Judge: Thomas D. Long, Case: 20STCV28704, Date: 2022-08-02 Tentative Ruling
Case Number: 20STCV28704 Hearing Date: August 2, 2022 Dept: 48
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR THE
COUNTY OF LOS ANGELES - CENTRAL DISTRICT
BRIAN KENNEDY, Plaintiff, vs. UNITED STATES LIABILITY INSURANCE COMPANY,
INC., et al., Defendants. |
) ) ) ) ) ) ) ) ) ) ) |
[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Dept. 48 8:30 a.m. August 2, 2022 |
On July 29, 2020, Plaintiff Brian
Kennedy filed this action against Defendants United States Liability Insurance Company
Inc. and Schifrin, Gagnon & Dickey Inc.
On
May 24, 2022, United States Liability Insurance Company Inc. (“Defendant”) filed
a motion for summary judgment, or in the alternative, summary adjudication.
EVIDENTIARY OBJECTIONS
Defendant’s
Objection Nos. 1-5 are overruled.
REQUEST FOR JUDICIAL NOTICE
Defendant’s
request for judicial notice of the Complaint, Answer, and Quitclaim Deed is granted.
BACKGROUND FACTS
Plaintiff
sought insurance coverage for a vacant building without renovation, located at 15430
Roscoe Blvd, Van Nuys, California 91406.
(See Undisputed Material Facts “UMF” 12, 41, 70, 99, 128, 157, 177.) Plaintiff’s application form represented that
the plumbing in the property was made of copper. (UMF 1, 30, 59, 88, 117, 146.) Defendant then issued Plaintiff commercial property
insurance for the property that provided coverage for vandalism and theft, subject
to several exclusions. (UMF 2, 31, 60, 89,
118, 147.) The policy was numbered CP 1708191
with effective dates of August 24, 2019 through February 24, 2020. (UMF 10, 39, 68, 97, 126, 155.) One exclusion stated that there was no coverage
for “Loss or damage to copper, including but not limited to wiring, piping, air-conditioner
coils or roofs, and loss or damage to the described premises caused by or resulting
from damage by theft, attempted theft or vandalism” (“Copper Exclusion”). (UMF 15, 44, 73, 102, 131, 160.)
Sometime
between October 25, 2019 and December 3, 2019, the property was damaged, with interior
walls cut, glass partitions broken, and the interior vandalized with graffiti. (UMF 3, 32, 61, 90, 119, 148, 180.) Human feces were also present in multiple areas. (UMF 3, 32, 61, 90, 119, 148.) Plaintiff notified Defendant of the loss on December
30, 2019. (UMF 181.) Defendant’s adjuster inspected the property on
January 3, 2020, and she took 137 photographs and a video recording. (UMF 4, 33, 62, 91, 120, 149.) She observed evidence of vandalism and theft. (UMF 22, 51, 80, 109, 138, 167.)
Thereafter,
the adjuster prepared a 21-page Estimate and loss analysis, which provided a total
Replacement Cost Value of $54,321.89, a total depreciation amount of $812.49, and
an Actual Cost Value of $53,509.40. (UMF
5, 34, 63, 92, 121, 150.) The Estimate tabulated
a net claim in the initial amount of $48,509.40 after subtracting the $5,000 policy
deductible. (UMF 5, 34, 63, 92, 121, 150.) Defendant paid this amount to Plaintiff. (UMF 21, 50, 79, 108, 137, 166.)
The
Estimate specifically noted that the claim did not include “theft of electrical
components, wiring or stolen plumbing components.” (UMF 6, 35, 64, 93, 122, 151.) The Estimate explained: “THIS ESTIMATE IS FOR
VANDALISM WHICH INCLUDES PAINTING OVER GRAFFITI, REPLACING BROKEN WINDOW GLASS,
CLEAN UP OF DEBRIS TO INSPECT ALL FLOOR FINISHES, TEMPORARY POWER INCLUDED TO ALLOW
THE PAINTING AND VANDALISM REPAIRS TO TAKE PLACE SINCE THE BUILDINGS ELECTRICAL
WIRING AND COMPONENTS WERE STOLEN. PLEASE
NOTE THAT THIS ESTIMATE DOES NOT INCLUDE THEFT OF ELECTRICAL COMPONENTS, WIRING
OR STOLEN PLUMBING COMPONENTS. THIS ESTIMATE
IS ONLY FOR VANDALISM NOT THEFT.” (UMF 6,
35, 64, 93, 122, 151.) Defendant’s coverage
position letter stated there was no coverage for loss of or damage to copper materials,
including wiring, plumbing, and air conditioner coils, as well as loss or damage
to the premises caused by or resulting from the vandalism, theft, or attempted theft
of such items, and no coverage for additional costs due to asbestos, lead, and organic
pathogens including human waste. (UMF 21,
50, 79, 108, 137, 166.)
