This case was last updated from Los Angeles County Superior Courts on 06/13/2019 at 06:11:00 (UTC).

ARMEN SHAANT MEGERDICHIAN VS LIBERTY MUTUAL INSURANCE CO

Case Summary

On 03/20/2017 ARMEN SHAANT MEGERDICHIAN filed an Other lawsuit against LIBERTY MUTUAL INSURANCE CO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DANIEL S. MURPHY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4784

  • Filing Date:

    03/20/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DANIEL S. MURPHY

 

Party Details

Plaintiff and Petitioner

MEGERDICHIAN ARMEN SHAANT

Defendants and Respondents

OHIO SECURITY INSURANCE COMPANY

RITZ FINANCIAL LLC

DOES 1 TO 50

LIBERTY MUTUAL INSURANCE COMPANY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

DODELL HERBERT ESQ.

DODELL HERBERT L ESQ.

Defendant and Respondent Attorneys

NICHOLAS J. BOOS

MAYNARD COOPER & GALE LLP

HICKMAN FREDERICK J. ESQ.

DELEON PABLO J. ESQ.

BOOS NICHOLAS J.

 

Court Documents

Minute Order

9/28/2018: Minute Order

Minute Order

1/22/2019: Minute Order

MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

1/2/2018: MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

ORDER OF TRIAL CONTINUANCE

4/18/2018: ORDER OF TRIAL CONTINUANCE

NOTICE OF ORDER VACATING TRIAL DATE AND SETTING TRIAL SETTING CONFERENCE MADE AT DEFENDANT'S RITZ'S EX PARTE APPLICATION RE TRIAL CONTINUANCE

4/19/2018: NOTICE OF ORDER VACATING TRIAL DATE AND SETTING TRIAL SETTING CONFERENCE MADE AT DEFENDANT'S RITZ'S EX PARTE APPLICATION RE TRIAL CONTINUANCE

PROOF OF SERVICE SUMMONS

4/12/2017: PROOF OF SERVICE SUMMONS

PLAINTIFF'S NOTICE OF CASE MANAGEMENT CONFERENCE

6/8/2017: PLAINTIFF'S NOTICE OF CASE MANAGEMENT CONFERENCE

SUMMONS ON FIRST AMENDED COMPLAINT

6/29/2017: SUMMONS ON FIRST AMENDED COMPLAINT

ORDER ON STIPULATION TO EXTEND TIME TO RESPOND TO COMPLAINT FOR RITZ FINANCIAL, LLC

6/29/2017: ORDER ON STIPULATION TO EXTEND TIME TO RESPOND TO COMPLAINT FOR RITZ FINANCIAL, LLC

PLAINTIFF?S NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE

7/18/2017: PLAINTIFF?S NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE

DEFENDANTS LIBERTY MUTUAL INSURANCE COMPANY'S AND OHIO SECURITY INSURANCE COMPANY'S ANSWER TO FIRST AMENDED COMPLAINT

8/11/2017: DEFENDANTS LIBERTY MUTUAL INSURANCE COMPANY'S AND OHIO SECURITY INSURANCE COMPANY'S ANSWER TO FIRST AMENDED COMPLAINT

PLAINTIFF'S NOTICE OF FURTHER CONTINUANCE OF CASE MANAGEMENT CONFERENCE

8/23/2017: PLAINTIFF'S NOTICE OF FURTHER CONTINUANCE OF CASE MANAGEMENT CONFERENCE

Unknown

9/5/2017: Unknown

Unknown

9/6/2017: Unknown

DEFENDANT LIBERTY MUTUAL INSURANCE COMPANY'S NOTICE OF POSTING JURY FEES

9/6/2017: DEFENDANT LIBERTY MUTUAL INSURANCE COMPANY'S NOTICE OF POSTING JURY FEES

Minute Order

9/7/2017: Minute Order

DEFENDANT RITZ FINANCIAL LLC'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT; ETC

9/8/2017: DEFENDANT RITZ FINANCIAL LLC'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT; ETC

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN PARTIAL OPPOSITION TO DEFENDANT RITZ FINANCIAL LLC'S MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

9/25/2017: PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN PARTIAL OPPOSITION TO DEFENDANT RITZ FINANCIAL LLC'S MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

35 More Documents Available

 

Docket Entries

  • 02/22/2019
  • at 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Trial Setting Conference - Held

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  • 02/22/2019
  • Minute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 02/22/2019
  • Case Management Order; Filed by Clerk

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  • 02/08/2019
  • Case Management Statement; Filed by Liberty Mutual Insurance Company (Defendant); Ohio Security Insurance Company (Defendant)

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  • 01/22/2019
  • at 08:30 AM in Department 32, Daniel S. Murphy, Presiding; Trial Setting Conference - Held - Continued

    Read MoreRead Less
  • 01/22/2019
  • Minute Order ( (Trial Setting Conference)); Filed by Clerk

    Read MoreRead Less
  • 01/09/2019
  • Case Management Statement; Filed by Liberty Mutual Insurance Company (Defendant); Ohio Security Insurance Company (Defendant)

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  • 09/28/2018
  • at 08:30 AM in Department 32; Trial Setting Conference (Trial Setting Conference; Continued by Court) -

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  • 09/28/2018
  • Minute order entered: 2018-09-28 00:00:00; Filed by Clerk

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  • 09/28/2018
  • Minute Order

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64 More Docket Entries
  • 06/09/2017
  • DEFENDANT LLBERTY MUTUAL INSURANCE COMPANY'S AND OHIO SECURITY INSURANCE COMPANY'S ANSWER TO COMPLAINT

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  • 06/09/2017
  • Answer; Filed by Liberty Mutual Insurance Company (Defendant)

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  • 06/08/2017
  • PLAINTIFF'S NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 05/15/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 05/15/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 04/12/2017
  • Proof-Service/Summons; Filed by Armen Shaant Megerdichian (Plaintiff)

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  • 04/12/2017
  • PROOF OF SERVICE SUMMONS

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  • 03/20/2017
  • SUMMONS

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  • 03/20/2017
  • Complaint; Filed by Armen Shaant Megerdichian (Plaintiff)

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  • 03/20/2017
  • COMPLAINT FOR: 1. BREACH OFTHE DUTY OF GOOD FAITH AND FAIR DEALING; ETC

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Tentative Rulings

Case Number: BC654784    Hearing Date: January 08, 2020    Dept: 32

Armen Shaant Megerdichian,

Plaintiff,

v.

