Judge Lynne M. Hobbs, Case Number: 22STCV14010, Date: 2024-06-27 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV14010, Date: 2024-06-27 Tentative Ruling

Case Number: 22STCV14010 Hearing Date: June 27, 2024 Dept: 61

THOMAS E. BELL vs STATE FARM GENERAL INSURANCE COMPANY, et al.

TENTATIVE

Defendant State Farm General Insurance Company’s Motion for Summary Judgment, or in the alternative Summary Adjudication is DENIED.

Defendants Corbacho Appraisals and Jaime Corbacho’s Motion to Continue Trial is GRANTED.

Plaintiff to give notice.

DISCUSSION

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).)

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. (Aguilar, supra, 25 Cal.4th at 850.) The plaintiff may not rely upon the mere 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 that cause of action or a defense thereto. (Ibid.) 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.)

State Farm moves for summary judgment of the entire complaint on grounds that (1) Plaintiff failed to satisfy the Policies’ Conditions requiring him to provide sufficient documentation of the existence and authenticity of the balance of the property allegedly lost in the cargo trailer fire and (2) State Farm paid him the full market value for all covered property that Plaintiff documented.

State Farm moves in the alternative for summary adjudication of (1) the second cause of action for breach of the implied covenant of good faith and fair dealing, because State Farm did not unreasonably deny policy benefits and there was a “genuine dispute” as to Plaintiff’s entitlement to any additional benefits under the Policies; (2) the punitive damages claim given the absence of any evidence of oppression, fraud or malice or any ratification of any fraud, oppression or malice by an officer, director or managing agent of State Farm; and (3) summary adjudication of State Farm’s Ninth Affirmative Defense based on the Policies’ exclusion for “contraband, or any property used in the course of illegal consumption, possession, import, export or trade,” which would include Plaintiff’s rhinoceros horn cups and bowls and ivory tusk items.

1. Triable issues of fact remain as to whether State Farm breached the Policies by paying Plaintiff $469,499.75 of his $8,429,150 loss claim

Defendant argues Plaintiff was required to perform the following duties under the Policies after a loss: “prepare an inventory of damaged or stolen personal property. Show in detail the quantity, description, age, replacement cost and amount of loss. Attach to the inventory all bills, receipts and related documents that substantiate the figures in the inventory.”

(Moore Dec., Ex. 1, SFTBEL_000089; Ex. 2, SFTBEL_000032.)

According to Defendant, it has paid all benefits due to Plaintiff under the Policies. Defendant argues it paid $469,499.75 of Plaintiff’s $8,249,150 loss claim, because Plaintiff’s documentation of the excluded items did not comply with the Policies’ Conditions. Based on Defendant’s appraisal, only $469,499.75 worth of loss was verifiable. (UMF Defendant Nos. 38-39.) Defendant argues Plaintiff’s refused to submit any further documentation of the remainder of Plaintiff’s loss claim, arguing that what he had submitted was sufficient.

Triable issues of fact exist as to whether Plaintiff’s documentation submitted in support of Plaintiff’s $8,249,150 claims were insufficiently substantiated. Initially, Plaintiff submitted in support of his loss claim (1) an inventory; (2) a letter dated March 18, 2021 providing details regarding the loss; (3) an appraisal from Kevin Stewart dated March 9, 2021 attached to the March 18, 2021 letter (“March Appraisal”); and (4) an open offer to State Farm to speak with him and Stewart regarding the loss and the appraisal. (Defendant’s UMF Nos. 18 and 19.)

Reasonable minds could conclude from these documents that Plaintiff had sufficiently documented the loss claimed based on the Policies’ Conditions. This conclusion is bolstered by the fact that State Farm’s own adjuster, Michelle Fisher, had initially recommended and requested authority to pay the full amount of the claim, i.e. the policy limits under each of the policies. (Plaintiff’s Additional Undisputed Material Facts (“AMF”), Nos. 24 and 25; Bruchey Dec., Ex. 6, Fisher Dep., 118:12-119:14, 121:10-13.)

