Judge: Gail Killefer, Case: 21STCV25612, Date: 2023-12-20 Tentative Ruling
Case Number: 21STCV25612 Hearing Date: March 20, 2024 Dept: 37
HEARING DATE: Wednesday, March, 2024
CASE NUMBER: 21STCV25612
CASE NAME: Mark A. Currie, et al. v. Farmers Insurance, et al.
MOVING PARTY: Plaintiffs Mark
A. Currie, Michelle A. Currie, Michelle A. Currie, Leroy Turner, Ladiamond R.
Blueford
OPPOSING PARTY: Defendant Fire Insurance Exchange
TRIAL DATE: N/A
PROOF
OF SERVICE: OK
PROCEEDING: Motion for Reconsideration
of the February 5, 2024, Order
OPPOSITION: 6 March 2024
REPLY: 11 March 2024
TENTATIVE: Plaintiffs’ Motion for
Reconsideration is denied.
Plaintiffs
to give notice.
Background
On July 13, 2023, Mark A. Currie,
Michelle A. Currie, Michelle A. Currie, Leroy Turner, Ladiamond R. Blueford
(collectively “Plaintiffs’) filed a Complaint against Fire Insurance Exchange
(“Defendant” or “Fire”). This action relates to an insurance policy and alleged
misrepresentations Fire made to Plaintiffs regarding coverage.
The operative First Amended Complaint
(“FAC”) alleges causes of action for (1) Breach of
Contract, (2) Fraudulent Misrepresentation, (3) Breach of Fiduciary Duty, (4)
Promissory Estoppel, (5) Breach of the Implied Covenant of Good Faith and Fair
Dealing, (6) Fraud and Deceit, (7) General Negligence, (8) Intentional
Infliction of Emotional Distress, (9) Unfair Competition, and (10) Injunctive
Relief.
On May 2, 2022, Farmers Insurance Group
and Foremost Insurance Group were voluntarily dismissed as Defendants. The
Plaintiffs also dismissed the third cause of action for
Breach of Fiduciary Duty and the ninth cause of action for Unfair Completion.
On October 3, 2023, Plaintiffs filed a motion for summary
judgment, or, in the alternative, summary adjudication. On February 5, 2024,
the court denied Plaintiffs’ request for summary judgment and summary
adjudication.
On January 18, 2024, the Plaintiffs filed a “motion for
Clarification and Reconsideration” of the January 8, 2024, ruling, which was
noticed for hearing on February 14, 2024. The Motion was denied.
On February 15, 2024, Plaintiff filed a motion for “clarification
and reconsideration of the Cort Order made February 5, 2024, denying
Plaintiffs’ Motion for Summary Judgment and Motion for Summary Adjudication.” Defendant
opposes the Motion. The matter is now before the court.
I. Legal Standard
CCP § 1008 states, in pertinent part:¿¿¿¿¿
¿¿¿¿
(a) When
an application for an order has been made to a judge, or to a court, and
refused in whole or in part, or granted, or granted conditionally, or on terms,
any party affected by the order may, within 10 days after service upon
the party of written notice of entry of the order and based upon new or
different facts, circumstances, or law, make an application to the same judge
or court that made the order, to reconsider the matter and modify, amend, or
revoke the prior order. The party making the application shall state by
affidavit what application was made before, when and to what judge, what order
or decisions were made, and what new or different facts, circumstances, or law
are claimed to be shown.¿¿¿¿
¿¿¿
(b) A
party who originally made an application for an order which was refused in
whole or in part, or granted conditionally or on terms, may make a subsequent
application for the same order upon new or different facts, circumstances, or
law, in which case it shall be shown by affidavit what application was made
before, when and to what judge, what order or decisions were made, and what new
or different facts circumstances, or law are claimed to be shown. For a failure
to comply with this subdivision, any order made on a subsequent application may
be revoked or set aside on an ex parte motion.¿¿¿¿¿
¿¿¿
(c) If a
court at any time determines that there has been a change of law that warrants
it to reconsider a prior order it entered, it may do so on its own motion and
enter a different order.
(d) A
violation of this section may be punished as a contempt and with sanctions as
allowed by Section 128.7. In addition, an order made contrary to this section
may be revoked by the judge or commissioner who made it, or vacated by a judge
of the court in which the action or proceeding is pending.
¿¿¿
(e)¿This
section specifies the court’s jurisdiction with regard to applications for
reconsideration of its orders and renewals of previous motions, and applies to
all applications to reconsider any order of a judge or court, or for the
renewal of a previous motion, whether the order deciding the previous matter or
motion is interim or final. No application to reconsider any order or for the
renewal of a previous motion may be considered by any judge or court unless
made according to this section. . . .
II. Request for Judicial Notice
The Court may take judicial notice of records of any court of
record of the United States. (Evid. Code, § 452(d)(2).) The court
grants Plaintiffs’ request for judicial notice of the Shabani Declaration. A
court may take judicial notice of contents of its own records. (Dwan v.
Dixon (1963) 216 Cal.App.2d 260, 265; Foster v. Gray (1962) 203
Cal.App.2d 434, 439.) 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.)
