Preview
BARBARA J. MANDELL (SBN 106523)
1 MATTHEW B. ROBERTS (SBN 287616)
2 COLMAN PERKINS LAW GROUP
500 North Brand Boulevard, Suite 2200
Glendale, California 91203
3 Telephone (818)546-8686
Facsimile (818)546-8787
4
Email: bmandell@colmanlawgroup.com
5 mroberts@colmanlawgroup.com
6 Attorneys for Defendant,
HOMESITE INSURANCE COMPANY OF CALIFORNIA
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF MONTEREY
10
ROBERT CLAMPETT, an individual, and ) Case No.: 21CV001804
11 MARIANNA CLAMPETT, an individual, ) Hon. Carrie M. Panetta
12 ) Dept.: 14
)
13 Plaintiffs, ) DEFENDANT HOMESITE
) INSURANCE COMPANY OF
14 ) CALIFORNIA’S REPLY TO
v. ) PLAINTIFFS’ OBJECTIONS TO
15 ) DEFENDANT’S EVIDENCE IN
) SUPPORT OF MOTION FOR
16 HOMESITE INSURANCE COMPANY OF ) SUMMARY JUDGMENT, OR IN THE
CALIFORNIA, A California Corporation; ) ALTERNATIVE, SUMMARY
17 DOES 1 through 10, inclusive, ) ADJUDICATION
)
18 Defendants. ) Concurrently filed documents:
) [Reply Brief to Plaintiffs’ Opposition to
19 ) Motion for Summary Judgment, Or In The
) Alternative, Summary Adjudication;
20 ) Defendant’s Objections to Plaintiff’s
) Evidence in Opposition to Motion]
21 )
22 ) Date: August 21, 2023
) Time: 8:30 a.m.
23 ) Dept.: 14
)
24 ) Complaint Filed: June 3, 2021
) Trial Date: September 18, 2023
25 )
26 Defendant HOMESITE INSURANCE COMPANY OF CALIFORNIA (“Homesite” or
27 “Defendant”) submits this Reply to Plaintiffs ROBERT CLAMPETT and MARIANNA
28 CLAMPETT’s (“Plaintiffs”) Evidentiary Objections in Opposition to Homesite’s Motion for
1
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 Summary Judgment, or in the alternative, Summary Adjudication (“Motion”).
2
3 PLAINTIFFS’ OBJECTION NO. 1:
4 Material Objected to: Defendant’s Evidence, Exhibit AA at pp. 369 (Charles Linard
5 Depo., Exhibit 14 thereto.)
6 “Over an extended period of time, water has penetrated these cracks and caused the window
7 and door framing to rot. ”
8 Grounds for Objection:
9 Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles (1987)194 Cal. App.
10 3d 822, 834. Improper opinion evidence that does not lay a foundation as to the individual's special
11 knowledge, skill, experience, training, and education or a statement of the basis of the opinion.
12 Defendant’s Evidence does not include any foundation for Charles Linard to express an
13 expert opinion as to the cause of damage to Plaintiff’s residence. To the contrary, his deposition
14 testimony reveals he has no basis to render an expert opinion on this subject:
15 1. He had no engineering education or training other than one class he took in college
16 but could not remember (Plaintiffs’ Compendium, Ex. “5” at 17:5-18:14);
17 2. No college or general experience in construction (Plaintiffs’ Evidence, Ex. “5” at
18 18:3-19:20); and
19 3. No licenses in engineering or construction (Plaintiffs’ Evidence, Ex. “5” at 19:21-
20 23).
21 Mr. Linard’s statements are being asserted by Defendant as to causation of damages to
22 Plaintiffs’ residence, which is referred to in Defendant’s Memorandum at:
23 1. P. 20:1-3 (“As a result of Plaintiffs’ failure to make timely repairs, severe mold and
24 rot was allowed to develop throughout the Property. [UMF No. 12-13.]”)
25 2. P. 21 4-5 [“Independent adjuster, Linard, observed street cracks along the windows
26 and door openings, which allowed water to intrude, and mold and rot to develop over an extended
27 period of time.”]
