This case was last updated from Los Angeles County Superior Courts on 03/18/2020 at 01:24:22 (UTC).

CHARLES T. ELLY VS STATE FARM INSURANCE COMPANIES

Case Summary

On 02/15/2018 CHARLES T ELLY filed a Contract - Insurance lawsuit against STATE FARM INSURANCE COMPANIES. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is RALPH C. HOFER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7734

  • Filing Date:

    02/15/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Insurance

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RALPH C. HOFER

 

Party Details

Plaintiffs

WILKERSON CARMEN ELLY

ELLY CHARLES T.

Defendants

STATE FARM INSURANCE COMPANIES

DAVID LIU INSURANCE AGENCY INC.

Attorney/Law Firm Details

Plaintiff Attorneys

STONER WILLIAM F.

GREGORY S. GANN

GANN GREGORY S.

STONER WILLIAM EDWARD

GANN GREGORY

SNYDER BRADLEY ALLEN

Defendant Attorneys

PACIFIC LAW PARTNERS LLP

MCGUIRE MICHAEL J.

BATEZEL MATTHEW FREDERICK

 

Court Documents

Notice of Ruling

2/4/2020: Notice of Ruling

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...) OF 10/25/2019

10/25/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE...) OF 10/25/2019

Substitution of Attorney

10/23/2019: Substitution of Attorney

Response to Petition

10/11/2019: Response to Petition

Separate Statement

8/5/2019: Separate Statement

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE MEDIATION AND DISCOVERY; 2) STATUS CONFE...)

7/22/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE MEDIATION AND DISCOVERY; 2) STATUS CONFE...)

Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

7/11/2019: Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil

Minute Order - Minute Order (Nunc Pro Tunc Order for Minute Order of 2/22/2019 for Departm...)

2/22/2019: Minute Order - Minute Order (Nunc Pro Tunc Order for Minute Order of 2/22/2019 for Departm...)

Notice of Case Assignment - Unlimited Civil Case

2/15/2018: Notice of Case Assignment - Unlimited Civil Case

Legacy Document - LEGACY DOCUMENT TYPE: Complaint filed-Summons Issued

2/15/2018: Legacy Document - LEGACY DOCUMENT TYPE: Complaint filed-Summons Issued

Minute Order - Minute order entered: 2018-05-01 00:00:00

5/1/2018: Minute Order - Minute order entered: 2018-05-01 00:00:00

Minute Order - Minute order entered: 2018-06-08 00:00:00

6/8/2018: Minute Order - Minute order entered: 2018-06-08 00:00:00

Legacy Document - LEGACY DOCUMENT TYPE: Order

6/8/2018: Legacy Document - LEGACY DOCUMENT TYPE: Order

Case Management Statement

7/16/2018: Case Management Statement

Case Management Statement -

10/4/2018: Case Management Statement -

Request For Copies -

8/29/2018: Request For Copies -

Declaration -

8/29/2018: Declaration -

Case Management Statement -

7/16/2018: Case Management Statement -

57 More Documents Available

 

Docket Entries

  • 03/16/2020
  • Docketat 09:00 AM in Department D; Jury Trial - Not Held - Advanced and Vacated

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  • 03/05/2020
  • Docketat 09:00 AM in Department D; Final Status Conference - Not Held - Advanced and Vacated

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  • 02/19/2020
  • Docketat 08:30 AM in Department D; Order to Show Cause Re: (Mandatory Settlement Conference) - Not Held - Vacated by Court

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  • 02/19/2020
  • DocketMinute Order ( (Order to Show Cause Re: Mandatory Settlement Conference)); Filed by Clerk

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  • 02/19/2020
  • DocketCertificate of Mailing for ((Order to Show Cause Re: Mandatory Settlement Conference) of 02/19/2020); Filed by Clerk

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  • 02/04/2020
  • DocketNotice of Ruling; Filed by STATE FARM INSURANCE COMPANIES (Defendant)

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  • 01/31/2020
  • Docketat 09:00 AM in Department D; Status Conference (Re Possibility of Bifurcating the Insurance Coverage Issue) - Not Held - Vacated by Court

    Read MoreRead Less
  • 01/31/2020
  • Docketat 09:00 AM in Department D; Status Conference (Re Mediation and Discovery) - Not Held - Vacated by Court

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  • 01/31/2020
  • Docketat 09:00 AM in Department D; Hearing on Motion for Summary Judgment (and/or Summary Adjudication of Issues filed on behalf of Plaintiffs Charles T. Elly and Carmen Elly Wilkerson Continued from 10/25/2019) - Held - Motion Granted

