Case Number: KC065502 Hearing Date: May 15, 2014 Dept: J

Re: Esteban Tejeda, et al. v. Progressive West Insurance Company, et al. (KC065502)

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Moving Party: Defendant Progressive West Insurance Company

Respondents: Plaintiffs Esteban Tejeda and Francisco Tejeda

POS: Moving, Opposing, and Reply OK

Plaintiffs commenced this action on 1/24/13. The operative Second Amended Complaint (“SAC”), filed on 9/20/13, asserts causes of action for:

1. Breach of Contract
2. Declaratory Relief

Trial date: 7/22/14; FSC date: 7/17/14.

The SAC alleges that on or about June 20, 2008, Plaintiffs bought auto insurance with Defendant under policy number 10766269-0, providing coverage for a 2004 Ford F-150 Supercrew Cab vehicle (SAC ¶ 13); on February 6, 2009, the vehicle was stolen and later found burning in an alley; Defendant investigated the claim, and then denied it; although Plaintiffs have demanded Defendants perform by providing coverage for the loss of the subject vehicle, Defendants have failed and refused, and continue to fail and refuse to take any steps necessary to fully and completely and fairly adjust and cover the subject claim (Id. ¶ 17); and that as a result, Plaintiffs have been damaged (Id. ¶ 18).

Defendant Progressive West Insurance Company (“Defendant” or “Progressive”) now moves for Summary Judgment as to the entire Second Amended Complaint (“SAC”) by Plaintiffs Esteban Tejeda and Francisco Tejeda (collectively “Plaintiffs”), on the grounds that there exist no triable issues of material fact, and judgment may be entered in favor of Defendant as a matter of law pursuant to CCP § 437c. In the alternative, Defendant moves for Summary Adjudication of Issues as to Issue One, the first cause of action for Breach of Contract; and Issue Two, the second cause of action for Declaratory Relief; each on the grounds that there exist no triable issues of material fact as to either cause of action, and judgment may be entered in favor of Defendant as a matter of law pursuant to CCP § 437c(f).

DEFENDANT’S EVIDENTIARY OBJECTIONS:

1-11. Overruled
12. Sustained
13-14. Overruled

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850).

FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT:

Defendant moves for summary adjudication on the grounds that the undisputed facts demonstrate that Defendant demanded that each of the insureds complete an examination under oath (“EUO”), but Plaintiff Esteban Tejeda’s wife, Gabriela Lozano, refused, which is a breach of the cooperation clause, a condition precedent to a claim for policy benefits; and on the further ground that that all insureds failed to cooperate, and thus violated the cooperation clause, constituting a breach as a matter of law.

Where the parties share the same interpretation of the terms of their agreement, the court may make an independent determination as to the obligations of each party under the contract as a matter of law. (Storek & Storek, Inc. v. Citicorp Real Estate, Inc., 100 Cal.App.4th 44, 55.)

The following facts are undisputed: that the policy contains a cooperation clause requiring the person seeking coverage to cooperate concerning the claim, and allow Progressive to take signed and recorded statements and EUOs. (Policy, Part VI, page 25-26, Exhibit “C” to Declaration of Monica Jennings); that the Policy required the cooperation of “the spouse or registered domestic partner of a named insured if residing in the same household at the time of the loss.” (Id. p. 2, paragraph “14.b.”); that Progressive twice demanded an EUO from Gabriella Lozano (“Lozano”), but she refused. (Decl. of Jennings, para. 40); Progressive denied the claim, in part, because Lozano failed to provide an EUO. (Id. at 47).

