 20STCV10768 2023-03-16 Tentative Ruling

This is an action in which the plaintiff alleges negligence against insurance companies and their agents for procuring an unsatisfactory policy.

In January 2019, Rotax, Inc. (Plaintiff) entered discussions with M.L. Enterprise, LLC (M.L. Enterprise)^{^[1]} concerning Plaintiff’s interest in storing merchandise in a warehouse leased by M.L. Enterprise (the “M.L. Warehouse”) beginning in April, 2019.^{^[2]} One of Plaintiff’s requirements was that M.L Enterprise obtain insurance to provide coverage in the event of damage to Plaintiff’s goods at the M.L. Warehouse. M.L Enterprise’s representative, Nicolas Lieberman (“Lieberman”), agreed to procure this coverage.

In March, 2019, Plaintiff referred M.L. Enterprise to Defendant Edik Davidyan (“Davidyan”), an insurance broker, to facilitate the purchase of the insurance.^{^[3]} Davidyan worked for Defendant Daragon Insurance Services (“Daragon”). Daragon contacted Defendant G.J. Sullivan Co. (“G.J. Sullivan”), a surplus lines broker, to obtain a policy.[4] G.J. Sullivan ultimately procured the insurance from Underwriters at Lloyd’s (Lloyd’s) (the “Policy”). The Policy states that it provides liability coverage for the named assured as a warehouseman or bailee under warehouse receipts issued by the named assured for direct physical loss or damage to property of others while contained in the premises described in the schedule. The Policy became effective April 1, 2019. On April 10, 2019, Daragon sent Lieberman a copy of the Policy. Plaintiff asked Davidyan to obtain an endorsement from Lloyd’s for Plaintiff to be the payee under the Policy. On April 29, 2019, Plaintiff paid $100 and was added as a loss payee under the Policy. This was the only payment Plaintiff made in connection with the Policy.

Rotax alleges that on May 31, 2019, its property was damaged by a fire at the M.L. Warehouse. Lloyd’s declined to cover the loss, claiming that the insurance was for liability only, not coverage for property damage. Plaintiff sued Lloyd’s and later settled the case with it; Lloyds is no longer a party. Rotax sued Daragon and Davidyan for negligence.

Defendants Davidyan and Daragon now move for summary judgment. They contend that they owed no duty of care to Plaintiff and that, alternatively, they did not breach a duty because they procured the policy that M.L. Enterprise requested.

Plaintiff opposes the motion for summary judgment, arguing 1) that Defendants should have obtained a policy providing off-site insurance for the merchandise Plaintiff was shipping in from China in Spring, 2019 and 2) even if insurance could only be provided through M.L. Enterprise, Defendants should have procured a bailee property insurance policy.

Defendants replied, arguing that Plaintiff failed to present any admissible evidence and failed to meet its burden.

Despite Plaintiff’s scant opposition and failure to produce opposing evidence, the Court finds that Defendants have failed to show that it had no duty or that there was no breach of duty as a matter of law. Thus, the motion for summary judgment is denied.

Plaintiff objects to Defendants’ Undisputed Material Facts and Supporting Evidence nos. 14, 15, 17, 18, 23, 24, 25, 26, 27, 28, 29, 39, 40, 42, 43, 44, 45, 47, 48, 49, 50, 51, 52, 55, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 89, 90, and 91.

Plaintiff brings all objections under CEC § 352, apparently arguing that the evidence objected to will lead to the confusion of issues. Defendant objects to Plaintiff’s Separate Statement on the grounds that Plaintiff cursorily cites to CEC § 352 without basis and objects without explanation to clearly relevant evidence.

Plaintiff’s objections are overruled. The evidence Plaintiff objects to concerns alleged communications between the various parties and their representatives, alleged actions that form the basis of Defendants’ unclean hands theory, and other events that are relevant to the present motion.

Defendants’ objection to Plaintiff’s provided declaration of James Robertson is sustained. (Lynn v. Tatitlek Support Services, Inc. (2017) 8 Cal.App.5th 1096, 1115-1116.) Mr. Robertson’s declaration is replete with speculation and legal conclusions and is not based on personal knowledge.

Defendants’ request for an order striking Plaintiff’s Separate Statement in its entirety is denied.

Plaintiff requests that the Court take judicial notice of the declaration of Nicholas Libermann of M.L. Enterprise, filed in opposition to the motion for summary judgment of G.J. Sullivan. This was filed with the court on September 27, 2022. A copy of this declaration is included in the list of declarations filed in opposition to the present motion.

