This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 09:59:10 (UTC).

DINA B CHERNICK ET AL VS SAFECO INSURANCE COMPANY OF AMERICA

Case Summary

On 07/01/2016 DINA B CHERNICK filed a Contract - Other Contract lawsuit against SAFECO INSURANCE COMPANY OF AMERICA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TERESA A. BEAUDET. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5917

  • Filing Date:

    07/01/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TERESA A. BEAUDET

 

Party Details

Plaintiffs and Petitioners

CHERNICK NINA L.

CHERNICK DINA B.

Defendants and Respondents

DOES 1 THROUGH 200

NAINES JULIE

TWO ELEVEN SPALDING HOMEOWNERS CONDOMIN-

LIBERTY COMPANY INSURANCE BROKERS WH INC

SURVIVOR'S TRUST SUBTRUST OF THE CHERNICK

SUGAR BONNIE

SAFECO INSURANCE COMPANY OF AMERICA

THE LIBERTY COMPANY INSURANCE BROKERS WH INC

SUGAR BENITA W.

SUGAR BENITA W. AKA BONNIE SUGAR

TWO ELEVEN SPALDING CONDOMINIUM ASSOCIATION

Cross Plaintiff

BARRY KASHFIAN DMD INC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CHERNICK DINA B. ESQ.

BEN-ZVI & ASSOCIATES

CHERNICK DINA B.

BEN-ZVI HENRY

Defendant Attorneys

LEWIS TRACY M.

PANMAN ROBERT H.

SULLIVAN SUSAN KOEHLER

SPANIAC KATHARINE L.

Cross Plaintiff Attorney

GAUGH KENNETH RAY

 

Court Documents

LIBERTY DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL OR IN THE ALTERNATIVE FOR AN ORDER TO PREVENT LATER GIVEN DEPOSITION TESTIMONY FROM BEING USED TO SUPPORT SUMMARY JUDGMENT OPPOSITION; DECLAR

2/20/2018: LIBERTY DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL OR IN THE ALTERNATIVE FOR AN ORDER TO PREVENT LATER GIVEN DEPOSITION TESTIMONY FROM BEING USED TO SUPPORT SUMMARY JUDGMENT OPPOSITION; DECLAR

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL

4/24/2018: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM - CIVIL

NOTICE OF NON-OPPOSITION TO PLAINTIFFS DINA B. CHERNICK AND NINA L. CHERNICK'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

6/13/2018: NOTICE OF NON-OPPOSITION TO PLAINTIFFS DINA B. CHERNICK AND NINA L. CHERNICK'S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

RESPONSE AND PARTIAL JOINDER IN DEFENDANT BONNIE SUGAR'S MOTION TO CONTINUE TRIAL OF PLAINTIFFS

9/13/2018: RESPONSE AND PARTIAL JOINDER IN DEFENDANT BONNIE SUGAR'S MOTION TO CONTINUE TRIAL OF PLAINTIFFS

DECLARATION OF ROBERT H. PANMAN IN SUPPORT OF DEFENDANT, TWO ELEVEN SPALDING CONDOMINIUM ASSOCIATION'S OPPOSITION TO LIBERTY COMPANY INSURANCE BROKERS, INC'S AND JULIE NAINES' MOTION FOR SUMMARY JUDGM

9/18/2018: DECLARATION OF ROBERT H. PANMAN IN SUPPORT OF DEFENDANT, TWO ELEVEN SPALDING CONDOMINIUM ASSOCIATION'S OPPOSITION TO LIBERTY COMPANY INSURANCE BROKERS, INC'S AND JULIE NAINES' MOTION FOR SUMMARY JUDGM

Separate Statement

11/5/2018: Separate Statement

Motion to Compel

11/5/2018: Motion to Compel

Minute Order

11/8/2018: Minute Order

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

12/6/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

1/17/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Motion to Quash

3/4/2019: Motion to Quash

Stipulation and Order

4/15/2019: Stipulation and Order

Order

4/19/2019: Order

Request for Refund / Order

5/6/2019: Request for Refund / Order

Order

5/10/2019: Order

Notice of Ruling

5/13/2019: Notice of Ruling

Notice of Ruling

6/6/2019: Notice of Ruling

Minute Order

2/15/2017: Minute Order

441 More Documents Available

 

Docket Entries

  • 10/16/2019
  • Hearingat 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; : Trial