Given the amount of the claim, Defendant did not authorize payment as recommended by Fisher of the full claim and instead hired its own appraiser, Corbacho. (Defendant’s UMF No. 29.) During Corbacho’s investigation, Corbacho requested additional documentation to substantiate Stewart’s March Appraisal, specifically IRS documents, canceled checks, names of galleries where Plaintiff shopped, photographs or other concrete documentation to substantiate the existence, descriptions and values provided by Stewart. (Defendant’s UMF No. 31; Hummel Dec., Ex. 10.)

In response to Corbacho’s investigation and Defendant’s requests for further documentation, Plaintiff offered additional documentation in support of his claim for loss in excess of $8 million dollars. Plaintiff provided (1) a revised appraisal dated April 15, 2021 from Stewart that provided greater detail regarding his appraisal (Hummel Dec., Ex. 9); (2) a letter from Stewart dated April 27, 2021 further detailing his appraisal (Hummel Dec., Ex. 13); (3) two letters authored by Stewart dated July 20 and 21, 2021 responding to Corbacho’s appraisal report and explaining in detail the basis for his appraisal (Hummel Dec., Ex. 17); (4) a July 30, 2021 letter from Stewart (Burchey Dec., Ex. 10.); (5) a letter from Bell on October 5, 2021 explaining why he did not have photos, receipts, provenance records or other documentation concerning the claimed lost artwork because they were lost in the Thomas Fire in 2017 (Hummel Dec., Ex. 24); and (6) a redacted copy of Stewart’s 2017 appraisal provided to State Farm on October 1, 2021 (Hummel Dec., Ex. 23.)

Defendant maintains Plaintiff failed to sufficiently document his loss claim of $8,249,150, because Plaintiff relied solely on Stewart’s April Appraisal. (Defendant’s UMF No. 70; Hummel Dec., Ex. 42, Plaintiff’s Response to Special Interrogatory No. 28.) Defendant’s own evidence does not support such an assertion, however. Defendant’s evidence establishes that Plaintiff submitted an inventory packing list, multiple appraisals from Stewart, multiple letters from Stewart explaining his appraisal and multiple communications with Plaintiff explaining what occurred, why certain documentation was lacking, his circumstances and background as an avid collector and other relevant details regarding the loss.

Moreover, Defendant mischaracterizes Plaintiff’s response to SI No. 28. In response to a request that Plaintiff state all “facts” supporting his allegation that he was not fully compensated by State Farm, Plaintiff stated Stewart appraised the loss at $8,429,150 and “discovery and investigations are continuing and the responding party reserve the right to supplement this response.” ((Defendant’s UMF No. 70; Hummel Dec., Ex. 42, Plaintiff’s Response to Special Interrogatory No. 28.) Plaintiff never responded that the sole evidentiary basis for his claim was Stewart’s April Appraisal.

Plaintiff and Stewart also repeatedly addressed Defendant’s objection to Stewart’s appraisal based on his failure to physically inspect the destroyed items. Stewart’s March Appraisal stated that his appraisal was done from “a verbal description from the claimant” and that “a large number of items were inspected by the appraiser previously for a completed appraisal for his Estate purposes.” (Hummel Dec., Ex. 5, SFTBEL_000529.) Stewart testified that the only items he did not personally inspect were a fabric dog cushion, a bird cage and a bed frame. (Bruchey Decl., Exh. 5 (Stewart Depo.), 66:10-67:3, 221:16-222:16.)

In addition, as Plaintiff points out in opposition, Corbacho’s appraisal was not based at all on any physical inspection of the lost property. If Stewart’s appraisal were not considered as hearsay, Corbacho’s appraisal could not be considered as well. Moreover, the appraisals are appraisals, i.e. the appraiser’s expert opinion regarding the value of an item. They are also being presented in part to demonstrate the sufficiency of the documentation provided and the state of mind of Defendant when it rejected part of Plaintiff’s claim, which would not be hearsay.

Defendant attacks the admissibility of Stewart’s appraisal and his qualifications as an appraiser. The Court overrules any objection to Stewart’s qualifications or the admissibility of his appraisals. Based on both Defendant’s and Plaintiff’s evidence, Stewart’s deposition testimony lays a sufficient foundation to establish his experience as an appraiser since 1976. (Hummel Dec., Ex. 36, Stewart Depo., pp. 41-43; Bruchey Dec., Ex. 5, Stewart Depo., 29:13-34:14, 38:13-39:3, 40:24-41:12, 43:2-44:5, 47:3-6, 48:5-10.)