The Court may take judicial notice of “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452(h).) The Court may take judicial notice of records of any court of record of the United States. (Id. at § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

Plaintiff’s request is granted. The Court takes judicial notice of the declaration of Nicholas Libermann of M.L. Enterprise, filed in opposition to the motion for summary judgment of G.J. Sullivan.

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c,¿subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp.¿(1992) 7 Cal.App.4th 1110, 1119.)

The moving party has the initial burden of production to make¿a prima facie¿showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make¿a prima facie¿showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 850; accord Code Civ. Proc., § 437c,¿subd. (p)(2).) A Defendant moving for summary judgment may meet its initial burden by proving that for each cause of action alleged, plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c(p)(2).) The facts are to be construed in the light most favorable to the opposing party. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 926.)

Defendants Davidyan and Daragon argue that there is no triable issue of material fact because Plaintiff’s complaint is barred by the doctrine of unclean hands and Defendants did not breach any alleged duty they owed to Plaintiff.

The doctrine of unclean hands does not support Defendants’ motion for summary judgment

Defendants argue that Plaintiff’s claim for negligence is barred by the doctrine of unclean hands because the insurance policy underwritten by Lloyd’s and procured by Defendants was issued based on an incomplete or misleading version of the agreement between Plaintiff and M.L. Enterprises to store Plaintiff’s items at the M.L. Warehouse. Defendants allege that this incomplete or misleading version of the agreement was provided to improve the chance of procuring insurance.

Sometime after the Policy was issued, Plaintiff and M.L. Enterprise modified their licensing agreement. They made the following changes: 1) In the initial version of the agreement, M.L. Enterprise represented that it “shall not be liable for any personal injury or damage to property which licensee or its guests or invitees may incur, regardless of the cause thereof,” but, in Section 6 of the later version, this sentence was completely removed; 2) In the initial version of the agreement, Plaintiff released M.L. Enterprise from liability but in the later agreement, M.L. Enterprise agreed “to defend, indemnify and hold harmless licensee ... from ... all claims, damages, losses, suits ... arising from licensee’s occupation of the licensed space…”; and 3) the later agreement added that “ML agrees to provide insurance covering in full the value of any property stored by Licensee in ML’s premises, as per the terms of this license,” and “ML shall be liable for any damage resulting from, but not limited to, water, fire, or theft.”

The doctrine of unclean hands “demands that a plaintiff act fairly in the matter for which he seeks a remedy.” (Kendall-Jackson Winery Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978.) Not every wrongful act constitutes¿unclean¿hands. But, the misconduct need not be a crime or an actionable tort. Any conduct that violates conscience, or good faith, or other equitable standards of conduct is sufficient cause to invoke the doctrine.¿(DeRosa v. Transamerica Title Ins. Co.¿(1989) 213 Cal.App.3d 1390, 1395–1396.) “The misconduct that brings the clean hands doctrine into play must relate directly to the cause at issue. Past improper conduct or prior misconduct that only indirectly affects the problem before the court does not suffice. The determination of the¿unclean¿hands¿defense cannot be distorted into a proceeding to try the general morals of the parties.” (Kendall-Jackson Winery, supra, 76 Cal.App. at 978.) Unclean hands can be asserted when “the manner of dirtying renders inequitable the assertion of such rights against the defendant. [Citation] The misconduct must prejudicially affect the rights of the person against whom the relief is sought so that it would be inequitable to grant such relief.” (Id.)

Here, Defendants contend that misrepresentations were made by either Plaintiff or M.L. Enterprise, or both in the documents provided to Defendants to procure insurance. They argue that these documents contained inaccurate descriptions of the responsibilities of each party. However, it is unclear the extent to which Plaintiff itself played a role in creating the alleged misrepresentations. Defendants argue elsewhere in the motion that with regard to the Lloyd’s insurance policy, Defendants interacted exclusively with M.L. Enterprise and that Plaintiff was not their client and played no role in procuring the Policy. Therefore, it would appear that any misrepresentations in providing documentation to Defendants could only be attributed to M.L. Enterprise, not to Rotax.

Furthermore, Defendants do not make a sufficient showing that the misrepresentations are sufficiently connected to Plaintiff’s claim for negligence. As Plaintiff argues in its opposition, Plaintiff’s claim is not that Defendants breached their contractual duty to Plaintiff under the Policy. Rather, Plaintiff claims that Defendants breached their duty to Plaintiff by not seeking property insurance rather than liability insurance. Thus, Plaintiff’s alleged misconduct in procuring the Policy covering its property stored at the M.L. Warehouse does not directly relate to the cause at issue.

Accordingly, Defendants’ motion for summary judgment on the theory of unclean hands is denied.

