Judge: David A. Rosen, Case: 20GDCV00134, Date: 2023-09-01 Tentative Ruling

Case Number: 20GDCV00134    Hearing Date: September 1, 2023    Dept: E

Hearing Date: 09/01/2023 – 11:00am

Case No: 20GDCV00134        
Trial Date: 04/15/2024

Case Name: VAHAG ABRAMYAN, an individual; v. INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, a California corporation; and DOES 1-10

RELIEF REQUESTED

Defendant, Interinsurance Exchange of the Automobile Club, moves this this Court pursuant to Code of Civil Procedure § 437c for entry of judgment in the Exchange’s favor as to Plaintiff Vahag Abramyan’s (“Plaintiff”) entire Complaint/action against the Exchange or, in the alternative, Summary Adjudication of Issues.

This Motion for Summary Judgment is made pursuant to Code of Civil Procedure §437c on the grounds that no triable issues of material fact exist to support Plaintiff’s Complaint against the Exchange, and Plaintiff’s causes of action for Breach of Contract and Breach of the Implied Covenant of Good Faith and Fair Dealing both fail as a matter of law, and should be summarily adjudicated in the Exchange’s favor.

More specifically, Defendant argues that Plaintiff cannot establish a cause of action against the Exchange for Breach of Contract and Breach of the Covenant of Good Faith and Fair Dealing as a matter of law, because there is no coverage for the Plaintiff’s loss on or about February 5, 2019, to the main dwelling structure at the subject Property under Plaintiff Homeowners Policy No. CHO064063053 (“Policy”), thus there is no breach of contract and, with no breach of contract, the cause of action for Breach of Contract fails, and the cause of action for Breach of the Implied Covenant of Good Faith and Fair Dealing fails as well.

Specifically, the Exchange moves for the following relief:

1.         For summary judgment in favor of the Exchange and against Plaintiff Vahag Abramyan, and for costs of suit incurred herein and such other relief as may be just.

2.         Alternatively, if summary judgment is not granted, the Exchange moves for summary adjudication on each of the following issues:

Here, the instant motion is timely.

The Court’s tentative is to grant the motion for summary judgment in its entirety.

BACKGROUND

The instant action was filed on 02/05/2020 wherein Plaintiff alleges two causes of action against Defendant for: (1) Breach of Contract and (2) Breach of the Implied Covenant of Good Faith and Fair Dealing. This action stems from allegations that Defendant failed to and refuses to pay Plaintiff the benefits owed under an insurance policy.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

Code of Civil Procedure § 437c(a) provides that “a party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” 

The motion shall be granted if all the papers submitted 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. (CCP § 437c(c).) 

In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).)

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

ANALYSIS

The Court’s will grant the motion for summary judgment in its entirety.

Defendant has sustained its burden of establishing that there is no triable issue of fact.  CCP § 437c(c).  The plaintiff has failed to rebut the movant’s showing with evidence that creates a triable issue of fact.

Plaintiff argues that the relevant insurance contract is ambiguous and unclear.  This is a question of law, and the Court, interpreting the contract, disagrees. (See Waller v. Truck Ins. Exchange (1995) 11 Cal.4th 1, 18-19.)  The contract clearly excludes damage caused by wear and tear and/or faulty installation. (UMF 4, Ex. C.)

The general rule is that “a party is bound by contract provisions and cannot complain of unfamiliarity.” (Haynes v. Farmers Ins. Exch. (2004) 32 Cal.4th 1198, 1210-1211.)  If the contract was so unclear and ambiguous to the plaintiff, it is unclear to the Court why plaintiff chose to sign it.  Is the plaintiff claiming he did not carefully read the contract before signing it?  Or that he did not understand the contract before signing it? Given that there is no suggestion that plaintiff was coerced, tricked, or defrauded into signing this contract or that this was a contract of adhesion, the Court fails to understand what the plaintiff’s argument is as to the construction of the contract. (Id.; see also Fields v. Blue Shield of California (1985) 163 Cal.App.3d 570, 578 [“It is a general rule [that] a party is bound by contract provisions and cannot complain of unfamiliarity of the language of a contract.”].)