28 Objection. Lack of foundation for expert opinion. (Ev. Code, §§ 720, 801-803.) If an expert
2
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 provides an opinion in support of a motion for summary judgment, he or she must provide the facts
2 upon which the expert's conclusions are based. “ ‘ “[A]n expert's opinion rendered without a
3 reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary
4 value because an expert opinion is worth no more than the reasons and facts on which it is based.
5 [Citations.]” [Citation.]’ ” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 530, italics added.)
6 “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material
7 fact issue for trial, as required for summary judgment.” (Kelley v. Trunk (1998) 66 Cal.App.4th
8 519 at p. 524, italics added.)”
9 There is no evidence presented by Defendant as to what facts Linard relied upon in making
10 conclusions as to the causation of damages to Plaintiffs’ residence.
11
12 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 1:
13 Plaintiffs’ objections are misplaced in several respects. First, they misstate the purpose of
14 the evidence being submitted. Plaintiffs’ object to Exhibit 14 attached to Mr. Linard’s deposition
15 (See UMF No. 13, Ex. AA), which is a status report from outside claims adjuster Mr. Linard to
16 Jacob Lee, the Homesite adjuster initially assigned to adjust Plaintiffs’ claim. This evidence, and
17 UMF No. 13, reference the undisputed chronology of the claims handling, as well as the fact that
18 Mr. Linard was reporting to Homesite as to what he personally observed at the Plaintiffs’ residence
19 at the time of his inspection of the property, on August 26, 2019, thirteen days after Mr. Clampett
20 first reported the claim to Homesite. [See UMF No. 8.]
21 Moreover, UMF Nos. 10-15, in the aggregate, document Mr. Linard’s personal
22 observations, including the fact that Plaintiffs’ contractor, Tom Long, had already removed
23 portions of the stucco, which exposed the framing around several windows, and portions of the
24 garage ceiling [UMF No. 11]; that as a result he was able to personally observe “severe” rot around
25 the window and door framing [UMF No. 12]; that Linard took extensive photographs of the rotted
26 door and window framing for the report of his observations for Homesite [UMF No. 12]; and that
27 the cost to repair the severe mold and rot he could personally see, was in excess of $100,000, and
28 therefore grossly exceeded the Policy’s $2500 mold and rot limit. [UMF Nos. 14, 15] Thus, this
3
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 evidence documents the personal observations of an experienced claims adjuster who was
2 providing information to Defendant as to what he could see, to allow Homesite to determine the
3 nature and extent of the benefits owed on the claim.
4 Notably, Plaintiffs’ contractor, Tom Long submitted a repair estimate stating that the
5 windows had failed, causing water intrusion and structural failure due to the rotted framing [See
6 Ex. I] and subsequently testified in his deposition that there was rot due to water intrusion around
7 all the door and window framing.[ See Ex. BB, p. 177] Moreover, Homesite later retained licensed
8 engineer, Phu Nguyen, who reached the same conclusion as Tom Long and Charlie Linard. [See
9 Motion, pp. 11-12] There is no mystery and no question of fact as to the observations of each of
10 these people, including the observations of Mr. Linard, which Plaintiffs find objectionable; there
11 was severe rot damage around the doors and the windows which required the replacement of the
12 window and door framing.
13 Second, Mr. Linard, an independent, experienced property insurance adjuster, is not
14 required to have a degree in engineering to be able to observe property damage in the form of rot
15 or mold. It should be noted that Mr. Long was also able to identify the rot without a degree. In
16 fact, anyone who has ever opened a container of long forgotten leftovers in their refrigerator, to
17 find the remains covered in black goop can identify it as mold, regardless of their education.
