Judge Teresa A. Beaudet, Case 19STCV34114 2023-02-09 Tentative Ruling

little beaver land company, inc., Plaintiff, vs. chicago title company, et al., Defendants.	Case No.:	19STCV34114
	Hearing Date:	February 9, 2023
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEFENDANT CHICAGO TITLE INSURANCE COMPANY’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

On September 25, 2019, Plaintiff Little Beaver Land Company, Inc. formerly known as Tule Rod and Gun Club Inc. (“Plaintiff”) filed this action. The operative First Amended Complaint (“FAC”) asserts causes of action for (1) breach of contract and (2) breach of the implied covenant of good faith and fair dealing against Defendant Chicago Title Insurance Company (“Defendant”).

Defendant now moves for summary judgment, or in the alternative, summary adjudication. Plaintiff opposes.

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ((Code Civ. Proc., § 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” ((Id., § 437c.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) 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.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c, subd. (p)(2).) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence, and the motion must be denied.” ((Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.)

In the FAC, Plaintiff alleges that on or about June 1, 1951, Plaintiff purchased a policy of title insurance in conjunction with the purchase of and insuring the title to certain property located in Sacramento County (the “Property”). (FAC, ¶ 13.) Defendant is the insurer under the title insurance policy. (FAC, ¶ 14.) The policy provides that Defendant shall insure against loss or damage that Plaintiff sustains by reason of “[a]ny defect, lien or encumbrance on, said title [of the Property], existing at the date hereof, not shown or referred to in Schedule B.” (FAC, ¶ 15.) The policy provides that Defendant shall defend Plaintiff in all actions or proceedings “founded upon a defect, lien, encumbrance, or other matter insured against by” the policy.” (FAC, ¶ 16.) The policy also provides that Defendant may tender the policy limit of $3,900 at any time, “together with all accrued costs which [Defendant] is obligated hereunder to pay” in order to terminate its obligations under the policy. (FAC, ¶ 16.)

In 2001, Plaintiff learned that the State of California, through the State Lands Commission, was claiming that the State owned the Property. (FAC, ¶ 17.) This was not disclosed in the title insurance policy. (FAC, ¶ 18.) On December 4, 2001, Plaintiff informed Defendant in writing of the title defect, and tendered the defect and defense thereto under the policy. (Compl., ¶ 19.) On March 29, 2002, Defendant responded to Plaintiff’s December 4, 2001 tender with a letter and a check in the amount of $3,900. (FAC, ¶ 20.) The letter stated in pertinent part that Defendant was terminating all further liability and obligations under the policy by making payment of the full policy amount. (FAC, ¶ 20.) Plaintiff responded that Defendant was not relieved of its obligations because it did not tender the policy limit together with all accrued costs which Defendant was obligated to pay. (FAC, ¶ 21.) Plaintiff never negotiated any of Defendant’s checks purporting to terminate its obligations under the policy. (FAC, ¶ 22.)

On March 2, 2016, Plaintiff commenced a lawsuit in the County of Sacramento against the State, seeking to quiet title to the Property (the “Quiet Title Action”). (FAC, ¶ 24.) On or about October 12, 2017, the court in the Quiet Title Action granted the State’s motion for summary adjudication/judgment on the pleadings, finding that the purported transfer of the Property from public ownership to Plaintiff was void. (FAC, ¶ 25.) On or about October 1, 2018, the court in the Quiet Title Action entered judgment by stipulation, finding that Plaintiff is the owner of the Property by way of adverse possession. (FAC, ¶ 28.) Plaintiff alleges that it has incurred in excess of $250,000 in defending itself against the title dispute, including the initial claim made by the State through judgment in the Quiet Title Action. (FAC, ¶ 34.)

Defendant first argues that Plaintiff’s action is barred by the applicable statute of limitations. “Code of Civil Procedure section 339, subdivision (1) . . . provides that an action on a policy of title insurance must be brought within two years of its accrual.” ((65 Butterfield v. Chi. Title Ins. Co. (1999) 70 Cal.App.4th 1047, 1053.) “Section 339(1) provides that a cause of action on a title policy ‘shall not be deemed to have accrued until the discovery of the loss or damage suffered by the aggrieved party thereunder.’” ((Ibid. .)

