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 Judge overseeing this case is RICHARD E. RICO. 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

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RICHARD E. RICO

 

Party Details

Plaintiffs

KREITZMAN JACKIE

SENIT BRIAN

Defendants

DAVID MORSE & ASSOCIATES

MERCURY CASUALTY COMPANY

PATRIOT ENVIRONMENTAL SERVICES INC.

REISDORF CRAIG

SUNNY HILLS ASSOCIATES INC.

DELTA COMMERCE CORPORATION

ALLIANCE ENVIRONMENTAL GROUP INC.

Attorney/Law Firm Details

Plaintiff Attorneys

CHILD BRADFORD T. ESQ.

FERRENTINO JOSEPH A.

Defendant Attorneys

CHEN SHUN C. ESQ.

HATEM ROBERT J.

HEMPHILL LORA D. ESQ.

KUO HUBERT H. ESQ.

MEYER JASON F. ESQ.

OHL CHARLES N. ESQ.

ARDENT LAW GROUP PC

 

Court Documents

REQUEST FOR DISMISSAL

1/23/2018: REQUEST FOR DISMISSAL

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 PRODUCTION OF BUSINESS RECORDS; ETC

1/24/2018: NOTICE OF MOTION AND MOTION OF MERCURY CASUALTY COMPANY TO COMPEL PRODUCTION OF BUSINESS RECORDS; ETC

DECLARATION OF CHRISTINE W. CHAMBERS

1/24/2018: DECLARATION OF CHRISTINE W. CHAMBERS

SEPARATE STATEMENT IN SUPPORT OF MERCURY'S MOTION TO COMPEL PLAINTIFFS' COMPLIANCE WITH REQUESTS FOR PRODUCTION, SET ONE

1/24/2018: SEPARATE STATEMENT IN SUPPORT OF MERCURY'S MOTION TO COMPEL PLAINTIFFS' COMPLIANCE WITH REQUESTS FOR PRODUCTION, SET ONE

DECLARATION OF CHRISTINE W. CHAMBERS

1/24/2018: DECLARATION OF CHRISTINE W. CHAMBERS

NOTICE OF MOTION AND MOTION OF MERCURY CASUALTY COMPANY TO COMPEL JACKIE KREITZMAN'S FURTHER RESPONSES TO INTERROGATORIES, ETC

1/24/2018: NOTICE OF MOTION AND MOTION OF MERCURY CASUALTY COMPANY TO COMPEL JACKIE KREITZMAN'S FURTHER RESPONSES TO INTERROGATORIES, 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 JACKIE KREITZMAN'S FURTHER RESPONSES TO INTERROGATORIES

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

SEPARATE STATEMENT IN SUPPORT OF MERCURY'S MOTION TO COMPEL BRIAN SENIT'S FURTHER RESPONSES TO INTERROGATORIES

1/24/2018: SEPARATE STATEMENT IN SUPPORT OF MERCURY'S MOTION TO COMPEL BRIAN SENIT'S FURTHER RESPONSES TO INTERROGATORIES

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

NOTICE OF MOTION AND MOTION OF MERCURY CASUALTY COMPANY TO COMPEL BRIAN SENIT'S FURTHER RESPONSES TO INTERROGATORIES; MEMORANDUM OF POINTS AND AUTHORITIES

1/24/2018: NOTICE OF MOTION AND MOTION OF MERCURY CASUALTY COMPANY TO COMPEL BRIAN SENIT'S FURTHER RESPONSES TO INTERROGATORIES; MEMORANDUM OF POINTS AND AUTHORITIES

DECLARATION OF CHRISTINE W. CHAMBERS

1/24/2018: DECLARATION OF CHRISTINE W. CHAMBERS

SEPARATE STATEMENT IN SUPPORT OF MERCURY'S MOTION TO COMPEL JACKIE KREITZMAN'S FURTHER RESPONSES TO INTERROGATORIES

1/24/2018: SEPARATE STATEMENT IN SUPPORT OF MERCURY'S MOTION TO COMPEL JACKIE KREITZMAN'S FURTHER RESPONSES TO INTERROGATORIES

FIRST AMENDED COMPLAINT FOR: 1. BREACH OF CONTRACT; ETC.

1/29/2018: FIRST AMENDED COMPLAINT FOR: 1. BREACH OF CONTRACT; ETC.