18 Evidence Code § 720 (a) provides that: “A person is qualified to testify as an expert if he
19 has special knowledge, skill, experience, training, or education sufficient to qualify him as an
20 expert on the subject to which his testimony relates. Against the objection of a party, such special
21 knowledge, skill, experience, training, or education must be shown before the witness may testify
22 as an expert.” An expert opinion is supported by personal foundation if the witness has sufficient
23 experience and familiarity within a particular field:
24 “[T]he qualifications of an expert must be related to the particular subject upon
25 which he is giving expert testimony. [. . .] The foundation required to establish the
26 expert's qualifications is a showing that the expert has the requisite knowledge of,
27 or was familiar with, or was involved in a sufficient number of transactions
28 involving the subject matter of the opinion. [T]he determinative issue in each case
4
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 is whether the witness has sufficient skill or experience in the field so his testimony
2 would be likely to assist the jury in the search for truth. [. . .] An expert may rely
3 upon hearsay and other inadmissible matter in forming an opinion.” Howard
4 Entertainment, Inc. v. Kudrow (2012) 208 Cal. App. 4th 1102, 1115 (citations
5 omitted).
6 In this case, Mr. Linard’s conclusions were based on his own personal observations of the
7 entire property, and his experience working as an insurance adjuster, since 2010, who had
8 investigated hundreds of property damage claims, every year, for nine years before he observed
9 Plaintiffs’ property. Plaintiffs and their counsel are aware of Mr. Linard’s experience because Mr.
10 Roe took his deposition and submitted portions of Mr. Linard’s deposition transcript in which he
11 describes his qualifications as an independent insurance adjuster, including his job experience and
12 training since. [See Plaintiffs’ Compendium of Exhibits, Ex. 5, pp 50-56]. Mr. Linard had
13 experience sufficient to lay a foundation to express his opinion as to the cause of the property
14 damage, and specifically, the mold and rot that he observed.
15 Additionally, Mr. Linard was not required to do a detailed scientific analysis, nor was he
16 required to have an engineering degree to identify the rot on the doors and windows. (Schreidel v.
17 American Honda Motor Co. (1995) 34 Cal. App. 4th 1242, 1251-53; [holding that an expert’s
18 testimony regarding cause of an auto accident was not speculative or inadmissible purely due to a
19 lack of scientific testing, product disassembly, or independent investigation]).
20 Finally, Mr. Linard testified that he did not make any coverage decisions as to Plaintiffs’
21 claim. [See Ex. AA; Plaintiffs’ Compendium of Exhibits, Ex. 5. See also, Ex. Z, Deposition of
22 Scott Callahan.] Mr. Linard reported on what he observed, and Homesite made decisions as to how
23 the claim should be adjusted based in part on those observations. Mr. Linard was qualified to
24 communicate his observations to Homesite, and Homesite conducted itself reasonably by relying
25 on those observations.
26
27 Court’s Ruling on Objection No. 1: Sustained: ______________
28 Overruled: ______________
5
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 PLAINTIFFS’ OBJECTION NO. 2:
2 Material Objected to: Defendant’s Evidence, Exhibit AA at pp. 372 (Charles Linard
3 Depo., Exhibit 15 thereto.)
4 “Over an extended period of time, water has penetrated these cracks and caused the window
5 and door framing to rot. ”
6 Grounds for Objection:
7 Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles (1987)194 Cal. App.
8 3d 822, 834. Improper opinion evidence that does not lay a foundation as to the individual's special
9 knowledge, skill, experience, training, and education or a statement of the basis of the opinion.
10 Defendant’s Evidence does not include any foundation for Charles Linard to express an
11 expert opinion as to the cause of damage to Plaintiff’s residence. To the contrary, his deposition
12 testimony reveals he has no basis to render an expert opinion on this subject:
13 1. He had no engineering education or training other than one class he took in college
14 but could not remember (Plaintiffs’ Compendium, Ex. “5” at 17:5-18:14);
15 2. No college or general experience in construction (Plaintiffs’ Evidence, Ex. “5” at
16 18:3-19:20); and
17 3. No licenses in engineering or construction (Plaintiffs’ Evidence, Ex. “5” at 19:21-
18 23).
19 Mr. Linard’s statements are being asserted by Defendant as to causation of damages to
20 Plaintiffs’ residence, which is referred to in Defendant’s Memorandum at:
21 1. P. 20:1-3 (“As a result of Plaintiffs’ failure to make timely repairs, severe mold and
22 rot was allowed to develop throughout the Property. [UMF No. 12-13.]”)
23 2. P. 21 4-5 [“Independent adjuster, Linard, observed street cracks along the windows
24 and door openings, which allowed water to intrude, and mold and rot to develop
25 over an extended period of time.”]