Liberty Mutual Insurance Company, et al.,

Defendants.

Case No.: BC654784

Hearing Date: January 8, 2020

[TENTATIVE] order RE:

(1) Liberty’s Motion for summary judgment or, in the alternative, summary adjudication

(2) ohio security’s motion for summary adjudication

BACKGROUND

Plaintiff Armen Shaant Megerdichian (“Plaintiff”) commenced this action against Defendants Liberty Mutual Insurance Company (“Liberty”) and Ohio Security Insurance Company (“Ohio Security”) (collectively, “Defendants”) on March 20, 2017. The operative pleading is the First Amended Complaint (“FAC”) filed on June 29, 2017. The FAC asserts causes of action for (1) breach of the duty of good faith and fair dealing, (2) breach of contract, and (3) declaratory relief. The FAC alleges in pertinent part as follows.

Plaintiff owned real properly located at 520 E. Parkridge Avenue, Corona, CA 92879 (“Property”) and the commercial office building located thereon. Defendants issued Plaintiff an insurance policy covering the Property. Plaintiff paid all premiums due under the policy. During the policy’s effective period, Plaintiff suffered three compensable losses: (1) a water loss on January 5, 2014, (2) a series of burglaries including one on March 24, 2014, and (3) a fire loss on March 26, 2014. Plaintiff timely submitted these claims to Defendants, and Defendants only partially accepted some of the claims. For those claims that Defendants accepted, Defendants “lowballed” the claims and refused to pay all the benefits to which Plaintiff is owed.

LEGAL STANDARD

CCP section 437c(c) states: “The 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.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

STATEMENT OF FACTS

A. Policy

Ohio Security issued policy no. BZS (14) 55 86 51 62 (“Policy”) to Plaintiff for the policy period December 19, 2013 to December 19, 2014. (Atwood Decl. ¶ 5, Ex. 1.) The Policy states that “Coverage Is Provided In: Ohio Security Insurance Company – a stock company.” (DUMF 2.) The Policy provided insurance in connection with the Property. (PUMF 3.)

The Policy states that Ohio Security “will pay for direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.” (Atwood Decl. Ex. 1.) The Policy also states that the insured must “[c]ooperate with us in the investigation or settlement of the claim” (PUMF 5), and that Ohio Security “may examine any insured under oath, while not in the presence of any other insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured’s books and records” (Atwood Decl. Ex. 1).

B. Plaintiff’s Water Claim

On or about January 6, 2014, Ohio Security received notice that an upstairs toilet overflowed at the Property, causing damage (“the Water Claim”). (Atwood Decl. ¶ 6.) Claim professional Monica Herrera (“Herrera”) was assigned to handle the claim on behalf of Ohio Security. (Atwood Decl. ¶ 7.) Herrera called and spoke to Plaintiff on January 6, 2014 (PUMF 9), and she retained independent adjuster Scott Rew (“Rew”) of Sams and Associates to assist in Ohio Security’s investigation of the claim. (Atwood Decl. ¶ 7, Ex. 4.) On January 14, 2014, public adjuster Joe La Brunda (“La Brunda”) wrote to Ohio Security to advise that Plaintiff had retained him in connection with the claim. (PUMF 11.)

On January 16, 2014, Ohio Security received a report from independent adjuster Rew. (Atwood Decl. ¶ 9, Ex. 6.) Rew reported that the loss consisted of damage caused by a backup and overflow of water from a toilet in a second-floor restroom. (PUMF 13.) He stated that the building on the Property was a two-story commercial building consisting of approximately 2,400 square feet, and that Plaintiff was a dentist whose full name is Dr. Armen Shant Megerdichian. (PUMF 14.) Rew further stated that he met with Plaintiff, contractor Johnny Borsca of Vortex Restoration, and public adjuster La Brunda. (PUMF 15.)

The claim was transferred to the large loss department on January 23, 2014 and was assigned to claim professional Camille Atwood (“Atwood”) on January 28, 2014. (PUMF 16.) On January 30, 2014, Atwood retained building consultant Jerry Kessloff (“Kessloff”) of Young & Associates to assist with Ohio Security’s evaluation of the claim and the cost of repairs to the building. (PUMF 17.)

On February 3, 2014, La Brunda emailed Atwood a property damage loss estimate in the amount of $91,642.88. (PUMF 18.) Atwood then spoke to Kessloff, who advised that he and La Brunda had reached an agreement regarding the cost of building repairs, pending receipt of some additional information. (Atwood Decl. ¶ 12.) Atwood sent an email to that effect to La Brunda on February 28, 2014. (Atwood Decl. ¶ 13, Ex. 8.)

Meanwhile, on February 10, 2014, Atwood retained consultant TOSCO to prepare an inventory of the water damaged business personal property items. (PUMF 21.)

On March 4, 2014, Atwood wrote to La Brunda and stated that an advance would be issued in the amount of $100,000. (PUMF 22.) An advance check was issued on or about March 11, 2014. (PUMF 23.) Ohio Security subsequently made additional payments and paid a total of $173,593 for the Water Loss. (PUMF 24.) That amount consisted of $105,166 for damage to the building, and $68,427 for damage to business personal property. (Ibid.)

On May 6, 2014, La Brunda emailed Atwood a revised estimate for damage related to the Water Claim. (PUMF 35.)

