Judge: Gail Killefer, Case: 20STCV34474, Date: 2024-11-20 Tentative Ruling
Case Number: 20STCV34474 Hearing Date: November 20, 2024 Dept: 37
HEARING
DATE: November 20,
2024
CASE
NUMBER: 20STCV34474
CASE NAME: Toveg v. State Farm Insurance
MOVING PARTIES: Defendant State Farm General Insurance Company
OPPOSING PARTIES: Plaintiffs Isaac Toveg
TRIAL DATE: N/A
PROOF OF SERVICE: OK
PROCEEDING: Motion for Summary Judgment/Adjudication
OPPOSITION: October 21, 2024
REPLY: October
25, 2024
TENTATIVE: Defendant’s Motion for Summary Judgment is granted
in its entirety.
Background
On September 9, 2020, Plaintiff
Isaac Toveg (“Plaintiff”) commenced this action against Defendant State Farm
General Insurance Company (“Defendant”) and DOES 1 to 50, inclusive, alleging
causes of action for (1) Breach of Contract and (2) Common Counts.
On March 19, 2021, the court
entered default against Defendant State Farm. Subsequently, default judgment
was entered on October 6, 2021 for $34,023.36.
On June 27, 2022, the court
granted Defendant State Farm’s Motion to Quash Service of Process and Set
Aside/Vacate Entry of Default Judgment.
On July 27, 2022, Plaintiff filed a
First Amended Complaint (“FAC”) against Defendant State Farm. The pleading was
challenged via demurrer, which the court sustained with 30 days leave to amend.
On November 9, 2022, Plaintiff
filed a Second Amended Complaint (“SAC”) against Defendant State Farm. The
pleading was also challenged via demurrer, which was sustained with 20 days leave to amend.
On February 9, 2023, Plaintiff
filed a Third Amended Complaint (“TAC”) against Defendant State Farm, which was
challenged via demurrer. The demurrer was sustained with 30 days leave to
amend.
On May 18, 2023, Plaintiff filed
the operative Fourth Amended Complaint (“4AC”) against Defendant State Farm,
alleging causes of action for (1) Breach of the Implied Covenant of Good Faith
and Fair Dealing; and (2) Breach of Contract.
On June 20, 2023, Defendant State
Farm filed its Answer.
On August 2, 2024, Defendant State
Farm filed the instant Motion for Summary Judgment or in the Alternative, for
Summary Adjudication. Plaintiff opposes the motion.
MOTION FOR SUMMARY JUDGMENT or alternatively, summary adjudication
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 Code of Civil Procedure Section 437c,
subdivision (c) “requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)
“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.) As to each cause of action as framed by
the complaint, the defendant moving for summary judgment or summary adjudication
must satisfy the initial burden of proof by presenting facts to show “that one
or more elements of the cause of action ... cannot be established, or that
there is a complete defense to the cause of action.” (CCP § 437c(p)(2); see
also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510,
1520.)
Once the defendant has met that burden, the burden shifts to
the plaintiff to show that a triable issue of one or more material facts exists
as to that cause of action or a defense thereto. 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.) 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.) However, “responsive evidence that gives rise to no more than mere
speculation cannot be regarded as substantial and is insufficient to establish
a triable issue of material fact.” (Sangster v. Paetkau, supra, 68
Cal.App.4th at 163.)
The court may take judicial notice of “official acts of the
legislative, executive, and judicial departments of the United States and of
any state of the United States,” “[r]ecords of (1) any court of this state or
(2) any court of record of the United States or of any state of the United
States,” and “[f]acts 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, subds. (c),
(d), and (h).)¿
Defendant requests judicial notice of the following:
1) Exhibit A: A true and correct copy of the
Complaint, dated September 9, 2020.
2) Exhibit B: A true and correct copy of the
Fourth Amended Complaint, dated May 18, 2023.
3) Exhibit C: A true and correct copy of the
Answer to Fourth Amended Complaint, dated June 20, 2023.
Defendant State Farm’s request for judicial notice is
granted.
Plaintiff requests judicial notice of the following:
1) Default Judgment in this case, dated October 6, 2021.
2) The Second and Third Amended Complaints in this case,
dated November 9, 2022 and February 9, 2023.
Plaintiff’s request for judicial notice is granted.
