Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/08/2019 at 05:37:32 (UTC).

JACKIE KRIETZMAN ET AL VS MERCURY CASUALTY COMPANY ET AL

Case Summary

On 03/21/2017 JACKIE KRIETZMAN filed a Contract - Insurance lawsuit against MERCURY CASUALTY COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD E. RICO and BARBARA A. MEIERS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4909

  • Filing Date:

    03/21/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Insurance

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RICHARD E. RICO

BARBARA A. MEIERS

 

Party Details

Plaintiffs and Petitioners

KREITZMAN JACKIE

SENIT BRIAN

Defendants and Respondents

DAVID MORSE & ASSOCIATES

MERCURY CASUALTY COMPANY

PATRIOT ENVIRONMENTAL SERVICES INC.

REISDORF CRAIG

SUNNY HILLS ASSOCIATES INC.

DELTA COMMERCE CORPORATION

DOES 1 - 100

ALLIANCE ENVIRONMENTAL GROUP INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CHILD BRADFORD T. ESQ.

FERRENTINO JOSEPH A.

Defendant and Respondent Attorneys

HEMPHILL LORA D. ESQ.

MEYER JASON F. ESQ.

CHEN SHUN C. ESQ.

HATEM ROBERT J.

OHL CHARLES N. ESQ.

KUO HUBERT H. ESQ.

ARDENT LAW GROUP PC

 

Court Documents

NOTICE OF MOTION AND MOTION OF DEFENDANT MERCURY CASUALTY COMPANY TO COMPEL COMPLIANCE WITH REQUESTS FOR PRODUCTION, SET ONE, TO PLAINTIFFS, ETC

1/24/2018: NOTICE OF MOTION AND MOTION OF DEFENDANT MERCURY CASUALTY COMPANY TO COMPEL COMPLIANCE WITH REQUESTS FOR PRODUCTION, SET ONE, TO PLAINTIFFS, ETC

NOTICE OF MOTION AND MOTION OF MERCURY CASUALTY COMPANY TO COMPEL AUTHORIZATION TO OBTAIN MEDICAL AND BILLING RECORDS FROM ARIZONA PHYSICIAN ALAN CHRISTIANSON; MEMORANDUM OF POINTS AND AUTHORITIES

1/24/2018: NOTICE OF MOTION AND MOTION OF MERCURY CASUALTY COMPANY TO COMPEL AUTHORIZATION TO OBTAIN MEDICAL AND BILLING RECORDS FROM ARIZONA PHYSICIAN ALAN CHRISTIANSON; MEMORANDUM OF POINTS AND AUTHORITIES

DECLARATION OF CHRISTINE CHAMBERS IN SUPPORT OF MOTION TO COMPEL BRIAN SENIT'S FURTHER RESPONSES TO INTERROGATORIES

1/24/2018: DECLARATION OF CHRISTINE CHAMBERS IN SUPPORT OF MOTION TO COMPEL BRIAN SENIT'S FURTHER RESPONSES TO INTERROGATORIES

DECLARATION OF CAITLIN R. MAURER IN SUPPORT OF MOTION TO COMPEL BRIAN SENIT'S RESPONSES TO REQUEST FOR PRODUCTION, SET TWO

4/6/2018: DECLARATION OF CAITLIN R. MAURER IN SUPPORT OF MOTION TO COMPEL BRIAN SENIT'S RESPONSES TO REQUEST FOR PRODUCTION, SET TWO

NOTICE OF MOTION AND MOTION OF MERCURY CASUALTY COMPANY TO COMPEL JACKIE KREITZMAN'S RESPONSES TO SPECIAL INTERROGATORIES SET TWO; MEMORANDUM OF POINTS AND AUTHORITIES

4/6/2018: NOTICE OF MOTION AND MOTION OF MERCURY CASUALTY COMPANY TO COMPEL JACKIE KREITZMAN'S RESPONSES TO SPECIAL INTERROGATORIES SET TWO; MEMORANDUM OF POINTS AND AUTHORITIES