On June 24, 2014, Atwood emailed La Brunda regarding the Water Claim and advised that Ohio Security was prepared to issue a supplemental advance in the amount of $25,373 for packing, cleaning, and storing the insured’s personal property up to the date of the fire. (PUMF 47.)

On July 28, 2014, Atwood emailed La Brunda in connection with the Water Claim and advised that Ohio Security was prepared to issue a supplemental advance in the amount of $40,733 based on its consultant’s inventory of water-damaged business personal property. (PUMF 51.)

C. Notice of Plaintiff’s Theft and Fire Claims

On March 26, 2014, Ohio Security received notice of a theft at the Property, and it opened another claim (“the Theft Claim”). (Atwood Decl. ¶ 17, Ex. 10.) On March 27, 2014, Ohio Security received notice that the building at the Property was destroyed in a fire, and Ohio Security opened a claim for that fire loss (“the Fire Claim”). (Atwood Decl. ¶ 17, Ex. 10.) The Theft Claim was assigned to claim professional John Rusch (“Rusch”), and the Fire Claim was assigned to Atwood. (Atwood Dec. ¶¶ 17-18, Exs. 10-11.)

D. Investigation of Plaintiff’s Theft Claim

On March 31, 2014, Rusch emailed La Brunda regarding the Theft Claim and stated that Plaintiff had informed him that La Brunda had been retained in connection with the Theft Claim. (PUMF 32.) On May 1, 2014, Rusch wrote to Plaintiff and stated that he had not received various information requested regarding the theft. (PUMF 33.) On May 19, 2014, Rusch closed the Theft Claim because he had not received a response to his May 1, 2014 letter asking for supporting information. (PUMF 39.)

E. Initial Investigation of Plaintiff’s Fire Claim

1. Atwood’s Document Request

On May 12, 2014, Atwood wrote to Plaintiff regarding the Fire Claim and requested various documents. (PUMF 36.) Atwood’s letter stated in part, “To proceed with our investigation, we ask your assistance in providing documentation regarding your interest in the Parkridge Avenue property, the claimed loss, and the damage you have sustained.” (PUMF 37.) The letter went on to request specific categories of documents. (PUMF 38.)

Atwood also referred the Fire Claim to Special Investigations Unit investigator Howard Trimble (“Trimble”) because the fire was suspected arson and because of the number of insurance claims that were made in a brief period of time. (PUMF 30.) On April 3, 2014, Trimble contacted La Brunda about scheduling an interview with Plaintiff. (PUMF 31.) On May 5, 2014, attorney Donald Marks (“Marks”) wrote to Trimble to inform him that he represented Plaintiff regarding the Fire Claim, and he asked Trimble to contact him. (PUMF 34.) On May 20, 2014, Trimble spoke to Plaintiff’s counsel, Marks. (PUMF 40.) Marks stated that he would not allow Plaintiff to provide a statement until “certain issues” were clarified. (PUMF 40.)

2. Jones’ Document Requests

Ohio Security retained outside counsel Alan Jones (“Jones”) to assist with the claim. (PUMF 41.) On June 2, 2014, Jones wrote to Plaintiff regarding the Fire Claim, and requested that he appear for an examination under oath and produce documents. (PUMF 42.)

On June 13, 2014, Marks responded to Jones via email and stated that Plaintiff would not appear for an examination as requested “because of the inquiry being conducted by law enforcement agencies.” (PUMF 43.) Jones responded to Marks on June 19, 2014, again requesting documents and an agreement to submit to an examination under oath. (PUMF 44.)

On June 19, 2014, Jones wrote to Plaintiff in order to confirm his attorney’s statement that Plaintiff would not appear for examination as requested because of the ongoing law enforcement investigation into the fire. (PUMF 45.) Jones reiterated Ohio Security’s request for documents and asked for dates between July 9, 2014 and July 18, 2014 on which Plaintiff would appear for examination under oath. (PUMF 46.)

On July 10, 2014, Jones wrote to Plaintiff and stated that he was following up on his June 2 and 17, 2014 letters, wherein he requested documents and that Plaintiff appears for examination under oath. (PUMF 48.) Jones also requested additional documents and stated that Ohio Security did not have adequate information to complete its assessment of the Fire Claim. (PUMF 49.)

On July 23, 2014, attorney Lawrence Ecoff (“Ecoff”) wrote to Jones and advised that he was Plaintiff’s co-counsel, along with Marks, in connection with the fire loss. (PUMF 50.)

On August 5 and 27, 2014, Jones wrote to Plaintiff to again request documents and his examination under oath. (PUMF 52.) On August 27, 2014, Ecoff wrote to Jones and advised that he was gathering the requested documents and that he would provide possible dates for Plaintiff’s examination under oath. (PUMF 53.)

On September 17, 2014, Jones again wrote to Plaintiff in order to reiterate Ohio Security’s requests for documents and for the insured’s examination under oath. (PUMF 54.)

On October 7, 2014, Jones wrote to Plaintiff and stated that he had not received any communication from Plaintiff or his counsel in the past month, and that he called Ecoff that morning. (PUMF 55.) Jones informed Plaintiff that Ecoff advised Jones that he was no longer representing Plaintiff. (PUMF 56.) Jones asked Plaintiff to have any replacement attorney contact Jones, and asked Plaintiff to provide documents and dates for his examination under oath if Plaintiff had not retained a replacement attorney. (PUMF 57.)

On October 15, 2014, attorney Kenneth Ingber (“Ingber”) wrote to Jones. (PUMF 58.) Ingber stated that he was recently retained as “replacement counsel” by Plaintiff. (Ibid.) He stated that he would try to respond to Jones’ requests for documents and Plaintiff’s examination by October 17, 2014. (PUMF 59.)

On November 4, 2014, Jones wrote to Plaintiff and offered to proceed with the examination on those topics which required no documents (as well as those issues on which he might provide some records), reserving until a second session the balance of the examination topics. (PUMF 60.)

