Filed 2/7/20 Ramirez-Ceniceros v. Pacific Specialty Ins. Co. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOSE LUIS RAMIREZ-CENICEROS,

Plaintiff and Appellant,

v.

PACIFIC SPECIALTY INSURANCE COMPANY,

Defendant and Respondent.

A155905

(Contra Costa County

Super. Ct. No. MSC15-01829)

Appellant Jose Luis Ramirez-Ceniceros (Ramirez) sustained injuries when his roommate, Julio Flores (Flores), mistook Ramirez to be an intruder in their rental home and inadvertently shot him. Both Ramirez and Flores were insured under a renter’s insurance policy issued by respondent Pacific Specialty Insurance Company (PSIC). The policy provided liability coverage for claims made against an insured for damages from bodily injury. Ramirez submitted a claim to PSIC for payment of the policy’s liability limits. After PSIC denied the claim, Ramirez sued PSIC for breach of contract and bad faith denial of coverage. The trial court granted summary judgment in favor of PSIC, finding the policy excluded Ramirez’s claim from coverage. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In late 2014, Ramirez and Flores rented a home in Antioch. As part of their lease agreement, the homeowner required them to have renter’s insurance. On October 25, 2014, Ramirez and Flores went to Crown North Insurance (Crown), an insurance broker, to obtain a renter’s insurance policy. A Crown agent presented Ramirez with an application to purchase renter’s insurance from PSIC. Ramirez signed the application. Flores, who was present at Crown’s office that day, did not sign the application. Crown submitted the application to PSIC, which accepted the application and issued a renter’s insurance policy to both Ramirez and Flores for a one-year term. Crown printed and gave Ramirez a folder with a copy of the declarations page and booklet of the policy.

On October 27, 2014, PSIC mailed a copy of the policy to Flores and Ramirez. That same day, Crown discovered a spelling error in the address of the rental home on the declarations page and sent PSIC a request to correct the address. Two days later, PSIC amended the declarations page to reflect the correct address and mailed Flores and Ramirez the amended policy.

The policy identified both Ramirez and Flores as named insureds. Under “Liability Coverages,” the policy contained a personal liability coverage clause, which stated that “[i]f a claim is made or a suit is brought against an insured for damages because of bodily injury . . . , we will: [¶] 1. Pay up to our limit of liability for the damages for which the insured is legally liable.” (Bolding omitted). PSIC agreed to pay up to $100,000 in personal liability coverage. However, the policy contained the following exclusion, to which the parties refer as the “insured versus insured” exclusion: “Personal Liability does not apply to: [¶] . . . [¶] f. Bodily Injury to you and any Insured within the meaning of part a. or b. of Definition 3 “Insured.” (Bolding omitted). Under the policy, “ ‘you’ and ‘your’ refer to the ‘named insured’ shown in the Declarations.” (Bolding omitted).

One night in March 2015, Flores mistook Ramirez to be an intruder in their rental home and inadvertently shot Ramirez, causing him severe injuries. Antioch police responded to the scene and through its investigation, saw in plain view items that were indicative of illegal activities, such as a gun, narcotics, and cash. Following a search warrant, police uncovered approximately $15,000 in cash that was packaged in a manner consistent with the sale of narcotics. The cash was seized as evidence.

In June 2015, Ramirez submitted a claim to PSIC to recover the policy’s personal liability coverage limits of $100,000. PSIC denied the claim, explaining that the “policy specifically precludes coverage for medical payments to ‘you’ [Ramirez] as an ‘insured’ under the policy.” PSIC also denied Ramirez’s request for reconsideration.

Ramirez sued PSIC for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices under Business and Professions Code section 17200. PSIC reopened Ramirez’s claims, but ultimately denied them. In December 2016, Ramirez filed the operative second amended complaint, adding Flores as a defendant and a cause of action against him for personal injury. Flores, who left for Mexico sometime after December 2015, has not appeared in this case and a default judgment was entered against him.

In July 2018, PSIC moved for summary judgment or summary adjudication as to each cause of action, arguing that the “insured versus insured” exclusion under the policy barred coverage of Ramirez’s claim for personal liability. Ramirez countered that the policy exclusions were invalid and unenforceable because Flores did not sign the application for insurance and never received a physical copy of the policy exclusions once the policy was issued. PSIC replied to the opposition.