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  • 09/13/2019
  • Hearingat 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/06/2019
  • Hearingat 16:00 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Non-Appearance Case Review

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  • 08/30/2019
  • Hearingat 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 08/30/2019
  • Hearingat 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 08/30/2019
  • Hearingat 08:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to be Relieved as Counsel

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  • 08/30/2019
  • Hearingat 09:30 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Adjudication

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  • 08/22/2019
  • Hearingat 11:00 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Informal Discovery Conference (IDC)

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  • 08/09/2019
  • DocketMotion to Be Relieved as Counsel; Filed by Henry Ben-Zvi (Attorney)

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  • 08/09/2019
  • DocketDeclaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil; Filed by Henry Ben-Zvi (Attorney)

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750 More Docket Entries
  • 10/31/2016
  • Docketat 08:30 AM in Department 50; Case Management Conference - Held - Continued

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  • 10/31/2016
  • DocketMinute Order

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  • 10/31/2016
  • DocketMinute order entered: 2016-10-31 00:00:00; Filed by Clerk

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  • 10/31/2016
  • DocketCASE MANAGEMENT CONFERENCE ORDER

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  • 10/31/2016
  • DocketCase Management Order; Filed by Court

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  • 08/12/2016
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 08/12/2016
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 08/12/2016
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/01/2016
  • DocketComplaint; Filed by Dina B. Chernick (Plaintiff); Nina L. Chernick (Plaintiff)

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  • 07/01/2016
  • DocketCOMPLAINT FOR BREACH OF CONTRACT; BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; ETC

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Tentative Rulings

Case Number: BC625917    Hearing Date: February 11, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

DINA B. CHERNICK et al.,

Plaintiffs,

vs.

SAFECO INSURANCE COMPANY OF AMERICA, et al.

Defendants.

Case No.:

BC 625917

Hearing Date:

February 11, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT TWO ELEVEN SPALDING CONDOMINIUM ASSOCIATION’S MOTION TO BIFURCATE TRIAL BETWEEN LIABILITY AND PUNITIVE DAMAGES AND TO EXCLUDE EVIDENCE OF ITS FINANCIAL CONDITION

Background

Plaintiffs Dina B. Chernick and Nina L. Chernick (jointly, “Plaintiffs”) filed this action on July 1, 2016 against, among others, Defendant Two Eleven Spalding Condominium Association (“Two Eleven”). Trial is currently set for March 4, 2020.

Two Eleven now moves to bifurcate trial between liability and punitive damages pursuant to Civil Code section 3295, subdivision (d). The motion is unopposed.

Discussion

Code of Civil Procedure section 1048, subdivision (b) provides: “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”

Code of Civil Procedure sections 597 and 598 allow a court to order that the trial of any issue or part thereof proceed before the trial of any other issue to promote the ends of justice or the economy and efficiency of handling the litigation. Additionally, Evidence Code section 320 provides that trial courts have discretion to regulate the order of proof. “[T]rial courts have broad discretion to determine the order of proof in the interests of judicial economy.” ((Grappo v. Coventry Fin. Corp. (1991) 235 Cal.App.3d 496, 504.) The objective of bifurcation is “avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.” ((Horton v. Jones (1972) 26 Cal.App.3d 952, 955.)

Civil Code section 3295, subdivision (d) provides that “[t]he court shall, on application of any defendant, preclude the admission of evidence of that defendant’s profits or financial condition until after the trier of fact returns a verdict for plaintiff awarding actual damages and finds that a defendant is guilty of malice, oppression, or fraud in accordance with Section 3294.” Section 3295, subdivision (d) “requires a court, upon application of any defendant, to bifurcate a trial so that the trier of fact is not presented with evidence of the defendant’s wealth and profits until after the issues of liability, compensatory damages, and malice, oppression, or fraud have been resolved against the defendant.” ((Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777-778.) Accordingly, the Court finds that the punitive damages phase of trial must be bifurcated from the rest of trial. The issue of the amount of punitive damages to which Plaintiffs may be entitled will not be tried unless and until Plaintiffs’ right to recover punitive damages is established.

Conclusion

Based on the foregoing, Two Eleven’s motion to bifurcate is granted. The issue of the amount of punitive damages will not be tried unless and until Plaintiffs’ right to recover punitive damages is established.

Two Eleven is ordered to provide notice of this ruling.

DATED: February 11, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC625917    Hearing Date: January 17, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

DINA B. CHERNICK et al.,

Plaintiffs,

vs.