3. Denial of Fire Claim

On January 6, 2015, Ohio Security served Plaintiff with a letter declining the Fire Claim on the grounds that Plaintiff had refused to submit to an examination under oath or produce documents. (PUMF 61.)

On January 21, 2015, La Brunda emailed Atwood and stated that he was unaware of Ohio Security’s requests for documents from Plaintiff. (PUMF 62.) He asked for copies of all document requests and said that he would “make every effort to secure any available relative documents.” (PUMF 63.)

On January 23, 2015, Jones forwarded previous document requests to La Brunda and requested documents. (PUMF 64.)

F. Ritz’s Fire Claim

On March 13, 2015, Roger Lee (“Lee”) of Ritz Financial (“Ritz”) emailed Atwood. (PUMF 65.) He stated that he understood that Ohio Security had denied the claim, and he stated that he would like to make a claim on behalf of Ritz, which was the mortgagee with respect to the Property. (PUMF 66.) One month later, Lee sent a proof of loss to Atwood. (PUMF 67.)

On May 5, 2015, Atwood wrote to Lee and stated that Ohio Security would issue a check to Ritz in the amount $226,210.60 for the fire loss. (PUMF 68.) She explained that although Ohio Security declined coverage to the insured in connection with the fire loss, the policy states that the mortgageholder’s right to receive benefits is retained even if coverage is denied to the named insured. (PUMF 69.) Atwood indicated that, although Ritz was not listed as a mortgageholder in the policy, the insured’s proof of loss form identified it as such. (PUMF 70.) Ohio Security paid Ritz $226,210.60 on May 5, 2015. (PUMF 71.)

G. Reopening Plaintiff’s Theft Claim

On October 1, 2015, Ohio Security reopened the Theft Claim and reassigned it to Atwood. (PUMF 72.)

H. Reopening Plaintiff’s Fire Claim

On December 4, 2015, Plaintiff’s new attorney, Herbert Dodell (“Dodell”), wrote to Jones. (PUMF 73.) Dodell stated that he had called Jones “several weeks ago” to advise that he would represent Plaintiff in connection with the Fire Claim, and that he had not received a return call. (Ibid.) He stated that the purpose of his call was also to schedule the examination under oath demanded by Ohio Security, and he stated that Plaintiff was prepared to submit to examination on January 7 or 11, 2016. (PUMF 74.) Plaintiff subsequently appeared for examination on January 11, 2016, approximately one and a half years after he was originally requested to do so. (PUMF 75.)

On March 1, 2016, attorney Ingber wrote to Jones and enclosed some requested documents. (Atwood Decl. ¶ 54, Ex. 43.)

On March 14, 2016, Jones wrote to Dodell and reiterated Ohio Security’s requests for documents. (PUMF 77.)

On May 3, 2016, Jones again wrote to Dodell, stating that Ohio Security was still awaiting requested documents. (PUMF 78.)

On June 20, 2016, Jones wrote to Plaintiff. (PUMF 79.) He stated that Plaintiff had failed to provide the documents previously requested and failed to sign and return his examination under oath transcript. (Ibid.) As such, he stated that Ohio Security was again declining the Fire Claim. (PUMF 80.)

On July 25, 2016, Dodell wrote to Jones and stated that Jones’ assertion that Plaintiff did not cooperate in connection with his claim “is totally without support.” (PUMF 81.) Dodell demanded that Ohio Security reopen the Fire Claim and asserted that Ohio Security had been provided all documents in Plaintiff’s possession. (PUMF 82.)

On August 1, 2016, Jones wrote to Plaintiff. (PUMF 83.) He stated that Ohio Security disagreed with Dodell’s characterization of Dodell’s and Jones’ communications, but that Ohio Security would re-open the Fire Claim and continue the examination under oath. (Ibid.) He proposed possible dates. (Ibid.)

On August 5, 2016, Dodell wrote to Jones. (PUMF 84.) He stated that Plaintiff was available for examination for half a day on August 18, 2016, and then not until September 20, 2016. (Ibid.) Jones responded via email on August 8, 2016, asking for Dodell’s and Plaintiff’s availability on September 22, 2016 or during the week of September 26-30, 2016. (PUMF 85.) Plaintiff appeared for his continued examination under oath on September 26, 2016. (PUMF 86.)

On October 21, 2016, Dodell wrote to Jones and enclosed some of the documents requested by Ohio Security. (PUMF 87.)

I. Adjusting Coverage Payments for Water Claim

On October 31, 2016, Atwood wrote to Plaintiff and advised that that Ohio Security would make an additional payment of $2,321 for the Water Claim. (PUMF 88.) Atwood explained that, following completion of the insured’s examination under oath, its consultant, TOSCO, reviewed its initial business personal property measurement and revised its valuation, resulting in an additional payment of $2,321. (PUMF 89.)

J. Accepting Coverage of Theft Claim

On October 31, 2016, Atwood also wrote to Plaintiff regarding the Theft Claim. (PUMF 90.) Atwood stated that Ohio Security would accept coverage for the loss, and that it was prepared to issue payment in the amount of $15,054. (PUMF 91.)

K. Accepting Coverage of Fire Claim

On November 1, 2016, Atwood wrote to Plaintiff regarding the Fire Claim. (PUMF 92.) She stated that Ohio Security had received his signature page and corrections to the examination under oath transcript, and that Ohio Security had concluded its investigation. (PUMF 93.) She stated that Ohio Security would issue payment in the amount of $153,269.08. (PUMF 94.)

On November 29, 2016, Dodell wrote to Atwood to express his disagreement with her measurement of the three losses. (PUMF 95.) Atwood responded on December 5, 2016 and asked Dodell to explain why he believed Ohio Security’s loss measurements were erroneous. (PUMF 96.)