The trial court granted PSIC’s motion. It rejected Ramirez’s claims challenging the validity of the policy exclusions, noting that Ramirez “cannot contend with a straight face that he is entitled to all the benefits of the policy, but not bound by any of its terms that he dislikes.” After finding that the policy’s “insured versus insured” exclusion barred coverage of Ramirez’s claims, the court entered judgment in favor of PSIC.

II. DISCUSSION

Ramirez does not challenge on appeal the trial court’s grant of summary judgment with respect to his personal property claim and unfair business practices claim. We therefore review his sole contention that summary judgment should be reversed because the policy exclusions were unenforceable.

A. Standard of Review

A trial court may grant summary judgment or summary adjudication upon a showing “that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); Albert v. Mid–Century Ins. Co. (2015) 236 Cal.App.4th 1281, 1289.) The moving party bears the initial burden of showing that the opposing party cannot establish “[o]ne or more of the elements of [its] cause of action” or by showing a valid affirmative defense. (Code Civ. Proc., § 437c, subds. (o), (p)(2).) If that burden is met, the “burden shifts” to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or [an affirmative] defense.” (Id., subd. (p)(2).) “ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Burgueno v. Regents of University of California (2015) 243 Cal.App.4th 1052, 1057, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review a trial court’s grant of summary judgment de novo, and “[o]ur review of the interpretation of an insurance contract on undisputed facts is also de novo.” (Albert, at p. 1289.)

B. Inadequate Record on Appeal

At the outset, we find that the record presented by Ramirez is inadequate. Because a trial court’s judgment is presumed correct, it is the appellant’s burden of overcoming that presumption by affirmatively demonstrating error, even when the appellate court is required to conduct a de novo review. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, an appellant must provide a sufficient record to support any claim of error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294–1295.) Otherwise, the claim of error is forfeited, and the trial court is affirmed. (See Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 (Gee).)

Ramirez elected to proceed by filing an appellant’s appendix. Under rule 8.124(b)(1)(B) of the California Rules of Court, an appendix must contain all documents “necessary for proper consideration of the issues, including, for an appellant’s appendix, any item that the appellant should reasonably assume the respondent will rely on.” Ramirez’s appendix falls woefully short of this requirement. Ramirez has failed to include the operative complaint, preventing us from identifying the material issues on summary judgment. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [“The complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action.”].) And although Ramirez included PSIC’s separate statement of undisputed material facts, Ramirez omits PSIC’s motion for summary judgment, supporting declarations and evidence, reply to Ramirez’s opposition, and evidentiary objections. Ramirez also failed to include his own responses to the separate statement and he did not attach the reporter’s transcript of the hearing on the motion. As presented, appellant’s record is inadequate to determine whether any evidence in opposition creates a triable issue of fact, and we may affirm the judgment on that basis alone. (Gee, supra, 99 Cal.App.4th at p. 1416). Luckily for Ramirez, PSIC filed a respondent’s appendix augmenting the record with other pertinent materials. With the complete record now before us, we review the merits of this appeal and conclude that the trial court properly entered summary judgment in favor of PSIC.

C. Summary Judgment Was Properly Granted

Ramirez advances two contradictory arguments in support of his contention that summary judgment was improperly granted. First, he argues that the policy exclusion barring his personal liability claim was not effective because the renter’s policy in question was never sent to Flores or signed by Flores. Second, the trial court should not have interpreted the enforceability of the “insured versus insured” exclusion under the policy without first addressing whether it reached Flores. Neither contention has merit.

As an initial matter, we agree with the trial court’s observation that Ramirez’s argument is “muddled, but ultimately self-defeating.” If, as Ramirez claims, the policy is invalid because it was not properly sent, then the contract was never formed and Ramirez has no avenue to recover under his breach of contract theories, “defeat[ing] this lawsuit from the get-go.” The notion that Ramirez is entitled to benefits under the policy but may negate its other terms and exclusions is without merit.