Unknown

4/9/2018: Unknown

DEFENDANT DELTA COMMERCE CORPORATION REPLY IN SUPPORT OF DEMURRER TO PLAINTIFFS' FIRST AMEND COMPLAINT

4/25/2018: DEFENDANT DELTA COMMERCE CORPORATION REPLY IN SUPPORT OF DEMURRER TO PLAINTIFFS' FIRST AMEND COMPLAINT

Minute Order

5/2/2018: Minute Order

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

5/11/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

Unknown

6/7/2018: Unknown

DEFENDANT/CROSS-COMPLAINANT PATRIOT ENVIRONMENTAL LABORATORY SERVICES, INC.'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT

6/22/2018: DEFENDANT/CROSS-COMPLAINANT PATRIOT ENVIRONMENTAL LABORATORY SERVICES, INC.'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLAINT

DEFENDANT DELTA COMMERCE CORPORATION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS DEMURRER TO PLAINTIFF?S SECOND AMENDED COMPLAINT

7/26/2018: DEFENDANT DELTA COMMERCE CORPORATION MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS DEMURRER TO PLAINTIFF?S SECOND AMENDED COMPLAINT

MOTION FOR TERMINATING SANCTIONS

8/17/2018: MOTION FOR TERMINATING SANCTIONS

NOTICE OF ENTRY OF ORDER GRANTING MERCURY CASUALTY COMPANY'S MOTION FOR TERMINATING SANCTIONS

8/23/2018: NOTICE OF ENTRY OF ORDER GRANTING MERCURY CASUALTY COMPANY'S MOTION FOR TERMINATING SANCTIONS

Proof of Service by Mail

5/28/2019: Proof of Service by Mail

Unknown

10/5/2017: Unknown

Proof of Service

6/16/2017: Proof of Service

NOTICE OF RULING

8/15/2017: NOTICE OF RULING

177 More Documents Available

 

Docket Entries

  • 06/03/2019
  • Declaration (of Rondi J. Walsh); Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 06/03/2019
  • Motion to Compel (Mercury's to Provide Further Responses to Jackie Kreitzman's Special Interrogatories, Set Three); Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 06/03/2019
  • Separate Statement; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 05/31/2019
  • Case Management Statement; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 05/28/2019
  • Motion to Compel (Defendant Mercury Casualty Company to Provide Further Responses to Plaintiff Jackie Kreitzman's Request for Production of Documents, Set Three; Memorandum of Points And Authorities in Support Thereof); Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 05/28/2019
  • Proof of Service by Mail; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 05/28/2019
  • Separate Statement; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 05/28/2019
  • Declaration (Of Rondi J. Walsh in Support of Motion to Compel Defendant Mercury Casualty Company to Provide Further Responses to Plaintiff Jackie Kreitzman's Special Interrogatories, Set Two); Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 05/28/2019
  • Motion to Compel (Defendant Mercury Casualty Company to Provide Further Responses to Plaintiff Jackie Kreitzman's Special Interrogatories, Set Two; Memorandum of Points and Authorities in Support Thereofe); Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 05/28/2019
  • Declaration (Of Rondi J. Walsh in Support of Motion to Compel Defendant Mercury Casualty Company to Provide Further Responses to Plaintiff Jackie Kreitzman's Request for Production of Documents, Set Three); Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
359 More Docket Entries
  • 04/19/2017
  • AMENDMENT TO COMPLAINT

    Read MoreRead Less
  • 04/05/2017
  • at 00:00 AM in Department 12; Unknown Event Type - Held - Motion Granted

    Read MoreRead Less
  • 04/05/2017
  • Minute Order

    Read MoreRead Less
  • 04/05/2017
  • Minute order entered: 2017-04-05 00:00:00; Filed by Clerk

    Read MoreRead Less
  • 03/30/2017
  • Challenge To Judicial Officer - Peremptory (170.6); Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 03/29/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 03/29/2017
  • Notice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 03/21/2017
  • Complaint; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

    Read MoreRead Less
  • 03/21/2017
  • COMPLAINT FOR: 1. BREACH OF CONTRACT; AND ETC

    Read MoreRead Less
  • 03/21/2017
  • SUMMONS

    Read MoreRead Less

Tentative Rulings

Case Number: BC654909    Hearing Date: April 22, 2021    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

JACKIE KREITZMAN, et al.

vs.