Plaintiff’s objections to
Declaration of Tina M. Bhatia
Plaintiff objects to the entire Declaration of Tina M.
Bhatia on the grounds of improper form. Specifically, Plaintiff argues the
Bhatia’s declaration does not state under which law she declares under a
penalty of perjury.
“Whenever, under any law of this state or under any rule,
regulation, order or requirement made pursuant to the law of this state, any
matter is required or permitted to be supported, evidenced, established, or
proved by the sworn statement, declaration, verification, certificate, oath, or
affidavit, in writing of the person making the same (other than a deposition,
or an oath of office, or an oath required to be taken before a specified
official other than a notary public), such matter may with like force and
effect be supported, evidenced, established or proved by the unsworn statement,
declaration, verification, or certificate, in writing of such person which
recites that it is certified or declared by him or her to be true under penalty
of perjury, is subscribed by him or her, and (1), if executed within this
state, states the date and place of execution, or (2), if executed at any
place, within or without this state, states the date of execution and that it
is so certified or declared under the laws of the State of California. (CCP
§ 2015.5 (emphasis added).)
Ms. Bhatia’s declaration indicates it was executed at Porter
Ranch, California on August 2, 2024. (Bhatia Decl., ¶18.) Thus, it was executed
within the State of California and does not need to state she declares under
the laws of the State of California. Objection No. 9 is overruled.
Plaintiff also objects to paragraphs 4, 7, 8, 12, 13, 14,
and 15 on the grounds of double hearsay, argumentative, lack of foundation,
lack of authentication, and improper conclusion.
In paragraph 4, Ms. Bhatia references a letter discussed in
the declaration of Ivy Ku without any foundational facts as to how she gained
personal knowledge of the contents of the letter. Similarly, paragraphs 12
through 15 appears to address arguments raised in the Memorandum of Points and
Authorities pertaining to the purported one-year suit provision giving rise to
the present summary judgment motion. Objection Nos. 1, 2, 5, 6, 7, 8 are
sustained.
On the other hand, paragraphs 7 and 8 merely cite the allegations
in 4AC and state a copy of Homeowners Insurance Policy is attached therein,
which the court took judicial notice of as a record of the court pursuant to
Evidence Code Section 452, subdivision (d). Objection Nos. 3 and 4 are
overruled.
Plaintiff’s objections to Declaration of Ivy Ku
Plaintiff objects to paragraph 1 on the grounds that Ms. Ku
does not state her job duties as a claim specialist “includes the investigation
of claims for first party coverage benefits presented to State Farm General
Insurance but rather “State Farm” and lacks authentication. However, Ms. Ku
declares she has been a Claim Specialist for State Farm General Insurance
Company since December 2009, and appears to use “State Farm” as shorthand for
“State Farm General Insurance Company” throughout the rest of the declaration.
Furthermore, this is not a ground for evidentiary objection. Objection
No.1 is overruled.
Plaintiff also objects to paragraph 3 on the grounds that it
lacks foundation, lacks personal knowledge, lacks authentication, is double
hearsay, speculative, and argumentative. This paragraph attests to Ms. Ku’s
knowledge of the Enterprise Claims System used by Defendant State Farm to store
information regarding a claims made by policyholders. It does not address any
statements made by or to Ms. Ku. Objection No. 2 is overruled.
Likewise, paragraphs 7 and 8 pertain to a letter Ms. Ku
states she sent to Plaintiff regarding his insurance claim at issue in the
present lawsuit. The letter falls under the business record exception to the
hearsay rule. “Authentication requires the entries to have been made in the
regular course of business, at or near the event and the method and time of
preparation tend to indicate the entry’s trustworthiness.” (People v. Landau
(2016) 246 Cal.App.4th 850, 872, fn. 7.) As discussed above, Ms. Ku declares
she is a Claims Specialist for Defendant State Farm and handled Plaintiff’s
claim in accordance with Defendant State Farm’s practice and procedures.
Objections Nos. 3 and 4 are overruled.
Defendant’s objections Nos. 1 to 13
Defendant State Farm objects to paragraphs 2, 3, 5, 11, 17,
22, 23, 24, 25, 26, 27, 28, and 29 of the Declaration of Plaintiff Isaac Toveg
on the grounds that they lack foundation and constitute legal conclusions. The
court finds that Plaintiff’s statements in his declaration appear to raise
arguments as to the authenticity of the May 18, 2019 letter, its purported
inclusion of the one-year suit provision, and whether or not the claim was
still open.