On
February 14, 2020, the adjuster inspected the lobby bathrooms of the property and
took an additional 26 photographs, including photographs of the bathrooms and surrounding
areas. (UMF 8, 37, 66, 95, 124, 153.) A February 20, 2020 Supplemental Estimate provided
an additional Replacement Cost Value of $1,177.18, an additional depreciation amount
of $30.22, and an additional Actual Cost Value of $1,146.96. (UMF 8, 37, 66, 95, 124, 153.) Defendant issued a supplemental payment to Plaintiff
on February 21, 2020 of $1,146.96, and then closed Plaintiff’s claim. (UMF 8-9, 37-38, 66-67, 95-96, 124-125, 153-154.)
DISCUSSION
For
each claim in the complaint, the defendant moving for adjudication must satisfy
the initial burden of proof by showing that one or more elements of a cause of action
cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf
v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 (Scalf).) Then the burden shifts to the plaintiff to show
that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf,
supra, 128 Cal.App.4th at p. 1520.) 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, 162-163.)
A. Second Cause of Action – Breach of Contract
The
first cause of action alleges that Defendant breached its contract with Plaintiff
by refusing to pay for the majority of Plaintiff’s losses. Defendant relies on the Copper Exclusion, which
excludes from coverage “Loss or damage to copper, including but not limited to wiring,
piping, air-conditioner coils or roofs, and loss or damage to the described premises
caused by or resulting from damage by theft, attempted theft or vandalism.” (Motion at p. 12.) According to Defendant, it paid all of the losses
that were not excluded by the Copper Exclusion.
(Id. at pp. 12-13.)
“[W]hen
an insurer seeks summary judgment on the ground the claim is excluded, the burden
is on the insurer to prove that the claim falls within an exclusion.” (Brodkin v. State Farm Fire & Casualty
Co. (1989) 217 Cal.App.3d 210, 216.)
“To satisfy its burden, an insurer need not ‘disprove every possible cause
of the loss’ and once the insurer establishes the claim is excluded, the burden
shifts to the insured to show a triable issue of material fact exists.” (Roberts v. Assurance Co. of America (2008)
163 Cal.App.4th 1398, 1406.)
Defendant
primarily relies on the Declaration of Telma L. Dorcey, who visited the property
and conducted a site inspection. (Motion
at pp. 12-14; see Dorcey Decl. ¶ 9.) She
walked around the exterior and examined the interior, including the lobby, showroom,
interior offices, and both the first and second floors of the two interior garages. (Id. at ¶ 9.) She observed graffiti spray-painted on the exterior
walls and throughout the interior, broken glass, carpet stained with human waste,
holes cut in drywall, insulation removed from the walls, tiles removed from the
ceiling, and the remaining cut ends of copper wiring protruding from holes in the
walls and the ceiling. (Id. at ¶ 10.) In the garage, she observed wall-mounted utility
panels and electrical boxes that were opened, with ends of cut copper wiring visibly
protruding from the bottom, and a water heater on the floor. (Id. at ¶ 11.) Based on Dorcey’s experience, it “appeared to
[her] that the thieves were running a ‘chop shop’ operation, whereby they would
remove copper wiring from the walls and ceilings of the property, bring the wiring
to these countertops, use tools to strip the insulation off of the wires, bag and
steal the stripped copper wire segments, and discard the stripped insulation on
the floor.” (Id. at ¶ 12.)
Defendant
has not met its initial burden of showing that Plaintiff’s claim is excluded by
the Copper Exclusion. Dorsey’s statements
that the damage was “resulting from the theft or attempted theft of the copper wiring
inside the Property,” that holes were cut “in order to access copper wiring,” and
conduits “had been pulled from the wall in order to access copper wiring, and any
copper wiring that used to be within those conduits had been removed” are speculative
as to the motives resulting in damage. (Dorcey
Decl. ¶¶ 10-11.) Defendant also provides
an opinion from an electrical engineering expert who reviewed the photographs and
concluded that the wiring must have been copper due to historical industry standards
and repairs to the property’s wiring within the previous twenty years. (Motion at pp. 14-15; Roshanian Decl. ¶ 6.) Although this opinion suggests copper wiring,
it does not show that the only reasonable conclusion is that the wiring was copper. Additionally, even if Defendant had met its initial
burden, Plaintiff provides evidence further supporting the speculative and inconsistent
nature of Defendant’s witnesses’ opinions.
(See Opposition at pp. 9-14.)
Defendant
also did not cite evidence regarding the plumbing, the theft of which was excluded
from the Estimate. (See, e.g., UMF 6.) Plaintiff provides evidence from a construction
materials expert who physically inspected the property and confirmed that the plumbing
was galvanized and not copper. (Franklin
Decl. ¶ 5.) Dorcey, Defendant’s adjuster,
admitted that she did not know if all the plumbing was copper or galvanized. (White Decl., Ex. 3 [“Dorcey Depo.”] at pp. 73.) Defendant’s expert also admitted that the plumbing
appeared to be galvanized. (White Decl.,
Ex. 6 [“Roshanian Depo.”] at pp. 184-185.)
Therefore, there are triable issues of fact regarding whether the Copper
Exclusion applies to all of the losses that Defendant did not pay.
Summary
adjudication of the second cause of action is denied.