Dodell replied on January 23, 2017, asking for the factual and legal bases for each of Ohio Security’s calculations, and requesting any cause and origin reports, documents regarding Ohio Security’s calculation of the business personal property claims, and any communications with anyone relating to “fencing issues.” (PUMF 97.) He also asked why Ohio Security had not paid for demolition and debris removal. (PUMF 98.)

On February 6, 2017, Jones wrote to Dodell in response to Dodell’s January 23, 2017 letter. (PUMF 99.) He acknowledged Plaintiff’s disagreement with Ohio Security’s claim evaluation and requested information pertaining to Plaintiff’s position. (Ibid.)

L. Commencement of this Civil Action and Subsequent Events

Plaintiff filed this action on March 20, 2017 against Liberty, Ohio Security, and others. (PUMF 100.)

On April 12, 2017, after the complaint in this action had been filed, Dodell wrote to Jones to assert that Ohio Security owed additional amounts under the Policy’s coverages for the building, business personal property, demolition, debris removal, trees, plants, and shrubs, and signage. (PUMF 101.)

Atwood responded to Dodell on April 25, 2017. (PUMF 102.) She explained that Ohio Security believed its measurements of the building and business personal property claims were accurate but requested documentation in order reassess its position. (Ibid.) She also requested further information regarding the insured’s disagreement with Ohio Security’s position regarding demolition and debris removal costs, stated that Ohio Security would consider claims for damaged trees and signage if the insured wished to present such claims, and explained that Ohio Security had accurately applied the policy deductible. (PUMF 103.)

On June 26, 2017, Dodell sent a letter to Atwood which purported to enclose documents. (PUMF 104.) Dodell asserted that the documents supported Plaintiff’s claimed entitlement to additional policy benefits and stated that more documents would be forthcoming. (PUMF 105.)

Jones informed Dodell that Atwood did not receive all of the documents that Dodell purported to enclose with his letter, and he informed Dodell that he was retiring from the practice of law but that his partner, Jeff Gesell, would continue to assist Atwood with the claim. (PUMF 106.)

On August 23, 2017, Atwood wrote to Plaintiff and Dodell and responded to the assertions in Dodell’s June 26, 2017 letter. (PUMF 107.) Atwood also noted that she still had not received all of the enclosures referenced in Dodell’s June 26, 2017 letter, and she reiterated Ohio Security’s request for those documents. (PUMF 108.)

DISCUSSION[1]

Liberty moves for summary judgment on the FAC or, in the alternative, summary adjudication on each cause of action in the FAC. Ohio Security moves for summary adjudication of the FAC’s bad faith and punitive damages claims.

A. Claims against Liberty

Plaintiff asserts three causes of action against Liberty: (1) breach of the Policy, (2) breach of the Policy’s implied covenant of good faith and fair dealing, and (3) declaratory relief concerning his rights under the Policy. Defendants argues that these claims fail as against Liberty because Liberty is not a party to the Policy. The Court agrees.

“Breach of contract cannot be made the basis of an action for damages against defendants who did not execute it and who did nothing to assume its obligations.” (Gold v. Gibbons (1960) 178 Cal.App.2d 517, 519; see also Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 452 (“Under California law, only a signatory to a contract may be liable for any breach.”).)

Similarly, a breach of the implied covenant of good faith emanates from an underlying contract. (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244 (noting that covenant is read into contracts and supplements express contractual covenants).) Because the covenant is based on an underlying contract, there can be no action for breach of the implied covenant of good faith and fair dealing against a defendant who is not a party to the underlying contract. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 576 (“Obviously, the non-insurer defendants were not parties to the agreements for insurance; therefore, they are not, as such, subject to an implied duty of good faith and fair dealing.”); Minnesota Mut. Life Ins. Co. v. Ensley (9th Cir. 1999) 174 F.3d 977, 981 (“Under California law, an insurance agent cannot be held liable for breach of contract or breach of the implied covenant of good faith and fair dealing because he is not a party to the insurance contract.”).)

In this case, the Policy states on each Policy Declaration page that “coverage is provided in: Ohio Security Insurance Company.” (Atwood Decl. Ex. 1, POL 010-017.) The Policy sets forth no other entities as coverage providers under the Policy. In accordance with the Policy’s unambiguous language, the Policy must be read as an insurance contract between Plaintiff and Ohio Security, exclusively. (Civ. Code § 1638.) Because Liberty is not a party to the Policy, Plaintiff’s claims against Liberty fail.

Plaintiff disputes this conclusion. Plaintiff asserts that Liberty is, in fact, a party to the Policy because (1) Liberty’s name is more prominently displayed on the Policy and subsequent communications and (2) Liberty’s claim adjusters handled Plaintiff’s claims. Plaintiff cites no legal authority in support of his assertion. The Court finds the assertion unpersuasive.

First, using Liberty forms and letterhead to draft the Policy does not thereby make Liberty a party to that policy. Such a conclusion is absurd. The Policy’s written provisions clearly identify Ohio Security, not Liberty, as the coverage prover; these written provisions control judicial interpretation of the Policy. (Civ. Code § 1638.) Moreover, while the communications issued to Plaintiff with respect to the Policy frequently appeared on Liberty letterhead, those communications also frequently identified Ohio Security as the Policy’s insurer. (Atwood Decl. Exs. 26, 29-30, 32-33, 36, 54-56.) Indeed, Plaintiff’s own responsive communications recognized Ohio Security’s role as the insurer under the Policy. (See Atwood Decl. Exs. 27, 31, 34.)

Second, the handling of Plaintiff’s policy claims by Liberty’s claim adjusters has no bearing on this issue because this evidence, at best, suggests that Liberty acted as Ohio Security’s agent. “[A]n agent cannot be held liable for breach of a duty which flows from a contract to which he is not a party.” (Filippo Industries, Inc. v. Sun Ins. Co. (1999) 74 Cal.App.4th 1429, 1443; Minnesota Mut. Life, supra, 174 F.3d at 981 (“Under California law, an insurance agent cannot be held liable for breach of contract or breach of the implied covenant of good faith and fair dealing because he is not a party to the insurance contract.”).)