Declarations must cite to evidentiary facts not legal
conclusions and arguments. (See Hayman v. Block (1986) 176 Cal.App.3d
629, 638-39 (“affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’
facts”); Marriage of Heggie (2002) 99 Cal. App. 4th 28, 30 fn.3 (“The proper
place for argument is in points and authorities, not declarations”).)
Defendant’s objections are sustained.
The following facts are undisputed
unless supported by citation to the evidence. On July 6, 2018, Plaintiff’s
property located at 3166 Cadet Ct., Los Angeles, CA was insured under a
homeowners insurance policy numbered 71-CV-Y817-5 and issued by Defendant State
Farm General Insurance Company. (Undisputed Material Fact “UMF” No. 1 – Fourth
Amended Complaint, Ex. 1.) In regards to Plaintiff’s property, Plaintiff
reported the subject water loss to his State Farm agent. (UMF No. 3 – Ku Decl.,
¶5.)
On September 9, 2020, Plaintiff
filed the original complaint for breach of contract and breach of covenant of
good faith and fair dealing. (UMF No. 7 – Compl., filed 09/09/2020; Def. RJN
No. 1, Ex. A.) On June 20, 2023, Defendant State Farm General Insurance Company
filed its Answer to the Fourth Amended Complaint asserting in its fifth
affirmative defense that this lawsuit is barred by the one-year suit provision
set forth in homeowners insurance policy issued to Plaintiff. (UMF No. 8 –
Answer, filed 06/20/2023; Def. RJN No. 3, Ex. C.)
Defendant State Farm General
Insurance Company (hereinafter “Defendant State Farm”) now moves for summary
judgment or in the alternative, summary adjudication of the following issues:
Issue No. 1:
Defendant State Farm does not owe any duty to Plaintiff under Coverage A of the
subject homeowners insurance policy based upon State Farm General Insurance
Company’s fifth affirmative defense of the one-year contractual suit provision.
Issue No. 2: Defendant
State Farm does not owe any duty to Plaintiff under Coverage B of the subject
homeowners insurance policy based upon State Farm General Insurance Company’s
fifth affirmative defense of the one-year contractual suit provision.
Issue No. 3:
Defendant State Farm does not owe any duty to Plaintiff under Coverage C of the
subject homeowners insurance policy based upon State Farm General Insurance
Company’s fifth affirmative defense of the one-year contractual suit provision.
Defendant State Farm’s primary
argument is that this lawsuit is barred by the one-year contractual suit
provision contained in Plaintiff’s homeowners insurance policy with State Farm
General Insurance Company. The court notes Plaintiff does not dispute the
validity or existence of the one-year contractual suit provision but rather
Plaintiff contends the provision is inapplicable to this action because he did
not have notice of it prior to the filing of his original complaint; Defendant
State Farm is estopped from assert the provision as a defense; and the
provision does not apply to the causes of action at issue. As such, the court
does not address the issue of whether the Emergency Rule 9 is applicable for
tolling purposes.
A. Defendant’s Burden to
Show that Plaintiff had Notice of the Contractual Suit Provision
California Code of Regulations,
Title 10, Section 2695.4, subdivision (a) states in pertinent part: “Every
insurer shall disclose to a first party claimant or beneficiary, all benefits,
coverage, time limits or other provisions of any insurance policy issued by
that insurer that may apply to the claim presented by the claimant. When
additional benefits might reasonably be payable under an insured's policy upon
receipt of additional proofs of claim, the insurer shall immediately
communicate this fact to the insured and cooperate with and assist the insured
in determining the extent of the insurer's additional liability.” (CCR, tit.
10, § 2695.4.)
Here, Defendant State Farm asserts
its Claim Specialist, Ivy Ku notified Plaintiff via a letter emailed on March
29, 2019 that State Farm was closing his claim and referenced the one-year
contractual suit provision:
Dear Isaac Toveg and Mahnaz Toveg:
Thank you for allowing us to assist you with your claim.
Please be advised that as of the date of this letter, we have
not received the requested remaining contents evaluation. The art pieces that
were damaged will need a professional evaluation to determine repairability and
whether it can be restored and for what price.
