Judge: Malcolm Mackey, Case: 21STCV20712, Date: 2023-08-07 Tentative Ruling

Case Number: 21STCV20712    Hearing Date: August 7, 2023    Dept: 55

STATE FARM MUT. AUTOMOBILE INS. CO. v. KURBANOV        21STCV20712

Hearing Date:  8/7/23,  Dept. 55

#5:   

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION.

Notice:  Okay

No Opposition

MP:  Cross-Defendant LIBERTY MUTUAL INSURANCE COMPANY.

RP:  

Summary

On 6/3/21, Plaintiff STATE FARM filed the Complaint for declaratory relief as to rights or obligations under an insurance policy regarding an alleged car accident in February 2021.

On 9/23/21, Defendant AZIZBEK KURBANOV filed the Cross-Complaint.

On 5/2/22, Defendant AZIZBEK KURBANOV filed a First Amended Cross-Complaint against STATE FARM and three other alleged insurers, for breach of contract, bad faith and unfair business practices, alleging there was insurance coverage as to the rental of a TURO vehicle, and an automobile accident driving it, on 2/12/19.

MP Positions

Moving party requests an order granting summary judgment or adjudication, as to cross-complainant AZIZBEK KURBANOV’S Causes of Action, and punitive damages remedy, on grounds including the following:

·         Only Liberty Surplus Insurance Corporation (not Liberty Mutual Insurance Company) issued an insurance policy to named insured Turo, Inc. for the policy period December 10, 2019 to December 10, 2020.

·         The Policy stated that it was excess over other available insurance such that Liberty Surplus would have no duty to defend an insured against a suit if another insurer had a duty to defend the insured.  State Farm provided a defense to Cross-Complainant until the Hovsepyans’ lawsuit was dismissed with prejudice.

·         Liberty Mutual’s claim handling was reasonable.

·         The unfair business practices claim fails because Cross-Complainant lacks standing to assert the claim, an adequate remedy at law exists, and there was no actionable conduct.

·         Cross-Complainant’s claim for punitive damages fails as a matter of law, because the bad faith claim fails as a matter of law and there is no evidence, let alone clear and convincing evidence, that Liberty Mutual acted with oppression, fraud, or malice.

Tentative Ruling

The unopposed motion is granted.

The Court determines that the proof referenced in moving party’s separate statement, including the subject automobile insurance policy, suffices to negate Cross-Complainant’s claims and remedies, and there are no triable issues of material fact, as to each issue raised, since no opposition has been filed.  The failure to file a proper and timely opposition in trial court creates a waiver of the issues on any appeal.  Bell v. Am. Title Ins. Co. (1991) 226 Cal. App. 3d 1589, 1602;  Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683, 693.  amended in order to state a cause of action.  Drum v. San Fernando Valley Bar Ass'n  (2010) 182 Cal.App.4th 247, 253.

STATE FARM MUT. AUTOMOBILE INS. CO. v. KURBANOV        21STCV20712

Hearing Date:  8/7/23,  Dept. 55

#5:   MOTION FOR JUDGMENT ON THE PLEADINGS.

Notice:  Okay

No Opposition

MP:  Cross-Defendant LIBERTY MUTUAL INSURANCE COMPANY.

RP:  

Summary

On 6/3/21, Plaintiff STATE FARM filed the Complaint for declaratory relief as to rights or obligations under an insurance policy regarding an alleged car accident in February 2021.

On 9/23/21, Defendant AZIZBEK KURBANOV filed the Cross-Complaint.

On 5/2/22, Defendant AZIZBEK KURBANOV filed a First Amended Cross-Complaint against STATE FARM and three other alleged insurers, for breach of contract, bad faith and unfair business practices, alleging there was insurance coverage as to the rental of a TURO vehicle, and an automobile accident driving it, on 2/12/19.

MP Positions

Moving party requests an order granting judgment on the pleadings, as to the First Amended Cross-Complaint of AZIZBEK KURBANOV, on grounds including the following:

·         Because Cross-Complainant fails to allege the exhaustion of primary insurance available, his claims against Liberty for breach of contract and breach of the implied covenant of good faith and fair dealing against Liberty must fail.

·         Third-party liability coverage under the policy provided by Liberty, is “secondary to any personal insurance [Cross-Complainant] may have.” (Cross-Complaint, ¶ 9 Ex. A.) Liberty’s obligations to Cross-Complainant – if any – are not triggered until the exhaustion of his primary insurance.

·         Even if Liberty had a duty to defend him in the Hovsepyan Lawsuit, Cross-Complainant has not sustained any damages arising from Liberty’s alleged failure to defend, because State Farm has provided a defense.

·         Cross-Complainant’s unfair competition claim fails because he fails to allege any “unlawful,” “unfair,” or “fraudulent” conduct by Liberty.

Tentative Ruling

The unopposed motion is granted.

The failure to file a proper and timely opposition in trial court creates a waiver of the issues on any appeal.  Bell v. Am. Title Ins. Co. (1991) 226 Cal. App. 3d 1589, 1602;  Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683, 693  (appellate court will not consider any erroneous rulings where an objection could have been made).