DEPARTMENT 58 LAW AND MOTION RULINGSIf oral argument is desired, kindly refer to CRC 3.1308.

This Tentative Ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex parte application therefore.

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Case Number: BC528967    Hearing Date: October 31, 2014    Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
________________________________________
Hearing Date: Friday, October 31, 2014
Calendar No: 10
Case Name: Ricart v. IDS Property Casualty Insurance Company
Case No.: BC528967
Motion: Motion for Summary Judgment/Adjudication
Moving Party: Defendant IDS Property Casualty Insurance Company dba Ameriprise Auto & Home Insurance
Responding Party: Plaintiff Nelly Ricart
Notice: OK

Tentative Ruling: Motion for summary judgment/adjudication is denied.
________________________________________

Background –
On 11/27/13, Plaintiff Nelly Ricart filed this action against Defendant IDS Property Casualty Insurance Company dba Ameriprise Auto & Home Insurance arising out of the denial of Plaintiff’s claim for insurance benefits for the alleged theft of a vehicle. Plaintiff asserts causes of action for (1) breach of contract, (2) tortious bad faith denial of insurance benefits, (3) violation of Bus. & Prof. Code § 17200, and (4) breach of the implied covenant of good faith and fair dealing. Trial is set for 12/1/14; FSC for 11/20/14.

Motion for Summary Judgment/Adjudication –

1. Procedural Defects
Defendant argues that Plaintiff’s opposition papers are deficient on two grounds. First, the memorandum exceeds ten pages but fails to include a table of authorities. CRC 3.1113(f). Second, the opposition separate statement does not mirror Defendant’s summary adjudication issues. CRC 3.1350(f). As to the separate statement, the Court notes that Defendant has reasserted the same 53 facts in the issues for summary adjudication as asserted in the request for summary judgment: Plaintiff’s opposition separate statement merely responds to the 53 facts and asserts additional facts in paragraphs 54-115. The Court has discretion to overlook procedural errors and there has been no showing of a glaring omission or concession. Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1478. Notably, Defendant has failed to submit any resulting prejudice in addressing Plaintiff’s opposition. Therefore, the Court will excuse these procedural defects.

2. Undisputed Facts
Plaintiff’s vehicle, a 2011 BMW 528i, was insured by Defendant: the insurance policy included provisions that coverage would not be provided when the insured intentionally concealed any material fact or circumstance, engage in fraudulent conduct, or made false statements. ¶¶ 2-5. On 9/30/12, Plaintiff drove the BMW vehicle to an apartment complex located at 20600 S. Azusa Ave., West Covina, CA and was accompanied by her boyfriend driving another vehicle, a 2010 Toyota Tundra, to deliver various items to her boyfriend’s former girlfriend. ¶¶ 7-9. Plaintiff left the BMW vehicle at the un-gated apartment complex’ visitors’ parking lot and Plaintiff and her boyfriend drove home in the Toyota Tundra. ¶¶ 6, 10. On 10/2/14, Plaintiff discovered that the BMW vehicle was missing and reported it stolen. ¶¶ 1, 6, 11.

Defendant retained counsel to assist in the evaluation of the claim, an independent investigator, and a security system expert; Defendant also conducted an examination under oath (“EUO”) of Plaintiff. ¶¶ 13-16. After Defendant’s investigation, Defendant denied Plaintiff’s claim. ¶ 46.

3. Evidentiary Objections
Plaintiff objects to exhibits attached to the declaration of Chad M. Slack, Defendant’s counsel. Objection Nos. 1-2, 4-6, and 9-12 are sustained based on Defendant’s counsel failing to authenticate the submitted exhibits. The remaining objections (Nos. 3, 7-8, 13-17) merely argue whether Defendant’s asserted facts in its separate statement are supported which are not evidentiary objections (see CRC 3.1354): these are overruled.

4. Insurance Claim
The crux of Defendant’s motion is whether Defendant conducted a reasonable investigation of Plaintiff’s claim. Defendant submits that its investigation revealed misrepresentations and concealed facts that resulted in the denial of Plaintiff’s claim. See, e.g., Def.’s Ex. S. Defendant also argues that its denial of Plaintiff’s claim was not unreasonable or without proper cause and instead raises only a genuine dispute. See, e.g., Chateau Chamberay Homeowners Ass’n v. Associated Int’l Ins. Co. (2001) 90 Cal.App.4th 335, 345-47.