Once you have this ready, you can send it to the claims
department and it will reopen your claim.
The California Fair Claims Practices Regulations state that
you must be notified of all time limits that may apply to your claim. Your
policy contains the following provision concerning suits against State Farm:
6. Suit Against Us. No action shall be brought
against us unless there has been compliance with the policy provisions. The
action must be started within one year after the date of loss or damage.
The one year period referred to begins to run as of the date
of this letter.
State Farm has completed its evaluation of this claim and
believes that all covered damages have been paid. We consider this claim closed
as of the date of this letter.
Thank you for your cooperation in this matter.
(Def. Sep. Stmt. Disp. Facts
“DSSMF” Nos. 4-5 – Ku Decl., ¶7, Ex. A.)
Defendant State Farm also asserts,
Ms. Ku confirmed in a supplemental declaration that the letter was emailed to
the following email address: isaactoveg@aol.com and was not returned as
undeliverable. (Def. Reply Brief – Ku Supp. Decl., ¶¶3-4, filed 10/25/2024.)
Furthermore, Ms. Ku declares this was the email address she sent and receive
correspondence from Plaintiff during the handling of his claim. (Ku Supp.
Decl., ¶1.) Moreover, Defendant State Farm asserts its system generated
confirmation that the letter had been sent out on March 29, 2019 to Plaintiff
via email. (Ku Decl., ¶¶7-8, Ex. B; Ku Supp. Decl., ¶3-4, Ex. D.)
The court finds that a reasonable
jury could find that Plaintiff was put on notice of the one-year contractual
suit provision over a year in advance of him filing the original complaint,
dated September 9, 2020. Thus, Defendant State Farm has met its initial burden
of showing that Plaintiff knew about the one-year contractual suit provision.
The burden now shifts to Plaintiff
to show that he was not on notice of the one-year contractual suit provision.
B. Plaintiff’s
Burden to Show that He Was Not on Notice of the Contractual Suit Provision
Plaintiff asserts he did not
receive the March 29, 2019 letter. (Plf. Sep. Stmt. of Disp. Facts “PSSMF” No.
4 – Toveg Decl., ¶10.) Plaintiff cites no other evidence except for his own
declaration to show that he did not receive the March 29, 2019 letter from Ms.
Ku. Instead, Plaintiff seems to admit
the original adjustment of his claim concluded in March 2019. (Opp. at Sec. VI,
lns. 20-22.)
As such, Plaintiff fails to show
that he was not on notice of the one-year contractual suit provision.
C. Plaintiff
Fails to Show Waiver/Estoppel Prevents Finding the Contractual Suit Provision
Applicable
Plaintiff also argues Defendant
State Farm has waived its right to assert the one-year contractual suit
provision and/or is estopped from asserting it as an affirmative defense
because it made false representations that all damages had been addressed in
the original adjustment of the claim. However, Plaintiff does not provide any admissible
evidence as to what representations were made, when they were made, and/or by
whom such representations were made.
Therefore, Plaintiff fails to show
that Defendant State Farm is estopped from asserting the one-year limitation as
an affirmative defense.
D.
Plaintiff Fails to Show the Contractual Suit Provision is Inapplicable to The
Causes of Actions
Lastly, Plaintiff asserts the
one-year contractual suit provision does not apply to any of the causes of
action at issue in this lawsuit. More specifically, Plaintiff contends it
cannot bar his first cause of action for breach of the implied covenant of good
faith and fair dealing, i.e., bad faith claim. By contrast, California courts
have held that a bad faith claim based on the alleged misrepresentation of the
scope of coverage in a policy constitutes a claim on the insurance policy, and
is thus time barred by one-year contractual suit provisions. (See Lawrence
v. Western Mutual Ins. Co. (1988) 204 Cal.App.3d 565, 574-576.) Plaintiff
does not contest his claims on predicated on purported misrepresentations of
the nature and scope of coverage. (Opp. at Sec. VII (7).)
Thus, Plaintiff fails to show that
one-year contractual suit provision is inapplicable to the causes of action set
forth in the 4AC.
Conclusion
Defendant State Farm General Insurance Company’s Motion for
Summary Judgment is granted in its entirety.
Defendant to give notice.