26 Objection. Lack of foundation for expert opinion. (Ev. Code, §§ 720, 801-803.) If an expert
27 provides an opinion in support of a motion for summary judgment, he or she must provide the facts
28 upon which the expert's conclusions are based. “ ‘ “[A]n expert's opinion rendered without a
6
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary
2 value because an expert opinion is worth no more than the reasons and facts on which it is based.
3 [Citations.]” [Citation.]’ ” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 530, italics added.)
4 “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material
5 fact issue for trial, as required for summary judgment.” (Kelley v. Trunk (1998) 66 Cal.App.4th
6 519 at p. 524, italics added.)”
7 There is no evidence presented by Defendant as to what facts Linard relied upon in making
8 conclusions as to the causation of damages to Plaintiffs’ residence.
9
10 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 2:
11 Plaintiffs’ objections are misplaced in several respects. First, they misstate the purpose of
12 the evidence being submitted. Plaintiffs’ object to Exhibit 15 attached to Mr. Linard’s deposition
13 which is a status report from outside claims adjuster Mr. Linard to Jacob Lee, the Homesite adjuster
14 initially assigned to adjust Plaintiffs’ claim. As previously noted, this evidence, references the
15 undisputed chronology of the claims handling, as well as the fact that Mr. Linard was reporting to
16 Homesite as to what he personally observed at the Plaintiffs’ residence at the time of his inspection
17 of the property, on August 26, 2019, thirteen days after Mr. Clampett first reported the claim to
18 Homesite. [See UMF No. 8.]
19 Moreover, UMF Nos. 10-15, in the aggregate, document Mr. Linard’s personal
20 observations, including the fact that Plaintiffs’ contractor, Tom Long, had already removed
21 portions of the stucco, which exposed the framing around several windows, and portions of the
22 garage ceiling [UMF No. 11]; that as a result he was able to personally observe “severe” rot around
23 the window and door framing [UMF No. 12]; that Linard took extensive photographs of the rotted
24 door and window framing for the report of his observations for Homesite [UMF No. 12]; and that
25 the cost to repair the severe mold and rot he could personally see, was in excess of $100,000, and
26 therefore grossly exceeded the Policy’s $2500 mold and rot limit. [UMF Nos. 14, 15] Thus, this
27 evidence documents the personal observations of an experienced claims adjuster who was
28 providing information to Defendant as to what he could see, to allow Homesite to determine the
7
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 nature and extent of the benefits owed on the claim.
2 Notably, Plaintiffs’ contractor, Tom Long submitted a repair estimate stating that the
3 windows had failed, causing water intrusion and structural failure due to the rotted framing [See
4 Ex. I] and subsequently testified in his deposition that there was rot due to water intrusion around
5 all the door and window framing.[ See Ex. BB, p. 177] Moreover, Homesite later retained licensed
6 engineer, Phu Nguyen, who reached the same conclusion as Tom Long and Charlie Linard. [See
7 Motion, pp. 11-12] There is no mystery and no question of fact as to the observations of each of
8 these people, including the observations of Mr. Linard, which Plaintiffs find objectionable; there
9 was severe rot damage around the doors and the windows which required the replacement of the
10 window and door framing.
11 Second, Mr. Linard, an independent, experienced property insurance adjuster, is not
12 required to have a degree in engineering to be able to observe property damage in the form of rot
13 or mold. It should be noted that Mr. Long was also able to identify the rot without a degree. In
14 fact, anyone who has ever opened a container of long forgotten leftovers in their refrigerator, to
15 find the remains covered in black goop can identify it as mold, regardless of their education.