Plaintiffs argue that Lozano was not required to appear because she was not residing with her husband Esteban at the time of the loss on 2/06/09, as required under the Policy. Esteban claims they were living apart, and did not move-in together until 3/21/09. (Decl. of Esteban, paras. 3 and 6). However, Esteban made a sworn statement earlier that Lozano’s address was the same as his at the time of the loss, so his declaration on this point must be disregarded. (Affidavit of Vehicle Theft (“AOT”), Claims File, Ex. A, p. 415). “Where a party’s self-serving declarations contradict credible discovery admissions and purport to impeach that party’s own prior sworn testimony, they should be disregarded.” (Archdale v. American Int’l Specialty Lines Ins. Co., 154 Cal.App.4th 449, 473 (2007).) The AOT is not a discovery document, but an insurance investigation document. Yet, it is sworn to be true and signed in the presence of a notary public, and Esteban’s signature appears below his affirmation of its truth and a reminder of California Insurance Code §1879.2: penalty of imprisonment for false insurance claims. The AOT contains a credible admission of the same weight as a discovery admission. Thus, the statement about Lozano’s residency in Esteban’s declaration is disregarded. Moreover, Lozano admitted to Progressive’s investigators that she and Esteban lived together on the date of the loss. (Claims File, page 521; “She estimates that they went home somewhere around 3:00 AM, 2/7/09…They did not do anything once they got home. She said they went straight to bed.”). The Court finds that Progressive has carried its burden of demonstrating that Lozano resided with Esteban on the date of the loss, and Plaintiffs have produced no credible evidence to the contrary. (Aguilar, supra).

The Policy required Lozano to cooperate and provide an EUO. An “insured’s compliance with a policy requirement to submit to an examination under oath is a prerequisite to the right to receive benefits under the policy.” (Brizuela v. CalFarm Ins. Co., 116 Cal.App.4th 578, 587 (2004).) Thus, Lozano’s failure to provide an EUO was a breach of the Policy’s cooperation clause by the insureds.

Further, Esteban and Francisco Tejeda, as insureds themselves, were required to cooperate under the terms of the Policy. The following facts are undisputed: that Progressive twice demanded Esteban’s and Lozano’s cell phone records for January and February 2009, but received incomplete and altered documents (Jennings Decl. at 29); that its outside counsel demanded that Plaintiffs produce cell phone records from Lozano, but received incomplete and altered documents (Jennings Decl.); that Francisco failed to appear for an in-person statement demanded by Progressive (id.); that Esteban and Francisco never scheduled a time to appear for their EUOs, when it was their responsibility to do so (id.; Brizuela, supra at 589); and that Progressive was prejudiced. The obligation to cooperate in all of these instances was prerequisite to Plaintiffs’ right to receive benefits under the policy. (Id. at 587). The court finds that Progressive has carried its burden of demonstrating that Esteban and Francisco Tejeda failed to cooperate, and Plaintiffs have produced no evidence to the contrary. Plaintiffs argue only that Lozano was the one that did not produce the phone records or provide an EUO because she was under no obligation to do so, a contention that is not supported by the evidence or the contract. Thus, the insureds were in breach of the Policy’s cooperation clause. Therefore, summary adjudication of the first cause of action for breach of contract is granted in favor of Defendant.

SECOND CAUSE OF ACTION FOR DECLARATORY RELIEF:

Defendant moves for summary adjudication on the grounds that the undisputed facts show that the declaration of rights which plaintiffs seek is prospective only, and there is no basis for declaratory relief where only past wrongs are alleged.

The elements of an action for declaratory relief are an actual bona fide dispute between parties as to a legal obligation arising under the circumstances specified in CCP § 1060 and, in addition, the controversy must be justiciable – i.e., presents a question as to which there is more than one answer. (Western Motors Servicing Corp. v. Land Development & Inv. Co. (1957) 152 Cal.App.2d 509.)

Defendant has shown an actual controversy, i.e., the terms and conditions of the contract of insurance, as discussed above. Further, the insureds were in breach of the Policy’s cooperation clause. Plaintiffs failed to oppose the motion as to the second cause of action for declaratory relief. Thus, Defendant had the right to deny Plaintiffs’ claim. Therefore, the motion for summary adjudication of the second cause of action for declaratory relief is granted in favor of Defendant.

For the foregoing reasons, the motion for summary judgment is granted in favor of Defendant.