Defendant’s basis for limiting the loss payment to $469,499.75 was the Corbacho appraisal. Plaintiff’s basis for valuing his loss at $8,429,150 was Stewart’s appraisal. The Court finds that this is a typical “battle of the experts.” As conceded by Defendant, “battles of the experts” ordinarily present issues of fact for the jury to resolve, nor can the Court find as a matter of law based on the documentation provided by Plaintiff and the communications between Plaintiff and Defendant regarding his claim that he failed to satisfy his obligations under the Policies’ Conditions as an issue of law.

For this reason, the motion for summary judgment is denied. Triable issues of fact remain as to the first cause of action for breach of contract against State Farm.

2. Triable issues of fact exist as to whether Defendant acted in bad faith

Based on the undisputed facts, Defendant was relying on an expert’s appraisal of the loss when it denied Plaintiff’s claim in part. However, even if Defendant relied on an expert, if Plaintiff were able to present evidence of one of the following scenarios, whether a “genuine dispute” existed had to be determined by a jury: “(1) the insurer was guilty of misrepresenting the nature of the investigatory proceedings; (2) the insurer's employees lied during the depositions or to the insured; (3) the insurer dishonestly selected its experts; (4) the insurer's experts were unreasonable; and (5) the insurer failed to conduct a thorough investigation.” “(1) the insurer was guilty of misrepresenting the nature of the investigatory proceedings; (2) the insurer's employees lied during the depositions or to the insured; (3) the insurer dishonestly selected its experts; (4) the insurer's experts were unreasonable; and (5) the insurer failed to conduct a thorough investigation.” (Chateau, supra, 90 Cal.App.4th at 348.)

Corbacho’s investigation ultimately revealed that one of the loss items—a Leal painting—had not been destroyed in the fire. (Defendant’s UMF No. 43.) Corbacho discovered that it was listed for sale on April 28, 2021, after the date of loss. (Id. at 43.) Plaintiff does not dispute that he had erroneously included the Leal painting as a loss item and that he had traded it to Zaven Oganesyan. (UMF No. 47.) The issues was ultimately resolved and no fraud was found, but Corbacho’s discovery of the alleged erroneous inclusion of the Leal painting among the lost items is evidence of a thorough, good faith investigation.

Corbacho and Defendant also requested additional documentation, such as IRS receipts, provenance documents, invoices evidencing Plaintiff’s purchases and the name of stores frequented by Plaintiff. Such a request is also evidence of a reasonable, thorough investigation. Whether Defendant breached the contract by finding Plaintiff’s insufficient due to Plaintiff’s failure to provide these specific categories of documents is disputed, as discussed above. However, Defendant’s request for such documentation and the rejection of part of the claim due to the absence of such basic documentation is not evidence of affirmative bad faith or a bad faith investigation.

Plaintiff also argues Defendant’s request that Corbacho examine the photos of the fire and wreckage is evidence of bad faith. Plaintiff argues Corbacho has no expertise in fire investigation or insurance claim investigation and there would be no reason to have her examine the photos. (Bruchey Dec., Ex. 7, Corbacho Depo., 35:13-36:4, 38:23-39:15.)

Having Corbacho examine photos of the fire and the wreckage left behind is not evidence of bad faith. The photos were of the accident scene and Corbacho was investigating the loss of specific items of artwork in the accident. If anything, provision of the photos is evidence of a thorough investigation.

However, a trier of fact could find based on Corbacho’s opinion letter dated November 4, 2021 that she was unreasonable and biased. (Hummel Dec., Ex. 29.) Corbacho amended her opinion to appraise damages at $0 and she went so far as to accuse both Plaintiff and Stewart as colluding and conspiring to commit insurance fraud. (Id.) Corbacho also indicated that “From the very beginning of this claim, I felt that Mr. Stewart and Mr. Bell were withholding information.” (Id.) A trier of fact could find that Corbacho was an unreasonable expert given her statements in her November 4, 2021 letter and her knowledge that Defendant was blocking direct access to the persons she was accusing of intentionally withholding information.