Summary judgment is not merited because Plaintiff meets its burden to survive summary judgment on the issue of duty and the issue of breach

Defendants argue that they never owed a duty to Plaintiff and, even if they had, they did not breach that duty because they procured the correct insurance policy, which was the policy M.L. Enterprise requested. The Court analyzes each issue separately.

An insurance broker may still owe a duty of care to a third party beneficiary of an insurance policy despite a lack of privity.

Defendants argue that they obtained the insurance policy solely on behalf of M.L. Enterprise, that Plaintiff is not a named insured in the Policy, and that Plaintiff paid none of the Policy premiums and therefore, that Defendants owed no duty to Plaintiff. Plaintiff does not specifically address this argument in its opposition. The Court finds that Defendants owed Plaintiff a limited duty as a third party beneficiary to the Policy obtained on behalf of M.L. Enterprise.

“‘The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.] Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court.’” (Centinela Freeman Emergency Medical Associates v. Health Net of Cal. (2016) 1 Cal.5th 994, 1012.)

The seminal case discussing whether a duty exists to a third party not in privity with a plaintiff is Biakanja v. Irving (1958) 49 Cal.2d 647 (Biakanja). That case involved a defendant notary public who provided insufficient attestation to a will. The will was found to be invalid, and plaintiff sued the notary public. (Id. at p. 648.) The California Supreme Court provided several factors to consider whether a defendant is liable, despite no privity with the plaintiff: “[1] the extent to which the transaction was intended to affect the plaintiff, [2] the foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury, [4] the closeness of the connection between the defendant's conduct and the injury suffered, [5] the moral blame attached to the defendant's conduct, and [6] the policy of preventing future harm.” (Id. at p. 650.)

These factors were further explored in Business to Business Markets, Inc. v. Zurich Specialties London Limited (2005) 135 Cal.App.4th 165 (Business to Business).^{^[5]} There, the plaintiff, Business to Business, hired Tricon, an Indian software company, to create a computer program. In the contract, the plaintiff required that Tricon obtain an errors and omissions insurance policy to protect plaintiff if the software was unusable. (Id. at p. 167.) Plaintiff contacted Hoyla, a retail insurance broker, and informed it of Tricon’s insurance needs and that Tricon was based in India. Hoyla contacted Professional Liability Insurance Services, Inc. (PLIS), a surplus lines broker, to obtain the policy based on the information that Hoyla received from plaintiff. PLIS procured the policy from Zurich Specialties, but the coverage excluded claims that arose from or related to work performed in India. (Ibid.)

After Tricon failed to provide usable software, Plaintiff Business to Business sued and obtained a default judgment against Tricon. (Id. at p. 168.) Business to Business then sued PLIS for negligence in procuring a policy that did not cover any work done in India. (Ibid.) The trial court sustained PLIS’s demurrer without leave to amend, finding that PLIS did not directly deal with plaintiff and did not owe it a duty of care. (Ibid.)

The Court of Appeal reversed. Though the parties “had no direct contact, were not in privity of contract, and [plaintiff] was not named on the policy,” PLIS owed plaintiff a duty of care. (Business to Business, supra, 135 Cal.App.4th at p. 168.) The appellate court considered the Biakanja factors, holding that the policy was procured for “protecting B2B against Tricon’s possible breach of contract” and the injury was foreseeable. (Id. at p. 169.) The appellate court noted that “PLIS voluntarily assumed the responsibility of finding insurance for Tricon . . . [and] was obligated to discharge that responsibility competently.” Thus, “imposing liability on PLIS has the salutary effect of encouraging PLIS and other insurance brokers to secure insurance policies for their clients that meet their clients’ needs.” (Id. at pp. 169-170.)

Apart from the Biakanja factors, the Court of Appeal in Business to Business considered additional factors when evaluating professional negligence: “One factor is the degree to which clients and third parties ordinarily relinquish control for decisionmaking to the professional. Another is the degree to which the defendant works under professional standards established and maintained by the profession. A third factor is the defendant's ability to spread its costs by raising its fees or buying liability insurance. And a fourth factor is the expected and customary reliance by clients and others on the skillfulness and expertise of the defendant's profession.” (Id. at p. 172.)

Here, neither side discussed the Biakanja factors or the Business to Business case. However, these factors are appropriate in this case and support a finding that Defendants may owe a duty to Plaintiff as a third party beneficiary.

