Judge Robert B. Broadbelt, Case Number: 22STCV04083, Date: 2025-01-07 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 22STCV04083, Date: 2025-01-07 Tentative Ruling

The court considered the moving, opposition, and reply papers filed in connection with this motion.

The court grants defendant Homesite Insurance Company of California’s request for judicial notice. (Evid. Code, § 452, subd. (d).)

The court grants plaintiff Skyler Wells’s request for judicial notice. (Evid. Code, § 452, subd. (d).)

The court rules on plaintiff Skyler Wells’s evidentiary objections, filed on December 24, 2024,[1] as follows:

The court overrules Objections Nos. 4, 7, and 8 (1) as to paragraphs 14, 16, 21, 23, 24, and 26, because the objectionable material set forth in those paragraphs is not quoted or set forth as required, and even if plaintiff Skyler Wells has objected to those paragraphs in their entirety, the court would not sustain the objections to the entire paragraphs since portions thereof (e.g., the statements authenticating the exhibits) do not lack foundation or personal knowledge, and (2) as to Exhibits H, J, L, because the court finds that those exhibits are not made inadmissible by the hearsay rule since defendant Homesite Insurance Company of California has shown that (i) the writings were made in the regular course of business, (ii) the writings were made at or near the time of the act, condition, or event, (iii) the witness, a General Adjuster for defendant Homesite Insurance Company of California, has testified as to the identity of the writings, and (iv) the sources of information and method and time of preparation are such as to indicate its trustworthiness. (Cal. Rules of Ct., rule 3.1354, subd. (b)(3) [“Each written objection must be numbered consecutively and must: [¶¶] (3) Quote or set forth the objectionable material”]; Evid. Code, § 1271; Johnson Decl., ¶ 3 [stating that (1) the subject records are placed in the file as the defendant’s business practice, (2) the subject records are created at or around the time in which the events described and memorialized therein occurred, (3) the exhibits are true and correct copies of the records placed in the subject claim file, and (4) the log notes and claim detail entries, placed into the file by employees for defendant Homesite Insurance Company of California, are regarded as true statements of the history of activities logged therein].)

The court rules on defendant Homesite Insurance Company of California’s evidentiary objections, filed on January 2, 2025, as follows:

The court overrules Objections Nos. 1-19, 21, 24-26, 29-34, and 39-40 (first and second).[2]

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or cross-defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Defendant Homesite Insurance Company of California (“Defendant”) moves the court for an order granting summary judgment in its favor and against plaintiff Skyler Wells (“Plaintiff”) on the Third Amended Complaint or, in the alternative, granting summary adjudication in Defendant’s favor and against Plaintiff on Plaintiff’s (1) first and second causes of action, and (2) claim for punitive damages.

“‘A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.’” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)

The court finds that Defendant has met its burden of showing that the first cause of action for breach of contract has no merit because Defendant has shown that an element of the cause of action (Plaintiff’s performance) cannot be established. Specifically, the court finds that Defendant has shown, based on the following evidence, that Plaintiff did not show the damaged property to ServPro, Enservio, and RYZE Claim Solutions, Defendant’s vendors, as required under the terms of the subject insurance policy.

Defendant issued to Plaintiff the Progressive Home Advantage Homeowners 3 Special Form policy, with policy number 32112580 (the “Policy”), for the period of December 28, 2019 to December 28, 2020 for the insured property located at 3345 ½ Rowena Avenue, Los Angeles, California, 90027 (the “Property”). (Def. Appendix of Exhibits (“Def. AOE”), Ex. A, Policy.) The Policy includes a provision stating that, “[i]n case of a loss to covered property, [the insured] must see that the following are done: [¶¶] d. Protect the property from further damage. If repairs to the property are required, [the insured] must: [¶] (1) Make reasonable and necessary repairs to protect the property; and [¶] (2) Keep an accurate record of repair expenses; [and] [¶¶] f. As often as [the insurer] reasonably require[s]: [¶] (1) Show the damaged property[.]” (Undisputed Material Fact (“UMF”) No. 2; Def. AOE, Ex. A, Policy, p. 9, ¶ 2, subds. (d), (f).) The Policy further provides that “[n]o action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss.” (UMF No. 3; Def. AOE, Ex. A, Policy, p. 10, ¶ 8.)