Liberty’s motion for summary judgment on the FAC is GRANTED.

B. Bad Faith Claim against Ohio Security

1. Prima Facie Showing

Every contract, including insurance policies, contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract. (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885; Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720.)

“To fulfill its implied obligation, an insurer must give at least as much consideration to the interests of the insured as it gives to its own interests. When the insurer unreasonably and in bad faith withholds payment of the claim of its insured, it is subject to liability in tort [for bad faith]. And an insurer cannot reasonably and in good faith deny payments to its insured without fully investigating the grounds for its denial.” (Frommoethelydo v. Fire Ins. Exchange (1986) 42 Cal.3d 208, 214-15.)

Based on the evidence recounted in this tentative’s Statement of Facts Section, Defendants have made a prima facie showing that Plaintiff’s bad faith claim against Ohio Security is without merit. This evidence, if uncontested, would show that Ohio Security did not unreasonably delay in providing Plaintiff with Policy benefits or unreasonably withhold any of those benefits.

The facts of each claim substantiate this conclusion.

Ohio Security received notice of the Water Claim on January 6, 2014. (Atwood Decl. ¶ 6.) Ohio Security subsequently assigned a claim professional who spoke to Plaintiff, retained an independent adjuster to assist in the company’s investigation of the claim, and conferred with Plaintiff’s public adjuster La Brunda. (Atwood Decl. ¶ 7, PUMF 11.) By March 3, 2014, Ohio Security sent Plaintiff an advance payment of $100,000. (Atwood Decl. ¶ 9, Ex. 15.) In all, after delays caused by Plaintiff, Ohio Security paid Plaintiff a total of $173,593 in indemnity on this claim. (Ibid.)

Ohio Security received notice of the Theft Claim on March 26, 2014. (Atwood Decl. ¶ 17, Ex. 10.) Ohio Security subsequently assigned the claim to a claim professional who initiated contact with Plaintiff’s agent La Brunda on March 31, 2014. (PUMF 32.) La Brunda did not respond to the claim professional’s request for information, prompting the claim professional to close the investigation on May 1, 2014. (PUMF 33, 39.) The Policy supports this result as the Policy requires the insured to “[c]ooperate with [the insurer] in the investigation or settlement of the claim.” (Atwood Decl. Ex. 1, POL040.) Ohio Security reopened the case on October 1, 2015 (PUMF 72), and, over the course of the ensuing year, Plaintiff complied with Ohio Security’s requests for documents and an examination. (PUMF 73-87.) Ohio Security accepted coverage for this loss in the amount of $15,054 on October 31, 2016. (PUMF 91.)

Ohio Security received notice of the Fire Claim on March 27, 2014. (Atwood Decl. ¶ 17, Ex. 10.) Ohio Security repeatedly requested documents from and an examination of Plaintiff, but Plaintiff would not comply. (PUMF 36-38, 42-60.) This prompted Ohio Security to deny the investigation. (PUMF 61.) When Plaintiff finally submitted to an examination and complied with document requests over two years later (PUMF 74-76, 86-87), Ohio Security reopened the investigation and eventually accepted coverage for the Fire Claim in the amount of $153,269.08 on November 1, 2016. (PUMF 92-94.)

2. Triable Issue of Material Fact

a. Unreasonable Delay of Coverage

In response, Plaintiff briefly argues that Defendants’ attempts to paint him as dilatory are disingenuous because Plaintiff assured Ohio Security that he would fully cooperate with its requests once the criminal investigation against him was complete. This argument has no merit. Irrespective of whether Plaintiff had a bona fide excuse for the delay, the fact still remains that the delay was attributable to Plaintiff, not Ohio Security. Once Plaintiff complied with Ohio Security’s requests for documents and an examination, Ohio Security reopened its investigations and accepted coverage. Further, as Defendants point out, the California Supreme Court rejected a similar contention long ago in Hickman v. London Assur. Corp. (1920) 184 Cal. 524.

“In Hickman, an insurer investigating a loss under a fire policy demanded that the claimant attend an examination under oath, as required by the claimant's policy. The claimant attended the examination, but refused to answer the insurer's questions, invoking his Fifth Amendment right against self-incrimination because of pending criminal charges against him for arson. At the examination, the claimant offered to comply with the demand for an examination under oath after the arson charge was dismissed, or at any time if the insurer would cause the charge to be dismissed. The court held that the claimant’s refusal to submit to an examination was not justified and that by refusing to submit to an examination, the claimant forfeited the right to benefits under the policy: “ ‘If the insured cannot bring himself within the terms and conditions of the policy he cannot recover. The terms of the policy constitute the measure of the insurer's liability. If it appears that the contract has been violated, and thus terminated by the assured, he cannot recover. He seeks to recover by reason of a contract, and he must show that he has complied with such contract on his part.’ ” (Brizuela v. CalFarm Ins. Co. (2004) 116 Cal.App.4th 578, 587.)

Likewise, in this case, Plaintiff must comply with the Policy’s cooperation clause to recover by reason of that contract. Plaintiff’s criminal proceeding is no bar. (Hickman, supra, 184 Cal. at 532 (“Constitutional immunity has no application to a private examination arising out of a contractual relationship.”).)

