2012-00123800-CU-BC

Stefan Faghi vs. Paula Foster State Farm Ins. Agency, Inc.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Ellingson, Stephen P.

*** If oral argument is requested, the parties are directed to notify the clerk and opposing counsel at the time of the request which of moving defendants’ 12 issues (based on 258 Undisputed Material Facts) presented for summary adjudication and/or which of plaintiff’s 64 Additional Material Facts will be addressed at the hearing. The parties should be prepared to point to specific admissible evidence which is claimed to show the existence or non-existence of a triable issue of material fact. ***

Defendants State Farm General Insurance Company (“SF General”), State Farm Mutual Automobile Insurance Company (“SF Mutual Auto”), State Farm Fire and Casualty Company (“SF Fire”), Teresa L. Moon (“Moon”), Estate of Paula Foster (“Foster Estate”), and Teresa L. Moon as Executor of the Paula C. Foster Revocable Trust’s (“Foster Trust”) (collectively “Defendants”) motion for summary adjudication of plaintiff’s six causes of action and claim for punitive damages is GRANTED IN PART, DENIED IN PART and DROPPED IN PART, as follows.

Both moving and opposing counsel failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including all declarations) with a table of contents when evidence exceeds 25 pages.

For unknown reasons, Defendants’ moving Memorandum of Points & Authorities does not include proper citations to the facts set forth in Defendants’ moving Separate Statement.

The court notes that had the allegations of the complaint been more carefully crafted and the unnecessary defendants been voluntarily dismissed by plaintiff, the present motion could have been substantially narrowed and there would have been a substantial reduction in the judicial resources expended in preparing a ruling on this motion.

Factual Background

This action involves a first-party insurance dispute over uninsured/underinsured motorist (“UIM”) coverage for a 2009 motor vehicle accident. Plaintiff Faghi, a medically retired police officer, commenced this action on 5/08/2012 alleging he possessed not only a “STATE FARM automobile insurance policy from the DEFENDANTS which…provided for coverage for personal liability and [UIM] coverage…” but also “a STATE FARM umbrella insurance policy from DEFENDANTS…,” with the latter term defined to include Paula Foster State Farm Insurance Agency, Inc.; Paula Foster, individually and dba Paula Foster State Farm Insurance Agency; State Farm Insurance Companies; and “Does I through X.” In short, plaintiff contends that defendant Foster misrepresented the UIM coverage in the umbrella policy which he instructed Foster to obtain for him and that he is entitled to additional UIM benefits under the automobile policy.

The 2012 complaint asserts causes of action for declaratory relief, breach of contract, “fraud,” negligent misrepresentation, negligence and breach of the implied covenant of good faith and fair dealing. Plaintiff subsequently added several new Doe defendants including the Foster Estate, Moon, Foster Trust and SF Fire but he has not amended his substantive allegations or causes of action. In late 2012 this action was stayed pending completion of arbitration proceedings but the extent to which arbitration progressed remains unclear.

On 10/10/2018 this court issued a minute order dismissing defendants Paula Foster State Farm Insurance Agency, Inc.; Paula Foster, individually and dba Paula Foster State Farm Insurance Agency; and SF Fire on account of plaintiff’s failure to serve these defendants with the summons and complaint within three years.

Moving Papers. Defendants now move for summary adjudication of the individual causes of action and punitive damages claim on various grounds:

1. Plaintiff’s causes of action for negligence and declaratory relief fail because Paula Foster (“Foster”) did not owe a duty to procure UIM coverage under plaintiff’s umbrella policy since plaintiff did not ask her to procure UIM coverage under the umbrella policy and since Foster did not represent that the umbrella policy issued by SF General included UIM coverage, relying on Undisputed Material Fact (“UMF”) Nos. 1-34;

2. The fraud cause of action fails because plaintiff cannot produce evidence that Foster made an actionable misrepresentation, citing UMF Nos. 35-64;

3. The negligent misrepresentation cause of action fails because plaintiff cannot produce evidence that Foster made an actionable misrepresentation, advancing UMF Nos. 65-92 as support;

4. Defendant Moon is entitled to summary judgment because plaintiff has admitted he has no claims against Moon individually, offering UMF Nos. 93-114;