Preliminarily, the Court notes that Defendant failed to properly authenticate the reports of the third-party investigators relied upon Defendant, and the Court has sustained Plaintiff’s objections thereto. Consistent the Court’s ruling on those objections, Defendant’s motion proceeds on the following facts. Plaintiff did not report the theft to the apartment complex where the BMV vehicle disappeared (Def.’s Sep. Statement [“DSS”] ¶ 21), did not immediately activate a BMW tracking feature (id. ¶ 22), did not notify BMW of the alleged theft (id. ¶ 23), and did not call the police to come to the scene (id. ¶ 24). Plaintiff changed her employment a few months before the claim resulting in a drastic reduction in income (id. ¶ 35) and Plaintiff inconsistently stated the reason for this change (id. ¶¶ 36-37). Plaintiff failed to disclose that she previously filed a bodily injury claim (id. ¶¶ 38-39) and other prior insurance claims (id. ¶¶ 40-42).

However, Plaintiff explains that she promptly reported the missing BMW vehicle to the police (OSS ¶ 58) and contacted BMW to inquire about the tracking feature but believed that Defendant was handling this portion (id. ¶¶ 59-60). Plaintiff explains that she was unfamiliar with the process of engaging the BMW tracking feature and that no one from Defendant advised her to do so until her EUO. Id. ¶ 112. Plaintiff explains that Defendant has mischaracterized her income and has failed to account for her other access to funds. Id. ¶ 113; see also OSS ¶ 35. Plaintiff also explains that Defendant has mischaracterized her statements concerning her change in employment (OSS ¶¶ 36-37), that she did not make a claim for bodily injury (id. ¶ 39), and that her statement concerning prior insurance claims was to the best of her knowledge and recollection (id. ¶ 41-42). Plaintiff’s evidence is sufficient to raise triable issues of fact as to whether she intentionally concealed or misrepresented any material fact or circumstance.

Additionally, Plaintiff submits evidence that Defendant’s investigator did not know about Plaintiff’s financial status (OSS ¶¶ 78-80, 90-91), found Plaintiff’s explanation as to why she left one vehicle at the apartment complex a “bit strange” but not inconsistent (id. ¶ 85 (Plaintiff stated that her boyfriend had a few drinks)), did not know whether Plaintiff was familiar with the BMW tracking feature (id. ¶¶ 86-89), and admits to a discrepancy as to when Plaintiff reported a missing key and attempted to get it replaced (id. ¶¶ 94, 97-99). This is sufficient to raise triable issues of fact as to whether Defendant’s denial of Plaintiff’s claim was made in good faith and on reasonable grounds. See Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 723-24, n.7 (“In the insurance bad faith context, a dispute is not ‘legitimate’ unless it is founded on a basis that is reasonable under all the circumstances.”).

5. Punitive Damages
Taking into account the clear and convincing evidentiary standard required for punitive damages (see American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049), Plaintiff’s evidence is sufficient to raise triable issues of fact as to whether Defendant’s denial of Plaintiff’s claim constitutes malice or oppression (see Wetherbee v. United Ins. Co. of America (1968) 265 Cal.App.2d 921, 932).

6. Bus. & Prof. Code § 17200
Defendant finally argues that Plaintiff’s Bus. & Prof. Code § 17200 claim is barred by Textron Financial Corp. v. National Union Fire Ins. Co. of Pittsburgh (2004) 118 Cal.App.4th 1061. Textron held that there was no private right of action under the Unfair Insurance Practices Act (Ins. Code § 790 et seq.) and such allegations cannot form the basis of an unfair business practices claim. 118 Cal.App.4th at 1070-71. However, the Supreme Court has disapproved of Textron to the extent that the UIPA was used to bar civil liability when insurers engage in conduct that violates obligations imposed by other statutes or the common law. Zhang v. Superior Court (2013) 57 Cal.4th 364, 382-84. Plaintiff’s claim is not improperly based on the UIPA. See, e.g., Complaint ¶ 40.

Ruling –
The motion for summary judgment/adjudication is denied.