Defendant asserts that correspondence Plaintiff had with California State authorities as early as 1979-1980 demonstrate that Plaintiff had by then discovered and been advised (more than two decades before Plaintiff tendered its claim to Defendant) that the State of California had “title claims” against the Property. Defendant asserts that Plaintiff’s action is thus time-barred.[2]

As an initial matter, it is undisputed that the real property that is the subject of this matter is a portion of Kimball Island located in Sacramento County, identified as “Swamp Land Survey Number 1060, Sacramento County Surveys” (the “Property”). (Defendant’s Undisputed Material Fact (“UMF”) No. 1.) The Policy of Title Insurance insuring the Property was issued in June 1951 (the “Policy”). (UMF No. 1.)

Defendant provides evidence that on February 4, 1980, the California Division of Land Management and Conservation sent James Kay[3] a letter indicating, inter alia, that “[o]ur staff has made a preliminary review of the State’s title claims within AP 158-0110-003 [the Property] as requested in your letter of January 11, 1980. Our records indicate that the State has unresolved title claims within the area.” (Myers Decl., ¶ 3, Ex. 2, Ex. E.) The February 4, 1980 letter also provided that “unless a more thorough search for and study of the available evidence revealed a substantially different set of facts we could not recommend to the State Lands Commission that they disclaim State interest in subject parcel”; and that “[i]f it is necessary that the State’s title claims be resolved in a more timely fashion, an alternative is the Compromise Title Settlement.” (Ibid.)

Defendant asserts that Plaintiff first tendered its claim to Defendant via letter dated December 4, 2001, more than 21 years after Plaintiff’s receipt of the February 4, 1980 letter, such that the instant action is untimely. (Myers Decl., ¶ 3, Ex. 2, Ex. K.)

Plaintiff counters that the asserted title defects that are at issue in this action pertain to those raised by the State during a March 6, 2001 meeting, after the foregoing February 4, 1980 communication. In the FAC, Plaintiff alleges that “[i]n the year 2001, Plaintiff learned that the State of California, through its State Lands Commission…was claiming that the Stated owned the Insured Property (i.e., that there was a complete failure of title with respect to Plaintiffs interest in the Insured Property) (‘the Title Defect’).” (FAC, ¶ 17.)

Plaintiff provides evidence that on March 6, 2001, there was an in-person meeting between the State of California, Mr. Kay, and his children. (Kay Decl., ¶ 31(b).) Mr. Kay’s minutes of the March 6, 2001 meeting state the following:

“[James] Frey began the meeting by stating The State had mistakenly sold the [Insured Property], citing two (2) reasons. a. In accordance with a newly discovered section (3488) of the political code in effect at the time, the State did not have the authority to sell Swamp & Overflow Land within 2 miles of an incorporated city. Antioch was incorporated in 1872 according to Mr. Frey. Copies of a portion of the Political Code and an Act indicating Antioch became a City in 1872 were provided. Ms. Olin said the intent of this law was to incourage [sic] public control & development of waterfront areas. Jim Kay pointed out that the City of Antioch and the property under discussion are separated by the San Joaquin River and are in different counties and therefore outside the intent of this Code. b. The [Insured Property] was below mean high tide at the time of the sale by The State making it Tidelands NOT Swamp & Overflow Land, and therefore not available for sale by the State.” (Kay Decl., ¶ 53.)

Plaintiff further states that Mr. Kay’s discussions with the State that pre-dated the March 6, 2001 in-person meeting were unrelated to the asserted title defects that were disclosed to Plaintiff for the first time on March 6, 2001. (Kay Decl., ¶ 32.) Plaintiff indicates that “[t]he discussions that pre-dated that meeting related to my pursuit (on behalf of Plaintiff) of a boundary line determination of the Insured Property.” (Kay Decl., ¶ 33.)