On December 17, 2020, Plaintiff reported a claim for property damage pursuant to the Policy after a sewer line backed up and overflowed onto the first floor of the Property. (Johnson Decl., ¶ 5.) Defendant thereafter assigned Plaintiff’s claim to ServPro and American Leak Detection. (Johnson Decl., ¶¶ 6-7, 9.) On January 14, 2021, ServPro informed Defendant that it met with Plaintiff to inspect the Property on January 7, 2021. (Def. AOE, Ex. H, p. 37 [January 14, 2021 Assignment Note].) ServPro stated that, during the January 7, 2021 inspection, Plaintiff “made it extremely difficult to perform [the] inspection” based on Plaintiff’s conduct in (1) closing the door on its representatives’ faces multiple times, (2) refusing to allow Servpro to move any contents in order to access walls to check for moisture, and (3) limiting Servpro to areas that Plaintiff felt had been affected. (Ibid.)

On February 8, 2021, Defendant assigned the vendor Enservio to address Plaintiff’s claimed contents damage issue regarding the non-salvageable inventory. (Johnson Decl., ¶ 18; Def. AOE, Ex. H, Claim Reports, pp. 26-27.) Enservio’s On-Site Contents Report dated February 23, 2021 included a note stating that, during the February 22, 2021 inspection, Enservio (1) “was not allowed to inspect the home and see/verify how the black water could have traveled to the garage[,]” (2) “was not allowed to leave the loss site to retrieve tools [from the car parked in the driveway] to aid in the inventory of the loss[,]” and (3) Enservio “was not permitted to touch or move any item to be inventoried either.” (Def. AOE, Ex. P, On-Site Contents Report, p. 3.)

As to the inspection performed by RYZE Claim Solutions, Defendant asserts that RYZE Claim Solutions’ final report noted, “among other things, [] the lack of cooperation by Plaintiff during the inspection.” (Mot., p. 6:8-9.) The report states, inter alia, that Plaintiff led the inspector to the garage, opened the overhead garage door, but “did not let [the vendors] enter the garage as two cars were parked in there.”[3] (Def. AOE, Ex. L, RYZE Final Report, p. 3.)

On March 5, 2021, Defendant issued a letter to Plaintiff in which Defendant, inter alia, denied the personal property portion of Plaintiff’s claim on the ground that Plaintiff did not cooperate with or allow Defendant to thoroughly and completely inspect and evaluate the subject property. (Def. AOE, Ex. N, p. 1.)

The court finds that this evidence is sufficient to show that Plaintiff did not perform his obligations under the Policy because Plaintiff was required to, but did not, “[s]how the damaged property” to Defendant by preventing Defendant’s vendors from conducting a full and complete inspection of the Property. (Def. AOE, Ex. A, Policy, p. 9, ¶ 2, subd. (f).)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of his performance under the Policy.

As to ServPro’s inspection of the Property, Plaintiff witnessed ServPro’s performance of an onsite investigation of the Property on January 7, 2021. (Wells Decl., ¶ 72.) During that inspection, Plaintiff observed that ServPro had “access to all its bags and equipment on and throughout the” Property. (Wells Decl., ¶ 76.) Plaintiff also witnessed ServPro (1) view, touch, photograph, touch, inspect, test, and evaluate the Property with both hands and equipment, and (2) open doors, move contents, access walls, and check for moisture. (Wells Decl., ¶¶ 77, 78.) Plaintiff further states that ServPro determined the duration of the inspection and that he fully cooperated with ServPro and did not limit ServPro. (Wells Decl., ¶¶ 79-80, 82.)

Plaintiff similarly witnessed Enservio’s inspection of the Property on February 22, 2021. (Wells Decl., ¶ 125.) During that inspection, Plaintiff observed that Enservio (1) brought, and had access to, all of its bags and equipment, (2) viewed, touched, inspected, tested, and evaluated the Property as well as personal property, and (3) determined the duration of the inspection. (Wells Decl., ¶¶ 128-129, 131-132, 133.) Plaintiff further states that he cooperated with Enservio’s inspection and did not limit Enservio “without exception.” (Wells Decl., ¶¶ 134, 136.) Plaintiff also states that he cooperated with RYZE Claim Solutions and did not limit it during the inspection. (Wells Decl., ¶¶ 114, 116.)

