Judge Michelle C. Kim, Case Number: 19STCV24187, Date: 2023-05-22 Tentative Ruling

On July 11, 2019, Plaintiff Gerardo Munoz Torres (“Torres”) filed Case no. 19STCV24187 against defendant Jinsun Michelle Moon (“Moon”) for damages arising from a motor vehicle accident. Torres was allegedly acting within the course and scope of his employment at the time of the accident, and on August 7, 2019, Oak River Insurance Company (“Oak River”) filed Case no. 19STLC07322 against Michelle Moon and Kyung Jae Moon for reimbursement of workers’ compensation benefits paid to Torres resulting from the subject accident. Michelle Moon then filed a cross-complaint against State Farm Mutual Automobile Insurance Company (“State Farm”) in 19STLC07322.

On February 26, 2021, 19STCV24187 and 19STLC07322 were deemed related, with 19STCV24187 being designated the lead case. (Min. Order Feb. 26, 2021.) Thereafter, the actions were ordered consolidated on April 19, 2022. (Min. Order April 19, 2022.)

State Farm moves for summary judgment as to Moon’s sole cause of action for declaratory relief in her Cross-Complaint filed on December 3, 2020. Moon has opposed the motion. State Farm did not reply.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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. To

establish a triable issue of material fact, the party opposing the motion must produce substantial

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (CCP § 664.6.)

Courts are empowered to enter judgments pursuant to oral settlements made before the court or written settlements signed by the parties. (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1428; CCP § 664.6; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶12:952.) In deciding motions made under Section 664.6, judges “must determine whether the parties entered into a valid and binding settlement.” (Kohn v. Jaymar-Ruby (1994) 23 Cal.App.4th 1530, 1533. In deciding whether to enforce a settlement, courts have the power to decide disputed facts, and to interpret the agreement. (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶¶12:977 – 12:978.5. Judges may receive evidence, determine disputed facts including the terms the parties previously agreed upon, and enter the terms of a settlement agreement as a judgment, but may not newly create material terms. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) Judges also cannot address ambiguities in material terms by filling in the gaps, or adjudicate differences between the parties, as distinguished from just settling or interpreting the settlement provisions. (Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1460.)

“Affidavits or other evidence submitted on a motion for summary judgment or summary adjudication cannot raise unpleaded issues.” (6. [§ 254] Role of Pleadings., 6 Witkin, Cal. Proc. 6th PWT § 254 (2023).) The primary issue addressed in State Farm’s motion for summary judgment is the mailing of cancellation notices to Moon. However, the operative Cross-Complaint does not allege any issues with respect to whether the cancellation notices were mailed to Moon. The crux of the Cross-Complaint is that State Farm declined coverage of the August 11, 2017 auto accident with Torres (the “Accident”) on the grounds that Moon’s policy with State Farm (the “Policy”) was not in force at the time of the Accident, but then Moon later received an expiration notice (“Expiration Notice”) from State Farm advising her that her coverage would expire on October 6, 2017. (Cross-Complaint, ¶¶ 12-14, Ex. B, C.) She contends that the Expiration Notice is evidence her coverage was still in effect at the time of the Accident. (Cross-Complaint, ¶ 14.) Nowhere in State Farm’s moving papers does it address this issue regarding the Expiration Notice.

Moreover, even if the mailing address was an issue raised in the Cross-Complaint, State Farm would not have established the absence of a triable issue of material fact regarding it. Maryland Insurance Code section 27-602(d) provides that, “At least 10 days before the date an insurer proposes to cancel a policy for nonpayment of premium, the insurer shall send to the named insured, at the named insured's last known address, by a first-class mail tracking method, a written notice of intention to cancel for nonpayment of premium.” (Md Insurance § 27-602(d))[1] [emphasis added].

State Farm has not presented evidence that clearly establish the notices of cancellation were mailed to Moon’s last known address or to show what efforts it undertook to confirm that the address where the July 25, 2017 notice of cancellation was mailed was in fact Moon’s last known address. All State Farm has presented in this regard is that it mailed a cancellation notice to Moon on July 25, 2017 at the address of 601 North Eutaw Street, Apartment 414, Baltimore, Maryland (the “Eutaw Address”). (Index of Documentary Evidence, Ex. E.) It was later returned to State Farm as “NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD”. (Index of Documentary Evidence, Ex. E.) Additionally, other documents State Farm contends it mailed to Moon do not have evidence to show that they were actually mailed, such as the Auto Renewal notice for the April 6, 2017 to October 6, 2017 period. (Index of Documentary Evidence, Ex. B.) Also, the fact that Moon paid $1100 towards the Policy in April 2017 does not establish that she had actually received previous notices at the Eutaw Address in connection with her Policy.

Furthermore, even assuming for the sake of argument that State Farm had established the absence of a triable issue of material fact with respect to Moon’s last known address and mailing the July 25, 2017 cancellation notice, Moon would easily establish the existence of a triable issue of material fact by the prior notices that were returned to State Farm in the same manner described above with respect to the July 25, 2017 cancellation notice. (Dorenfeld Decl., Ex. A, Riggs-Ritchie Deposition, Exs. 14, 15, 16.) Those prior notices date back to 2016, well before the issues that arose in 2017, (Id.), which creates uncertainty as to whether State Farm had sent the July 25, 2017 notice to Moon’s last known address.

Finally, as already noted above, none of this addresses the issue regarding the Expiration Notice Moon later received advising her that the Policy expired on October 6, 2017. Construed in the light most favorable to Moon, this could show that the Policy was in effect at the time of the Accident. Its legal effect is ambiguous at this point, and therefore not amenable to resolution on summary judgment.

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] The Court agrees that Maryland law controls the interpretation of the Policy since the Policy expressly provides Maryland law governs. (Index of Documentary Evidence, Ex. A, p. 145, ¶ 15 “Choice of Law”; see also Nedloyd Lines B.v. v. Superior Court (1992) 3 Cal.4th 459, 462 [upholding Hong Kong choice of law provision].)