17-CIV-03904 JENNIFER KURZ, ET AL. VS. CALIFORNIA CASUALTY INDEMNITY EXCHANGE, ET AL.

JENNIFER KURZ CALIFORNIA CASUALTY INDEMNITY EXCHANGE
J. EDWARD KERLEY JACLYN D. LEVASH

DEFENDANT CALIFORNIA CASUALTY INDEMNITY EXCHANGE’S MOTION FOR SUMMARY ADJUDICATION AND SUMMARY JUDGMENT CCP437C TENTATIVE RULING:

A. Issue 1: Agency Theory of Liability.

The motion to preclude Plaintiffs from asserting agency liability against Defendant CALIFORNIA CASUALTY is denied.

Defendant moves for summary adjudication on the cause of action for breach of implied covenant of good faith. Defendant seeks an order that “Plaintiffs be precluded from proceeding on, relying on, or presenting evidence to support an agency theory of liability, . . . as Plaintiffs cannot establish an agency theory of liability against California Casualty for Defendant Disaster Kleenup Specialists, Inc.’s allegedly faulty workmanship.” (Notice of Motion at 2:1-6.) The issues for summary adjudication are framed by the pleadings. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) “A party cannot successfully resist summary judgment on a theory not pleaded.” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) Similarly, a defendant may not move for summary judgment on a theory not pleaded. Against Defendant CALIFORNIA CASUALTY, the complaint one cause of action for Breach of Implied Covenant of Good Faith. That claim alleges five breaches. (SAC para. 18(a)(e).) The Complaint, however, does not allege that Defendant CALIFORNIA CASUALTY is liable for the negligence of DKS; it does not allege that DKS’s negligence was one of the breaches of the implied covenant of good faith that is alleged against Defendant CALIFORNIA CASUALTY.

There are no allegations that Defendant CALIFORNIA CASUALTY breached the covenant based on any act by Defendant DKS. The motion is attacking a cause of action that Plaintiffs have not pleaded.

Instead, the basis of Defendant’s motion is that Plaintiffs’ discovery responses contend that Defendant CALIFORNIA CASUALTY retained, oversaw, and acted in concert with DKS. (See evidence supporting UMF 12, 13, 15, 16.) Summary judgment, however, must attack the pleadings, not discovery responses. The contentions set forth in Plaintiffs’ responses to discovery are beyond the scope of the pleadings. Discovery responses that contend matters not in the complaint cannot be a basis for summary adjudication.

A motion for summary judgment/adjudication may be granted only if the motion disposes of a cause of action. The complaint contains no cause of action that is based on Defendant CALIFORNIA CASUALTY’s retaining, overseeing, or acting in concert with Defendant DKS. Finding all of the undisputed facts in Defendant CALIFORNIA CASUALTY’s favor would not result in disposing of any cause of action. The motion is denied as to Issue 1.

B. Issue 2: CAEDEN KURZ.

The motion is granted as to Issue 2.

Defendant’s initial argument that CAEDEN has no standing “because CAEDEN is not a party to the contract” (Moving P&A at 13:23) lacks merit. Parties to an insurance contract are not the only persons who may make a claim. “Insureds” also may make claims. Plaintiff’s policy defines “insured” to include “your relatives,” and persons “under the age of 21 and in the care of” JENNIFER. CAEDEN qualifies as an insured.

Merely being an insured, however, does not automatically confer standing. The insured must also be a “claimant.” (Republic Indem. Co. v. Schofield (1996) 47 Cal. App. 4th 220, 227.) “Claimant” means “an insured making a first party claim or a person instituting a liability claim.” (Ins. Code § 1063.1, subd. (g).) CAEDEN is not a claimant. All insurance three claims were for property damage. (See 2nd Am. Complaint ¶¶ 8-12.) CAEDEN, who was five at the time, was not the owner of the property. (Issue 2, UMF 6 [“CAEDEN does not own the insured property”].)

Plaintiff attempt to dispute UMF 6 by arguing that the evidence establishes only that CAEDEN did not “purchase” the property, rather than that he did not “own” the property. (Opp. Sep. Statement, Issue 2, UMF 6.) Defendant’s evidence that CAEDEN did not “purchase” the property is sufficient to establish a prima facie case that CAEDEN “did not own” the property. Plaintiff’s opposing burden is to offer evidence to contradict UMF 6. Plaintiff admits that CAEDEN’s parents bought the property in 2002. In order to raise a triable issue of fact, Plaintiff must offer evidence that CAEDEN actually held some interest in the property at the time of the water damage. Plaintiff offers none.

Therefore, it is undisputed that CAEDEN did not purchase the property. With no further evidence, the only reasonable inference is that CAEDEN did not own the property, or any fractional interest in it, at the time of the water damage or at the time Defendant allegedly breached the implied covenant. Having made no claim for property damage, CAEDEN has no standing to sue Defendant for breach of the implied covenant. Plaintiffs argue that CAEDEN has standing because he suffered emotional distress. However, an insured may not pursue emotional distress damages unless there is some underlying property damage or physical injury. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal. 3d 566, 580.) Plaintiff offers no evidence that CAEDEN suffered any financial loss from property damage or physical injury. Therefore, CAEDEN cannot claim emotional distress damages.

CAEDEN has no standing to sue Defendant for breach of implied covenant of good faith. The motion is granted as to Issue 2.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.