A trier of fact could also find that Defendant’s refusal to allow direct contact between Corbacho and Stewart was bad faith. The only reason provided by Defendant for refusing to allow direct contact between the two was that Defendant was Corbacho’s client, not Plaintiff. This explanation makes no sense, and Defendant provides no explanation for why it denied any direct contact between Stewart and Corbacho. Corbacho’s primary concerns were Stewart’s credibility and questions she had about his methodology. The absolute refusal to allow the two to communicate directly, even if in the presence of Defendant’s adjuster, must be examined by a trier of fact to determine if this is evidence of an intentional attempt to block a thorough investigation.

Plaintiff raises Defendant’s refusal to allow Corbacho to inspect Plaintiff’s remaining collection as evidence of bad faith. Corbacho stated in her deposition testimony that looking at Plaintiff’s remaining collection could have helped her assess the validity of Stewart’s appraisal and Plaintiff’s claim. (Bruchey Dec., Ex. 7, Corbacho Depo., 107:8-18.) Corbacho testified that she asked Fisher if she could look at Plaintiff’s existing Ansel Adams collection, it would have assisted her in her appraisal. (Id.) Corbacho testified that Fisher never got back to her about her request. (Id.) Corbacho then testified that she was told “no,” she could not view other items in Plaintiff’s collection even though she requested to do so, and she was not provided any explanation for their refusal to allow her to view the other items in Plaintiff’s collection. (Id. at 112:1-23.) Plaintiff had consistently offered to make himself, Stewart and his existing collection available for Corbacho and Defendant to speak with and review.

Bad faith is ordinarily a question of fact and can only be resolved as an issue of law if only one conclusion can be drawn from undisputed evidence. (Mt. Hawley Insurance Company v. Lopez (2013) 215 Cal.App.4th 1385, 1424.) Whether the genuine dispute doctrine applies when an expert is relied upon unless a plaintiff presents evidence, for example, of an unreasonable expert and/or the failure to conduct a thorough investigation. (Chateau Chamberay Homeowners Ass'n v. Associated Intern. Ins. Co. (2001) 90 Cal.App.4th 335, 350.) Here, Plaintiff has presented evidence of both. As such, triable issues of fact remain as to the second cause of action and the motion for summary judgment or adjudication of the second cause of action is denied.

3. Ninth Affirmative Defense based on “Contraband” Exclusion

Defendant asks that the Court grant summary adjudication of its ninth affirmative defense based on the policy exclusion for “contraband, or any property used in the court of illegal consumption, possession, import, export or trade.” Defendant argues it denied Plaintiff’s loss claim for rhinoceros horn cups and bowls and an ivory tusk. (Defendant’s UMF No. 24; Hummel Dec., Ex. 5, SFTBEL_000530-000531,) Defendant argues that since 2017, California has prohibited the purchase or sale of ivory and rhinoceros horn products, and subjects violators to criminal punishment unless the owner meets specific qualifications or exemptions under Federal law. (RJN, Ex. A, Cal. Fish & Game Code §2022 (“Except as provided in subdivision (c), it is unlawful to purchase, sell, offer for sale, possess with intent to sell, or import with intent to sell ivory or rhinoceros horn.”).) Federal law also prohibits the purchase or sale of products made from elephant or rhinoceros. (RJN, Ex. B-E (50 C.F.R. §17.40e (interstate commerce of elephant ivory products is prohibited, subject to certain exceptions); 16 U.S.C. §5305a (a person shall not sell, import, or attempt to sell, import, or export, any product, item . . . derived from any species of rhinoceros . . . ).)

Corbacho did not appraise the rhinoceros horn cups or bowls or the 1910 Japanese carved elephant tusk because such items were prohibited from purchase or sale, unless exempt. (Defendant’s UMF No. 37.) When Defendant requested documentation that the items were exempt from federal and state law regulating these items, Plaintiff allegedly provided no such documentation. (Defendant’s UMF No. 62.)