MERCURY CASUALTY COMPANY

Case No.: BC654909

Hearing Date: April 22, 2021

Plaintiffs’ motion to compel further responses to special interrogatories and inspection demand (set three) is GRANTED, AS MODIFIED BELOW.

On March 21, 2017, Plaintiffs Kreitzman and Brian Senit (collectively, Plaintiffs) filed the instant action. On May 23, 2018, Plaintiffs filed a second amended complaint (SAC) against Mercury Casualty Company (Mercury), Sunny Hills Associates, Inc., Alliance Environmental Group, Patriot Environmental Services, and Delta Commerce Corporation, alleging: (1) breach of contract; and (2) breach of the covenant of good faith and fair dealing; and (3) negligent misrepresentation.

Plaintiffs move to compel further responses to special interrogatories and inspection demand (set three).

On 2/17/2021, an IDC was held which mostly resolved this motion. However, outstanding issues remained, including Mercury’s disclosure of materials related to 33 separate case filings, and disclosure of deposition transcripts.

Discussion

In a status report filed on 3/10/2021, Mercury provided the following update:

- Mercury disputes the relevancy of the 33 cases that Plaintiffs claim to be relevant here. While Plaintiffs allege they suffered water loss due to a 2015 storm, 10 of the 33 cases concern fire losses which are investigated in a “vastly different manner.” 5 of the 33 cases concerned claims which were erroneously filed against Mercury, and were meant to be filed against California Automobile Insurance Company (CAIC)

- Mercury argues there is insufficient justification as to why deposition transcripts should be produced, given that Mercury has offered to produce redacted claim notes for cases involving water losses where the same adjusters handled the claims.

As to the 33 bad faith cases, the Court agrees that Plaintiff has not set forth facts to show that each of these cases are sufficiently similar to the facts here. The mere fact that these cases involve property damage in Southern California since 2014 does not establish that those cases are directly relevant to the matter here. Different types of claims involve different procedures, and thus only claims conducted and investigated in a similar manner to Plaintiff’s are relevant to a showing of bad faith practices. Plaintiff did not file any supplemental materials which could have shown the relevance of all 33 cases, or that could have established that the claim procedures in all cases were sufficiently similar.

Mercury identified 15 cases which it believes are irrelevant—10 of these cases involved either fire losses, mud slides, or marijuana farms, and 5 involved cases in which Mercury was erroneously sued. The Court agrees that Mercury should not have to produce information and documents regarding these cases. While Mercury also argues that Plaintiff should be limited to claims involving the same adjuster, the Court is not persuaded. While it is true that in Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785 the discovery request there was limited to the settlement practices of a single adjuster, the Colonial Court did not narrow the discovery request to apply only to the same adjuster’s past claims. Rather, the discovery request was already limited to the same adjuster. Mercury did not submit any additional case law which would show that Courts have previously limited evidence of bad faith practices to conduct by the same adjuster. Given that adjusters are implementing procedures and practices set by the same company (i..e, Mercury), other adjusters investigations of similar water loss claims are directly relevant to this action’s allegations of bad faith practices by Mercury.

Mercury is to advise Plaintiff whether depositions were taken or not.

It is so ordered.

Dated: April , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: BC654909    Hearing Date: January 27, 2021    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

JACKIE KREITZMAN, et al.

vs.

MERCURY CASUALTY COMPANY

Case No.: BC654909

Hearing Date: January 27, 2021

Plaintiff’s motion to compel further responses is GRANTED. Defendant is ordered to provide the performance evaluations requested in RFP Nos. 1-5 within 30 days.

On March 21, 2017, Plaintiffs Kreitzman and Brian Senit (collectively, Plaintiffs) filed the instant action. On May 23, 2018, Plaintiffs filed a second amended complaint (SAC) against Mercury Casualty Company (Mercury), Sunny Hills Associates, Inc., Alliance Environmental Group, Patriot Environmental Services, and Delta Commerce Corporation, alleging: (1) breach of contract; and (2) breach of the covenant of good faith and fair dealing; and (3) negligent misrepresentation.

Plaintiffs now move to compel further responses to requests for production (set one).