Plaintiff also indicates that on March 13, 2001, Mr. Kay called Defendant and advised it of the March 6, 2001 meeting. (Kay Decl., ¶ 55.) In addition, on December 4, 2001, Plaintiff’s counsel sent a letter to Defendant about the asserted title defect. (Kay Decl., ¶ 56.) Plaintiff thus asserts that “the only potential title issues about which Plaintiff had knowledge at the time Defendant claims it was required to tender the Title Defect were uncertain boundary lines…” (Opp’n at p. 16:15-17, emphasis omitted)

Defendant also indicates that in an April 12, 1999 letter, Plaintiff responded to a March 23, 1999 letter from the California State Lands Commission (“CSLC”), wherein Plaintiff referenced and enclosed its title insurance policy, stating it knew such policy was then currently held by Chicago Title. (Myers Decl., ¶ 3, Ex. 2, Ex. H.) Defendant argues that Plaintiff’s “April 12, 1999 letter to the CSLC expressly referenced and enclosed its Policy…establishing that Plaintiff also had actual knowledge -- more than two years before tendering its claim to by [sic] Chicago Title -- that it had a title insurance policy with Chicago Title potentially providing coverage for the State’s adverse title claims.” (Mot. at p. 6:23-7:3.) Defendant also notes that in the March 23, 1999 letter, the CSLC referenced Mr. Kay’s “request for the State to determine the precise nature, extent and location of its interest in Assessor Parcel 158-0110-003.” (Myers Decl., ¶ 3, Ex. 2, Ex. G.)

But as set forth above, Defendant asserts that Plaintiff’s discussions with the State that pre-dated the March 6, 2001 meeting were unrelated to the asserted title defects that were disclosed to Plaintiff for the first time on March 6, 2001 and are the subject of this action. Plaintiff states that “at no time during these discussions (until March 6, 2001) did the State even imply that the sale of the Insured Property was invalid in any respect.” (Kay Decl., ¶ 49.)

Defendant also asserts that “even assuming arguendo that Plaintiff only first learned in 2001 that the State’s adverse title claim encompassed the entire Property…such allegation is irrelevant as a matter of law to [Defendant’s] statute of limitations defense.” (Mot. at p. 8:3-5.) Specifically, Defendant contends that “a change in the nature or extent of damages alleged by Plaintiff -- i.e., a loss of the entirety of its Property as opposed to a portion via a boundary change -- does not constitute a separate claim for purposes of accrual rules governing statutes of limitations.” (Mot. at p. 9:14-16.) In support of this assertion, Defendant cites to Davies v. Krasna (1975) 14 Cal.3d 502, 514, where the California Supreme Court noted that “once plaintiff has suffered actual and appreciable harm, neither the speculative nor uncertain character of damages nor the difficulty of proof will toll the period of limitation.” The Davies Court concluded that “although a right to recover nominal damages will not trigger the running of the period of limitation, the infliction of appreciable and actual harm, however uncertain in amount, will commence the statutory period.” ((Id. at p. 514.)

But Plaintiff is not asserting that the speculative or uncertain character of damages or the difficulty of proof will toll the statute of limitations here. Rather, Plaintiff asserts that the discussions that pre-dated the subject March 6, 2001 meeting related to Plaintiff’s pursuit of a boundary line determination of the Property (Kay Decl., ¶ 33), which is separate and distinct from the issue of whether the sale of the Property was invalid.

Defendant also indicates that invoices for legal fees that Plaintiff’s counsel submitted to Defendant’s counsel for work done after December 4, 2001 contain the heading “SACRAMENTO COUNTY BOUNDARY DISPUTE.” (UMF No. 20.) Defendant asserts that “[s]uch invoices thus conclusively undermine Plaintiff’s contention that its dispute with the State suddenly metamorphosized from solely a ‘boundary’ dispute in the 1979-1999 time period, to solely a ‘complete failure of title’ dispute in 2001.” (Mot. at p. 10:13-16.) Defendant also points to a September 11, 2003 letter from Plaintiff to the CSLC referencing “boundary and title issues” together. (Myers Decl., ¶ 5, Ex. 4.) Defendant asserts that such correspondence demonstrates “Plaintiff’s attempt to artificially bifurcate ‘one’ title dispute into ‘two’ for statute of limitations accrual purposes.” (Mot. at p. 10:19-20.)