Plaintiff testified at deposition that his mother purchase the cups and ivory in China in the 1960sa and that she gave them to him when he was 25 years old. (Plaintiff’s AMF No. 15.) Plaintiff testified at deposition that he had no intention of selling them. (Plaintiff’s AMF No. 16.) Contrary to Defendant’s position that no documentation or information was provided in response to inquiries regarding the legality of the rhino cups, Stewart addressed the issue specifically in his July 21 letters. Stewart informed Defendant that the cups and tusk were gifts from Plaintiff’s parents and were acquired by an uncle in the 1950s. (Hummel Dec., Ex. 14, SFTBEL_00492.) Stewart also indicated that Plaintiff had no intention to sell the items. Based on the federal and state statutes cited by Corbacho, these items were not contraband because they were gifted to Plaintiff from persons who acquired them in the 1950s, before their sale and purchase was illegal, and he had no intention of selling them. (Hummel Dec., Ex. 15, SFTBEL_001251.) Defendant apparently never addressed this point except to continuing asking for “documentation” of an “exemption.” Corbacho stated in her appraisal that the items would not be illegal if Plaintiff could provide documentation that the items were imported before 1975, including “other evidence.” (Hummel Dec., Ex. 15, SFTBEL_001251.)

Triable issues of fact exist as to whether a thorough investigation was done. Plaintiff provided a response to Corbacho’s concern that the cups and ivory were contraband in Stewart’s July 21, 2021 letter. Given these facts, triable issues of fact exist as to whether Defendant’s denial of Plaintiff’s claims as to the rhino cups and ivory tusk was in bad faith, whether it was a breach of the contract and whether they were properly denied under the “contraband” exception.

Defendant’s Motion for Summary Adjudication of its Ninth Affirmative Defense is DENIED.

4. Triable issues of fact remain as to punitive damages

“In the usual case, the question of whether the defendant's conduct will support an award of punitive damages is for the trier of fact, since the degree of punishment depends on the peculiar circumstances of each case. But the issue may be resolved on summary judgment, giving due regard to the higher proof standard. While the clear and convincing evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to prove a case for punitive damages at summary judgment. However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard. Summary judgment on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” (Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 762; Pacific Gas and Electric Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1158–1159.)

As the party moving for adjudication of Plaintiff’s punitive damages claim, Defendant bears the initial burden of production on Plaintiff’s punitive damages claim. (CCP §437c(f)(1) and (2); Johnson & Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761.) A defendant may satisfy its initial burden on summary judgment by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Summary judgment still requires, however, the presentation of evidence in the form of “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice” to demonstrate that plaintiff does not possess and cannot reasonably obtain necessary evidence to establish his or her claim. (Id. at 854.)

For this reason, a defendant does not meet its burden under CCP §437(c)(o)(1) by merely “pointing out” or “arguing” that the plaintiff does not possess or cannot reasonably obtain necessary evidence. (Id.; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89 (defendant bank did

not meet its burden on summary judgment of wrongful foreclosure by merely arguing that plaintiff lacked evidence to support her claim and only documentary evidence submitted were the loan documents); Gaggero v. Yura (2003) 108 Cal.App.4th 884, 890 (defendant did not establish plaintiff’s lack of evidence or inability to reasonably obtain evidence of plaintiff’s ability and willingness to perform by pointing to plaintiff’s refusal to answer certain questions during deposition on grounds of a meritless privacy objection; such a refusal, regardless of its merit, was neither an admission nor a factually devoid discovery response).)

Defendant fails to establish as an issue of law that it acted in good faith or that there was a genuine dispute over the amount to be paid on the claim after reasonable investigation. Defendant cannot merely argue that Plaintiff lacks clear and convincing evidence of malice based on despicable conduct undertaken in conscious disregard of Plaintiff’s rights. Given the existence of triable issues of fact on the underlying cause of action for insurance bad faith, the Court cannot find that Plaintiff’s claim for punitive damages fails as a matter of law.

As to ratification or authorization under Civil Code §3294, Defendant misconstrues the burden on summary judgment. Defendant bears the initial burden of production on the issue of punitive damages. (CCP §437c(f)(1); Johnson & Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761.) Defendant does not shift the burden by merely stating that Plaintiff does not have evidence. (Union Bank, supra, 31 Cal.App.4th at 590; Lona, supra, 202 Cal.App.4th 89.)

Defendant was therefore required to submit evidence negating ratification or authorization. Defendant fails to do so.