Plaintiffs request judicial notice of the
following:
1) The
Court’s Ruling made for Plaintiffs’ Motion for Summary Judgment, or, in the
Alternative, Summary Adjudication, hearing held February 5, 2024. A true and
correct copy of this document attached as RJN Exhibit 1.
Plaintiffs’
request for judicial notice is granted.
III. Discussion
Plaintiffs
seek clarification as to why the court relied on Schmidlin
v. City of Palo Alto (2007) 157 Cal.App.4th 728, 766, fn.
17 and found that there were triable issues of material fact that prevented
summary adjudication in Plaintiffs’ favor.
Defendant
moved for summary judgment, or summary adjudication, as to all causes of action
alleged in the Plaintiffs’ Complaint, and the Motion was heard on December 20,
2023, before Plaintiff’s motion for summary judgment was heard. After taking
the matter under submission, on January 8, 2024, the court denied the Defendant’s motion for summary judgment
and granted summary adjudication as to the second cause of
action for Fraudulent Misrepresentation, fourth cause of action for Promissory
Estoppel, fifth cause of action for Breach of the Implied Covenant of Good
Faith and Fair Dealing, sixth cause of action for Fraud and Deceit, seventh
cause of action for negligence, eighth cause of action of Intentional
Infliction of Emotional Distress and denied as to the first cause of action for
Breach of Contract and the tenth cause of action for Declaratory Relief.
When the Plaintiffs’ motion for
summary judgment or summary adjudication came before this court, the court was
bound by the issues raised and decided in the January 8, 2024, ruling because
the granting of summary adjudication has a preclusive effect. (Schmidlin,
supra, 157 Cal.App.4th at p. 766.) Because summary adjudication was
denied as to the first cause of action for breach of contract and the tenth
cause of action for declaratory relief, the Plaintiff could seek summary
adjudication as to these issues because the court was not bound by its prior
ruling. (Id. at p. 766, fn. 17.) The court subsequently denied Plaintiffs’
request for summary adjudication as to the first and tenth causes of action
because triable issues of material fact exist.
Plaintiffs fail to cite case law
that shows that the January 8, 2024, grant of Defendant’s motion for summary
adjudication had no preclusive effect and instead argue that issue preclusion
does not apply, which is an entirely different legal doctrine. Summary judgment
and summary adjudication are creatures of statute. (CCP § 437c.) “In
1992, the Legislature made clear that a grant of summary
adjudication as to a particular cause of action is deemed established at trial,
but the case ‘proceed[s] as to the ... causes of action ... remaining.’ ” (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120,
1136.) “Summary adjudication of a cause of action ‘is a judicial determination
that the issue is not subject to further controversy.’ [Citation.] Summary
adjudication of an issue is binding. [Citation.] Following a grant of summary
adjudication in a defendant's favor, the cause of action is deemed ‘established’
and the parties may not relitigate the issue. [Citations.]” (Pinter-Brown v. Regents of University of California (2020)
48 Cal.App.5th 55, 99.) Plaintiffs
fail to cite the specific evidence and case law that would show that the court
improperly applied the law and improperly found that no triable issues of fact
existed such that summary adjudication should have been granted in Plaintiffs’
favor.
Plaintiffs assert that the
Policy at issue did not have a clearly defined requirement to exhibit the
damaged property such that any ambiguity should be interpreted against
Defendants, not Plaintiffs. The court did find the Policy was ambiguous but
declined to interpret the contract as a matter of law because there was
conflict in the extrinsic evidence. Plaintiffs
admitted to discarding personal property that they believed was contaminated
but not physically destroyed by the water intrusion. (See Brown v. Goldstein (2019)
34 Cal.App.5th 418, 433.) Plaintiff fails to explain why it was an abuse of
discretion for the court to decline to interpret the contract as a matter of
law given conflicting extrinsic evidence regarding whether the photographs
depicted damaged or contaminated property and whether all items claimed to have
been damaged by the water intrusion were properly “exhibited” as required by
the Policy.
Plaintiffs also raise the
argument of unconscionability for the first time and fail to explain why the
argument was not previously raised and how such an argument would show that
there are no triable issues of material fact such that summary adjudication
should be granted in Plaintiffs’ favor. Moreover, while cross-motions for
summary judgment and summary adjudication may be heard together, Plaintiff
fails to show that this is a mandatory requirement. More importantly, Plaintiff
did not object to having its Motion heard after Defendant’s motion for summary
judgment. Most egregious of all was that Plaintiff relied on the same evidence
in its moving papers seeking summary judgment as they did in opposing
Defendant’s motion for summary judgment. Accordingly, Plaintiffs fail to show
that had their motion for summary judgment been heard first, the outcome would
have been different because Plaintiffs would have been able to present evidence
that showed no triable issues of material fact exist and that it was entitled
to summary judgment as a matter of law.
Based on the above, the court
finds that Plaintiffs failed to show what new or different facts, circumstance,
or law exist that warrant reversal of the February 5, 2024, Order and why
Plaintiff failed to present these new facts, circumstances, or law previously. (See
Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC
(2015) 61 Cal.4th 830, 833 [finding that Section 1008 imposes the special
requirement of having to not only show new or different facts, circumstances,
or law, but also to “show diligence with a satisfactory explanation for not
presenting the new or different information earlier…”].)
Accordingly, the motion for
reconsideration is denied.