Based on the evidence set forth above, the court finds that Plaintiff has submitted evidence showing that a triable issue of material fact exists as to whether (1) Plaintiff refused to allow ServPro to move contents in the Property to check for moisture and to inspect the Property, based on Plaintiff’s attesting that (i) he cooperated with and did not limit ServPro during the inspection, and (ii) he personally witnessed ServPro moving contents, accessing walls, and checking for moisture, (2) Plaintiff refused to permit Enservio to inspect the Property and the trajectory of the black water, retrieve tools, and to touch items to be inventories, based on Plaintiff’s attesting that (i) he personally witnessed Enservio bring all of its bags and equipment onto and throughout the Property and touch, inspect, and test the personal property and contents documented in his “Possessions Destroyed” list, and (ii) he cooperated with and did not limit Enservio’s inspection, and (3) Plaintiff did not limit RYZE Claim Solutions’ inspection. (Wells Decl., ¶¶ 80-82, 77, 128-129, 131-132, 134, 114-115.) Thus, the court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to whether Plaintiff showed the damaged property to Defendant’s vendors and therefore performed under the terms of the Policy.

Finally, the court notes that Defendant has also argued that Plaintiff did not cooperate with the inspections performed by Service Master. (Mot., p. 5:13-16.) Defendant’s claims report states that Service Master informed Defendant that (1) Service Master informed Plaintiff that its representative needed the bag for the inspection, but Plaintiff required the contractor and Service Master’s representative to leave the bags on the second floor, and (2) Plaintiff acted unprofessionally during this visit, including by raising his voice on multiple occasions. (Def. AOE, Ex. H, Claim Reports, pp. 29-30 [February 2, 2021 Claim Note].) However, the court finds that this evidence does not show that Plaintiff refused to “[s]how the damaged property” to Defendant’s vendors. (Def. AOE, Ex. A, Policy, p. 9, ¶ 2, subd. (f).) Even though Plaintiff required Service Master to leave the bag on the second floor, the claim report further states that Service Master still used the necessary tools to perform the inspection. (Def. AOE, Ex. H, Claim Reports, p. 29 [“The contractor and myself took our bags and came back with tools in hand”].) Further, although Plaintiff might have raised his voice at Service Master, Defendant did not show that such conduct constitutes a failure to show Defendant the Property.

The court therefore denies Defendant’s motion for summary adjudication as to the first cause of action for breach of contract.

“[I]n a claim against an insurance carrier, ‘there are at least two separate requirements to establish breach of the implied covenant: (1) benefits due under the policy must have been withheld; and (2) the reason for withholding benefits must have been unreasonable or without proper cause.’” (Grebow v. Mercury Ins. Co. (2015) 241 Cal.App.4th 564, 581.) “‘In a bad faith case, the “primary test is whether the insurer withheld payment of an insured’s claim unreasonably and in bad faith. [Citation.] Where benefits are withheld for proper cause, there is no breach of the implied covenant.”’” (Janney v. CSAA Ins. Exchange (2021) 70 Cal.App.5th 374, 399.)

The court finds that Defendant has met its burden of showing that the second cause of action for bad faith has no merit because Defendant has shown that an element of the cause of action (that benefits due under the Policy were withheld) cannot be established since Defendant submitted evidence showing, as set forth above, that Plaintiff did not perform under the Policy, such that no benefits thereunder were due. (Grebow, supra, 241 Cal.App.4th at p. 581.)

The court finds that Plaintiff has met his burden to show that a triable issue of material fact exists as to the element of benefits due and owing under the Policy because Plaintiff has shown, for the reasons set forth above, that a triable issue of material fact exists as to whether Plaintiff performed under the Policy, such that Plaintiff has shown that a triable issue of material fact exists as to whether benefits were due but withheld from Plaintiff. (Grebow, supra, 241 Cal.App.4th at p. 581.)

The court therefore denies Defendant’s motion for summary adjudication as to the second cause of action for bad faith.

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”¿ (Civ. Code, §¿3294, subd. (a).)¿ “Summary judgment or summary adjudication 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.”¿ (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159 [internal quotations omitted].)

The court finds that Defendant has met its burden of showing that Plaintiff’s claim for punitive damages has no merit because Defendant has shown that an element of the claim for punitive damages (that Defendant is guilty of oppression, fraud, or malice) cannot be established since Defendant has, as set forth above, presented evidence showing that (1) Defendant’s vendors informed Defendant that Plaintiff did not allow the vendors to fully inspect the Property, and (2) Defendant denied the claim for Plaintiff’s personal property on that ground, such that Defendant has shown that it did not act with oppression, fraud, or malice. (Civ. Code, § 3294, subds. (a), (c); Mot., p. 14:24-26 [arguing that Plaintiff cannot establish his claim for punitive damages because Defendant denied Plaintiff’s claim on the ground that Plaintiff failed to cooperate with the investigation of the claimed loss].)