SAFECO INSURANCE COMPANY OF AMERICA, et al.

Defendants.

Case No.:

BC 625917

Hearing Date:

January 17, 2020

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

MOTION FOR RECONSIDERATION OF COURT’S ORDER DATED AUGUST 30, 2019 GRANTING DEFENDANT BONNIE SUGAR’S MOTION FOR SUMMARY ADJUDICATION AS TO PLAINTIFFS’ CLAIMS FOR NEGLIGENCE, TRESPASS AND NUISANCE

Background

Plaintiffs Dina B. Chernick and Nina L. Chernick (jointly, “Plaintiffs”) filed this action on July 1, 2016 against Defendants The Liberty Company Insurance Brokers, Inc. (“The Liberty Company”), Julie Naines (“Naines”), Safeco Insurance Company of America (“Safeco”), Two Eleven Spalding Condominium Association (“Two Eleven Spalding”), and Bonnie Sugar (“Sugar”). The impetus of the lawsuit was a water incursion event in July 2014 and October 2015 at Plaintiffs’ condominium that caused damage and property loss. Two Eleven Spalding is the homeowners association to which Plaintiffs belonged as members, and Sugar owned the unit directly above Plaintiffs’ unit.

On August 30, 2019, the Court granted Sugar’s motion for adjudication as to the causes of action for negligence, trespass, and nuisance (the “Order”).

Plaintiffs now move for reconsideration of the Order. Sugar opposes.

Evidence

The Court rules on Sugar’s objections to the evidence submitted by Plaintiffs as follows:

Objections 1-9: overruled

Objections 10-16: overruled as immaterial because the Court declined to consider this evidence

Legal Standard

Code of Civil Procedure section 1008, subdivision (a) provides:

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. ((Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500); (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342 [“[T]he party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.”]); (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213 [“The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.”].)

Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling; that is not a “new” or “different” matter. ((Gilberd v. AC Transit, supra, 32 Cal.App.4th at p. 1500.) Moreover, counsel's mistake based on ignorance of the law is not a proper basis for reconsideration. ((Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670.)

Discussion

Plaintiffs seek reconsideration of the Order on the basis that (1) new or different facts, circumstances, or law which were not known or available to Plaintiffs at the time their opposition to Sugar’s motion for summary judgment/adjudication (“MSA”) was filed exists, and (2) the Court’s reasoning in granting summary adjudication was faulty.

Presumably recognizing that finding fault with the Court’s reasoning is not a new or different matter under Code of Civil Procedure section 1008, Plaintiffs appeal to the Court’s inherent ability to reconsider a previous interim order on its own motion. (See Boschetti v. Pacific Bay Investments Inc. (2019) 32 Cal.App.5th 1059, 1070 [noting that section 1008 does “not limit a court’s ability to reconsider its previous interim orders on its own motion, as long as it gives notice that it may do so and a reasonable opportunity to litigate the question]. (Emphasis in original.)) Here, the Court declines to exercise such discretion. To the extent that Plaintiffs argue that the Court misapplied the foreseeability analysis on Plaintiffs’ negligence claim against Sugar, the Court refers to footnote 4 of the Order, in which the Court notes the confusion caused by the usage of the word “foreseeable” by Sugar’s plumber in the invoice he prepared after inspecting Sugar’s HVAC system. (Order, p. 6:25-27.) The Court did not apply a “foreseeability” analysis in concluding that Sugar had met her burden of showing that Plaintiffs could not establish the breach element of the negligence claim. The plumber’s opinion that Sugar’s HVAC failure was unforeseeable merely supported Sugar’s claim that she properly maintained her HVAC system. Plaintiffs’ burden in opposing the MSA was to adduce evidence that Sugar did not properly maintain her HVAC system, or otherwise did something that caused the HVAC system to fail. Plaintiffs failed to do so.

Plaintiffs also argue that the Court overlooked evidence that directly contradicted the findings made by Sugar’s plumber. In particular, Plaintiffs point to Plaintiffs’ Exhibit 4, which is a handwritten incident report from the night of the July 2, 2014 incident, signed by the building engineer, which described an outlet hose that had popped off and looked old and worn. But as noted by Sugar, the Court sustained Sugar’s evidentiary objection to Exhibit 4, rendering it inadmissible. That the Court did not rely on inadmissible evidence in ruling on the MSA is thus not “surprising.”

