Filed 3/10/20 Patterson v. Mid-Century Insurance Co. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

ROBERT G. PATTERSON, JR.,

Plaintiff and Appellant,

v.

MID-CENTURY INSURANCE COMPANY,

Defendant and Respondent.

2d Civil No. B295187

(Super. Ct. No. 56-2017-00498420-CU-BC-VTA)

(Ventura County)

Robert G. Patterson, Jr. sued in propria persona Mid Century Insurance Company (Mid-Century) alleging breach of contract and bad faith. Mid-Century obtained summary judgment. We affirm.

FACTS

On March 6, 2011, Patterson was driving his pick-up truck in Oxnard when he collided with the rear-end of a car driven by Karina Medina. The police report stated that Medina was stopped for a pedestrian when Patterson struck her car. About 30 minutes prior to the accident, Oxnard police had cited Medina for driving without a valid license.

Patterson was insured by Mid-Century. Mid-Century sent Patterson a notice that based on the police report and statements made by Patterson, it determined Patterson was at least 51 percent at fault. Patterson complained that the accident was Medina’s fault. Mid Century reviewed the matter twice, but did not change its determination that Patterson was at fault.

Patterson submitted claims for his medical expenses under the uninsured motorist provision of his policy. Mid-Century denied the claims because Medina was insured. The notice included information on how Patterson could contact Medina’s insurance carrier.

Mid-Century paid Patterson’s medical expenses under the medical expenses provision of the policy. These expenses were incurred within two years of the date of the accident. It rejected claims for medical expenses incurred years later because the medical expenses provision of the policy covers only expenses incurred within two years of the date of the accident.

Patterson tendered a bill from the City of Oxnard for $1,000 relating to emergency response costs incurred by the city in conjunction with the accident. A notice from the city stated that because Patterson was arrested for driving under the influence, Government Code section 53150 precludes his insurance from paying the debt. Mid-Century refused to pay for that reason.

In May 2012, Mid-Century settled Medina’s action, obtaining a dismissal with prejudice and a release of all claims. Patterson objected to the settlement on the ground he was not at fault.

Patterson’s policy allows Mid-Century to cancel the policy for non-payment of premium on not less than 10 days’ notice. On May 17, 2011, Mid-Century sent Patterson notice that his policy would be cancelled if he did not submit a premium payment by May 31, 2011. Patterson did not tender payment by that date. On June 9, 2011, Mid-Century sent Patterson a notice that the policy had been cancelled. The cancellation did not affect Patterson’s claim arising from the accident.

Patterson’s Action Against Mid-Century

On June 30, 2017, Patterson brought an action against Mid-Century. Patterson’s second amended complaint alleged causes of action for breach of contract, breach of the covenant of good faith and fair dealing, equitable estoppel, and vicarious liability.

The gravamen of Patterson’s action is that Mid-Century breached his policy in bad faith by: (1) determining uninsured motorist coverage did not apply because Medina was insured; (2) defending and settling Medina’s lawsuit; (3) refusing to pay for medical expenses incurred more than two years after the accident; (4) determining that Patterson was at fault for the accident; (5) cancelling Patterson’s policy for non-payment of premium; and (6) failing to inform Patterson of the statute of limitations.

Mid-Century moved for summary judgment on the grounds that the statutes of limitations barred the action and that the substantive allegations lacked merit. The trial court granted the motion.

DISCUSSION

I.

Summary judgment is properly granted only if all papers submitted show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The court must draw all reasonable inferences from the evidence set forth in the papers except where such inferences are contradicted by other inferences or evidence which raise a triable issue of fact. (Ibid.) In examining the supporting and opposing papers, the moving party’s affidavits or declarations are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.)

The moving party has the initial burden of showing that one or more elements of a cause of action cannot be established. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) Where the moving party has carried that burden, the burden shifts to the opposing party to show a triable issue of material fact. (Ibid.) Our review of the trial court’s grant of the motion is de novo. (Id. at p. 767.)

II.

Mid-Century requests that we dismiss Patterson’s appeal for failure to apply rules governing the form and content of his briefs.

Mid-Century points out that Patterson’s brief fails to state each point separately under an appropriate heading. (Cal. Rules of Court, rule 8.204 (a)(1)(B).) But that is a comparatively minor flaw. A much larger problem is that Patterson’s brief is unintelligible.

We could dismiss the appeal for failure to state an intelligible legal argument. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) We elect not to. But Patterson will not be heard to complain if we miss what he believes is his argument.

III.

Continuance

Patterson appears to contend that the trial court abused its discretion in continuing the trial date 21 days so that the motion for summary judgment could be heard.

Code of Civil Procedure section 473c, subdivision (a)(3) requires a motion for summary judgment be heard no later than 30 days prior to trial unless the court for good cause orders otherwise. The earliest date that Mid-Century could obtain for a hearing on its motion was within the 30-day period. The court continued the trial date at Mid-Century’s ex parte request so that a hearing on the motion could be heard no later than 30 days prior to trial.

