Judge: Theresa M. Traber, Case: 20STCV31559, Date: 2022-10-13 Tentative Ruling

Case Number: 20STCV31559    Hearing Date: October 13, 2022    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     October 13, 2022                   TRIAL DATE: December 13, 2022

CASE:                         Graeme Joseph Kronsberg, et al. v. Michael Brett Wallen, et al.

CASE NO.:                 20STCV31559           

MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:               Defendant Michael Brett Wallen

RESPONDING PARTY(S): Plaintiffs Graeme Joseph Kronsberg and Lynne Kronsberg

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a professional negligence action filed on August 19, 2020. Plaintiffs allege that Defendant, a licensed insurance broker-agent, was negligent in procuring and renewing Plaitniffs’ homeowners’ insurance policy.

            Defendant moves for summary judgment.

TENTATIVE RULING:

            Defendant’s Motion for Summary Judgment is DENIED.

DISCUSSION:

            Defendant moves for summary judgment on Plaintiffs’ claim for professional negligence.

Plaintiff’s Evidentiary Objections

            Declaration of Michael Wallen:

            No. 1.: OVERRULED. Not illegible.

            No 5. OVERRULED: Hearsay is not a valid objection in this context, given that nonhearsay evidence supporting this statement could be offered at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-948.) Other objections go to weight, not admissibility.

            As the remainder of Plaintiffs’ objections are not relevant to the Court’s ruling, the Court declines to rule on those objections. (Code Civ. Proc. § 437c(q).)

            Declaration of David D. Samani:

            No 10: OVERRULED. Objections go to weight, not admissibility.

            As the remainder of Plaintiffs’ objections are not relevant to the Court’s ruling, the Court declines to rule on those objections. (Code Civ. Proc. § 437c(q).)

Defendant’s Evidentiary Objections

Declaration of Graeme Kronsberg

            Nos. 1, 3: OVERRULED. Relevant. Objections go to weight, not admissibility.

            As the remainder of Defendant’s objections are not relevant to the Court’s ruling, the Court declines to rule on those objections. (Code Civ. Proc. § 437c(q).)

Improper Filings

            Defendant filed a document entitled “Reply to Separate Statement in Opposition to Defendant’s Motion for Summary Judgment.” Neither the Code of Civil Procedure nor the Rules of Court authorize the filing of such a document. The Court therefore refuses to consider that document in connection with this motion. For the same reason, the Court refuses to consider Defendant’s “Response to Plaintiff’s Evidentiary Objections Submitted with Opposition to Motion for Summary Judgment.”

Plaintiff’s Request for Judicial Notice

            Plaintiff requests that the Court take judicial notice of the Notice of Ruling and the Court’s Tentative on Defendant’s previous Motion for Summary Judgment. Plaintiff’s request is GRANTED pursuant to Evidence Code section 452(d) (court records).

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 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, 381-82.)

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. (Code Civ Proc. § 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.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

            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 responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Analysis

            Defendant moves for summary judgment on Plaintiffs’ sole cause of action for professional negligence. Defendant articulates two bases for this motion: (1) Plaintiffs cannot establish causation of damages from any failure to procure additional coverage; and (2) Plaintiffs cannot maintain a claim for failure to purchase additional coverage or higher limits because they never requested that coverage.

            The elements of a claim for professional negligence are a defendant’s (1) legal duty of care towards plaintiffs, (2) breach of that duty, (3) injury to plaintiffs as a proximate result of the breach, and (4) damage to plaintiffs. (Wallman v. Suddock (2011) 2000 Cal.App.4th 1288, 1308.)

1.      Lack of Causation Regarding Additional Living Expense Coverage

            Defendant first contends that Plaintiffs cannot establish causation of damages based on the failure to procure Additional Living Expense Coverage because the CFP did not offer Additional Living Expense Coverage. The Court previously found a triable issue of fact existed as to whether procuring “fair rental value” coverage would have constituted coverage as close to “additional living expense” coverage as the CFP offered, such that a failure to do so constituted a breach of contract. (See RJN Exh. 1.) As the same issue of fact applies to the question of whether any failure to do so was the cause of any damages to Plaintiffs, the Court finds that Defendant has not shown that Plaintiffs cannot prevail on this basis.

2.      Lack of Causation Regarding Fair Rental Value Coverage

            Defendant next contends that Plaintiffs cannot establish causation because Fair Rental Value Coverage is subject to the policy limits of an existing policy. To establish causation, a plaintiff must demonstrate that the defendant’s conduct was a substantial factor in causing the plaintiff’s damages. (See, e.g., Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968-69.) The plaintiff must demonstrate that the defendant’s conduct is a but-for cause of the alleged damage. (See Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572-73.) Defendant argues that Fair Rental Value coverage does not provide a separate set of funds, but rather a basis for recovery that is subject to and reduces the dwelling limit of a CFP policy. (Defendant’s Separate Statement of Undisputed Material Facts No. 8.) Defendant contends that Plaintiffs received the policy limits from their policies and therefore Fair Rental Value coverage would not have increased their financial recovery. (SSUMF No. 15.) Defendant has offered evidence, including deposition testimony, sworn declarations, and documentation which tends to show that Fair Rental Value coverage would not have increased Plaintiffs’ recovery. Defendant has therefore met its burden to show that Plaintiffs could not prevail on their claim on this basis. The burden now shifts to Plaintiffs to establish a triable issue of fact as to whether Fair Rental Value coverage would have increased their financial recovery.