In a supplemental brief, Plaintiffs contend that the Court should have applied the doctrine of res ipsa loquitur to the negligence claim, and that doing so would have necessitated denial of the MSA. This is not a new or different fact, law, or circumstance, and the Court declines to exercise its discretion to reconsider the Order based on this argument.

As far as actual new or different facts or circumstances, Plaintiffs submit that new evidence has surfaced which merits reconsideration of the Order. Plaintiffs contend that on July 28, 2019, after briefing on the MSA was complete, Two Eleven Spalding produced in discovery a memorandum from its general manager, Karen Kokowicz, dated June 28, 2006. (Spitzer Decl., ¶ 8, Ex. 4.) In that memorandum, Ms. Kokowicz gave notice to owners that Two Eleven’s air conditioning contractor would be inspecting each unit’s condensation drain line and would be advising whether the rubber hose connectors would need to be changed. Based on this evidence, Plaintiffs contend that Sugar was on notice of the necessity of replacing old or damaged hoses.

In addition to offering new or different facts, a party moving for reconsideration “must provide a satisfactory explanation for failing to offer the evidence in the first instance.” ((In re Herr (2009) 174 Cal.App.4th 1463, 1468.) Plaintiffs’ only explanation for why Ms. Kokowicz’s memorandum was unavailable at the time the opposition to the MSA was due is that it was produced by Two Eleven Spalding after briefing was complete. As noted by Sugar, the memorandum was produced by Two Eleven Spalding in response to a request for production propounded by Sugar, not by Plaintiffs. There is no explanation from Plaintiffs why they never requested documents or other information from Two Eleven Spalding regarding servicing of HVAC units. This is certainly information that was “discoverable with due diligence.” ((People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 974.)

Even assuming that Plaintiffs had offered a satisfactory explanation for why it could not have discovered Ms. Kokowicz’s memorandum sooner, the Court does not find that this new or different fact warrants a modification of the Order. In other words, even if Plaintiffs had offered the memorandum at the time they filed their opposition to the MSA, the Court would still have found that no triable issue of material fact existed as to the breach element of the negligence claim. As noted by Sugar, there is no evidence that Sugar received the memorandum. And more importantly, that the memorandum may have placed the homeowners on notice of the potential need to replace the rubber hose connectors on the HVAC drain lines does not establish that the rubber hose connectors on Sugar’s HVAC drain lines needed to be replaced.

Finally, the Court notes that Plaintiffs attempt to introduce another piece of “new” or “different” evidence in their reply: a transcript of the deposition of Dirk Foster, the general manager of Two Eleven Spalding at the time of the water intrusion events, taken on September 3, 2019. But “new evidence is not permitted with reply papers.” ((Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) The Court therefore declines to consider this new evidence.

Conclusion

Based on the foregoing, Plaintiffs’ motion for reconsideration is denied.

Sugar is ordered to give notice of this ruling.

DATED: January 17, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC625917    Hearing Date: December 10, 2019    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

DINA B. CHERNICK et al.,

Plaintiffs,

vs.

SAFECO INSURANCE COMPANY OF AMERICA, et al.

Defendants.

Case No.:

BC 625917

Hearing Date:

December 10, 2019

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

MOTION FOR SUMMARY ADJUDICATION AS TO PLAINTIFFS’ EIGHTH CAUSE OF ACTION IN THE THIRD AMENDED COMPLAINT ALLEGED AGAINST DEFENDANT TWO ELEVEN SPALDING CONDOMINIUM ASSOCIATION

Background

Plaintiffs Dina B. Chernick and Nina L. Chernick (jointly, “Plaintiffs”) filed this action on July 1, 2016 against Defendants The Liberty Company Insurance Brokers, Inc. (“The Liberty Company”), Julie Naines (“Naines”), Safeco Insurance Company of America (“Safeco”), Two Eleven Spalding Condominium Association (“Two Eleven Spalding”), and Bonnie Sugar (“Sugar”). The impetus of the lawsuit was a water incursion event in July 2014 and October 2015 at Plaintiffs’ condominium that caused damage and property loss. Plaintiffs maintained homeowner’s insurance policy with Safeco, which was brokered by The Liberty Company (for whom Naines was an agent). Two Eleven Spalding is the homeowners association to which Plaintiffs belonged as members, and Sugar owned the unit directly above Plaintiffs’ unit.