16 Evidence Code § 720 (a) provides that: “A person is qualified to testify as an expert if he
17 has special knowledge, skill, experience, training, or education sufficient to qualify him as an
18 expert on the subject to which his testimony relates. Against the objection of a party, such special
19 knowledge, skill, experience, training, or education must be shown before the witness may testify
20 as an expert.” An expert opinion is supported by personal foundation if the witness has sufficient
21 experience and familiarity within a particular field:
22 “[T]he qualifications of an expert must be related to the particular subject upon which he is giving
23 expert testimony. [. . .] The foundation required to establish the expert's qualifications is a showing
24 that the expert has the requisite knowledge of, or was familiar with, or was involved in a sufficient
25 number of transactions involving the subject matter of the opinion. [T]he determinative issue in
26 each case is whether the witness has sufficient skill or experience in the field so his testimony
27 would be likely to assist the jury in the search for truth. [. . .] An expert may rely upon hearsay and
28 other inadmissible matter in forming an opinion.” Howard Entertainment, Inc. v. Kudrow (2012)
8
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 208 Cal. App. 4th 1102, 1115 (citations omitted).
2 Mr. Linard’s conclusions were based on his own personal observations of the entire
3 property, and his experience working as an insurance adjuster, since 2010, who had investigated
4 hundreds of property damage claims, every year, for nine years before he observed Plaintiffs’
5 property. Plaintiffs and their counsel are aware of Mr. Linard’s experience because Mr. Roe took
6 his deposition and submitted portions of Mr. Linard’s deposition transcript in which he describes
7 his qualifications as an independent insurance adjuster, including his job experience and training
8 since. [See Plaintiffs’ Compendium of Exhibits, Ex. 5, pp 50-56]. Mr. Linard had experience
9 sufficient to lay a foundation to express his opinion as to the cause of the property damage, and
10 specifically, the mold and rot that he observed.
11 Additionally, Mr. Linard was not required to do a detailed scientific analysis, nor was he
12 required to have an engineering degree to identify the rot on the doors and windows. (Schreidel v.
13 American Honda Motor Co. (1995) 34 Cal. App. 4th 1242, 1251-53; [holding that an expert’s
14 testimony regarding cause of an auto accident was not speculative or inadmissible purely due to a
15 lack of scientific testing, product disassembly, or independent investigation]).
16 Finally, Mr. Linard testified that he did not make any coverage decisions as to Plaintiffs’ claim.
17 [See Ex. AA; Plaintiffs’ Compendium of Exhibits, Ex. 5. See also, Ex. Z, Deposition of Scott
18 Callahan.] Mr. Linard reported on what he observed, and Homesite made decisions as to how the
19 claim should be adjusted based in part on those observations. Mr. Linard was qualified to
20 communicate his observations to Homesite, and Homesite conducted itself reasonably by relying
21 on those observations.
22
23 Court’s Ruling on Objection No. 2: Sustained: ______________
24 Overruled: ______________
25
26
27 PLAINTIFFS’ OBJECTION NO. 3:
28 Material Objected to: Defendant’s Evidence, Exhibit G at p. 125-126 (Linard Report -
9
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 portions objected to are in italics and underlined).
2 “CAUSE OF LOSS
3 There are what appear to be consistent with stress cracks along the window
4 and door openings throughout the dwelling. The cracks appear on the stucco
5 exterior as well as the drywall interior. They could be caused from the settling and
6 shifting of the structure. The damages are more pronounced along the exposed rear
7 elevation that sits on the top of a mountain. Over an extended period of time, water
8 has penetrated these cracks and caused the window and door framing to rot. There
9 is also water and mold damage inside the dwelling.
10
11 “ADJUSTER NARRATIVE
12 Since the previous report I have proceed with a repair estimate for the
13 resulting water damages. The rot, mold, and long term damage will fall under the
14 $2,500 limit. The other water damages (within this last winter) fall under coverage
15 A.
16 The rot, mold, and long term water damages are extensive. It is not clear if
17 the stress cracks were caused as a result of the long term damages or the shifting
18 of the structure to allow water to penetrate over an extended period of time.
19 Regardless, I have included the rear elevation stucco along the garage/guest wing
20 of the dwelling in the estimate. These costs along exceed the $2,500 limit. The
21 insulation, framing, additional stucco, and interior stress cracks (without fresh
22 water damage) were not included. If all rot and long term damages were included
23 the cost of repairs would likely exceed $100,000.00.
24 The water stains and new leaks were included in the estimate in the dining
25 room, center hall, living room, side entry, garage, and master bedroom. Drywall,
26 insulation, and painting repairs are required. This does not include the stress cracks,
27 rot, or long term water damages.