            In opposition, Plaintiffs contend that Defendant mischaracterizes Plaintiffs’ insurance policies. Plaintiffs argue that, under the California FAIR Plan, Plaintiffs could have purchased additional fair rental value coverage which would have allowed them to buy an additional 20% of their Dwelling Limit in additional Fair Rental Value Coverage. (Statement of Additional Disputed Facts No. 11.) Thus, Plaintiffs contend, citing to the coverage documents, Plaintiffs could have received an additional $120,416 in addition to their dwelling limits. (ADF No. 12.) Plaintiffs have offered evidence showing that Plaintiffs could have procured additional coverage that would have entitled them to additional recovery. Plaintiffs have therefore met their burden to establish a triable issue of fact with respect to this issue.

3.      Failure to Request Coverage

            Defendant’s final argument is that Plaintiffs cannot maintain a claim for failure to purchase additional coverage or higher limits because they never requested that coverage.

            Insurance brokers owe a limited duty to their clients to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured. (See Jones v. Grewe (1987) 189 Cal.App.3d 950, 954.) An insurance broker’s duty to procure that insurance may give rise to liability only where the broker misrepresents the nature, extent, or scope of the coverage offered, there is a request or inquiry by the insured for a particular type or extent of coverage, or the broker assumes an additional duty by express agreement or holding themselves out as an expert. (See Pacific Rim Mechanical Contractors, Inc. v. Aon Risk Ins. Services West, Inc. (2012) 203 Cal.App.4th 1278, 1283.) When a policyholder does not request coverage, a broker has no duty to procure or recommend coverages. (See Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 921-23.) In addition, nonspecific, general coverage requests are insufficient to create a duty to recommend specific types of coverage. (See Ahern v. Dillenback (1991) 1 Cal.App.4th 36, 40.)

            Defendant contends that Plaintiffs never made any specific request for either a higher dwelling limit or additional fair rental value coverage. (SSUMF Nos. 9-10.) Defendant argues that Mr. Kronsberg’s testimony establishes that he told Defendant that he wanted to have the “best” coverage possible, which Defendant contends is too general to constitute a valid request for this type of coverage as a matter of law. (SSUMF No. 11.) This evidence is sufficient for Defendant to meet its burden to show that Plaintiffs cannot prevail on this claim. The burden now shifts to Plaintiffs to establish a triable issue of fact.

            Here, Plaintiffs have met that burden. Plaintiffs offer declaratory evidence that they requested that Defendant procure coverage that was identical to Plaintiffs’ previous coverage “to the extent possible.” (Statement of Disputed Facts Nos. 9-11; Declaration of Graeme Kronsberg ISO Opp ¶ 3.) Plaintiffs also contend that Mr. Kronsberg’s testimony is taken out of context, as the question posed was referring to Difference in Conditions coverage. (See SDF Nos. 9-11.) This contention is not well-taken, as Mr. Kronsberg’s testimony is manifestly speaking to his general manner of conducting business with Defendant. By itself, this contention would not be sufficient to establish a triable issue of fact. But Plaintiffs have also offered declaratory evidence that Plaintiffs did specifically request coverage as close as possible to their previous coverage. (See Kronsberg Decl. ¶ 3.) Both of Defendant’s cited cases in support, Fitzpatrick and Ahern, are distinguishable from this request. In Fitzpatrick, the insured party admitted that they did not request the coverage at issue and only “generally wanted the upper limits of coverage.” (Fitzpatrick, supra, 57 Cal.App.4th at 921-23, 927-28.) Similarly, in Ahern, the policyholder asked for “full coverage,” the “best coverage that exists,” and “the best policy there is.” (Ahern, supra, 1 Cal.App.4th at 40.) In contrast, here, Plaintiffs requested a specific type of coverage, or, failing that, as close as possible to the same type of coverage Plaintiffs had previously possessed. Plaintiffs did not merely make a vague request for “full coverage,” but a request that could be mapped to the specific coverage they had previously possessed. In the Court’s view, this request is closer to a request for sufficient coverage to rebuild destroyed property, which is sufficiently specific as a matter of law. (Free v. Republic Insurance Company (1997) 8 Cal.App.4^th 1726, 1729; see also Desai v. Farmers Insurance Exchange (1996) 47 Cal.App.4th 1110, 1114 [demand of 100% coverage sufficiently specific to trigger broker’s duty].) Defendant’s argument in reply that Free and Desai are distinguishable is not persuasive where, as here, the request made set a specific goal that, it is alleged, Defendant failed to meet.

            Therefore, for the reasons stated above, the Court finds that Plaintiffs have established that a triable issue of fact exists as to whether Plaintiffs requested the type of coverage at issue.

            As the Court has found that triable issues of fact exist as to all issues raised by Defendant in this motion, the Court finds that Defendant is not entitled to summary judgment as a matter of law.

CONCLUSION:

            Accordingly, Defendant’s Motion for Summary Judgment is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  October 13, 2022                                ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.