5. The fraud, negligent misrepresentation and negligence causes of action as against defendants Foster Estate, Foster Trust and Moon are barred by the statute of limitations, citing UMF Nos. 115-141;
6. Defendants Foster Estate, Foster Trust and Moon can have no liability on the declaratory relief or breach of contract causes of action since they were not parties to any of the insurance contracts at issue, relying on UMF Nos. 142-157;

7. Defendant SF Mutual Auto is entitled to summary adjudication of the declaratory relief, breach of contract and breach of the implied covenant of good faith causes of action because plaintiff has admitted he has no such claims against SF Mutual Auto, advancing UMF Nos. 158-169 as support;
8. Defendant SF General is entitled to summary adjudication of the declaratory relief, breach of contract and breach of the implied covenant of good faith causes of action because the umbrella policy did not include UIM coverage, citing UMF Nos. 170 -181;

9. Defendant SF General is entitled to summary adjudication of the breach of the implied covenant of good faith cause of action since it had a reasonable basis to deny plaintiff’s UIM claim on account of the umbrella policy not including UIM coverage, offering UMF Nos. 182-197;

10. The fraud, negligent misrepresentation, negligence and breach of implied covenant causes of action as against defendant SF Fire are barred by the statute of limitations, relying on UMF Nos. 198-214;
11. Defendant SF Fire is entitled to summary adjudication of the declaratory relief, breach of contract and breach of implied covenant causes of action because SF Fire was not a party to any of the insurance contracts at issue, advancing UMF Nos. 215-226 as support;

12. Plaintiff’s claim for punitive damages fails because he cannot produce clear and convincing evidence that any defendant acted with malice, fraud or oppression, citing UMF Nos. 227-258.

Opposition. Plaintiff opposes the motion but expressly admits that nearly all of Defendants’ UMF are undisputed. As to the few UMF which the opposition purports to “deny” (i.e., UMF Nos. 33, 63, 134 (all of which are identical)), plaintiff cited no evidence whatsoever to support his claim of having “no recollection of receiving such a letter” and consequently, as explained below, the court must construe all of Defendants’ UMF as being undisputed. (See also, CRC Rule 3.1350(f)(2) [requiring separate statement in opposition to include citation to evidence for each fact claimed to be disputed].) However, plaintiff did offer 64 of his own Additional Material Facts (“AMF”) in an attempt to create triable issues of fact which preclude summary judgment/adjudication, although a number of these AMF do not meet CRC Rule

3.1350(a)(2)’s definition of “material facts.” (See also, CRC Rule 3.1350(f)(3) [separate statement should not include facts which are “not pertinent to the disposition of the motion”].)

Objections to Evidence

Plaintiff (timely) filed no written objections to evidence.

Defendants’ six written (hearsay) objections to plaintiff’s evidence are overruled.

Defendants’ purported objections to evidence found in their response to plaintiff’s AMF are overruled because they fail to comply with CRC Rule 3.1354(b)’s express requirements, including that they be set forth in a separate document and quote or set forth the objectionable material. To the extent Defendants have “objected” to plaintiff’s AMF themselves, such objections are overruled because objections are properly directed solely at evidence. (See, CRC Rules 3.1352, 3.1354.)

Analysis

Defendants’ Initial Burden of Production. The threshold question presented here is whether Defendants’ moving papers are sufficient to carry their initial burden under Code of Civil Procedure §437c(p)(2) by showing entitlement to summary adjudication on the 12 issues presented in the notice of motion. Coupled with the opposition’s effectively admitting that all of Defendants’ 258 UMF are undisputed and failing to assert any other argument suggesting Defendants’ moving papers were insufficient to satisfy their initial burden, this court holds that Defendants did carry their initial and have therefore successfully shifted to plaintiff the burden to produce admissible evidence establishing the existence of at least one triable issue of material fact which precludes summary adjudication on one or more of the various issues identified in the notice of motion.