28 To my understanding, the contractor is still completing the demo to try to
10
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 determine the extent of the long term damage. No estimate as been prepared.
2
3 SUBROGATION
4 There is no subrogation opportunity as the cause of the loss appears to be
5 consistent with normal wear and tear.
6
7 SALVAGE
8 The items involved with water and wind damage have no value.”
9 Grounds for Objection:
10 Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles (1987)194 Cal. App.
11 3d 822, 834. Improper opinion evidence that does not lay a foundation as to the individual's special
12 knowledge, skill, experience, training, and education or a statement of the basis of the opinion.
13 Defendant’s Evidence does not include any foundation for Charles Linard to express an
14 expert opinion as to the cause of damage to Plaintiff’s residence. To the contrary, his deposition
15 testimony reveals he has no basis to render an expert opinion on this subject:
16 1. He had no engineering education or training other than one class he took in college
17 but could not remember (Plaintiffs’ Compendium, Ex. “5” at 17:5-18:14);
18 2. No college or general experience in construction (Plaintiffs’ Evidence, Ex. “5” at
19 18:3-19:20); and
20 3. No licenses in engineering or construction (Plaintiffs’ Evidence, Ex. “5” at 19:21-
21 23).
22 Mr. Linard’s statements are being asserted by Defendant as to causation of damages to
23 Plaintiffs’ residence, which is referred to in Defendant’s Memorandum at:
24 1. P. 20:1-3 (“As a result of Plaintiffs’ failure to make timely repairs, severe mold and
25 rot was allowed to develop throughout the Property. [UMF No. 12-13.]”)
26 2. P. 21 4-5 [“Independent adjuster, Linard, observed street cracks along the windows
27 and door openings, which allowed water to intrude, and mold and rot to develop
28 over an extended period of time.”]
11
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 Objection. Lack of foundation for expert opinion. (Ev. Code, §§ 720, 801-803.) If an expert
2 provides an opinion in support of a motion for summary judgment, he or she must provide the facts
3 upon which the expert's conclusions are based. “ ‘ “[A]n expert's opinion rendered without a
4 reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary
5 value because an expert opinion is worth no more than the reasons and facts on which it is based.
6 [Citations.]” [Citation.]’ ” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 530, italics added.)
7 “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material
8 fact issue for trial, as required for summary judgment.” (Kelley v. Trunk (1998) 66 Cal.App.4th
9 519 at p. 524, italics added.)”
10 There is no evidence presented by Defendant, what facts Linard relied upon in making
11 conclusions that the damage to Plaintiffs’ residence was “mold”, “rot” or “long term damage”.
12
13 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 3:
14 Plaintiffs’ objections are misplaced in several respects. First, they misstate the purpose of
15 the evidence being submitted. Plaintiffs’ object to Exhibit G attached to Mr. Callahan’s deposition
16 [UMF No. 11], which is an activity/status report from outside claims adjuster Mr. Linard to Jacob
17 Lee, the Homesite adjuster initially assigned to adjust Plaintiffs’ claim. This evidence, and UMF
18 No. 13, reference the undisputed chronology of the claims handling, as well as the fact that Mr.
19 Linard was reporting to Homesite as to what he personally observed at the Plaintiffs’ residence at
20 the time of his inspection of the property, on August 26, 2019, thirteen days after Mr. Clampett
21 first reported the claim to Homesite. [See UMF No. 8.]
22 Moreover, UMF Nos. 10-15, in the aggregate, document Mr. Linard’s personal
23 observations, including the fact that Plaintiffs’ contractor, Tom Long, had already removed
24 portions of the stucco, which exposed the framing around several windows, and portions of the
25 garage ceiling [UMF No. 11]; that as a result he was able to personally observe “severe” rot around
26 the window and door framing [UMF No. 12]; that Linard took extensive photographs of the rotted
27 door and window framing for the report of his observations for Homesite [UMF No. 12]; and that
28 the cost to repair the severe mold and rot he could personally see, was in excess of $100,000, and
12
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 therefore grossly exceeded the Policy’s $2500 mold and rot limit. [UMF Nos. 14, 15] Thus, this
2 evidence documents the personal observations of an experienced claims adjuster who was
3 providing information to Defendant as to what he could see, to allow Homesite to determine the
4 nature and extent of the benefits owed on the claim.
