Motion for Summary Judgment (Judge David Chaffee)

Defendants? Motion for Summary Judgment/Adjudication

Defendants Maryam Rezvani and Truck Insurance Exchange move for summary judgment or adjudication as to all 4 causes of action in the First Amended Complaint filed on 11/10/15 by Plaintiffs Mehran Ghahremani and Nasran Enterprises Inc. dba Golden Wrench.

The court GRANTS the motion for summary judgment and the motions for summary adjudication for the reasons set forth below.

  1. Burden of Proof

Defendants bring this motion for summary adjudication.? To prevail, Defendants have the burden of proving that there is a complete defense or that Plaintiffs cannot establish one or more elements of each of their causes of action.? (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.)? To show that Plaintiffs cannot establish their claims, Defendants may either (1) affirmatively negate one or more elements of each claim, or (2) by relying on Plaintiffs? inadequate discovery responses, show that Plaintiffs do not possess and cannot reasonably obtain needed evidence.? (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 855.)

 

The initial burden of production is on Defendants to show by a preponderance of the evidence, that it is more likely than not that a given element cannot be established or that a given defense can be established.?? The ultimate burden of persuasion also rests on Defendants, as the moving parties.?? (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.)

 

If Defendants carry their initial burden of production, the burden of production shifts to Plaintiffs to show that a triable issue of material fact exists.? Plaintiffs do this if they can show, by a preponderance of the evidence, that it is more likely than not that a given element can be established or that a given defense cannot be established.? (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850, 852.)

 

In determining whether Plaintiffs have met their shifted burden of production, the court must evaluate the Plaintiffs? evidence independently.? That is, the court may not weigh the Plaintiff?s evidence or inferences against the Defendant?s, as if the court were sitting as a trier of fact.

 

If the Plaintiffs meet their shifted burden, then the court must deny summary judgment, even if Defendants have presented conflicting evidence.? If the Plaintiffs meets their shifted burden, a reasonable trier of fact could find for Plaintiffs and a triable issue of fact does exist for the jury to consider. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 856-857.)

 

However, the court is entitled to consider all of the evidence presented by both parties, so that documents and evidence presented by Plaintiffs in opposition to the motion may cure evidentiary gaps in the moving papers. (Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1997 ed. & 2002 Supp.) Summary Judgment, ? 10:251, p. , citing Villa v. McFerren (1995) 35 Cal.App.4th 733, 749, 41 Cal.Rptr.2d 719, 730; Code Civ. Proc., ? 437c (c) [The court shall consider all the papers submitted, all admissible evidence therein, and all inferences reasonably deducible therefrom.)

 

In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment.? Any doubts as to whether a triable issue of material fact exist are to be resolved in favor of the party opposing summary judgment.? (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.)

 

  1. 1st COA: Breach of Contract

 

GRANTED as to the 1st cause of action.

 

Defendants make a prima facie showing that the first cause of action for breach of the insurance contract is time-barred by the two-year statute of limitations set forth in the insurance policy.

 

Plaintiffs suffered a fire loss on 7/8/10 and the next day on 7/9/10 made a claim under their insurance policy, which Defendants breached by refusing to cover the fire damage.? The policy?s coverage period was from 6/6/10 through 6/16/11.? In their prior related action, filed on 7/12/13, Plaintiffs admitted that the claim was based on Truck Ins. policy 60392-47-34, which includes a provision setting forth a contractual limitations period of two years after the date when the loss or damage occurred.

 

While the statute of limitations for breach of contract actions is 4 years under CCP 337, the parties may contract for a shorter statute of limitations period.? (Zamora v. Lehman (2013) 214 Cal.App.4th 193, 206.)? A contractual limitations period starts to run from the date of loss, but is equitably tolled ?from the time the insured files a timely notice, pursuant to policy notice provisions, to the time the insurer formally denies the claim in writing.?? (Prudential-LMI Commercial Ins. v. Superior Court (1990) 51 Cal.3d 674, 678.)?? This give the insurer additional time to properly investigate the claim without requiring the Plaintiff to file suit prematurely before the claim has been investigated and determined by the insurer.? (Id. at p. 692.)