The operative Third Amended Complaint (“TAC”) was filed on June 26, 2018, asserts causes of action against Two Eleven Spalding, including the eighth cause of action for intentional interference with contract. Two Eleven Spalding now moves for summary adjudication of the eighth cause of action. Plaintiffs and Sugar oppose.

Evidence

The Court grants Two Eleven Spalding’s request for judicial notice as to Exhibits A, B, C, F, and G.

The Court rules on Two Eleven Spalding’s objections to the evidence submitted by Plaintiffs as follows:

Objection 1: sustained

Objection 2: sustained

Objection 3: sustained except to show that Safeco communicated with Plaintiffs without including Two Eleven Spalding

Objection 4: sustained

Objection 5: sustained

Objection 6: sustained

Objection 7: sustained except to show communications with Safeco and Two Eleven Spalding were copied to Plaintiffs

Objection 8: overruled as limited by Plaintiffs

Objection 9: sustained

Objection 10: sustained

Objection 11: sustained

Objection 12: sustained

Objection 13: overruled

Objection 14: sustained

Objection 15: sustained

Objection 16: sustained

Objection 17: overruled

Objection 18: sustained

Objection 19: sustained

Objection 20: overruled

Objection 21: sustained

Objection 22: sustained

Objection 23: sustained

Objection 24: overruled

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show 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 (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)

Discussion

Two Eleven Spalding contends that it is entitled to summary adjudication on the intentional interference with contract cause of action because the statute of limitations has run on the claim.

The intentional interference with contract cause of action was a new cause of action added to the TAC on June 26, 2018. In support of the cause of action, Plaintiffs allege that they were party to a written contract of insurance with Safeco, that Two Eleven Spalding was aware of the contract, that Two Eleven Spalding intentionally interfered with the contract by contacting Safeco directly and providing false and misleading statements to Safeco about Plaintiffs, about the progress of the reconstruction work of Plaintiffs’ condominium unit, and about Two Eleven Spalding’s actions which caused delays in Plaintiffs’ ability to complete the reconstruction of their unit, and that as a result, Safeco ceased making payments to or on behalf of Plaintiffs for “Additional Living Expenses” (“ALE”). (TAC, ¶¶ 81-87.)

Specifically, Plaintiffs claim that a Two Eleven Spalding employee named Dirk Foster interfered by communicating with Safeco. (Two Eleven Spalding’s Undisputed Material Fact (“UMF”) 1.) On November 5, 2015, Dina Chernick wrote an email to various individuals connected to Two Eleven Spalding, in which she states, in pertinent part, the following: “I am at a loss to understand why the HOA is in direct contact with our insurer, Safeco, through Rosanne Henricks. We have not consented to the HOA’s contact with our insurer in any sort of agency, and trust that the HOA does not intend to interfere with our business relationships with our insurer. We request that all communications which the HOA believes should be made to our insurer be sent to us with the request that they be forwarded on to our insurer. If and to the extent that the HOA has any communication with our insurer which concern us or our property, we ask that we be copied on same.” (Panman Decl., ¶ 6, Ex. E.) At her deposition, Dina Chernick testified that she believed that Mr. Foster’s communications with Safeco impacted Safeco’s decision to cut the “loss of use” (or ALE) benefits off. (Panman Decl., ¶ 5, Ex. D, pp. 975:13 – 976:16.) The loss of use or ALE benefits were cut off on or about December 24, 2015. (UMF 4.[1])

Based on the foregoing, Two Eleven Spalding contends that the cause of action for intentional interference with contractual relations accrued on or about December 24, 2015. ((See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 [finding that a cause of action generally accrues when it is “complete with all of its elements”].) An intentional interference with contract cause of action is subject to a two-year statute of limitations pursuant to Code of Civil Procedure section 339. (See Trembath v. Digardi (1974) 43 Cal.App.3d 834, 836 [finding that an action in tort for wrongful inducement of breach of contract is subject to a two year limitation period, as fixed by Code of Civil Procedure section 339, subdivision 1].) Therefore, the statute of limitations had run by December 2017. Because the TAC was not filed until June 2018, Two Eleven Spalding contends that the claim is barred.

Plaintiffs and Sugar argue that the claim is not barred for two separate reasons. First, Plaintiffs and Sugar argue that the intentional interference claim relates back to the filing of Plaintiffs’ original complaint, on July 1, 2016. Second, Plaintiffs and Sugar argue that the delayed discovery rule pushed the accrual date of the cause of action to mid-January 2018.

