Judge: Curtis A. Kin, Case: 20STCV37402, Date: 2023-04-18 Tentative Ruling

Case Number: 20STCV37402    Hearing Date: April 18, 2023    Dept: 72

MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY SUMMARY ADJUDICATION

Date:       4/18/23 (9:30 AM)                 

Case:      Kowloon Dim Sum Inc. v. KB Ins. Co. LTD US Branch (20STCV37402)

TENTATIVE RULING:

Defendant KB Insurance Company’s Motion for Summary Judgment, or Alternatively Summary Adjudication of Issues is GRANTED.

Defendant KB Insurance Company moves for summary judgment, or alternatively summary adjudication, of plaintiff Kowloon Dim Sum Inc.’s Complaint, which arose from a purported loss of business income after a catastrophic loss.

The insurance policy at issue required plaintiff to “cooperate with [defendant] in the investigation…of the claim.” (UMF 2.) During defendant’s evaluation of plaintiff’s claim for loss of business income, from August 2, 2018 to August 19, 2020, defendant repeatedly requested supporting documentation from plaintiff, including a copy of plaintiff’s 2017 federal and state tax returns, monthly profit and loss statements starting from September 2017, and payroll registers starting from December 1, 2017. (UMF 16, 20-22, 24-29, 31-34, 36-45.) Defendant sought to investigate a discrepancy between plaintiff’s income reflected in cash register receipts and the income reflected in tax returns. (UMF 5, 18.) On October 17, 2020, finding that plaintiff failed to provide the requested documentation, defendant denied plaintiff’s claim for loss of business income. (UMF 46.)

“‘Generally, in the absence of a reasonable excuse, when an insured fails to comply with the insurance policy provisions requiring an examination under oath and the production of documents, the breach generally results in a forfeiture of coverage, thereby relieving the insurer of its liability to pay, and provides the insurer an absolute defense to an action on the policy.’” (Brizuela v. CalFarm Ins. Co. (2004) 116 Cal.App.4th 578, 590, quoting Couch on Insurance (3d ed. 1999), § 196:23, pp. 196–31–196–32; see also Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 9–10 [finding denial of claim justified because, inter alia, insureds failed to provide documentation requested by insurer].) Defendant demonstrates that plaintiff failed to cooperate with its investigation of plaintiff’s claim by failing to provide the documentation that defendant requested, thereby barring any action on the policy.

The burden shift thus shifted to plaintiff to demonstrate a triable issue of material fact. Plaintiff, however, failed to file an opposition, despite proper service of the motion. Therefore, the motion for summary judgment is GRANTED.

Within five (5) days hereof, defendant KB Insurance Company is ordered to lodge a proposed judgment of dismissal.