Plaintiff’s Burden of Production. Because plaintiff has essentially admitted that all of Defendants’ 258 UMF are undisputed, the only real question requiring resolution here is whether the opposition’s 64 AMF and their supporting evidence is when construed liberally (see, e.g., DiLoreto v. Bd. of Education (1999) 74 Cal.App.4th 267; Alvarez v. State of California (1999) 75 Cal.App.4th 903) sufficient to establish any triable issue of material fact that precludes summary adjudication of the 12 individual issues posed by Defendants in their notice of motion, each of which will now be addressed.

1. (Negligence and declaratory relief causes of action fail because Foster did not owe a duty to procure UIM coverage under plaintiff’s umbrella policy since plaintiff did not ask for UIM coverage and since Foster did not represent that the umbrella policy included UIM coverage.) This court finds the evidence cited in support of plaintiff’s AMF Nos. 14-18 is, especially when construed liberally, sufficient to demonstrate the existence of a triable issue of fact on the question of whether plaintiff had requested an umbrella policy providing UIM coverage and given that Defendants’ framed this first issue for summary adjudication in the conjunctive rather than the disjunctive, summary adjudication must be denied regardless of whether plaintiff created a triable issue of fact relative to whether Foster represented to plaintiff his umbrella policy included UIM coverage. Nevertheless, plaintiff’s AMF Nos. 19-21 and the evidence cited as support is in this court’s view enough to allow a reasonable factfinder to conclude that Foster did represent to plaintiff there would be UIM coverage pursuant to the umbrella policy. Consequently, summary adjudication is DENIED as to this first issue.

2. (Fraud cause of action fails because plaintiff cannot produce evidence Foster made an actionable misrepresentation.) Based on plaintiff’s AMF Nos. 19-21 and construing the evidence cited as support liberally as required by California law, this court holds that plaintiff has carried his burden of presenting evidence sufficient to

constitute a triable issue of fact relating to whether Foster falsely represented the umbrella policy included UIM coverage. Additionally, while Defendants’ moving points

& authorities argue on Pages 14:25-15:4 that plaintiff’s misrepresentation causes of action also fail to establish the essential element of reasonable and justifiable reliance inasmuch as plaintiff admits to having read the policy and should therefore either knew or should have known there was no UIM coverage, the court cannot grant summary adjudication on this potential ground since it was not actually set forth in the notice of motion or in the separate statement as required by CRC Rule 3.1350(b). For these reasons, summary adjudication of the second issue must be DENIED.

3. (Negligent misrepresentation cause of action fails because there is no evidence that Foster made an actionable misrepresentation.) Summary adjudication is DENIED as to this third issue as well for the same reasons discussed in the preceding paragraph relating to the second issue.

4. (Defendant Moon is entitled to summary judgment because plaintiff admitted he has no claims against Moon individually.) The opposition concedes on Page 20:20-23 that this individual should be dismissed because plaintiff has no valid cause of action against her and thus, summary judgment shall be GRANTED in favor of defendant Moon individually.

5. (The fraud, negligent misrepresentation and negligence causes of action as against Foster Estate and Foster Trust are barred by the statute of limitations since the 4/8/2015 Doe Amendments do not “relate back” to the filing of the complaint on 5/8/2012 because plaintiff was not “genuinely ignorant” of the identity and potential liability of these Doe defendants when he commenced this action.) In light of the opposition’s admission on Page 23:3-4 that plaintiff did not before naming Foster Trust as a Doe defendant on 4/8/2015 first file a claim pursuant to Probate Code §9351, summary judgment is GRANTED as to defendant Foster Trust but summary adjudication is DENIED as to the Foster Estate because plaintiff’s AMF Nos. 53-62 and the evidence cited therein is in this court’s opinion sufficient to establish a triable issue of fact relating to the questions of whether plaintiff was at the time this action was commenced aware defendant Foster had died, whether plaintiff knew or should have known of the identity and liability of the Foster Estate later added via Doe Amendment on 4/8/2015, and/or whether the causes of action against the Foster Estate for fraud, negligent misrepresentation and negligence causes of action are barred by the statute of limitations.