The court finds that Plaintiff has met his burden to show, by clear and convincing evidence, that a triable issue of material fact exists as to whether Defendant acted with fraud in denying coverage under the Policy. (Civ. Code, § 3294, subd. (a); Fadeef v. Stafe Farm General Insurance Co. (2020) 50 Cal.App.5th 94, 109 [if the moving party’s burden on a motion for summary adjudication for punitive damages is met, the burden shifts to the plaintiffs “to establish evidence supporting punitive damages with the clear and convincing standard of proof”].)

As set forth above, Defendant submitted evidence showing that it denied Plaintiff’s personal property claim on the ground that Plaintiff had “not cooperated or allowed [Defendant] to thoroughly and completely inspect and evaluate [Plaintiff’s] contents . . . .” (Def. AOE, Ex. N, p. 1.) In his opposition papers, Plaintiff submitted his declaration, in which Plaintiff showed that a triable issue of material fact exists as to whether Plaintiff failed to show the Property to Defendant’s vendors, such that Plaintiff has shown that a triable issue of material fact exists as to whether Defendant’s proffered reason for its denial of Plaintiff’s personal property claim is accurate. (Wells Decl., ¶¶ 80-82, 77, 128-129, 131-132, 134, 114-115.) Plaintiff has also submitted an email, dated February 10, 2021 and sent to Defendant’s Property Claims Field Adjuster, in which Plaintiff (1) advised Defendant that he was filing a complaint against it based on its alleged violations of law, and (2) stated that he had “cooperated and accommodated all investigations required to complete the claims.” (Pl. Compendium of Exhibits, Ex. 6, p. 1; Pl. Sep. Statement, Pl. Responses to Fact Nos. 5, 6, 10, 17, 19, 20 [citing, inter alia, exhibit 6].) Thus, Plaintiff has submitted evidence showing that he informed Defendant that the assertions in the claims file were false by informing Defendant that he complied with all investigations required to complete the claims process.

The court therefore finds that Plaintiff has met his burden to show, by clear and convincing evidence, that a triable issue of material fact exists as to whether Defendant acted with fraud based on Plaintiff’s evidence showing that triable issues of material facts exist as to whether (1) Plaintiff did cooperate and show Defendant’s vendors the Property, such that the assertion in Defendant’s letter of denial (i.e., that Plaintiff did not cooperate with or allow Defendant to thoroughly and completely inspect and evaluate the subject property) was not true, and (2) Defendant’s knowledge that its assertion was not true and its intent to misrepresent this fact to Plaintiff to deprive him of the rights and benefits owed to him under the Policy.[4] (Civ. Code, § 3294, subd. (c)(3) [“‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury”].)

The court therefore denies Defendant’s motion for summary adjudication as to Plaintiff’s claim for punitive damages.

The court denies defendant Homesite Insurance Company of California’s motion for summary judgment or, in the alternative, summary adjudication.

[1] The court notes that the evidentiary objections filed by plaintiff Skyler Wells are not numbered. The court has considered each cell in the chart to constitute one objection and has ruled on the objections in numerical order.

[2] Two of defendant Homesite Insurance Company of California’s evidentiary objections are labeled number 40. (Def. Objections, pp. 22:24-25, 23:20.)

[3] The court notes that, while the report states that Plaintiff had various requests of the inspectors (e.g., wearing and frequently changing masks, gloves, and shoe coverings, and placing the bags on the second floor), the report does not identify any other refusals on the part of Plaintiff to show the Property to RYZE Claim Solutions. (Def. AOE, Ex. L, RYZE Final Report.)

[4] Plaintiff does not argue that Defendant acted with malice or oppression in his opposition papers. (Opp., pp. 22:14-23:11 [opposing motion for summary adjudication of punitive damages].)

skyler wells ; Plaintiff, vs. homesite insurance company of california ; Defendant.	Case No.:	22STCV04083

	Hearing Date:	January 7, 2025

	Time:	10:00 a.m.

	[Tentative] Order RE: defendant’s motion for summary judgment or, in the alternative, summary adjudication