Judge Kerry Bensinger, Case Number: 22STCV34941, Date: 2024-04-11 Tentative Ruling

MOVING PARTY: Defendants National General Insurance Company and Integon National Insurance Company

This is a bad faith insurance action. On November 2, 2022, Plaintiffs, Angelique Gomez (“Gomez”) and Martin Gomez Ambriz (“Ambriz”) (collectively, “Plaintiffs”), filed a Complaint against Defendants National General Insurance Company (“NGIC”), Integon National Insurance Company (“Integon”), Freeway Insurance Services, Inc., and Freeway Insurance Services America, LLC, for (1) Breach of Contract, (2) Breach of Duty of Good Faith and Fair Dealing, and (3) Professional Negligence. Plaintiffs allege that they had automobile insurance coverage with Integon. In 2020, Gomez was involved in a collision. Plaintiffs submitted a claim with Integon which was denied. In reporting the claim, Plaintiff responded “Yes” to a query from the adjuster whether there were people 14 years or older living in the house. Plaintiffs’ affirmative response contradicted their previous response when applying for insurance with Integon indicating there were not any people in the applicable age. Coverage was denied based on this misrepresentation, which Plaintiffs contend was made in bad faith.

On January 24, 2024, NGIC and Integon (hereafter, “Defendants”) timely filed this Motion for Summary Judgment, or in the Alternative, Summary Adjudication.

When reviewing a motion for summary judgment or summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿ (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿ A motion for summary judgment must 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 a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿ (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (Scalf).)¿ A defendant seeking summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.”¿ (Code Civ. Proc., § 437c, subd. (p)(2).)¿ A moving defendant need not conclusively negate an element of plaintiff’s cause of action.¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿ (Aguilar, supra, 25 Cal.4th at p. 854.)¿ It is insufficient for the defendant to merely point out the absence of evidence.¿ (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891 (Gaggero).)¿ The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿ (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿ (Aguilar, supra, 25 Cal.4th at p. 855.)¿

“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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)¿The plaintiff may not merely rely on 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.”¿(Ibid.)¿ A plaintiff opposing summary judgment defeats the motion by showing one or more triable issues of material fact exist as to the challenged element. (Aguilar, supra, 25 Cal.4th at p. 849.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿ [Citation.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860, internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]” ¿(Id. at p. 840; see also Weiss v. People ex rel.¿Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿¿

A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54(c).)

Defendants move for summary judgment, or in the alternative, summary adjudication, on the ground that Ambriz made material representations on their policy application for automobile coverage. In support, Defendants submit the following undisputed facts:

Ambriz applied for an automobile insurance policy with Integon on November 11, 2019. (Defendants’ Undisputed Material Facts (UMF) 1.) He applied for the Policy in person through his insurance broker, Freeway Insurance Services Inc. (“Freeway”) (UMF 2.) At the time of the application, Ambriz was living with his daughter, plaintiff Angelique Gomez, and his son, Adam Gomez. Adam Gomez was 18 years old at the time. (UMF 5, 6.) Ambriz was expressly asked to disclose all household members 14 years and older on the application, and he confirmed he did so in his written response (UMF 7.) The application, which Ambriz admitted he signed, contained a list of 12 questions, the first of which clearly asked, “Have you disclosed all household members 14 years and older on the application?” (UMF 7.) The box next to this question was marked “yes.” (UMF 7.) Ambriz also signed a separate Applicant’s Statement, which read in part: APPLICANT’S STATEMENT – PLEASE READ CAREFULLY I agree all answers to all questions in this Application are true and correct. I understand, recognize, and agree said answers are given and made for the purpose of inducing the Company to issue the policy for which I have applied. I further agree that ALL household members 14 years and older … are shown above. … I understand the Company may rescind this policy if said answers on this Application are false or misleading, and materially affect the risk the Company assumes by issuing the policy. (UMF 8.)

The Applicant’s Statement went on to explain that Ambriz had a continuing duty to inform Integon of any changes to material information including the members of his household: Continuing Duty To Inform: I understand that I have a continuing duty to notify the insurance company of any changes concerning the following: … (2) member(s) of my household age 14 years and older; … I understand that the insurance company may rescind this policy and deny coverage if I fail to notify the company of these changes. (UMF 9.) Martin Gomez also initialed next to a nearly identical statement later in the application reminding him yet again of his duty to disclose all household members age 14 and older. (UMF 10.)

Ambriz’s primary language is Spanish. (UMF 3.) Ambriz’s broker spoke to Ambriz in Spanish during the application process. (UMF 3.) Ambriz’s broker signed a “Producer’s Statement,” swearing that he asked all questions on the application. (UMF 12.) The broker later confirmed in an email that all questions on the application were asked and that the broker had no prior knowledge of the undisclosed household member, Adam Gomez. (UMF 38.) The broker also advised that Freeway again reminded Ambriz that he had to disclose all household members when he subsequently amended the Policy. (UMF 38.) Ambriz also admitted he signed another form provided to him by his broker during the application process, which was written entirely in Spanish and which again stated that Ambriz was required to disclose all household members over the age of 14. (UMF 55.)

Gomez was in an accident in an insured vehicle on October 15, 2020. (UMF 36.) That same day, Gomez gave a recorded statement revealing that Adam Gomez was an undisclosed household member and that he was over 14 years old and had been living with Plaintiffs at the time of the application. (UMF 37.) The claim was reviewed at a roundtable on October 26, 2020. (UMF 47.) At the roundtable, the decision was made to rescind the Policy based on the undisclosed household member and the associated impact on premium. (UMF 48.) Integon sent a Notice of Rescission on October 30, 2020 and sent a letter denying the claim in light of the decision to rescind on November 3, 2020. (UMF 50.) As part of the rescission process, Integon issued Ambriz a check for the return of his premium payments on the Policy term to date. (UMF 51.) This check was prepared and mailed to Martin Gomez. (UMF 51.)

Based on the foregoing, Defendants meet their initial summary judgment burden. The burden shifts to Plaintiffs to show a triable issue of material facts. (See Scalf, supra, 128 Cal.App.4th at p. 1519.) Plaintiffs have not filed opposition.

Accordingly, Defendants National General Insurance Company and Integon National Insurance Company’s Motion for Summary Judgment is GRANTED.

Defendants are ordered to file a proposed judgment within ten (10) days of this order.

Kerry Bensinger

Judge of the Superior Court