In addition, “[r]atification may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee's actions by the corporate agent. Such ratification may be inferred from the fact that the employer, after being informed of the employee's actions, does not fully investigate and fails to repudiate the employee's conduct by redressing the harm done and punishing or discharging the employee.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 621 (to plead sexual harassment against employer based on doctor’s conduct, nurse would be required to plead facts in support of employer’s ratification).) “Ratification” occurs when the employer “demonstrates an intent to adopt or approve” the employee’s wrongful acts, including in failing to intercede in known patterns or to discipline once the misconduct becomes known. (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 726; CACI 3710; C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110 (ratification may be demonstrated based on employer’s failure to discharge employee who has committed and failure to investigate or respond to charges that an employee committed an intentional tort).)

Here, the undisputed evidence establishes that Fisher initially recommended payment of the full claim. Fisher’s superiors rejected the recommendation and hired Corbacho. Fisher denied Corbacho’s request to view Plaintiff’s existing collection, despite her statement that it would aid her in the appraisal and her representation throughout the investigation that there was a lack of information to support Plaintiff’s appraisal/loss claim. Fisher also refused to allow Plaintiff and Stewart to communicate with Corbacho directly with Stewart or Plaintiff regarding any aspect of the investigation. Defendant clearly knows of these facts and they have not indicated that such acts were done without their authorization or approval. Defendant has clearly acquiesced and adopted all of these acts as their own. If anything, the evidence establishes Defendant’s full authorization of how the claim was investigated and handled, including the refusal to allow Corbacho to inspect Plaintiff’s collection or for her to speak directly with Plaintiff and Stewart.

Any question as to whether the alleged conduct rose to the level of malice based on either prong of the definition is a question of fact. Based on the evidence presented, the Court cannot find as a matter of law that no reasonable juror could find Defendant’s conduct malicious. At the very least, reasonable minds could differ based on these evidence presented that Defendant’s conduct was intentionally undertaken to injure Plaintiff or was “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others,” particularly given the parties’ insurer-insured relationship. (CC §3294(c)(1).)

The motion for summary judgment or adjudication is therefore DENIED.

III. MOTION TO CONTINUE TRIAL

“In passing on the motion for a continuance, which rests to a great extent in the sound discretion of the trial court, the trial judge may inquire into the merits of the defense, pass on any questions presented as to any possible prejudice to either of the parties which would result from granting or denying the motion, and determine whether there is good cause therefor.” (Schwartz v. Magyar House, Inc. (1959) 168 Cal.App.2d 182, 188–89.)

In evaluating a request for continuance, the court should consider:

(1) The proximity of the trial date;

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3) The length of the continuance requested;

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court's calendar and the impact of granting a continuance on other pending trials;

(8) Whether trial counsel is engaged in another trial;

(9) Whether all parties have stipulated to a continuance;

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.

(CRC Rule 3.1332, subd. (d).)

Defendants Corbacho Appraisals and Jaime Corbacho (Defendants) move for a continuance of trial — currently set for August 6, 2024 — and all dates associated with trial, or alternatively order that Defendants’ motion for summary judgment may be heard on the date for which it is currently reserved, July 11, 2024. (Motion at p. 1.) Defendants argue that the current hearing date on that motion, the earliest compliant date then available for reservation, is less than 30 days from trial, and as such is not in compliance with Code of Civil Procedure § 437c, subd. (a)(3).

Defendants argue that the belated summary judgment hearing was required by the belated deposition of Plaintiff Thomas E. Bell and his appraiser, which were only able to be taken on February 21 and March 7, 2024. (Scala Decl. ¶¶ 3–10.) A transcript of Plaintiff’s deposition was obtained on April 5, 2024, and before the filing of Defendants’ motion on April 22, 2024, Defendants’ counsel suffered from illness which prevented her attendance at the deposition of another percipient witness. (Scala Decl. ¶¶ 11–12.)

Defendants have shown good cause for the continuance sought, namely the difficulty in scheduling the depositions of Plaintiff and his appraiser, as well as the illness of Defendants’ counsel. The continuance sought is brief, and need merely allow 30 days between the hearing on Defendants’ motion for summary judgment on July 11, 2024 and the commencement of trial, in accordance with Code of Civil Procedure § 437c, subd. (a)(3). No other party has opposed the motion, and Defendants represent that the other parties have indicated to Defendants informally their non-opposition to a brief continuance. (Motion at p. 1.) The trial date has not previously been changed since its original establishment on September 29, 2022.

The motion is therefore GRANTED.