The first factor is whether the transaction was intended to affect the plaintiff. (Business to Business, supra, 135 Cal.App.4th at p. 169.) Here, Rotax contracted with M.L. Enterprise to store its inventory in M.L. Enterprise’s warehouse. The contract required that M.L. Enterprise obtain insurance for the goods. (Campo Decl., Ex. A, Torossian Depo., p. 50:2-11; Ex. B, Temporary License to Use Premises, ¶ 6; Ex. E, Libermann Depo., pp. 15:16-16:6.) While M.L. Enterprise was the named insured, Plaintiff was added on as a payee and the purpose of procuring the policy was to protect Rotax’s inventory. (Campo Decl., Ex. A, Torossian Depo., p. 50:2-11, 55:23-56:15; Ex. B, Temporary License to Use Premises, ¶ 6.) Therefore, the insurance transaction greatly affected Plaintiff.

The second factor is the foreseeability of harm to Plaintiff. “Insurance exists to protect against unlikely, but nevertheless possible, and thus foreseeable, events. Insurance companies take a gamble when giving insurance, and there was always the possibility here that [insured] would default on its contractual obligations.” (Business to Business, supra, 135 Cal.App.4th at p. 169.) For the same reason, it is foreseeable that Plaintiff’s inventory would be damaged in M.L Enterprise’s warehouse.

There is no dispute that Plaintiff has suffered actual injury and meets the third factor. (Campo Decl., Ex. A, Torossian Depo., p. 176:12-17.)

The fourth factor is “the closeness of the connection between the defendant’s conduct and the injury suffered.” (Biakanja, supra, 49 Cal.2d at p. 650.) Here, Davidyan had direct contact with Plaintiff on several occasions and was referred by Plaintiff to M.L. Enterprise.

An issue is whether Rotax, a third party, “is an intended beneficiary or merely an incidental beneficiary,” which requires consideration of the ‘“parties’ intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered.’” (Business to Business, supra, 135 Cal.App.4th at p. 170.) An intended beneficiary is one who “intentionally receives the benefit of the insurance. However, this person does not need to be specifically named, as long as he is in the class of members that the insurance is intended to benefit.” For example, if the contract contains a provision in the policy “specifically for third parties injured on the insured’s property,” then a plaintiff would have a right to enforce the contract as a third party beneficiary. (Id. at p. 171 [citing Harper v. Wausau Insurance Co. (1997) 56 Cal.App.4th 1079].)

Here, Plaintiff communicated with Davidyan and requested that he procure “coverage for other people’s goods.” (Campo Decl., Ex. A, Torossian Depo., p. 51:11-23.) Moreover, Plaintiff requested and was added on as a loss payee so presumably, Daragon and Davidyan knew who the policy was intended to cover. (Campo Decl., Ex. L.) Thus, there is sufficient evidence that Defendants knew Plaintiff was an intended third-party beneficiary.

Accordingly, Defendants motion for summary judgment on the ground that they owed Plaintiff no duty as a matter of law is denied.

There is a material issue of fact on whether Defendants breached their duty because Plaintiff shows facts to support that it requested property coverage

Alternatively, Defendants argue that they have satisfied their duty and that there is no breach. They assert that ordinarily, “such a duty is limited to the use of reasonable care, diligence, and judgment in procuring the insurance requested by the client.” (San Diego Assemblers, Inc. v. Work Comp for Less Insurance Services, Inc. (2013) 220 Cal.App.4th 1363, 1369 [no duty to “investigate [plaintiff’s] coverage needs and procure the requisite coverage to meet those needs, even if [plaintiff] did not request the coverage and … probably could not have afforded it”]; Jones v. Grewe (1987) 189 Cal.App.3d 950, 954 [no duty to procure “complete liability protection,” especially since there was no evidence that the insured requested such comprehensive coverage].) Defendants argue they did not breach their duty because they procured the coverage requested by M.L. Enterprise, the named insured.

Plaintiff argues that Defendants breached their duty by failing to find or even attempting to find off-site coverage or bailee property insurance, and instead searching for and eventually procuring liability insurance only. Plaintiff argues that Defendants acted this way despite circumstances showing the need for property insurance rather than liability insurance. Plaintiff argues that Defendants’ statement that “there is no such thing as a warehouseman’s first-person policy that would provide first party property coverage to a third party who is not the insured” has no evidence to support it and is merely a bald pronouncement.

Generally, insurance brokers have no duty to inform the insured that it should procure additional or different coverage, subject to three exceptions: “(a) the agent misrepresents the nature, extent or scope of the coverage being offered or provided . . . (b) there is a request or inquiry by the insured for a particular type or extent of coverage . . . or (c) the agent assumes an additional duty by either express agreement or by ‘holding himself out’ as having expertise in a given field of insurance being sought by the insured.” (Fitzpatrick, supra, 57 Cal.App.4th at p. 927.) Here, there is no allegation that the first and third exception apply; thus, the dispute is whether the insured requested a particular type of coverage and Defendant failed to procure it.