5 Notably, Plaintiffs’ contractor, Tom Long submitted a repair estimate stating that the
6 windows had failed, causing water intrusion and structural failure due to the rotted framing [See
7 Ex. I] and subsequently testified in his deposition that there was rot due to water intrusion around
8 all the door and window framing.[ See Ex. BB, p. 177] Moreover, Homesite later retained licensed
9 engineer, Phu Nguyen, who reached the same conclusion as Tom Long and Charlie Linard. [See
10 Motion, pp. 11-12] There is no mystery and no question of fact as to the observations of each of
11 these people, including the observations of Mr. Linard, which Plaintiffs find objectionable; there
12 was severe rot damage around the doors and the windows which required the replacement of the
13 window and door framing.
14 Second, Mr. Linard, an independent, experienced property insurance adjuster, is not
15 required to have a degree in engineering to be able to observe property damage in the form of rot
16 or mold. It should be noted that Mr. Long was also able to identify the rot without a degree. In
17 fact, anyone who has ever opened a container of long forgotten leftovers in their refrigerator, to
18 find the remains covered in black goop can identify it as mold, regardless of their education.
19 Evidence Code § 720 (a) provides that: “A person is qualified to testify as an expert if he
20 has special knowledge, skill, experience, training, or education sufficient to qualify him as an
21 expert on the subject to which his testimony relates. Against the objection of a party, such special
22 knowledge, skill, experience, training, or education must be shown before the witness may testify
23 as an expert.” An expert opinion is supported by personal foundation if the witness has sufficient
24 experience and familiarity within a particular field: “[T]he qualifications of an expert must be
25 related to the particular subject upon which he is giving expert testimony. [. . .] The foundation
26 required to establish the expert's qualifications is a showing that the expert has the requisite
27 knowledge of, or was familiar with, or was involved in a sufficient number of transactions
28 involving the subject matter of the opinion. [T]he determinative issue in each case is whether the
13
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 witness has sufficient skill or experience in the field so his testimony would be likely to assist the
2 jury in the search for truth. [. . .] An expert may rely upon hearsay and other inadmissible matter
3 in forming an opinion.” Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal. App. 4th 1102,
4 1115 (citations omitted).
5 Mr. Linard’s conclusions were based on his own personal observations of the entire
6 property, and his experience working as an insurance adjuster, since 2010, who had investigated
7 hundreds of property damage claims, every year, for nine years before he observed Plaintiffs’
8 property. Plaintiffs and their counsel are aware of Mr. Linard’s experience because Mr. Roe took
9 his deposition and submitted portions of Mr. Linard’s deposition transcript in which he describes
10 his qualifications as an independent insurance adjuster, including his job experience and training
11 since. [See Plaintiffs’ Compendium of Exhibits, Ex. 5, pp 50-56]. Mr. Linard had experience
12 sufficient to lay a foundation to express his opinion as to the cause of the property damage, and
13 specifically, the mold and rot that he observed.
14 Additionally, Mr. Linard was not required to do a detailed scientific analysis, nor was he
15 required to have an engineering degree to identify the rot on the doors and windows. (Schreidel v.
16 American Honda Motor Co. (1995) 34 Cal. App. 4th 1242, 1251-53; [holding that an expert’s
17 testimony regarding cause of an auto accident was not speculative or inadmissible purely due to a
18 lack of scientific testing, product disassembly, or independent investigation]).
19 Finally, Mr. Linard testified that he did not make any coverage decisions as to Plaintiffs’ claim.
20 [See Ex. AA; Plaintiffs’ Compendium of Exhibits, Ex. 5. See also, Ex. Z, Deposition of Scott
21 Callahan.] Mr. Linard reported on what he observed, and Homesite made decisions as to how the
22 claim should be adjusted based in part on those observations. Mr. Linard was qualified to
23 communicate his observations to Homesite, and Homesite conducted itself reasonably by relying
24 on those observations.
