Judge: Nathan R. Scott, Case: Toll Brothers v. Ace American Ins. Co., Date: 2022-08-12 Tentative Ruling

Defendant ACE American Insurance Company’s motion for summary judgment/adjudication is denied.

Timeliness.  Defendant gave more than 75 days’ notice when it filed and served its MSJ on 3/17/22 with a 8/3/22 hearing date.  (See Code Civ. Proc., §§ 12c, 437c, subd. (a)(2) [75 days’ notice].) 

Later continuing the hearing to 8/5/22 and 8/12/22 did not deprive plaintiffs of statutory notice – it gave plaintiff more time.  (Cf. Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268 [when moving party does not give 75 days’ notice, short continuance cannot remedy the error].)

Issue #1:  1st cause of action, breach of contract.  Defendant asserts the policy is unambiguous and can be construed by the court as a matter of law.  (See Mot. at p. 7.) 

If this is a pure question of law, the court agrees with plaintiffs’ policy interpretation.  (See Opp. at pp. 11, 13-14.)

If this is factual question, plaintiffs raise triable issues as to defendant’s material facts, most notably as to Def. SSUF #9 -- whether the homes were “under construction  . . . at the time of the Triggering Storms.” 

Plaintiffs also raise triable issues as to Def. SSUF #11 [who created policy] 12 [whether Toll is a sophisticated insured], 19 [whether Engle was independent], 21 [whether Marsh represented plaintiffs], 22 [extent of plaintiff’s Soft Costs claim], 26 [whether Sedgwick was independent], 32-48 [date of letter].  (See Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 521 [material facts].)

Issue #2:  2nd cause of action, bad faith.  Defendant relies on material facts to which plaintiff has already raised triable issues.  (See Def. SSUF #50.)  Plaintiffs’ additional facts also raise triable issues, most notable Pl. SSUF #543-572.

Issue #3:  Punitive damages.  Defendant relies on material facts to which plaintiff has already raised triable issues.  (See Def. SSUF #66.)  Plaintiffs’ additional facts also raise triable issues, most notable Pl. SSUF #543-572.

Plaintiffs’ objections are overruled.

Defendants objections are sustained as to the Jolstad declaration (#35, 42), the Anderson declaration (#62, 64-65, 67-70), the McCarron declaration (#95), the Gill declaration (#160) and otherwise overruled.

Defendant shall give notice.