Plaintiff attempts to sow doubt with various irrelevant points regarding the deposition testimony of the various roofers who inspected the roof—including their own roofer, Jorge Davalos—and instead submits a declaration from Jorge Davalos that seeks to impermissibly contradict his prior deposition testimony.  (UMF 29, Ex. N, Davalos depo., pp. 28:24-31:23, 37:21-38:2 [“Q. And because it was not properly installed, the water got in? A. Yes.”].)  Mr. Davalos clearly stated at his deposition that he did not believe that shingles were compromised by the weather condition.  He essentially stated that they had been glued and attached improperly at installation. (Id.) 

It is well-established that “a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12.) Where a declaration submitted in opposition to a motion for summary judgment motion clearly contradicts the declarant's earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and “conclude there is no substantial evidence of the existence of a triable issue of fact.” (D’Amico v. Bd of Med. Examiners (1974) 11 Cal.3d 1, 21.)  An opposition to a motion for summary judgment is not the time to try to create triable issues of fact.  The Court accordingly disregards the Davalos declaration produced in response to the motion for summary judgment by plaintiff.

            The crux of the plaintiff’s opposition is the purported statement of Corey Henninger of Assured Roofing Pros, made on the roof of plaintiff’s home during an inspection, that the roof had been wind damaged.  (Decl. of Vardan Tchalikian, p. 29:12-20.)  This purported statement is not, even by the plaintiff’s description, a final conclusion, and is contradicted by Mr. Henninger’s final report. (Defendant’s UMFs 11 and 12.) 

Moreover, the purported statement, offered through Mr. Tchalikian’s declaration, appears to be hearsay—a statement made other than by a witness while testifying at the hearing that is offered to prove the truth of the matter stated—with no applicable exception. (Evid. Code § 1200.)

This purported rooftop statement appears to be the strongest aspect of plaintiff’s argument that there is a matter of triable fact, but it is (1) apparently inadmissible hearsay and (2) contradicted by the reports and testimony of all of the roofers who examined the roof.  That is to say, the plaintiff would ask the Court to deny this motion essentially based on a hearsay statement that Mr. Henninger apparently made while standing on a roof—according to the plaintiff—but which he completely contradicted in his report—a report the conclusion of which plaintiff’s own roofing expert agrees with. 

While this purported rooftop statement gives the Court some pause, given the standards on summary judgment and the drastic remedy that summary judgment can provide, the “evidence” put forward by plaintiff is simply not enough to survive summary judgment.  If this were enough, any motion for summary judgment could be defeated by a similar declaration of dubious admissibility.  To deny the motion and move forward to trial on the strength of this one hearsay statement would appear to be wholly in contradiction to the purpose of the summary judgment process.  “The summary judgment procedure provides the court and parties with a vehicle to weed the judicial system of an unmeritorious case which otherwise would consume scarce judicial resources and burden the parties with the . . .  costs of protracted litigation because the lack of merit is not apparent from the face of the complaint or answer. . . . The procedure permits the court to penetrate the pleadings and ascertain, by means of affidavits, the absence of triable issues of material fact. . . . It is in the public interest, including the court's interest in the efficient and economical administration of justice and the parties' interest in the prompt and affordable resolution of unmeritorious cases, to expeditiously rid the judicial system of a case in which a party is entitled to judgment as a matter of law, without requiring protracted litigation and a trial on the matter.” (Juge, supra, 12 Cal.App.4th at 69-70 [cleaned up].)

Given that there is no evidence of a breach of contract, it follows, a fortiori, that the claim for breach of the implied covenant of good faith and fair dealing must also fail.

Defendant’s objections to the movant’s evidence are overruled as meritless.

The motion for summary judgment is GRANTED in its entirety and the matter is DISMISSED.