Judge: Michael Small, Case: 20STCV42709, Date: 2024-03-14 Tentative Ruling

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Case Number: 20STCV42709    Hearing Date: March 14, 2024    Dept: 57

At the hearing today on Plaintiff's motion for summary adjudication, the Court will focus its attention on Defendant Donaldson and Callif's response to Question 11 in the application it submitted to obtain insurance from Plaintiff.  In pertinent part, Question 11 asks Defendant to state the percentage of the gross billings in 2016 and 2017 it derived from "mediation/arbitration."  Defendant left the answer to that question blank, meaning that its answer was 0%.  That would appear to be a material misrepresentation given the OLE arbitration in which was engaged in 2016 and in the early part of 2017 prior to the issuance of the arbitration award.  Defendant's answer to Question 11 was raised in Plaintiff's opening brief in support of its motion.   Defendant did not address Question 11 in its opposition brief.  It is addressed in Defendant's response to Plaintiff's separate statement, but not in a meaningful way.   Defendant's answer to Question 11 was the lead point in Plaintiff's reply brief.  At the hearing, the Court will ask Defendant's counsel about Defendant's apparent  dodge in its opposition brief of the issue posed by the answer to Question 11.   

Question 11 is fair game for purposes of Plaintiff's motion for summary adjudication.  That is because while Plaintiff's operative pleading, the First Amended Complaint, does not expressly reference the answer to Question 11, the pleading does allege in paragraph 22 that " [i]n connection with the submission of the Application for the Policy, D&C and Donaldson materially misrepresented and concealed information material to the risk being underwritten, including but not limited to the representation that D&C was a non-litigation firm. "   That allegation encompasses the answer to Question 11.

Aside from the answer to Question 11, the Court's tentative decision is that there are disputed issues of material fact as to the answers to other Questions in the application form on which Plaintiff relies in its motion and therefore Plaintiff is not entitled to summary adjudication.