“The relation-back doctrine requires that the amended complaint must (1) rest on the same general set of facts, (2) involve the same injury, and (3) refer to the same instrumentality, as the original one.” (Norgart v. Upjohn Co., supra, at pages 408-409 [emphasis in original].) “In determining whether the amended complaint alleges facts that are sufficiently similar to those alleged in the original complaint, the critical inquiry is whether the defendant had adequate notice of the claim based on the original pleading.” ((Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 277.) Additionally, “courts should consider the strong policy in this state that cases should be decided on their merits.” ((Ibid. [internal quotations omitted].)

Two Eleven Spalding argues that relation-back does not apply because Plaintiffs’ original complaint contained no allegations that placed Two Eleven Spalding on notice that Plaintiffs sought damages for Two Eleven’s intentional interference with Plaintiffs’ contract with Safeco. In the original complaint, Plaintiffs’ causes of action against Two Eleven Spalding were limited to a cause of action for negligence and a cause of action for injury to real and personal property (Compl., ¶¶ 65, 69 [alleging liability for failing to “reasonably or properly maintain the properties . . . owned, operated, or under the control of [Two Eleven Spalding]”). These causes of action are both directed to damage to real or personal property as a result of the water intrusion events. However, the intentional interference cause of action seeks damages for the harm caused not by the water intrusion events but by an intentional act of Two Eleven Spalding that resulted in Safeco ceasing making ALE payments to Plaintiffs. (TAC, ¶ 87.) The intentional interference cause of action includes allegations that Two Eleven Spalding made intentional misrepresentations and concealments. (TAC, ¶¶ 84-86.) But the original complaint contained no allegations of misrepresentations or concealment of facts for which Two Eleven Spalding should be held liable. Therefore, although the intentional interference cause of action is based on the same general set of facts, it does not involve the same injury or the same instrumentality.

Plaintiffs and Sugar point to various paragraphs of the original complaint in support of their argument that the relation-back doctrine applies. Sugar points to paragraph 13 of the original complaint, where Plaintiffs allege, in general terms, that all of the Defendants acted as agents and co-conspirators of one another. (Compl., ¶ 13.) The Court does not find that this paragraph placed Two Eleven Spalding on sufficient notice of a potential intentional interference claim. Sugar and Plaintiffs both point to paragraph 30 of the original complaint, wherein Plaintiffs allege that Safeco’s intentional refusal to make ALE payments caused Plaintiffs harm, to paragraph 33 of the original complaint, wherein Plaintiffs allege that Two Eleven Spalding failed to complete plumbing repairs to common areas which resulted in Plaintiffs being unable “to proceed with the repair and rebuilding of the Condominium . . . .” (Compl., ¶¶ 30, 33.) The Court does not find that any of these allegations sufficiently placed Two Eleven Spalding on notice that Plaintiffs were seeking damages relating to ALE payments from Two Eleven Spalding for Two Eleven Spalding’s intentional conduct. Finally, Plaintiffs and Sugar cite paragraph 35 of the original complaint, wherein Plaintiffs allege that “[a]s the result of the negligent conduct of Defendants Sugar and the grossly negligent or bad faith intentional conduct of the HOA, and the bad faith conduct of Defendant Safeco, Nina and her minor son have been displaced from their family home and have had to find alternate living arrangements for nearly two years, causing loss of home and possessions, serious physical suffering and mental distress.” (Compl., ¶ 35.) Similarly, the Court does not find that this general and conclusory allegation placed Two Eleven Spalding on sufficient notice that it would be held liable for misrepresentations made by Two Eleven Spalding to Safeco that affected Safeco’s decision to make further ALE payments to Plaintiffs.

With regard to the discovery rule, Plaintiffs and Sugar contend that the intentional interference cause of action did not accrue until early 2018, when during discovery in this case, Plaintiffs learned about allegedly false statements made by Two Eleven Spalding to Safeco and the fact that Safeco relied on those false statements. “An exception to the general rule for defining the accrual of a cause of action--indeed, the 'most important' one--is the discovery rule.” ((Norgart v. Upjohn Co., supra, at p. 397.) “It postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Ibid.) “[T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof—when, simply put, he at least ‘suspects . . . that someone has done something wrong’ to him, ‘wrong’ being used, not in any technical sense, but rather in accordance with its ‘lay understanding.’” ((Id. at pp. 397-398 [internal citation omitted].) “[H]e need not know the specific facts necessary to establish the cause of action; rather, he may seek to learn such facts through the process contemplated by pretrial discovery; but, within the applicable limitations period, he must indeed seek to learn the facts necessary to bring the cause of action in the first place—he cannot wait for them to find him and sit on his rights; he must go find them himself if he can and file suit if he does.” ((Id. at p. 398 [internal quotations omitted].)