NOTICE OF TAKING MOTION OFF CALENDAR

1/29/2018: NOTICE OF TAKING MOTION OFF CALENDAR

Minute Order

1/31/2018: Minute Order

Unknown

2/1/2018: Unknown

177 More Documents Available

 

Docket Entries

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

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

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  • 06/03/2019
  • DocketSeparate Statement; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

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  • 05/31/2019
  • DocketCase Management Statement; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

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  • 05/28/2019
  • DocketMotion 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)

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  • 05/28/2019
  • DocketProof of Service by Mail; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

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  • 05/28/2019
  • DocketSeparate Statement; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

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  • 05/28/2019
  • DocketDeclaration (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)

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  • 05/28/2019
  • DocketMotion 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)

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  • 05/28/2019
  • DocketDeclaration (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)

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359 More Docket Entries
  • 04/19/2017
  • DocketAMENDMENT TO COMPLAINT

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  • 04/05/2017
  • Docketat 00:00 AM in Department 12; Unknown Event Type - Held - Motion Granted

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  • 04/05/2017
  • DocketMinute Order

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  • 04/05/2017
  • DocketMinute order entered: 2017-04-05 00:00:00; Filed by Clerk

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

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  • 03/29/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/29/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/21/2017
  • DocketComplaint; Filed by Jackie Kreitzman (Plaintiff); Brian Senit (Plaintiff)

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  • 03/21/2017
  • DocketCOMPLAINT FOR: 1. BREACH OF CONTRACT; AND ETC

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  • 03/21/2017
  • DocketSUMMONS

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Tentative Rulings

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Case Number: ****4909 Hearing Date: July 20, 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.: ****4909

Hearing Date: July 20, 2021

Mercury’s motion for summary judgment is DENIED. Similarly, Mercury’s motion for summary adjudication is DENIED.

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.

Now, Mercury moves for summary judgment, or, in the alternative, summary adjudication of Plaintiffs’ claims.

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.) A party is also permitted to move for summary adjudication of a particular issue, which can be granted “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., ; 437c, subd. (f)(1).)

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.)

Discussion

Mercury argues that Plaintiff’s claims fail because they are time-barred by the one-year suit limitation provision in the relevant insurance policy.

The one-year limitation period contained in insurance policies begins to run at the “inception” or “occurrence” of the loss. (See Campanelli v. Alllstate Ins. Co (9th Cir. 2003) 322 F.3d 1086, 1093 (“Under California law, the one-year limitations period begins to run at the time of the inception of the loss, which is \'that point in time when appreciable damage occurs and is or should be known to the insured, such that a reasonable insured would be aware that his notification duty under the policy has been triggered.”).

However, once reported, the limitation period is tolled during the time the carrier investigates the claim until such time as it denies the claim, closes the claim, or pays the claim. Prudential-LA.11 Com. Insurance v. Superior Court (1990) 51 Cal.3d 674. 687 (The statute of limitations is equitably tolled from the time the insured gives notice of a claim until the insurer denies coverage.).

In support of its contention that Plaintiff’s claims are time-barred, Mercury submitted the following evidence:

· Plaintiffs were insured by Mercury under a Superior Homeowners Insurance Contract, policy number 1-10 13366299-03, which was in force from December 9, 2013 to December 9, 2014 and from December 9, 2014 to December 9, 2015 (Policy) for their home at 19640 Trull Brook Drive, Tarzana, California (Property). (SS ¶ 1.)

· The Policy contains a suit limitation provision which provides:

SECTION 1 — CONDITIONS

***

7. Suits Against Us. No action shall be brought unless there has been compliance with the policy provisions and the action is started within one year after the loss or damage.

(SS ¶ 3.)

· Sometime before 11/17/2014, Plaintiffs experienced water intrusion into the Property. Plaintiffs retained a contractor, Gary Skadron, to inspect the roof of the Property. The roof was leaking through skylights in the entry area of the Property. (SS ¶ 1.)

· Mr. Skadron estimated that the water damage had occurred over a period of years. (SS ¶ 9.) Mr. Skadron performed some work on the sky lights and provided a receipt to Plaintiffs for the work performed on 11/17/2014. (SS ¶ 8.)

· Plaintiffs allege that they returned home from a trip on 1/12/2015, and noticed a moldy smell and water throughout the home. After discovering the damage, Plaintiffs used "towels . . . wipes, paper towels." "like I do at my office when water spills on the carpeting," but otherwise did not attempt to dry or dehumidify the house. (SS ¶ 12.)

· Weeks later. a general contractor advised Plaintiffs that the moisture and water damage to the Property was extensive, there was likely mold and Plaintiffs should call insurance because the cost of repairs could exceed S100,000. (SS ¶ 13.) On 2/17/2015, Plaintiffs reported the loss to Mercury and Claim I Y002768-67 was opened (Claim). (SS ¶ 14.)

· On 8/26/2015, Mercury sent plaintiffs a letter closing the claim. The letter stated:

We have attempted to schedule a re-inspection of your property on several occasions. To date, we have been unable to complete a re-inspection of the property as you have been waiting to determine a time we can meet with you and your contractor. At this time we are closing your file. If you are still disputing our initial repair estimate and would like us to reconsider please contact us when you are ready to schedule the re-inspection so we may review for further consideration.

(SS ¶ 16.)