But as discussed, Plaintiff asserts that “[i]t was never even implied that the sale itself was invalid until March 6, 2001.” (Kay Decl., ¶ 41.) As set forth above, in the FAC, Plaintiff defines the “Title Defect” as follows: “In the year 2001, Plaintiff learned that the State of California, through its State Lands Commission (‘the State’), was claiming that the Stated owned the Insured Property (i.e., that there was a complete failure of title with respect to Plaintiffs interest in the Insured Property) (‘the Title Defect’).” (FAC, ¶ 17.) In the breach of contract cause of action, Plaintiff alleges that “Defendants breached their obligations under the Policy by, inter alia, failing to defending [sic] Plaintiff against the Title Defect and dispute, from the date of the initial claim made by the State through the Judgment in the Quiet Title Action; and failing to tender the Policy limit, ‘together with all accrued costs which OTIC [was] obligated [under the Policy] to pay.’” (FAC, ¶ 38, Emphasis added.)

Based on the foregoing, the Court finds that Plaintiff has raised a triable issue of fact as to whether Plaintiff’s action is time-barred.

Next, Defendant asserts that “Plaintiff’s breach of contract action is also defective as a matter of law because documentary evidence also establishes that [Defendant] fully satisfied any putative obligations it had under the Policy by tendering to [Plaintiff] the full policy limits.” (Mot. at p. 2:19-21.)

“¿A cause of action for¿damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.¿” (Careau & Co. ¿v. Security Pacific Business Credit, Inc.¿(1990) 222 Cal.App.3d 1371, 1388¿.) As set forth above, Plaintiff alleges that “Defendants breached their obligations under the Policy by, inter alia, failing to defending [sic] Plaintiff against the Title Defect and dispute, from the date of the initial claim made by the State through the Judgment in the Quiet Title Action; and failing to tender the Policy limit, ‘together with all accrued costs which OTIC [was] obligated [under the Policy] to pay.’” (FAC, ¶ 38.)

Defendant indicates that Paragraph 4 of the “Stipulations” contained in the subject title insurance policy provides as follows:

“4. The Company reserves the option to pay, settle, or compromise for, or in the name of the insured, any claim insured against or to pay this policy in full at any time, and payment or tender of payment of the full amount of this policy, together with all accrued costs which the Company is obligated hereunder to pay, shall terminate all liability of the Company hereunder, including all obligations of the Company with respect to any litigation pending and subsequent costs thereof.” (Myers Decl., ¶ 3, Ex. 2, Ex. JJ.)

Defendant indicates that in response to Plaintiff’s December 4, 2001 claim letter, Defendant responded by letter dated March 29, 2002, informing Plaintiff’s counsel that “[u]nder the terms of section 4 of the Stipulations contain in the California Pacific policy, the company has the right to terminate all further liability and obligations under the policy by making payment of the full policy amount--which in this case is $3,900--to the insured. After reviewing the preliminary information supplied by Mr. Briscoe, we have determined that we will exercise that right in this case. Accordingly, I have enclosed a check for $3,900 made payable to the ‘Tule Rod and Gun Club, Inc.’ This payment terminates all liability and obligations that the company may have under the policy with respect to the claim made by the State Land Commission state or any other matters that may arise in the future. Consequently, we will be closing our file on this claim.” (Myers Decl., ¶ 3, Ex. 2, Ex. M.)

Defendant also indicates that by letter of August 4, 2003, Defendant remitted a check to Plaintiff for $10,091.68 “as reimbursement of the attorneys fees claimed in defense of the State Lands matter, through November, 2002.” (Myers Decl., ¶ 3, Ex. 2, Ex. T.) In addition, by letter of April 4, 2006, Defendant tendered a check in the amount of $26,650.87 to Plaintiff, with the explanation that “[t]his check represents reimbursement for all attorneys’ fees paid by you in connection with the Sacramento County boundary dispute. This payment will end Chicago Title’s duties and obligations under the policy for this matter.” (Myers Decl., ¶ 3, Ex. 2, Ex. AA.)

Plaintiff asserts that Defendant’s purported tender of the policy limit check did not include with it “all accrued costs which [Defendant] is obligated to hereunder to pay” in that it did not include fees and costs incurred at the time of the issuance of the check. (See Stipulation 4, Myers Decl., ¶ 3, Ex. 2, Ex. JJ.) Plaintiff indicates that in response to Defendant’s March 29, 2022 letter, Plaintiff sent a June 6, 2022 letter to Defendant informing it that Defendant did not tender the policy limit together with all accrued costs which Defendant was obligated hereunder to pay [e.g., the costs that Plaintiff has already incurred in attempting to defend itself against the title defect] such that Defendant was not relieved of its obligations under the policy. (Kay Decl., ¶ 61, Ex. P.)