Two Eleven Spalding contends that the discovery rule is not applicable here because, in November 2015, Dina Chernick had a suspicion that something wrong had been done. As set forth in her November 5, 2015 email, Dina Chernick knew that someone from the HOA had contacted Safeco directly, and she was therefore stating her objection to such direct contact and urging the HOA not “to interfere with our business relationships with our insurer.” Nevertheless, as pointed out by Plaintiffs and Sugar, nothing in the November 5, 2015 email suggests that Dina Chernick was objecting to the direct contact because of any misrepresentations made by Two Eleven Spalding. There is no evidence that, at any time in the 2015 time frame, Plaintiffs had reason to know that Two Eleven Spalding had been providing Safeco with false or inaccurate information about the progress of the condominium repairs. Two Eleven Spalding argues that Dina Chernick’s deposition testimony regarding a cause and effect relationship between the communications with Safeco and Safeco’s decision to cease the ALE payments demonstrates that she was at least aware of enough facts to discover the cause of action. However, Dina Chernick’s deposition testimony is not clear as to when Dina Chernick had that belief. There is a triable issue of fact as to whether Dina Chernick believed in December 2015 that Two Eleven Spalding’s communications with Safeco impacted the cessation of ALE payments. Accordingly, the Court finds that Plaintiffs and Sugar have raised a triable issue of fact as to whether the statute of limitations bars the eighth cause of action for intentional interference with contract.

Conclusion

Based on the foregoing, Two Eleven Spalding’s motion for summary adjudication is denied.

Plaintiffs are ordered to give notice of this ruling.

DATED: December 10, 2019 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] The Court notes that although Plaintiffs purport to dispute UMF 4, Plaintiffs do not argue or cite any facts that create an actual dispute. (See Response to UMF 4.)

Case Number: BC625917    Hearing Date: November 06, 2019    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

DINA B. CHERNICK et al.,

Plaintiffs,

vs.

SAFECO INSURANCE COMPANY OF AMERICA, et al.

Defendants.

Case No.:

BC 625917

Hearing Date:

November 6, 2019

Hearing Time:

8:30 a.m.

ORDER RE:

PLAINTIFFS’ MOTION FOR RECONSIDERATION OF COURT’S ORDER DATED AUGUST 30, 2019 GRANTING DEFENDANT BONNIE SUGAR’S MOTION FOR SUMMARY ADJUDICATION AS TO PLAINTIFFS’ CLAIMS FOR NEGLIGENCE, TRESPASS AND NUISANCE

The Court is not in receipt of courtesy copies of the moving (236 pages) and reply (129 pages) papers filed by Plaintiffs. Pursuant to the November 5, 2018 General Order re Mandatory Electronic Filing for Civil and the May 3, 2019 First Amended General Order (jointly, the “General Order”), litigants are required to provide printed courtesy copies of all filings, including pleadings and motions including attachments such as declarations and exhibits) 26 pages or more and pleadings and motions that include points and authorities.

The Clerk in Department 50 will contact the parties to determine the new date for the continued hearing on Plaintiffs’ motion for reconsideration. Plaintiffs are ordered to lodge courtesy copies of their papers directly in Department 50 at least 5 court days before the date of the continued hearing.

No appearance is necessary.

DATED: November 5, 2019

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: BC625917    Hearing Date: October 31, 2019    Dept: 50

THE COURT HAS REVIEWED THE JOINT STATEMENT AND THE AMENDED OBJECTIONS FROM TWO ELEVEN AND THE COURT THANKS THE PARTIES FOR THE WORK THEY HAVE DONE TO REDUCE THE NUMBER OF OBJECTIONS.  IT WILL NOT BE NECESSARY FOR THE PARTIES TO ATTEND THE HEARING TOMORROW.  THE COURT WILL SIMPLY RULE ON THE OBJECTIONS IN CONNECTION WITH ITS REVIEW OF THE MSJ PAPERS. TWO ELLEVEN IS TO GIVE NOTICE THAT THERE WILL BE NO HEARING TOMORROW.  THE MSJ HEARING WILL REMAIN AS SCHEDULED ON 12/10/19.