· The 8/26/2015 letter Mercury sent to Plaintiffs advised Plaintiffs of the suit limitation period in the policy, by stating, as follows:

SECTION 1 — CONDITIONS

***

7. Suits Against Us. No action shall be brought unless there has been compliance with the policy provisions and the action is started within one year after the loss or damage. This one year period begins the date the claim is closed. However, if there is a lapse between the date the loss occurred and the date you reported it to Mercury, those days will be subtracted from the one year period.

(SS ¶ 17.)

· Mercury reopened the claim on 11/22/2015, and then again closed the claim on 6/10/2016. (SS ¶ 19.)

· The 6/10/2016 letter informed Plaintiffs that Mercury was closing the claim, and reminded Plaintiffs of the one year period in which to file suit. Specifically, the letter stated:

Please note that the time between the date the loss occurred and the date you reported it to Mercury is subtracted from the one year period along with the time period between August 26, 2015 and September 22. 2015, when we opened and closed and reopened your claim.

(SS ¶ 20.)

· Plaintiffs admit the claim was closed "once and for all" in June 2016. (SS ¶ 21.)

· Plaintiffs filed this action on March 21, 2017. (SS ¶ 22.)

Mercury’s submitted evidence supports a reasonable inference that Plaintiff suffered a water intrusion sometime before 11/17/2014. Accordingly, the one-year (365-day) limitation period would have begun to run by at least that date. . (SS ¶ 3; See Campanelli, supra, 322 F.3d at p. 1093.)

By the time the claim was reported on 2/17/2015, the limitations period had run for 92 days.

From 2/17/2015 until 8/26/2015, the limitations period was tolled while Mercury investigated Plaintiffs’ claim.

Once Mercury closed Plaintiffs’ claim on 8/26/2015, the statute of limitations began to run again. (See Prudential-LA.11 Com. Insurance, 51 Cal.3d at p. 687.) From the 8/26/2015 to the 11/22/2015 re-opening of Plaintiffs’ claim, the statute of limitations had run for an additional 27 days. This meant that by September 22, 2015, the statute of limitations had run for a total of 119 days (92 + 27 days.)

The statute of limitations was again tolled while Plaintiffs’ claim was investigated from 11/22/2015 until 6/10/216. After this 6/10/2016 closure, the statute of limitations began to run again. Given that it had already run for 119 days, Plaintiffs had 246 additional days to file their complaint—2/11/2017. However, Plaintiffs did not file this action until 3/21/2017, 403 days after the date of the loss after deducting for the tolling of the limitation period when the claim was investigated.

Based on the foregoing, Mercury’s evidence supports a reasonable inference that Plaintiffs’ claims against it are time-barred. The burden shifts to Plaintiffs to disclose a triable issue of material fact as to this issue.

In opposition, Plaintiff argues that the actual date of loss was January 12, 2015, not November 2014, and that the January 2015 date was repeatedly noted by Mercury as the date of loss. Specifically, Plaintiff submitted evidence that:

· Plaintiffs never made a claim regarding the leak in 2014 or the work performed by Mr. Skadron, and never requested Mercury to pay for this issue. (OF ¶ 6.)

· In January 2015, Plaintiffs’ home was hit by a “huge storm” while they were out of town. (OF ¶ 7.) The storm caused water to pour through their roof, down into a plethora of locations throughout their home. (OF ¶ 8.) When they returned on January 2, 2015, they found water and damage in various locations. (OF ¶ 9.)

· The first note from the Mercury insurance adjuster assigned to the claim wrote, in February 2015 that it had been “about a month since date of loss.” (OF ¶ 14; Exh. 1.)

· Throughout Mercury’s handling of Plaintiffs’ claim, January 12, 2015 was repeatedly referenced as the date of loss. (OF ¶ 15; Exhs. 1-6; MF Exhs. A-D.)

· The 6/10/2016 letter sent by Mercury to Plaintiff included the following additional language which Mercury did not cite:

Please note that the time between the date the loss occurred and the date you reported it to Mercury is subtracted from the one year period along with the time period between August 26, 2015 and September 22. 2015, when we opened and closed and reopened your claim.

As of today, we are reclosing your claim. The one-year period will restart on the date of this letter.

(SS ¶ 20, emphasis added.)

· That same 6/10/2016 letter clearly states at the top of the letter: Date of Loss: January 12, 2015. (SS ¶ 20.)

Taken together, Plaintiffs’ evidence supports a reasonable inference that the date of loss was January 12, 2015, that Mercury repeatedly referred to January 12, 2015 as the date of loss, and that correspondence sent from Mercury on 6/10/2016 explicitly stated that the one-year statute of limitations would restart on the date of that letter.

This evidence is sufficient to raise triable issues of material fact as to whether or not the date of loss of the claim was November 2014 or January 2015.

Based on the foregoing, Mercury’s motion for summary judgment is denied. Similarly, Mercury’s motion for summary adjudication is denied.

It is so ordered.

Dated: July , 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: ****4909    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.: ****4909

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: ****4909    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.: ****4909

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: ****4909    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.: ****4909

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: ****4909    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.: ****4909

Hearing Date: August 17, 2020

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



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