Discussion

Plaintiffs argue that Defendant should be compelled to provide further responses because their requests are not vague or overbroad and neither Defendant’s, nor its employee’s, privacy rights are implicated. Plaintiffs argue that specific employee performance evaluations are relevant to their bad faith claim because Plaintiffs contend that Defendant prematurely closed their claim file on multiple occasions because Defendant provides financial incentives to its employees to close claims quickly. By requesting the performance evaluations for the individuals who worked on Plaintiffs claim, Plaintiffs will be able determine whether these employees received positive performance evaluations based on the speed with which they completed their investigation of Plaintiffs’ claim.

In opposition, Defendant argues that Plaintiffs’ request impermissibly violate the privacy rights of its employees, and cites Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35 (Hill) in support.

Under the Hill test, the party asserting a privacy right must establish: (1) a legally protected privacy interest, (2) an objectively reasonable expectation of privacy in the given circumstances, (3) and a threatened intrusion that is serious. (Id. at pp. 35–37.) However, [i]nvasion of a privacy interest is not a violation of the state constitutional right to privacy if the invasion is justified by a competing interest. (Id. at p. 38.)

Here Defendant’s employees have a privacy interest in their personnel files, and an objectively reasonable expectation of privacy. It is an invasion of that privacy to disclose employee’s personnel files. However, Plaintiff’s claim is based, in part, on allegations that Mercury went beyond simply failing to conduct an adequate investigation by trying to rush the claim process using mandatory deadlines (here 30 days) with knowledge that more testing should have been done. As such, any information which could shed light on the manner in which Defendant’s employees conducted its investigation of Plaintiff’s claim would be highly relevant.

Defendant’s claims manager, claims supervisor, and claims adjuster each confirmed in deposition that factors such as: (1) how quickly an adjuster is able to close files, (2) how many new claims the adjuster can open, and (3) how many claims are closed within a 30-day cycle, are all considered in Mercury’s employee performance reviews. As such, the employee performance reviews contain relevant information as to whether those employees were rewarded for closing Plaintiff’s claim early, despite knowledge that more testing should have been done.

Based on the foregoing, the Court concludes that the invasion of privacy here is justified by a competing interest in disclosure. Defendant is ordered to provide further responses to RFP Nos. 1-5 consistent with this ruling within 30 days.

It is so ordered.

Dated: January , 2021

Hon. Jon R. Takasugi Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: BC654909    Hearing Date: October 08, 2020    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

JACKIE KREITZMAN, et al.

vs.

MERCURY CASUALTY COMPANY, et al.

Case No.: BC654909

Hearing Date: October 8, 2020

Mercury’s motion for summary adjudication is DENIED.

This is an insurance action involving a policy for property located at 19640 Trull Brook Drive, Tarzana, California (the Subject Property) which was the subject of an insurance policy issued by Mercury Casualty Company to Plaintiffs Kreitzman and Brian Senit (collectively, Plaintiffs) for damages caused by water damage.

On March 21, 2017, Plaintiffs filed the instant action.

On May 23, 2018, Plaintiffs filed the operative second amended complaint (SAC) against Mercury Casualty Company, Sunny Hills Associates, Inc., Alliance Environmental Group, Patriot Environmental Services, and Delta Commerce Corporation, alleging: (1) breach of contract; and (2) breach of the covenant of good faith and fair dealing; and (3) negligent misrepresentation.

Defendant Mercury Casualty Company (Mercury or Defendant) now moves for summary adjudication of Plaintiffs’ second cause of action and Plaintiffs’ prayer for punitive damages.

Plaintiffs oppose and Defendant filed a reply.

Excessive memoranda of points and authorities

The Court is in receipt of all of the papers, but the Court is reluctant to consider the totality because they violate page limits.

California Rules of Court, rule 3.113(d) states:

Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages. In a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 20 pages. No reply or closing memorandum may exceed 10 pages. The page limit does not include the caption page, the notice of motion and motion, exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service.

Defendant filed an opening memorandum that is 29 pages (as numbered 7-35). This is improper.

Defendant filed a responding memorandum that is 24 pages (as numbered 4-27). This is improper.