Whether a defendant breached its duty is “ordinarily [a] question[] of fact for the jury’s determination.” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.) But the element of breach can be decided as a matter of law if “‘no reasonable jury could find the defendant failed to act with reasonable prudence under the circumstances.’” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 188.)

Defendants rely in part on Travelers Property Casualty Co. of America v. Superior Court for their assertion that Plaintiff provides insufficient evidence to show Defendants’ failure to seek off-site coverage or bailee property coverage constituted a breach of duty. (Travelers Property Casualty Co. of America v. Superior Court, (2013) 215 Cal.App.4th 561.) In Travelers, the plaintiff, Braum, brought a professional negligence claim on the theory that Koram, a broker, breached a duty by not obtaining a builder’s risk policy, which would have covered his specific loss. Braum, as a loss payee, was a third party beneficiary to the subject insurance policy. The policy itself was negotiated without Braum’s input. The Court found that Koram breached no duty because there was no suggestion in the record that he specifically requested a continuation of the builder’s risk policy.

Here, the situation is not analogous to Travelers. First, unlike Braum in Travelers, here, Plaintiff had direct contact with Davidyan regarding his interest in protecting his property at M.L. Warehouse before the Policy was procured. (Torossian Declaration, ¶ 5.) Second, the evidence here shows that Plaintiff, through Torossian, testified that he told Liebermann that he wanted coverage for “fire, water damage, theft.” (Campo Decl., Ex. A, Torossian Depo., p. 50:17-19.) Levy testified that he informed Davidyan that Rotax “needed insurance for merchandise stored at the [warehouse]” and that Davidyan informed him that the inventory needed to be “segregate[d]” from M.L. Enterprise’s merchandise. (Id., Ex. C, Levy Depo., pp. 100:22-101:14.) Third, there is no consensus that M.L. Enterprise specifically requested a warehouseman’s policy. Liebermann’s own deposition failed to mention specifically requesting a “warehouseman’s policy.” (Id., Ex. E, Liebermann Depo., pp. 15:8-16:6.) Libermann has difficulty with English and communicated with Davidyan through Levy. (Libermann Decl., ¶¶ 2-3.) Torossian states that he never requested warehouseman’s liability from Davidyan. (Torossian Declaration, ¶ 5.) Lieberman echoes Torossian’s statement: “at no time did we ever tell Mr. Davidyan that we wanted a Warehouseman’s Liability Insurance. We did not even know what such an insurance would be. We simply asked Mr. Davidyan to provide insurance to protect the inventory of Rotax.” (Lieberman Declaration, ¶ 8.)

While Defendants put forward evidence that they obtained the type of insurance they thought was being requested, there is a triable issue of fact as to whether Plaintiff sufficiently communicated to Davidyan through Levy that Plaintiff requested property coverage and therefore, whether Davidyan was on notice of the specific type of coverage requested. In Davidyan’s application for insurance provided to G.J. Sullivan, he noted that M.L. Enterprise “leases part of his warehouse and needs cover for the property of others.” (Campo Decl., Ex. F.) This can be read to mean the insured is seeking liability insurance to protect others’ goods, or it could mean that the insured is seeking property insurance.

At a minimum, this ambiguity raises a factual issue whether Plaintiff requested a certain type of coverage from Defendants and if so, what type of coverage.

^{^[1]} M.L. Enterprise was originally a plaintiff in a related action. On March 6, 2023 the Court granted M.L. Enterprise’s request for dismissal.

^{^[2]} Plaintiff and M.L. Enterprise primarily communicated through Arthur Torossian (“Torossian”) and Nicolas Lieberman (“Lieberman”), respectively. Lieberman is a native French speaker. A mutual acquaintance of both individuals, Joshep Levy (“Levy”), acted as a translator between Torossian and Lieberman.

^{^[3]} Plaintiff had used Davidyan to procure an insurance policy on February 12, 2019, on Plaintiff’s own warehouse, located in Leonis, CA.

[4] “A surplus lines broker is a broker authorized to transact business with insurers that are not admitted to do business in California pursuant to Insurance Code §§ 700 et seq. Insurance Code § 1763.” (DiMugno & Glad, California Insurance Law Handbook (Apr. 2022) § 4:2.)

^{^[5]} Business to Business concerned a surplus lines broker, such as Defendant G.J. Sullivan in the instant action. Here, the present motion is concerned with Defendants Davidyan and Daragon, who are both insurance brokers rather than surplus line brokers. The reasoning of Business to Business, however, would still seem to apply.