B. Third Cause of Action – Breach of Implied
Covenant of Good Faith and Fair Dealing
The
third cause of action alleges breach of the implied covenant of good faith and fair
dealing through Defendant’s denial of Plaintiff’s claim and failure to conduct a
full, objective, and unbiased investigation.
“The covenant of good faith and fair dealing, implied by law in every contract,
exists merely to prevent one contracting party from unfairly frustrating the other
party’s right to receive the benefits of the agreement actually made.” (Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 349-350.)
Defendant
argues there was a genuine dispute regarding the Copper Exclusion. (Motion at p. 17.) “The mistaken withholding of policy benefits,
if reasonable or if based on a legitimate dispute as to the insurer’s liability
under California law, does not expose the insurer to bad faith liability.” (Tomaselli v. Transamerica Ins. Co. (1994)
25 Cal.App.4th 1269, 1280-1281.) “[T]he reasonableness
of the insurer’s decisions and actions must be evaluated as of the time that they
were made; the evaluation cannot fairly be made in the light of subsequent events
that may provide evidence of the insurer’s errors.” (Chateau Chamberay Homeowners Ass’n v. Associated
Intern. Ins. Co. (2001) 90 Cal.App.4th 335, 347 (Chateau Chamberay).) “A trier of fact may find that an insurer acted
unreasonably if the insurer ignores evidence available to it which supports the
claim. The insurer may not just focus on
those facts which justify denial of the claim.”
(Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th 1617,
1623.) “While the reasonableness of an insurer’s
claims-handling conduct is ordinarily a question of fact, it becomes a question
of law where the evidence is undisputed and only one reasonable inference can be
drawn from the evidence.” (Chateau Chamberay,
supra, 90 Cal.App.4th 335 at p. 346.)
Defendant
relies on the fact that it applied the plain language of the Copper Exclusion and
“promptly and thoroughly investigated the claim, and the adjuster which [Defendant]
hired performed two site inspections at the Property.” (Motion at pp. 17-18.) This is insufficient to show as a matter of law
that Defendant acted reasonably and that there is only one inference to be drawn. Furthermore, as discussed above, there is evidence
that Defendant ignored evidence of galvanized, not copper, plumbing that could have
supported some of Plaintiff’s claim. This
raises triable issues as to whether Defendant failed to conduct a full, objective,
and unbiased investigation.
Summary
adjudication of the third cause of action is denied.
C. First Cause of Action – Declaratory Judgment
The
first cause of action seeks a declaration of Plaintiff’s rights under the policy
and a declaration that coverage exists for the alleged losses. Defendant argues this cause of action is duplicative
of the other causes of action because it “is wholly subsumed by the complaint’s
other two causes of action for breach of contract and breach of the implied covenant
of good faith and fair dealing,” and “[t]he issue of whether Plaintiff’s unpaid
losses are covered under the Policy must necessarily be determined in order to decide
Plaintiff’s claims for breach of contract and bad faith.” (Motion at p. 18.)
“The
remedy of declaratory relief is cumulative and does not restrict other remedies. (Code Civ. Proc., § 1062.) . . . The mere fact
that another remedy is available will not suffice as sufficient grounds for a court
to decline a declaration, because declaratory relief is not intended to be exclusive
or extraordinary.” (Kirkwood v. California
State Automobile Assn. Inter-Ins. Bureau (2011) 193 Cal.App.4th 49, 59.)
As
discussed above, Defendant has not shown that it is entitled to adjudication of
the causes of action for breach of contract and bad faith. Accordingly, Plaintiff’s rights under the policy
and the existence of coverage remain in dispute.
Summary
adjudication of the first cause of action is denied.
D. Damages
Defendant
seeks summary adjudication with respect to damages occurring from a December 18,
2020 fire. (Motion at pp. 18-19.) Defendant argues that Plaintiff could not have
sustained any loss and cannot recover damages from Defendant because Plaintiff did
not own the property at that time. (Id.
at p. 19.)
“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 [as specified
in Civil Code section 3294], or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) Civil Code section 3294 governs the availability
of punitive damages. There is no authority
for adjudication of a portion of or limitation on Plaintiff’s damages.
In
reply, Defendant attempts to reframe this issue as one seeking adjudication of whether
Defendant owed a duty. (Reply at pp. 9-10.) That is not the ground raised in the notice of
motion or argued in the motion. (See Motion
at p. 3 [Notice of Motion: “As to Plaintiff’s claim for damages related to the fire
that occurred at the subject property in December 2020, the material facts are undisputed
and USLI is entitled to summary adjudication as a matter of law that Plaintiff could
not have sustained any damage resulting from the fire to the property because Plaintiff
no longer owned the property at the time of the fire.”].)
Summary
adjudication of damages is denied.
CONCLUSION
The
motion for summary judgment, or in the alternative, summary adjudication is DENIED.
Moving
party to give notice.
Parties
who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org
indicating intention to submit. Parties intending
to appear are encouraged to appear remotely and should be prepared to comply with
Dept. 48’s new requirement that those attending court in person wear a surgical
or N95 or KN95 mask.
Dated this 2nd day of August 2022
|
|
|
Hon. Thomas D. Long Judge of the Superior Court |