6. (Defendants Foster Estate, Foster Trust and Moon can have no liability on the declaratory relief or breach of contract causes of action since they were not parties to any of the insurance contracts at issue.) Finding that the opposition offered no evidence which tends to show that any of these three Doe defendants could have any personal liability for any benefits potentially available to plaintiff under any of the insurance contracts at issue and therefore rejecting the opposition’s suggestion that an agent who merely sells an insurance policy issued by an insurer is considered a “party” to the insurance policy, the court will GRANT summary adjudication in favor of defendants Foster Estate, Foster Trust and Moon on both the declaratory relief and the breach of contract causes of action.

7. (SF Mutual Auto is entitled to summary adjudication of the declaratory relief, breach of contract and breach of the implied covenant of good faith causes of action because plaintiff has admitted he has no such claims against SF Mutual Auto.) As

none of plaintiff’s AMF appears to dispute this contention, summary adjudication will be GRANTED on Defendants’ seventh issue.

8. (SF General is entitled to summary adjudication of the declaratory relief, breach of contract and breach of the implied covenant of good faith causes of action because the umbrella policy issued by SF General did not include UIM coverage.) Because plaintiff’s AMF and evidence does not create a triable issue of material fact regarding UIM coverage under the SF General umbrella policy issued to plaintiff, SF General can have no liability pursuant to plaintiff’s causes of action for the declaratory relief, breach of contract and breach of the implied covenant and thus, SF General is GRANTED summary adjudication as to these three causes of action. While the opposition argues on Page 24:13-19 that SF General is vicariously liable for Foster’s action in her capacity as an agent for SF General and on Pages 24:20-25:11 that SF General may itself have been negligent, neither of these arguments precludes summary adjudication in favor of SF General on this eighth issue because it does not dispose of those causes of action which are based at least in part on Foster’s own allegedly tortious conduct (i.e., fraud, negligent misrepresentation and negligence) and for which SF General might bear vicarious liability or dispose of any purported claim against SF General for its own direct negligence.

9. (SF General is entitled to summary adjudication of the breach of the implied covenant of good faith cause of action since it had a reasonable basis to deny plaintiff’s UIM claim on account of the SF General umbrella policy not including UIM coverage.) The opposition having failed to produce evidence creating a triable issue of fact relating to the propriety of SF General denying plaintiff’s UIM claim based on the lack of UIM coverage in the SF General umbrella policy, summary adjudication is GRANTED on the ninth issue as well.

10. (Fraud, negligent misrepresentation, negligence and breach of implied covenant causes of action against SF Fire are barred by statute of limitations.) The motion for summary adjudication on this ground is DROPPED as moot since SF Fire was dismissed from the action by order dated 10/10/2018.

11. (SF Fire is not liable on declaratory relief, breach of contract and breach of implied covenant causes of action because SF Fire was not party to any insurance contract.) The motion for summary adjudication on this ground is DROPPED as moot since SF Fire was dismissed from the action by order dated 10/10/2018.

12. (Plaintiff’s claim for punitive damages fails because there is no clear and convincing evidence that any defendant acted with malice, fraud or oppression.) Since plaintiff’s AMF in opposition fail to proffer evidence sufficient for a reasonable factfinder to conclude by the applicable “clear and convincing evidence” standard either malice, fraud, or oppression on the part of any of the current Defendants (see, e.g., Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 824, 850-857 [It is not enough for a plaintiff opposing summary judgment/adjudication to produce just some evidence; the evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the plaintiff by the standard of proof applicable to trial on the matter (e.g., preponderance of the evidence, clear and convincing, etc.)], summary adjudication is GRANTED as to plaintiff’s claim for punitive damages as well.

Conclusion

Based on the foregoing, Defendants’ motion for summary adjudication is granted as to Issue Nos. 4, 6-9 and 12 but denied as to Issue Nos. 1-3 and 5 (except as the latter relates to Doe defendant Foster Trust). The motion is dropped as moot as to Issue Nos. 10-11 since SF Fire was previously dismissed.

Since summary adjudication is not granted as all causes of action as to any defendant other than defendants Moon individually and Foster Trust, the alternative motion for summary judgment must be denied as to all Defendants except Doe defendants Moon individually and Foster Trust.

Pursuant to CRC Rule 3.1312, moving counsel to prepare a judgment of dismissal as to defendants Moon individually and Foster Trust.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)