Therefore, the Court exercises its discretion to refuse to consider any content beyond 20 pages, i.e., Defendant’s opening memorandum pages 27-35 and Plaintiff’s responding memorandum pages 24-27. (See Cal. Rules of Court, rule 3.113(g), 3.1300(d).) It should be noted the Court has reviewed the totality of the moving papers and consideration of the excess pages would not have affected this ruling.

Evidence

Both parties object to each other’s evidence.

Code of Civil Procedure section 437c, subdivision (q) provides:

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

Here, the only evidentiary objections the Court must rule on are the evidentiary objections to the expert witness declarations proffered by Plaintiff:

· Defendant’s objections to the Declarations of Michael Mawson (Plaintiff’s insurance claims professional expert) and Patrick Moffett (Plaintiff’s restoration and remediation expert).

The Court rules as follows:

· Defendant’s objections to the Declaration of Michael Mawson: (entire declaration) overruled; (1) overruled; (2) overruled as to industry standards and sustained as to balance; (3) overruled; (4) sustained; (5) overruled; (6) overruled; (7) sustained as to what Ms. Walk “assumed” and overruled as to balance; (8) overruled; (9) overruled; (10) overruled as to whether Mercury had an excuse for not identifying asbestos and mold at the investigation’s outset and sustained as to balance; (11) overruled; (12) overruled; (13) overruled; (14) overruled; (15) overruled; (16) overruled; (17) sustained as to characterization of Ms. Walk’s motivation and overruled as to balance; (18) overruled; (19) overruled; (20) overruled; (21) overruled; (22) overruled; (23) overruled; (24) overruled; (25) overruled; (26) sustained; (27) sustained as to Plaintiffs’ motivations and overruled as to balance; (28) overruled; (29) overruled; (30) overruled; (31) overruled; (32) overruled; (33) overruled; (34) overruled; (35) overruled; (36) overruled; (37) overruled; (38) overruled; (39) overruled; (40) overruled; (41) overruled; (42) overruled; (43) overruled; (44) overruled; (45) overruled; (46) overruled; (47) sustained as to Plaintiffs’ motivations and overruled as to balance; (48) overruled; (49) overruled; (50) sustained as to Mercury’s fee arrangements and overruled as to balance; and (51) overruled.

· Defendant’s objections to the Declaration of Patrick Moffett: (entire declaration) overruled; (1) overruled; (2) overruled; (3) overruled; (4) overruled; (5) sustained; (6) overruled; (7) overruled; (8) overruled; (9) overruled; (10) overruled; (11) overruled; (12) overruled as to what could be discovered (i.e., the conditions of the drywall and ceiling) and sustained as to balance; (13) sustained; (14) overruled; (15) overruled; (16) overruled; (17) sustained; (18) overruled; (19) overruled as to how to properly take mold samples and sustained as to balance; (20) overruled; (21) overruled; (22) sustained; (23) overruled as to proper practices and sustained as to balance; (24) overruled; (25) overruled; and (26) overruled.

In making the above rulings, the Court notes that the experts largely identify the various documents they reviewed and the personal inspections they completed (i.e., the facts) to base their opinions. Additionally, the experts provided sufficient explanation of their background and experience to base their opinions. While Defendant’s questioning of the reasonableness of the experts’ opinions, may succeed at a trial (i.e., the weight of the opinions), it does not succeed here for the purposes of admissibility of many, though not all, of the provided opinions. There is sufficient foundation and enough detail for the conclusion that Defendant did not conduct a full, prompt, and thorough investigation, especially considering the lack of inspection of other areas of the house to evaluate the cause and extent of the leaks, the lack of immediate testing for asbestos, the additional testing that could have been completed, and the hiring of experts to do additional testing and inspections. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187-189.)

The Court declines to rule on the remaining submitted evidentiary objections:

· Plaintiffs’ objections to the Declarations of Geoff Daumeyer (Defendant’s Property Claims Vendor Manager), Paul Hamilton (Defendant’s independent claims consultant expert), Kristy Hayhurst (Defendant’s Underwriting Manager), Natalie Mutz (Defendant’s counsel), Arden Rodriguez (Defendant’s Branch Manager), Jackie Walk (Defendant’s Property Claims Trainer); and

· Defendant’s objections to the Declarations of Joseph Ferrentino (Plaintiff’s counsel) and Jackie Kreitzman (Plaintiff).