Plaintiff also argues that he “made a good faith effort to produce as expeditiously as possible the voluminous quantity of documents demanded by [D]efendants’ counsel, Alan Jones.” (Opp. at 8.) Plaintiff asserts that Jones’ demands “were arguably overbroad and unduly burdensome to the point of harassing.” (Ibid.) As Defendants point out (Reply at 10), Plaintiff’s assertion lacks evidentiary support of burden and thus fails to raise a triable issue of material fact. Further, assuming arguendo that Plaintiff is correct that these document demands were overly burdensome, this argument still overlooks the fact that, until a couple months before Ohio Security accepted coverage for the Fire Claim, a persistent issue was Plaintiff’s signature on an examination transcript and submission to a subsequent examination. (PUMF 79-86.) Overly burdensome document requests did not reasonably cause this delay.

b. Unreasonable Withholding of Policy Benefits

In the main, Plaintiff argues that there is a triable issue of material fact as to whether Ohio Security unreasonably withheld payment of Policy benefits for (1) demolition and debris removal in connection with the Fire Claim, (2) emergency services in connection with the Water Claim, and (3) trees, plants, and shrubs in connection with the Fire Claim.

i. Demolition and Debris Removal

Plaintiff argues that there is a triable issue of material fact as to whether Ohio Security unreasonably refused to pay any Policy benefits for demolition and debris removal in connection with the Fire Claim.

Plaintiff submits the following evidence. On March 31, 2014, La Brunda notified Atwood and Kessloff that the City of Corona was requiring immediate demolition of the building on the Property for safety reasons. (Fredgant Decl. Ex. F; La Brunda Decl. ¶ 9.) On April 1, 2014, La Brunda advised Atwood that Plaintiff intended to perform the demolition work “at his cost for now” to comply with the City’s demands. (Fredgant Decl. ¶ 3, Ex. G.)

On February 13, 2015, La Brunda emailed Atwood documentation of the cost of demolition, debris removal, and temporary fencing. (La Brunda Decl. ¶ 10, Ex. E.) Atwood responded that Ohio Security would “review these changes and respond in the near future.” (Ibid.)

On November 1, 2016, Atwood informed Plaintiff that Ohio Security would not pay Plaintiff for these demolition costs without “documentation establishing that [he] paid for this demolition.” (Atwood Decl. Ex. 56, p. 2470.)

On April 25, 2017, Atwood repeated to Plaintiff that demolition and debris removal costs had been denied because “nothing in [the company’s] files reflects the amount [sought] or that such work was actually performed, in connection with the [] fire.” (Atwood Decl. Ex. 62, p. 1406.) Atwood also notes that “[s]eparately, as explained in our earlier letter, the policy’s Additional Coverage for debris removal … expressly provides that payment will only be made if these are reported to Ohio Security within 180 days after the date of direct physical damage.” (Ibid.) Atwood notes that the costs were reported more than 180 days after the fire. (Ibid.)

Plaintiff asserts that this denial was unreasonable because Defendants waited “over two-and-a-half years to tell its insured that his claim for demolition and debris removal would be denied absent proof of payment of those costs” and waited “almost an additional six months to inform its insured that it would not pay benefits for demolition and/or debris removal unless such costs were reported within 180 days after the date of the fire.” (Opp. at 10.)

The Court disagrees. This emphasis on timing is taken out of context. Ohio Security denied the Fire Claim in January 2015 on a completely separate ground. (PUMF 61.) Indeed, La Brunda recognizes this: “I am enclosing documents regarding the demolition, debris removal and temporary fencing. I do this knowing that Ohio Security Insurance Company has denied the insured’s claim.” (La Brunda Decl. Ex. E.) Ohio Security had no duty to investigate or notify Plaintiff while the claim was closed. Once Ohio Security reopened the Fire Claim on August 1, 2016 (PUMF 83), Ohio Security provided Plaintiff with a response within three months. Given the concurrent document requests and examinations, three months does not constitute unreasonable delay. Moreover, as Defendants note, Ohio Security’s reliance on the 180-day limitation period was not unreasonable for two reasons. First, this provision is located within the Policy. (PUMF 130.) Enforcing this express contractual provision does not thwart the parties’ reasonable expectations. Second, Atwood invited Plaintiff to “explain the basis for his/your disagreement with our evaluation.” (Atwood Decl. Ex. 62, p. 1406.) Plaintiff therefore had the opportunity to explain why the 180-day limitation did not apply; Plaintiff submits no evidence that it capitalized on this opportunity.

Plaintiff also argues that this basis for denial was unreasonable. The Court again disagrees. There is a genuine dispute as to whether Ohio Security was liable for these costs under the terms of the Policy. The Policy states in pertinent part that Ohio Security “will pay [Plaintiff’s] expense to remove debris of Covered Property caused by or resulting from a Covered Cause of Loss that occurs during the policy period. The expenses will be paid only they are reported to us in writing within 180 days of the date of direct physical loss or damage.” (Atwood Decl. Ex. 1, p. POL020.) An objectively reasonable interpretation of this Policy provision is, as Atwood insisted, that the Policy requires proof of payment to obtain reimbursement for demolition and debris removal expenses. (See Ken Tu v. Dongbu Insurance Company, Limited (N.D. Cal., Sept. 5, 2018, No. 17-CV-03495-JSC) 2018 WL 4219238, at *9 (analyzing identical provision and concluding that there is no coverage under this provision because “there is no evidence that Plaintiff incurred any expense to remove debris and made a claim for such expense”).) In this case, while La Brunda did submit invoices, “all invoices were billed to Service Masters of Colton, California.” (Atwood Decl. Ex. 62, p. 1406.) Atwood noted that “nothing provided to [Ohio Security] indicate[d] that these costs were incurred by either you or Vortex.” (Atwood Decl. Ex. 62, p. 1406.) Plaintiff submits no evidence showing that he clarified this evidentiary shortcoming with Ohio Security.[2]

ii. Emergency Services

Plaintiff contends that Ohio Security unreasonably withheld payments for emergency services in connection with the Water Claim.