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  • 01/31/2020
  • DocketMinute Order ( (Status Conference Re Mediation and Discovery; Hearing on Moti...)); Filed by Clerk

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107 More Docket Entries
  • 04/26/2018
  • DocketProof-Service/Summons; Filed by CHARLES T. ELLY (Plaintiff); CARMEN ELLY WILKERSON (Plaintiff)

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  • 04/26/2018
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff

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  • 02/15/2018
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 02/15/2018
  • DocketNotice of Case Management Conference

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  • 02/15/2018
  • DocketNotice of Order to Show Cause Re Failure to Comply with Trial Court Delay Reduction Act

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  • 02/15/2018
  • DocketSummons; Filed by null

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  • 02/15/2018
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 02/15/2018
  • DocketSummons Filed

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  • 02/15/2018
  • DocketCivil Case Cover Sheet

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  • 02/15/2018
  • DocketComplaint filed-Summons Issued

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Tentative Rulings

Case Number: EC067734    Hearing Date: January 31, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 22

Case Number: EC 067734

Date: 1/31/20 Trial date: March 16, 2020

Case Name: Elly, et al. v. State Farm Insurance Companies, et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Defendant State Farm Insurance Company

Responding Party: Plaintiffs Charles T. Elly and Carmen Elly Wilkerson

Relief Requested:

Order granting summary judgment in favor of defendant State Farm Insurance Company on the entirety of plaintiffs’ Amended Complaint

In the alternative, summary adjudication of each cause of action

Causes of Action from Amended Complaint

1) Breach of Contract

2) Breach of Implied Covenant of Good Faith and Fair Dealing

SUMMARY OF COMPLAINT:

Plaintiffs Carmen Elly Wilkerson and Charles Elly allege that they were issued by defendant State Farm Insurance a homeowner’s insurance policy for a single-family home located in Glendale, which includes coverage for “accidental direct physical loss.” Plaintiffs allege that while the policy was in effect, a cobblestone wall across the front of the subject property collapsed. The complaint alleges that plaintiffs timely submitted their collapsed wall claim, fully cooperated with defendant in response to the handling of the claim, but State Farm has failed and refused to tender its performance due under the policy, but has denied plaintiffs’ claim explaining that their policy excludes damages caused by tree roots, wear, tear, deterioration and faulty construction. On March 22, 2017, plaintiffs received notice from the City of Glendale that the collapsed wall was a violation of the Glendale Building and Safety Code and corrective action was required within 30 days. Plaintiffs allege that as a result of defendant’s acts, plaintiffs have been deprived of the contractual benefits under the policy of insurance and have been damaged.

ANALYSIS:

Procedural

The reply indicates that the opposition papers here were submitted by plaintiffs’ counsel, Gregory Gann, an attorney licensed in Illinois, and that on August 30, 2019, the court ordered that Mr. Gann could not appear in this matter until he could demonstrate that an active member of the State Bar of California has been associated in as attorney of record and agreed to be affiliated with counsel pro hac vice. The court on that date heard a motion to be relieved as counsel by plaintiffs’ counsel, which left the matter in the unusual posture of having counsel previously admitted to appear for plaintiff pro hac vice without any affiliated member of the California State Bar. The minute order states:

“[C]ounsel pro hac vice cannot represent plaintiffs without an affiliation with California counsel. Under CRC Rule 9.40 (a), the court in its discretion may permit to appear as counsel pro hac vice, “A person

who is not a member of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or of the highest court in any state… provided that an active member of the State Bar of California is associated as attorney of record.” The court orders that counsel pro hac vice has no permission to appear in this matter until and unless he can demonstrate to the court that an active member of the State Bar of California is associated as attorney of record.”

The minute order further states:

“The court orders that counsel previously admitted to appear for plaintiffs pro hac vice may not

appear in this matter until and unless counsel can demonstrate to the court that an active member

of the State Bar of California has been associated as attorney of record, and has agreed to be

affiliated with counsel pro hac vice.”

The file shows that on October 23, 2019, a Substitution of Attorney was filed, indicating a new legal representative, Brad Snyder, based in Woodland Hills, California, would be representing plaintiffs. It is not clear that any documentation has been filed showing that new counsel has agreed to be affiliated with counsel pro hac vice, or that California counsel approves the filing of the opposition which predated his affiliation. This will be discussed at the hearing.