Legal Standard

Code of Civil Procedure section 437c, subdivision (a) provides that a “party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Subdivision (p)(2) of the same section provides that where a defendant presents evidence showing one or more elements of a cause of action cannot be established, then the burden shifts to plaintiff to show the existence of a triable issue of material fact. (See Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.)

The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 fn.11, original italics.)

Factual Background

This action arises from a rainwater leak at Plaintiffs’ home in Tarzana, California in January 2015. The leak caused extensive damage. At the time of the incident, Plaintiffs were insured through Mercury.

Plaintiffs allege that Mercury failed to conduct a proper investigation and undervalued the cost of repairs following the incident. 

Defendant contends that Plaintiffs refused to cooperate in Defendant’s investigation for the claim and they made a reasonable investigation. Defendant argues that the facts show that Plaintiffs ignored the terms of the insurance contract by failing to timely report the loss, failing to take reasonable steps to mitigate damage at or after the date of loss, failing repeatedly to cooperate with Mercury's investigation, failing to keep records, and refusing to follow standard protocol and processes for resolving their claim.

Discussion

I. Breach of the Implied Covenant of Good Faith and Fair Dealing

“[T]he ultimate test of [bad faith] liability in the first party cases is whether the refusal to pay policy benefits was unreasonable. (Opsal v. United Services Auto. Assn. (1991) 2 Cal.App.4th 1197, 1205, original emphasis.)The mistaken withholding of policy benefits, if reasonable or if based on a legitimate dispute as to the insurer's liability under California law, does not expose the insurer to bad faith liability. (Ibid.) "The genuine issue rule in the context of bad faith claims allows a court to grant summary judgment when it is undisputed or indisputable that the basis for the insurer's denial of benefits was reasonable." (Wilson v. 21st Century Ins. Co. (2007) 42 Cal. 4th 713, 720.)

Here, the key question before the Court is whether there is a triable issue of fact as to whether Mercury reasonably investigated, adjusted, and paid Plaintiffs’ insurance claim. To resolve this motion, the Court must review the evidence presented by both parties and determine whether a reasonable trier of fact could potentially find that Defendant did not act reasonably with regard to Plaintiffs’ claim. Because reasonableness is usually a question of fact, summary adjudication is only appropriate if the submitted evidence only permits a single, undisputable inference that Mercury did not act in bad faith.

Upon review of the record as explained below, the Court finds that triable issues do exist.

Mercury argues that it acted reasonably because:

· Once a dispute arose over the scope or amount of Plaintiffs’ loss, Mercury performed a re-inspection and adjusted its payout according to the results of the re-inspection. (Defendant’s Separate Statement, ¶¶ 44-59, 105, 109-109, 111-112, 123, 148, 156-159, 166, 170-181).

· Mercury’s closing of the claim was not unreasonable because Plaintiffs were given advanced notice of the conditions that could result in closure of the claim, Plaintiffs continued to impede the claim’s progress, and the closure letter provided the terms in which the claim could be re-opened. (Defendant’s Separate Statement, ¶¶ 68-69, 77, 90-97, 128, 162-163, 170, 185-189.)

· Mercury’s termination of additional living expenses (aka ALE) was not unreasonable because Mercury was transparent that this coverage was temporary to last the time of the repairs and Plaintiffs refused to promptly hire a contractor. (Defendant’s Separate Statement, ¶¶ 74, 123, 125, 128, 130, 132, 139, 147, 160, 164.)

· Mercury’s use of, and reliance on, and independent adjustor for the initial investigation and preliminary estimate was reasonable. (Defendant’s Separate Statement, ¶¶ 24-26, 35-36.)