Plaintiff submits the following evidence. According to La Brunda,[3] Janos Borcsa (“Borcsa”), the contractor that provided emergency services immediately following the water loss, “observed a lot of rodent droppings in the stud and floor joist cavities of the second floor.” (Brunda Decl. ¶ 3.) According to La Brunda, “[b]ecause of the rodent droppings, the water which seeped through the second floor to the first floor was contaminated, and the water was treated as Category 3 (‘dark water’) by Borcsa and Vortex.” (Ibid.)[4]

On February 3, 2014, La Brunda submitted to Atwood an estimate for $47,341.03 from Vortex for these emergency services. (La Brunda Decl. ¶ 4.) On February 28, 2014, Atwood responded that Ohio Security would not be relying on the Vortex estimate because “Vortex did not provide any supporting documentation” and because Vortex was “basing their estimated charges on a Category 3 loss, which was not the case in this claim.” (La Brunda Decl. ¶ 4, Ex. A.) Atwood stated that Ohio Security would instead rely on an estimate for $28,639.84 prepared by Kessloff. (Ibid.)

On April 29, 2014, La Brunda emailed Kessloff, inquiring whether he would change his categorization of the water based on the presence of rat droppings. (La Brunda Decl. ¶ 5, Ex. B.) That same day, Kessloff responded that “no changes” would be made. (Ibid.)

In a letter sent in October 2016, Atwood noted that “[t]he difference between the two estimates was Vortex’s estimated charges to address reported category 3 black water and the time to actually perform the services; however, because the source of the January 5, 2014 water was toilet water, Y&A disallowed the Vortex black water cleanup costs. To date, we have not been provided with either documentation from an industrial hygienist or laboratory establishing that the toilet water black water or the actual time expended by Vortex’s personnel to perform their services. As such, our measurement of the necessary emergency services costs is based on Y&A’s $28,640 estimate.” (Atwood Decl. Ex. 54, p. 1704.)

Based on this evidence, Plaintiff claims that there is a triable issue of material fact as to whether Ohio Security conducted a full, fair, and thorough investigation of the basis of Plaintiff’s claim for payment of Category 3 emergency remediation services. The Court disagrees. Ohio Security relied on the estimate of its expert, Kessloff, a building consultant, whose qualifications to render said estimate have not been impugned. Kessloff inspected the Property and prepared an estimate which only materially differed from Vortex’s with respect to the water’s classification. Such efforts constitute a patently reasonable investigation into this claim, particularly because Plaintiffs failed to present evidence to Ohio Security showing that rat droppings existed in the water at a time when Ohio Security could actually investigate this hazard.[5] (See McCoy v. Progressive West Ins. Co. (2009) 171 Cal.App.4th 785, 793 (“The ‘genuine dispute’ doctrine may be applied where the insurer denies a claim based on the opinions of experts.”).)

iii. Trees, Plants, and Shrubs

Plaintiff contends that Ohio Security unreasonably failed to investigate his claim for policy benefits for trees, plants, and shrubs in connection with the Fire Claim and unreasonably withheld benefits for the same.

Plaintiff submits the following evidence. The Policy covers losses to “trees, shrubs, and plants.” (Atwood Decl. Ex. 1, POL110.) Plaintiff made a policy limit demand for losses to “trees, shrubs, and plants” in connection with his Fire Claim. (La Brunda Decl. ¶ 12.) Although Plaintiff’s demand was late, Ohio Security accepted evaluation of the demand. (Atwood Decl. Ex. 62, p. 1407.) Atwood asked that Plaintiff “provide [Ohio Security] with photographs of each tree, shrub or plant that you claim was damaged by the March 26, 2014 fire, together with any documentation supporting the valuation of your claimed loss, separately by tree, shrub or plant.” (Ibid.) Based on post-fire photographs taken by Ohio Security’s personnel, Ohio Security determined that “4 palm trees sustained damage by fire” and issued Plaintiff a supplemental payment of $4,000, $1,000 per tree. (Atwood Decl. Ex. 65, p. 3.) Atwood noted that she was still awaiting a landscaping bid from Plaintiff’s counsel which he promised to submit. (Ibid.)

This is Plaintiff’s weakest argument. Ohio Security agreed to accept evaluation of Plaintiff’s claim for these policy benefits, despite the claim’s untimeliness. Ohio Security has issued Plaintiff $1,000 per destroyed tree — the policy limit per tree — based on photographic evidence. Ohio Security is willing to further compensate Plaintiff depending on Plaintiff’s landscaping bid. Plaintiff has not pointed to any specific acts which Ohio Security should have undertaken with respect to this late claim and which Ohio Security failed to undertake. None of Ohio Security’s actions with respect to this claim can be construed as unreasonable. Plaintiff has failed to establish a triable issue of material fact.

CONCLUSION

Liberty’s motion for summary judgment on the FAC is GRANTED.

Ohio Security’s motion for summary adjudication of the FAC’s bad faith and punitive damages claim is GRANTED.


[1] Defendants’ requests for judicial notice are GRANTED in full. (Evid. Code § 452(d).)

Defendants’ objections to the La Brunda Declaration are SUSTAINED in full for lack of personal knowledge and hearsay.

[2] La Brunda declares: “It is my understanding that plaintiff personally paid a portion of the demolition and debris removal costs directly to Borcsa, the contractor who performed the work, pursuant to a written contract between plaintiff and Borcsa.” (La Brunda Decl. ¶ 11.) This evidence is inadmissible for lack of personal knowledge and hearsay. (Def. Obj. No. 6.) Moreover, this evidence is irrelevant without a showing that this information was submitted to Ohio Security.

[3] The Court has sustained Defendants’ objections to this evidence (Nos. 1-2) for lack of personal knowledge and hearsay. The Court recounts this evidence for clarity’s sake.

[4] According to Atwood, “category 3 ‘black water’ involves grossly contaminated water that contains sewage, pesticides, heavy metals or toxic organic substances, while water from the overflow of a toilet is typically denoted as category 2 water.” (Atwood Decl. Ex. 56, p. 1406.)

[5] As Plaintiff notes, the condition of the building arguably improves with the passage of time as the building becomes drier. (Opp. at 12.)