The decision whether to grant or deny a continuance is committed to the sound discretion of the trial court. (Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126.) The policy of the law is for the trial court to adjust its calendar so that summary judgment motions may be heard within the time limits established by Code of Civil Procedure section 473c. (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 530.) The court did not abuse its discretion.

Moreover, Patterson fully participated in opposing the motion for summary judgment without objecting to the continuance of the trial date or the timing of the hearing on the motion. Patterson has waived his right to raise the matter on appeal. (See In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [failure to object is the most obvious form of waiver].)

IV.

Statutes of Limitations

The statute of limitations for a breach of a written contract is four years (Code Civ. Proc., § 337, subd. (a).) The statute of limitations on breach of the covenant of good faith and fair dealing is two years. (Code Civ. Proc., § 339, subd. (1).) All of the operative dates alleged in the complaint occurred more than five years prior to Patterson filing the action.

Patterson appears to argue that Mid-Century had a duty to advise him of the statutes of limitations. No authority supports the argument.

Patterson’s reliance on California Code of Regulations, title 10, section 2695.4, subdivision (a) is misplaced. The regulation states, in part: “Every insurer shall disclose to a first party claimant or beneficiary, all benefits, coverage, time limits or other provisions of any insurance policy issued by that insurer that may apply to the claim presented by the claimant.” By its terms, the regulation applies to time limits that are “provisions of any insurance policy.” It does not apply to statutes of limitations. (See Juarez v. 21st Century Ins. Co. (2003) 105 Cal.App.4th 371, 376 [regulation applies to time limits contained in an insurance policy rather than a statute].)

Patterson argues his action is within the window of the statute of limitations under the “delayed discovery” rule. It is not clear what Patterson means by the “delayed discovery” rule. He appears to mean he was unaware of the statutes until after the time had passed. If that is what he means, he presents no authority that being unaware extends the running of the statutes.

The statutes of limitations are alone grounds for granting Mid-Century’s motion for summary judgment. Nevertheless, we briefly review the substantive grounds for granting the motion.

V.

Here we briefly explain why Patterson’s substantive allegations have no merit.

(a) Determination of Fault

California Code of Regulations, title 10, section 2632.13, requires Mid-Century to make a determination of fault. Mid Century did so. It found Patterson at least 51 percent at fault. It reasonably based its determination on the police report and statements made by Patterson. Patterson does not agree with Mid-Century’s determination of fault. He cites no authority requiring his agreement.

Patterson points out that Mid-Century’s notice of determination of fault omitted reference to title 10 of the Code of Regulations. Patterson claims the omission caused him emotional distress.

(b) Uninsured Motorist

The uncontradicted evidence shows that Medina was insured at the time of the accident. That Medina had no license does not mean she was uninsured. (Landeros v. Torres (2012) 206 Cal.App.4th 398, 404-405.) Uninsured motorist coverage did not apply to the accident.

(c) Medical Expense Coverage

Patterson’s policy covers medical expenses arising from the accident incurred within two years of the date of the accident. The undisputed evidence is that Mid-Century covered Patterson’s medical expenses incurred within two years of the date of the accident. Under the express terms of the policy, Mid-Century has no obligation to cover medical expenses incurred thereafter.

(d) Emergency Response Costs

Patterson received a bill from the City of Oxnard for $1,000 for emergency response costs relating to the accident. A notice from the city stated that Government Code section 53150 precludes Patterson’s insurance from paying those costs. Patterson cites no authority requiring Mid-Century to pay the emergency response costs.

(e) Defense and Settlement of Medina’s Action

Mid-Century had an obligation under the policy to defend Medina’s action against Patterson. Where, as here, an insurer provides a defense without a reservation of rights, the insurer has the right to control the litigation. (James 3 Corp. v. Truck Ins. Exchange (2001) 91 Cal.App.4th 1093, 1103, fn. 3.) Patterson cites no authority that prevents Mid-Century from settling the case within policy limits without his consent.

(f) Cancellation of Policy

Patterson’s policy allows Mid-Century to cancel the policy on at least 10 days’ notice for non-payment of the premium. It is undisputed that Mid-Century gave notice to Patterson on May 17, 2011, that if he did not pay the premium by May 31, 2011, Mid-Century would cancel the policy. Patterson did not tender payment by May 31, 2011. Mid-Century properly cancelled Patterson’s policy.

(g) Estoppel and Vicarious Liability

Equitable estoppel is not a stand-alone cause of action. (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1463.)

In order for Mid-Century to be vicariously liable, one of its employees or agents must have committed a wrong. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.) Mid Century’s motion for summary judgment amply demonstrates that neither Mid-Century nor its employees or agents committed any wrong toward Patterson.

DISPOSITION

The judgment is affirmed. Costs are awarded to respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

PERREN, J.

TANGEMAN, J.

Kevin G. DeNoce, Judge

Superior Court County of Ventura

______________________________

Robert G. Patterson, Jr., in pro. per., for Plaintiff and Appellant.

Haight Brown & Bonesteel, Valerie A. Moore, Christopher Kendrick and Arezoo Jamshidi for Defendant and Respondent.