 

In their Original Complaint filed in the prior action (2013-662320), Plaintiffs admitted that on or about 7/20/11, they received a letter from the insurer denying the claim in its entirety and for all purposes, as identified by policy number 60392-47-34 and claim number 1016407758.

 

So here, the 2-year statute began to run on 7/8/10 and ran for one day until 7/9/10.? At that point it was tolled until 7/20/11 when the claim was formally denied.? Plaintiffs were therefore required to file their action within two years or no later than (on or about) 7/20/13.? However, they filed their Original Complaint in this action on 7/9/15, nearly two years too late.

 

It is well-established that the filing date does not relate back to the filing of the Original Complaint in the prior action, because that first action was voluntarily dismissed without prejudice.? Such a dismissal does not automatically toll or waive the running of the statute of limitations. (Hill v. City of Clovis (1998) 63 Cal.App.4th 434, 445.)

Accordingly, the burden shifts to Plaintiffs to show that triable issues of material fact still exist.? However, in Opposition, Plaintiffs fail to carry their burden.? Plaintiffs merely assert that the insurance contract was never provided to Plaintiff, that Truck Insurance never rejected the claim because they never mailed a rejection letter to Plaintiffs, and that the attorney Troiani was disbarred and unlicensed and had no authority to act or file pleadings on behalf of Plaintiffs.? However, Plaintiffs fail to present sufficient evidence to support their assertions and to the extent they do present evidence, it is flatly contradicted by prior discovery admissions and admissions in Plaintiffs? prior and current pleadings in this action and in the prior action.

 

Therefore, the motion is GRANTED as to the 1st cause of action.

 

  1. 2nd COA: Breach of Implied Covenant of Good Faith and Fair Dealing

 

GRANTED as to the 2nd cause of action.

 

The analysis of the insurance bad faith claim is identical to the analysis set forth above in section A.? This is because insurance bad faith concerns a claim, claim handling, or policy benefits denial under the contract and ?on the policy.?? So the 2-year contractual limitations period applies.? (Prieto v. State Farm (1990) 225 Cal.App.3d 1188, 1195.)

 

  1. 3rd COA: Intentional Misrepresentation
  2. 4th COA: Negligent Misrepresentation

 

GRANTED as to the 3rd and 4th causes of action.

 

Fraud claims for intentional misrepresentation and negligent misrepresentation are governed by the 3-year and 2-year statutes of limitations respectively under CCP 338 (d) and 339 (1).? (Smyth v. USAA Property & Casualty (1992) 5 Cal.App.4th 1470, 1477-1478; Ventura County National Bank v. Macker (1996) 49 Cal.App.4th 1528.)

 

The period begins to run when Plaintiffs knew or should have known of the facts essential to their claim.? (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1143-1144 [plaintiffs? claims accrued in 1981 when they were notified by their? geotechnical firm that the home was suffering from damages from subsidence problems caused by third party negligence in constructing the home].)? ?An insured who is aware of the essential facts cannot toll the statute of limitations by contending he only belatedly discovered his policy might provide coverage, because knowledge of the facts, rather than knowledge of the available legal theories or remedies, starts the statute of limitations.?? (Ibid.)

 

It is knowledge of the essential facts and unconditional denial of the claim that start the statute of limitations, not discovery of the legal theories of recovery.? (Prieto, supra, 210 Cal.App.3d at 608-609.)

 

Here, Plaintiffs knew or reasonably should have known all of the essential facts on or about 7/20/11, when they received the denial letter.? They had already suffered a fire loss, made a claim, and received the insurer?s decision on coverage following investigation of the claim. Accordingly, the claims should have been filed no later than 7/20/13 and 7/20/14.?? However, Plaintiffs did not refile their dismissed action until 7/9/15, which was too late.