Defendant counters that Paragraph 7 of the policy’s “Stipulations” makes clear that Defendant’s obligations for “costs” under Paragraph 4 of the Stipulations is limited to those incurred from litigation conducted or authorized by Defendant:

“7. The Company will pay, in addition to any loss insured against by this policy, all costs imposed upon the insured in litigation carried on by the Company for the insured, and in litigation carried on by the insured with the written authorization of the Company, but not otherwise. The liability of the Company under this policy shall in no case exceed, in all, the actual loss of the insured and costs which the Company is obligated hereunder to pay, and in no case shall such total liability exceed the amount of this policy and said costs.”

As Defendant notes in the reply, Plaintiff’s opposition does not address Paragraph 7 of the policy’s “Stipulations.”

Plaintiff also notes that Stipulation 2 of the policy provides that “[t]he Company at its own cost shall defend the insured in all litigation consisting of actions or proceedings against the insured . . . which litigation is founded upon a defect, lien, encumbrance, or other matter insured against by this policy . . . . The Company shall have the right to institute and prosecute any action or proceeding or do any other act which, in its opinion, may be necessary or desirable to establish the title, or any insured lien or charge, as insured.” (Kay Decl., ¶ 4, Ex. A.)

Plaintiff asserts that the policy at issue in Jarchow v. Transamerica Title Ins. Co. (1975) 48 Cal.App.3d 917, 941 (overruled on other grounds by Soto v. Royal Globe Ins. Co. (1986) 184 Cal.App.3d 420), similarly provided that “[t]he Company, at its own cost and without undue delay shall provide (1) for the defense of the Insured in all litigation consisting of actions . . . commenced against the Insured . . . ; or (2) for such action as may be appropriate to establish the title . . . as insured, which litigation . . . is founded upon an alleged defect, lien or encumbrance insured against by this policy. . . .” (Internal quotations and emphasis omitted.) The Jarchow Court found that “[t]his provision of the title policy sets forth two obligations of the insurer: (1) To defend the insured’s title if a third party claims, in a judicial proceeding, an interest insured against by the policy, and (2) in the event that a third party claimant chooses not to litigate his claim, to take affirmative action (by filing an action to quiet title or by offering to compromise the third party’s claim) to provide the insured with title as stated in the policy. The obligations to defend and to ‘take other appropriate action’ are kindred duties designed to achieve the same objective: the integrity of the insured’s title.” ((Id. at pp. 941-942.)

Defendant contends that Jarchow is distinguishable because “[t]he Jarchow court decided that including a (1) and (2) in the same sentence after ‘shall provide’ meant that the insurer was obligated to do ‘such action as may be appropriate to establish the title’ upon request…The CTIC Policy at issue here, however, has separate sentences, the first of which is obligatory and the second of which is optional.” (Reply at p. 7:13-16.)

But as Plaintiff notes, the Jarchow Court also found that “[i]n determining what benefits or duties an insurer owes his insured pursuant to a contract of title insurance, the court may not look to the words of the policy alone, but must also consider the reasonable expectations of the public and the insured as to the type of service which the insurance entity holds itself out as ready to offer. Stated in another fashion, the provisions of the policy must be construed so as to give the insured the protection which he reasonably had a right to expect…Hence, title insurance policies must be liberally construed in favor of the insured.” (Jarchow v. Transamerica Title Ins. Co., supra, 48 Cal.App.3d at p. 941 [internal quotations, citations, and emphasis omitted.) As set forth above, the policy here provides, inter alia, that “[t]he Company shall have the right to institute and prosecute any action or proceeding or do any other act which, in its opinion, may be necessary or desirable to establish the title, or any insured lien or charge, as insured.” (Kay Decl., ¶ 4, Ex. A.) Plaintiff’s counsel’s letter to Defendant on December 4, 2001 indicated, inter alia, that “[t]he State of California, through its State Lands Commission, has recently made a claim that the State owns the entirety of the parcel the Gun Club thought it owned – that is, that there is a complete failure of title…please consider this a tender of defense...” (Kay Decl., ¶ 56, Ex. H.)

The Court finds that Plaintiff has raised a triable issue of fact as to whether Defendant satisfied its obligations under the policy.