Substantive

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendant State Farm seeks to establish that plaintiffs will be unable to establish their causes of action against defendant, in effect that State Farm breached the insurance contract, because plaintiffs’ loss was not covered by the policy, but specifically excluded, so State Farm’s denial of the claim is not actionable.

Issue No. 1: Plaintiffs cannot establish a claim for breach of contract against State Farm, as a matter of law.

To establish a claim for breach of contract, plaintiff must plead and prove: The existence of a contract; plaintiff’s performance or excuse for nonperformance; defendant’s breach; and damage to plaintiff. Walsh v. Standart (1917) 174 Cal. 807.

Defendant State Farm argues here that State Farm denied the claim against the insurance policy on February 16, 2017, based on its conclusion, supported by inspections and findings included in an engineer’s report, that the predominant cause of the damage to the subject retaining wall was tree roots. [UMF No. 20-22, and evidence cited].

Defendant indicates that approximately a year after State Farm closed the claim, plaintiffs filed this lawsuit, attaching an April 18, 2017 report prepared by John W. Byer of Byer Geotechnical, which provided information regarding the wall at issue, the inspection of the wall, and the cause of the loss. [UMF Nos. 23, 24, and evidence cited]. According to the Byer report, and as confirmed by Mr. Byer at his deposition, hydrostatic

pressure of the water, plus the weight of the rubble backfill, exceeded the ability of the wall to support the load. [UMF Nos. 25, 28, and evidence cited].

Defendant argues that despite the fact that defendant and plaintiffs disagree about the cause of the loss, since both causes of loss are specifically excluded, there can be no breach of State Farm’s obligations established.

The policy here covers “accidental direct physical loss to the property” described in the coverage. [UMF No. 3, Ex. 1, p. 28].

The policy includes among its various exclusions that:

“We do not insure for any loss to the property…which is caused by one or more of the items below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combinations of these:…

n. pressure from or presence of tree, shrub or plant roots.”

[UMF No. 3, Ex. 1, p. 31].

The policy also excludes

Earth Movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to landslide, mudflow, mudslide, sinkhole, subsidence, erosion or movement resulting from improper compaction, site selection or any other external forces. Earth movement also included volcanic explosion or lava flow, except as specifically provided in SECTION I—ADDITIONAL, Volcanic Action….”

[UMF No. 3, Ex. 1, p. 31, bold in original].

The policy further excludes losses due to

Water, meaning…

(1) flood, surface water, waves (including tidal wave, tsunami, and seiche), tides, tidal water, overflow of any body of water, or spray or surge from any of these, all whether driven by wind or not;…

(4) material carried or otherwise moved by any of the water described in paragraphs (1) through (3) above….”

[UMF No. 3, Ex. 1, p. 15, bold in original.]

As set forth in the moving papers, the interpretation of an insurance policy generally presents a question of law. Waller v. Truck Ins, Exchange, Inc. (1995) 11 Cal.4th 1, 18. “The rules governing policy interpretation require us to look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it.” Waller, at 18, citations omitted.

The law gives effect to the parties’ mutual intent, with the contractual language governing where it is clear and explicit. Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.

Generally, “the burden is on the insurer to prove a claim covered falls within an exclusion…” Royal Globe Ins. Co. v. Whitaker (1986) 181 Cal.App.3d 532, 537.

Defendant relies on legal authority under which it is held that where all potential causes of loss are excluded, there is no coverage for the loss. Brodkin v. State Farm Fire & Casualty Co. (1989) 217 Cal.App.3d 210, 217 (“But even where the parties may disagree over the factual question of proximate cause, summary judgment is still proper if all of the alleged causes of action are excluded under the policy.” (citation omitted)).

The moving papers submit evidence that defendant has attributed the loss to tree roots and submits a report to that effect by an expert. [UMF No. 19, and evidence cited; Ex. 6]. The moving papers also submit evidence establishing that plaintiffs have taken the position that the loss was not attributable to tree roots, but to activity which would be excluded as involving earth movement. Specifically, the moving papers rely on the report of plaintiffs’ expert, which states:

“During the heavy rainstorms, surface runoff flowed down from the front yard of the residence, across the walkway, down the rubble-filled slope, and eventually found its way in behind the cobblestone wall. The hydrostatic pressure of the water, plus the weight of the rubble backfill, exceeded the ability of the wall to support the loads.”

[UMF No. 25, and evidence cited, Ex. 10, p. 2].