 

Accordingly, both fraud claims were time-barred.

 

In Opposition, Plaintiffs fail to carry their burden to show that triable issues of material fact exist.

 

  1. Requests for Judicial Notice

 

The court GRANTS the parties? respective requests for judicial notice.

 

  1. Plaintiffs? Objections to RJN

 

Plaintiffs? objections are irrelevant because they are legal arguments as to the operative effect of the documents, not arguments as to why the documents are not properly admissible into evidence.

 

  1. RJN Ex. 1 — OVERRULED.

 

Plaintiffs object to the RJN Ex. 1 on the ground that the insurance contract was never signed by the insured and was never delivered.

 

However, the objection is OVERRULED.? In their Reply, Defendants note correctly that Plaintiff admitted in his Original Complaint in the prior lawsuit that the policy was in full force and effect and Plaintiff Ghahremani admitted in his deposition that he had a copy of the policy in his file cabinet at the time of the fire.? Also, in this action as well, Plaintiffs admitted that the policy was in full force and effect.

 

Defendants also argue correctly in their Reply that there is no legal requirement that the policy be signed by the insured or delivered to be effective.

 

Defendants argue that Plaintiffs in their Opposition may not raise new issues, arguments or theories not properly noticed and raised in their pleadings.? However, Defendants make no showing that Plaintiffs were required to plead around the statute of limitations defenses, given that Plaintiffs artfully drafted their Complaints in this matter so as to obscure the fact that the claims were time-barred.

 

  1. RJN Ex. 2 — OVERRULED.

 

Plaintiffs objects on the ground that he never received the denial letter.? This is not a valid ground for refusing to admit the letter into evidence.? This argument goes to the operative effect of the letter, not its authenticity or admissibility.

 

Furthermore, Defendants argue correctly that Plaintiffs in their Opposition may not raise new issues, arguments or theories not properly noticed and raised in their pleadings.

 

Defendants argue that Plaintiffs in their Opposition may not raise new issues, arguments or theories not properly noticed and raised in their pleadings.? However, Defendants make no showing that Plaintiffs were required to plead around the statute of limitations defenses, given that Plaintiffs artfully drafted their Complaints in this matter so as to obscure the fact that the claims were time-barred.

 

  1. Objections to Sherman Declaration

 

The court need not rule on these objections because they are not in the proper format under CRC 3.1354.? If required to rule the court would OVERRULE all the objections.

 

  1. Objections to Reply Evidence.

 

The court need not rule on these objections because they are not in the proper format under CRC 3.1354.? If required to rule the court would OVERRULE all the objections

 

  1. Defendants? Objections to Evidence

 

Defendants? Objections 1-15 to the Gharemani Declaration are OVERRULED.

 

  1. Plaintiffs? Prior Admissions During Discovery and in Pleadings

 

Defendants argue correctly that declarations by a party opposing summary judgment may be disregarded if they controvert prior sworn admissions.? (D?Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)? Admissions of material fact in the pleadings or discovery responses of a party binds that party as a judicial admission that effectively removes that matter as an issue from the litigation.? (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271.)

 

Accordingly, while the court OVERRULES the objections and finds that the testimony is admissible, the court shall disregard any subsequent testimony to the extent it contradicts prior sworn testimony by Plaintiffs or their agents.

 

Most notably, Defendants argue correctly that attorney Troiani?s representation of Plaintiff at his examination and Ghahremani?s admission therein that Troiani was his attorney constitute admissions that Troiani was his attorney and was authorized to act on his behalf in filing the prior pleadings in the prior action and to receive notice of the denial letter on Ghahremani?s behalf.? (Reply at pp. 5-6.)? Plaintiffs present no competent evidence or documentary evidence that Troiani was disbarred at the time the denial letter was faxed and mailed.? And Plaintiffs admitted receipt of the denial letter in their Original pleading in the prior action.