In any event, there is no legal or factual basis for his claim that the exclusion was not binding on him because Flores did not receive a copy of the policy in the mail. Ramirez fails to cite any authority for this proposition. In fact, several cases hold otherwise. (See, e.g., Golden Eagle Ins. Co v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1388 [“It is not necessary, however, for an insurance policy to be physically delivered to the insured in order for the policy to be effective.”], citing Hartford Accident & Indemnity Co. v. McCullough (1965) 235 Cal.App.2d 195, 204 (Hartford) [the “ ‘binding effect [of an insurance policy] does not depend on its manual delivery to, or possession by, insured, but rather on the intention of the parties as manifested by their acts or words’ ”].) “ ‘The test of a sufficient delivery is whether the company or its agent intentionally parts with control or dominion of the policy and places it in the control or dominion of insured or some person acting for him with the purpose of thereby making a valid and binding contract of insurance.’ ” (Hartford, at p. 204.)

Applying these principles, the undisputed evidence demonstrates that PSIC met the test for sufficient delivery of the policy. On October 29, 2014, PSIC mailed a copy of the declarations page, privacy policy, and complete policy booklet to Flores and Ramirez. Ramirez tries to create a triable issue of fact by claiming that, as of October 27, 2014, the rental address identified in the declarations page contained a spelling error, and therefore PSIC likely mailed the policy to the wrong address. Ramirez, however, admits that Crown North discovered the error that same day and sent a request for correction of the address to PSIC. Indeed, the request form bore his signature. Ramirez does not dispute that PSIC corrected the policy accordingly, printed a copy of the amended policy, and mailed that version to Flores and Ramirez, who lived at the same address. Thus, even if Flores and Ramirez had not received the policy, the uncontroverted evidence that PSIC mailed the policy to them amounts to sufficient delivery and gives validity and effect to the policy. (See Hartford, supra, 235 Cal.App.2d at p. 204.) We conclude Ramirez has failed to raise a triable issue of fact concerning the validity of the policy’s exclusions.

Ramirez’s second contention that it was improper for the trial court to interpret the applicability of the “insured versus insured” policy exclusion without first addressing whether the policy reached Flores must also be rejected. Ramirez makes no attempt to discuss or cogently analyze this exclusion. Instead, he refers us to his memorandum of points and authorities in opposition to the summary judgment motion, and vaguely suggests that he may address this issue through a later motion to strike or a reply brief, neither of which he has filed. Ramirez has forfeited any challenge to the trial court’s interpretation of the exclusion in favor of PSIC. (See Cahill, supra, 194 Cal.App.4th at p. 956 [“ ‘The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’ ”]; Cold Creek Compost, Inc. v. State Farm Fire & Casualty Co. (2007) 156 Cal.App.4th 1469, 1486 [“Arguments cannot properly be raised for the first time in an appellant’s reply brief, and accordingly we deem them waived in this instance.”].)

Our independent review of the policy language also confirms that Ramirez’s claim for bodily injury was excluded from coverage under the plain terms of the contract. The relevant exclusion states that “[p]ersonal liability does not apply to [¶] . . . [¶] . . . [b]odily injury to you and any insured” (italics added, bolding omitted). “You” is defined in the policy as a “ ‘named insured’ shown in the Declarations.” Because Ramirez is indisputably a “named insured” identified in the declarations page, and Flores is an “insured” under the contract, this exclusion clearly bars Ramirez’s personal liability claim. PSIC did not breach its contract with Ramirez by denying his claim and thus summary judgment was properly granted.

Ramirez’s auxiliary bad faith denial claims under the implied covenant of good faith and fair dealing necessarily fail as well. (See San Diego Housing Com. v. Industrial Indemnity Co. (1998) 68 Cal.App.4th 526, 544 [“Where a breach of contract cannot be shown, there is no basis for a finding of breach of the covenant” of good faith and fair dealing]; Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 408 [“[W]ithout coverage there can be no liability for bad faith on the part of the insurer.”].) Thus, summary judgment was appropriate as to Ramirez’s bad faith claim denial of coverage.

III. DISPOSITION

The judgment is affirmed. PSIC is entitled to its costs on appeal.

_________________________

Sanchez, J.

WE CONCUR:

_________________________

Humes, P. J.

_________________________

Margulies, J.

A155905 Ramirez-Ceniceros v. Pacific Specialty Insurance