The expert in deposition also stated that this hydrostatic pressure of the water mixing with the soil and moving against the wall was the predominant cause of the damage, and when asked whether “the most important factor was the earth mixed with water causing the damage,” he responded, “Pressure on the wall.” When asked, “From the earth and the water?” Byer responded, “Yes.” [UMF No. 26, and evidence cited; Ex. 11, Byer Depo, pp. 53-54].

Byer gave the following further testimony:

“Q. You’re saying the hydrostatic pressure of the water plus the weight of the rubble backfill—this is what you were just saying—exceeded the load capacity of the wall?

A. Yes.

Q. So the water mixed with the soil was too heavy for the wall to withstand it?

A. Yes.

Q. Okay. So both of those need to act together to make the wall—made the wall fail.

A. That was our opinion, that the problem was that the wall backfilled, and that temporarily saturated.

Q. You say the water came from surface runoff from rainstorms?

A. Yeah….

Q. So the water and the soil create a lateral pressure on the wall?

A. Yep.”

[UMF No. 28, and evidence cited; Ex. 11, Byer Depo. pp. 43-44]

This appears sufficient to establish that plaintiffs’ theory of breach of the policy is based on an occurrence related to the movement of earth in combination with water which is expressly excluded from coverage. The burden accordingly shifts to plaintiffs to raise triable issues of material fact.

The opposition does not submit any further evidence of any cause of the loss which would not be subject to exclusion. Instead, the opposition argues that the issue of law of the “efficient proximate cause” doctrine should be applied. However, the authorities cited expressly apply to losses caused by multiple risks or perils, “at least one of which is covered by insurance and one of which is not.” Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 753, citations omitted.

Here, defendant has argued that this is a situation where the loss would be covered under either theory. The opposition argues that the Byer Geotechnical report does not involve the “sinking, rising, shifting, expanding or contracting of the earth,” but the weight of “rubble backfill” following rain being a factor in the collapse of the wall, and that weight does not connote movement as a contributing factor, so the report does not indicate earth movement is a contributing factor, and the earth movement exclusion does not apply. Applying common interpretation of the provision, however, it would appear that the only reasonable inference to be

drawn here is that the described “weight” that caused the wall to fall was due to a combination of water and soil which moved down the slope of the hill during heavy rains. [UMF Nos. 6, 25, 28]. This would constitute “shifting” of “earth,” “whether combined with water or not,” and appears to be a way of describing “mudflow, mudslide,” or a comparable occurrence, which is subject to the Earth Movement exclusion, and also subject to the Water exclusion.

Plaintiffs in response to defendant’s separate statement dispute only two of the undisputed facts submitted by defendant, with the same notation, “Disputed, Stritt decided prior to Philpott’s report that the claim would be denied. Stritt depo.” [See Response to UMF Nos. 20, 21]. This is insufficient to raise triable issues of material fact on the issue presented by the motion, and there is no further evidence to suggest that there was a separate actionable breach of the contract by State Farm representative determining at a specific time that a claim was not covered, particularly where it is established here that the loss was subject to exclusion under any offered theory.

The motion accordingly is granted.

Issue No. 2: Plaintiffs cannot establish a claim for breach of the implied covenant of good faith and fair dealing, as a matter of law.

To establish breach of the implied covenant of good faith and fair dealing against an insurer, in effect, insurance bad faith, plaintiff must establish the following elements:

“(1) Benefits due under the policy must have been withheld, and

(2) the reason for withholding benefits must have been unreasonable or without proper cause.”

Love v. Fire Insurance Exchange (1990) 221 Cal.App.3d 1136, 1151.

As discussed above, defendant has established that no benefits due under the policy have been withheld, so this cause of action also cannot be established. The opposition does not address this argument or this cause of action at all. The motion is accordingly granted.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant State Farm General Insurance Company’s Motion for Summary Judgment is GRANTED.

Defendant State Farm has sufficiently established that plaintiffs will be unable to establish their causes of action against defendant, because plaintiffs will be unable to establish that the circumstances which plaintiffs and their expert, or defendant and its expert were not excluded from the policy coverage. Specifically, it is undisputed that State Farm denied the claim against the insurance policy on February 16, 2017, based on its conclusion, supported by inspections and findings included in an engineer’s report, that the predominant cause of the damage to the subject retaining wall was tree roots. [UMF No. 20-22, and evidence cited; Ex. 6].