However, in opposition, Plaintiffs have submitted two expert witness declarations from Michael Mawson, a former insurance claims professional, and Patrick Moffett, a general contractor and water, mold, and fire damage remediation expert. Mr. Mawson stated that in his professional opinion, “Mercury’s handling of Plaintiffs’ Claim was completely inadequate[,] it lacked proactive claims handling, and, at times, it was completely irresponsible…” (Mawson Decl., ¶ 10.) Mr. Mawson then details the ways in which he believes Mercury failed to conduct a reasonable investigation (Mawson Decl., ¶¶ 11-26), failed to adequately address Plaintiffs’ health concerns (Mawson Decl., ¶¶ 3742), improperly closed Plaintiffs’ claim (Mawson Decl., ¶¶ 43-62), unreasonably selected vendors and implemented unreasonable fee arrangements (Mawson Decl., ¶¶ 63-65). Similarly, Mr. Moffett stated that in his professional opinion, Defendant’s investigation was unreasonable for, in part, failing to initial perform critical testing for asbestos, failure to inspect the entire home, and failure to use the proper testing equipment. (Moffett Decl., ¶¶ 1-29.)

To the extent they are admissible, Plaintiffs’ expert witness declarations create an issue of material fact as to whether Mercury conducted a reasonable investigation of Plaintiffs’ claim. “Among the most critical factors bearing on the insurer's good faith is the adequacy of its investigation of the claim. [T]he covenant of good faith and fair dealing implied in all insurance agreements entails a duty to investigate properly submitted claims ….” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 879-880.)

Here, as discussed above, the Court finds that Plaintiffs’ expert witness declarations are generally admissible as to the core claims and thus are sufficient to create an issue of material fact.

Based on the foregoing, summary adjudication of Plaintiffs’ second cause of action is denied.

II. Punitive Damages

"In a bad faith action, evidence that the insurer has violated its duty of good faith and fair dealing does not alone necessarily establish that it has acted with the requisite intent to justify an award of punitive damages. Even if an insurer has acted unreasonably, it need not follow that it also acted with malice." (Patrick v. Maryland Casualty Co. (1990) 217 Cal.App.3d 1575; Silberg v. California Life Insurance Co. (1974) 11 Cal.App.3d 452, 462-463.)

Civil Code section 3294, subdivision (a) authorizes the recovery of punitive damages where the defendant has been guilty of oppression, fraud, or malice, express or implied. Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Id.subd. (c)(2).) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Id.subd. (c)(3).)

Here, in light of the fact that the Court refuses to consider Defendant’s argument that exceeds the page limits, the Court does not need to consider Defendant’s argument concerning the prayer for punitive damages. (Defendant’s memorandum of points and authorities pp. 32-37.)

Nevertheless, when considering that argument, Mercury misstates Plaintiffs’ burden at summary adjudication. Plaintiffs need not submit evidence establishing malice, oppression, or fraud by clear and convincing evidence at this stage. Rather, Plaintiffs must submit evidence which creates a triable issue of material fact as to whether a fact finder could conclude that Plaintiffs’ evidence demonstrates malice, oppression, or fraud by clear and convincing evidence. As set forth above, the Court has concluded that a triable issue of material fact exists as to whether Mercury acted in bad faith with respect to Plaintiffs’ insurance claim. Moreover, the Court concludes that a jury could reasonably infer that Mercury’s actions rose to the level of malice, oppression, or fraud, or could reasonably infer that they did not. Because more than one reasonable inference can be drawn from the submitted evidence, the Court cannot conclude that Plaintiffs are not entitled to punitive damages as a matter of law.

A triable issue of material fact exists as to whether Mercury’s conduct rises to the level of malice, oppression, or fraud. (Civ. Code, § 3294, subd. (c)(1)-(c)(3).)

Based on the foregoing, summary adjudication of Plaintiffs’ prayer for punitive damages is denied.

It is so ordered.

Dated: , 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.

Case Number: BC654909    Hearing Date: August 17, 2020    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

JACKIE KREITZMAN, et al.

vs.

MERCURY CASUALTY COMPANY

Case No.: BC654909

Hearing Date: August 17, 2020

Mercury’s motion for summary adjudication is continued to October 8, 2020, at 10:30 a.m.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where Sunny Hills Associates Incorporated is a litigant

Latest cases where PATRIOT ENVIRONMENTAL SERVICES INC. is a litigant

Latest cases where ALLIANCE ENVIRONMENTAL GROUP LLC is a litigant

Latest cases where MERCURY CASUALTY COMPANY is a litigant