Next, Defendant asserts that the policy expressly excepted Plaintiff’s claim. Defendant notes that the policy contains a list of exceptions on “Schedule B,” providing: “[t]his policy does not insure against loss by reason of the matters shown or referred to in this SCHEDULE,” with certain exceptions. (Myers Decl., ¶ 3, Ex. 2, Ex. JJ.) “Part Two” of “SCHEDULE B” contains an exception which provides: “3. Rights of the United States of America and or State of California, in and to any portion of the realty herein described lying between the mesne highwater line and the low water line of the San Joaquin River.” (Ibid.) Defendant asserts that this exception applies to defeat coverage for the claims that Plaintiff has brought against Defendant.

Plaintiff counters that “[t]his exception clearly relates to the boundary issue (the rights of the State that lie between the mesne highwater line and the low water line of the San Joaquin River),” and that “Plaintiff has never disputed that the Policy excepted from it the boundary issues that had nothing to do with the Title Defect.” (Opp’n at p. 5:5-10.) Plaintiff asserts that “because the Insured Property is an island, there is a point where the private interest ends and the State’s sovereign interest (e.g., in the water, tides, etc.) begins.” (Kay Decl., ¶ 34.)

The Court does not find that Defendant has met its burden of demonstrating that the entirety of the subject property insured by the policy consists of “realty…lying between the mesne highwater line and the low water line of the San Joaquin River.” (Myers Decl., ¶ 3, Ex. 2, Ex. JJ.)

Based on the foregoing discussion pertaining to Issues Nos. 1-3, the Court denies Defendant’s motion for summary adjudication as to the first cause of action for breach of contract.

Defendant first asserts that because Plaintiff’s first cause of action for breach of contract fails, the second cause of action for breach of the implied covenant of good faith and fair dealing also fails. As set forth above, the Court denies Plaintiff’s motion for summary adjudication of the first cause of action.

Defendant also asserts that it is entitled to summary adjudication on the second cause of action because “[a]s set forth in detail in Point II, supra, the undisputed facts establish that [Defendant] actually exceeded its obligations to Plaintiff under the clear terms of the Policy; therefore, Plaintiff’s bad-faith claim is frivolous and should be dismissed with prejudice, regardless of whether Plaintiff’s breach of contract claim can survive summary judgment.” (Mot. at p. 19:15-19, emphasis omitted.)

In the opposition, Plaintiff asserts that Defendant’s separate statement fails to tie each “undisputed material fact” to the particular claim, defense, or issue sought to be adjudicated, such that summary adjudication of the second cause of action should be denied. Pursuant to California Rules of Court, rule 3.1350, “[i]f made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” In addition, “[t]he Separate Statement of Undisputed Material Facts in support of a motion must separately identify: (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” (Cal. Rules of Court, Rule 3.1350, subd. (d)(1).)

As Plaintiff notes, Defendant’s separate statement does not mention Plaintiff’s second cause of action for breach of the implied covenant of good faith and fair dealing. Although Defendant asserts that “[a]s set forth in detail in Point II, supra, the undisputed facts establish that Chicago Title actually exceeded its obligations to Plaintiff under the clear terms of the Policy,” (Mot. at p. 9:15-16), it is unclear what specific facts Defendant is relying on in support of its argument that it is entitled to summary adjudication on the second cause of action.

Based on the foregoing, Defendant’s motion for summary judgment, or in the alternative, summary adjudication, is denied.

[1]The Court notes that on February 6, 2023, Defendant filed a Notice of Withdrawal of Certain Objections, indicating that it withdraws Objections nos. 1, 2, 4, 6-12, 15, 17-19, 25 and 26.

[2]Defendant indicates that its “statute of limitations defense raised herein is based solely on Plaintiff’s failure to initially submit its claim to [Defendant] within the two-year limitations period mandated by Code Civ. Proc. § 339(1)…this motion therefore presents issues of ‘accrual,’ which are entirely separate and distinct -- both factually and legally -- from the ‘tolling’ issues addressed in the [Court’s] February 19, 2021 ruling and which are not germane to this motion.” (Mot. at p. 2, fn. 1.)

[3]Plaintiff indicates that James Kay is the Chief Executive Officer and majority shareholder of Plaintiff. (Kay Decl., ¶ 2.)

Superior Court of California

County of Los Angeles

Department 50