The policy here covers “accidental direct physical loss to the property” described in the coverage. [UMF No. 3, Ex. 1, p. 28]. The policy includes among its various exclusions that:

“We do not insure for any loss to the property…which is caused by one or more of the items below, regardless of whether the loss occurs suddenly or gradually, involves isolated or widespread damage, arises from natural or external forces, or occurs as a result of any combinations of these:…

n. pressure from or presence of tree, shrub or plant roots.”

[UMF No. 3, Ex. 1, p. 31].

The clear and explicit language of the policy appear to exclude the cause determined by defendant, and plaintiffs have not raised triable issues of fact on this matter.

Defendant also establishes that plaintiffs in this matter rely on a theory that the loss was not caused by tree roots, but by the opinion of their expert, and an April 18, 2017 report prepared by John W. Byer of Byer Geotechnical, which concludes that hydrostatic pressure of the water, plus the weight of the rubble backfill, exceeded the ability of the wall to support the load. [UMF Nos. 23-25, 28, and evidence cited].

The policy here expressly excludes

Earth Movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to landslide, mudflow, mudslide, sinkhole, subsidence, erosion or movement resulting from improper compaction, site selection or any other external forces. Earth movement also included volcanic explosion or lava flow, except as specifically provided in SECTION I—ADDITIONAL, Volcanic Action….”

[UMF No. 3, Ex. 1, p. 31, bold in original].

The policy further excludes losses due to

Water, meaning…

(1) flood, surface water, waves (including tidal wave, tsunami, and seiche), tides, tidal water, overflow of any body of water, or spray or surge from any of these, all whether driven by wind or not;…

(4) material carried or otherwise moved by any of the water described in paragraphs (1) through (3) above….”

[UMF No. 3, Ex. 1, p. 15, bold in original.]

Defendant State Farm has sufficiently established, through the Byer report and his deposition testimony, that the soil combined with the water which plaintiffs’ expert opines predominantly caused the loss is an occurrence which is subject to these express exclusions.

Specifically, plaintiffs do not dispute that they rely on the report of their expert, which states:

“During the heavy rainstorms, surface runoff flowed down from the front yard of the residence, across the walkway, down the rubble-filled slope, and eventually found its way in behind the cobblestone wall. The hydrostatic pressure of the water, plus the weight of the rubble backfill, exceeded the ability of the wall to support the loads.”

[UMF No. 25, and evidence cited, Ex. 10, p. 2].

The expert in deposition also confirmed stated that this hydrostatic pressure of the water mixing with the soil and moving against the wall was the predominant cause of the damage. [UMF Nos. 26, 28, and evidence cited; Ex. 11, Byer Depo, pp. 43-44, 53-54].

This is sufficient to establish that plaintiffs’ theory of breach of the policy is based on an occurrence related to the movement of earth in combination with water which is expressly excluded from coverage.

Defendant relies on legal authority under which it is held that where all potential causes of loss are excluded, there is no coverage for the loss. Brodkin v. State Farm Fire & Casualty Co. (1989) 217 Cal.App.3d 210, 217 (“But even where the parties may disagree over the factual question of proximate cause, summary judgment is still proper if all of the alleged causes of action are excluded under the policy.” (citation omitted)).

The burden accordingly shifts to plaintiffs to raise triable issues of material fact.

Plaintiffs in opposition do not submit any further evidence of any cause of the loss which would not be subject to exclusion. The opposition argues that the Byer Geotechnical report does not involve the “sinking, rising,

shifting, expanding or contracting of the earth,” but the weight of “rubble backfill” following rain being a factor in the collapse of the wall, and that such “weight” does not connote movement as a contributing factor, so the report does not indicate earth movement is a contributing factor, and the Earth Movement exclusion does not apply. Applying common interpretation of the provision, however, it would appear that the only reasonable inference to be drawn is that the described “weight” that caused the wall to fall was due to a combination of water and soil which moved down the slope of the hill during heavy rains. [UMF Nos. 6, 25, 28]. This would constitute “shifting” of “earth,” “whether combined with water or not,” and appears to be a way of describing “mudflow, mudslide,” or a comparable occurrence, which is subject to the Earth Movement exclusion, and also subject to the Water exclusion. Summary judgment is accordingly appropriate, as there is no covered loss which the insurer has failed to pay. Because the second cause of action for breach of implied covenant of good faith and fair dealing requires plaintiffs to establish that benefits due under the policy were withheld, and they have failed to raise triable issues of fact on this issue, the second cause of action also fails.

UNOPPOSED Request for Judicial Notice is GRANTED.

Defendant is ordered to submit an appropriate form of judgment.