25
26
27 Court’s Ruling on Objection No. 3: Sustained: ______________
28 Overruled: ______________
14
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 PLAINTIFFS’ OBJECTION NO. 4:
2 Material Objected to: Defendant’s Evidence, Exhibit X at p. 322
3 Grounds for Objection: Hearsay without an exception. (Ev. Code, § 1200.) Relevance.
4 (Ev. Code, § 210.) The e-mails are irrelevant because the May 6, 2021 unanimous appraisal award
5 ultimately set the amount of plaintiffs' loss at $555,070.63, which was substantially higher than
6 Long's December 2019 estimate. Homesite is bound by the findings of the appraisal panel and
7 cannot dispute the scope of loss or cost of repair determined by the appraisal panel.
8
9 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 4:
10 Plaintiffs object to emails exchanged between Tom Long and Mr. Clampett, and it appears
11 in particular an email in which Mr. Long states that the estimate he submitted to Homesite was “a
12 bit high so there is room for you to negotiate”. [Ex. X, p 322.] But a review of the Mandell
13 Declaration, and the totality of Exhibit X, makes it clear that this email was contained in Mr.
14 Long’s business records, which were produced in response to a business records subpoena issued
15 by Homesite. Indeed, Exhibit X includes the Declaration of the Custodian of Records producing
16 the business records, which is clearly signed by Tom Long. [See Ex. X, p. 321] Thus, Exhibit X is
17 admissible hearsay, as a business record, pursuant to Evidence Code §1271.
18 Moreover, these emails are relevant to several issues in the case. First, it demonstrates that
19 months after Homesite had Charlie Linard inspect the property, Plaintiffs finally obtained an
20 estimate from Mr. Long, and that it was “currently… at 168K, does not include this month labor
21 or doors. Doors are 34K.” [See Ex. X. p. 322] Therefore, unless Mr. Long generated in excess of
22 $250,000 in labor for the work performed in the month of December 2019, there is a tremendous
23 gap between the estimate Mr. Long was providing to Mr. Clampett, and the $492,903.70 estimate
24 he provided to Homesite at the same time. [See Ex. I; Mandell Dec. 3:19-4:9]
25 Given the fact that Plaintiffs have placed enormous weight on Mr. Long’s opinion as to the
26 nature of the damage to their home, and his estimate became the basis for Plaintiffs’ contract claim,
27 and the appraisal award, on which Plaintiffs place so much emphasis, Mr. Long’s credibility in
28 providing these two very disparate numbers is certainly relevant.
15
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 Furthermore, and apart from the actual amount of the repairs to be performed, these emails
2 reflect on the reasonableness of Defendant’s claim handling and, the fact that it explains in part
3 why Homesite found Mr. Long’s submission, as to the nature and extent of the repairs, less than
4 persuasive. As of December 2019, Homesite was in possession of the inspection report, containing
5 the observations and photographs taken by experienced insurance adjuster Charlie Linard, and
6 which indicated that the bulk of the damage to the home was mold and rot, which, was subject to
7 the previously exhausted $2500 mold and rot limit. Homesite was also in possession of Mr. Long’s
8 estimate that he submitted to Homesite which was completely consistent with Mr. Linard’s
9 findings and indicated that the windows and doors had failed and allowed water intrusion, which
10 damaged all the window and door framing, and required that all the windows and doors be
11 replaced. [Ex. I] There was nothing that was submitted by Plaintiffs that even came close to
12 supporting Plaintiffs’ current claim that an additional $550,000 in benefits were owed. To the
13 extent that Mr. Long’s business records raise serious doubts about the credibility of his estimate,
14 and all of his opinions, these emails and business records are relevant and admissible.
15
16 Court’s Ruling on Objection No. 4: Sustained: ______________
17 Overruled: ______________
18
19
20 PLAINTIFFS’ OBJECTION NO. 5:
21 Material Objected to: Callahan Decl., ¶ 33, 10:24-20 .)
22 “33. The Claim File confirms that California licensed, Donan civil engineer,
23 Phu Nguyen (“Nguyen”) inspected the Property on May 3, 2020, with
24 Hollingsworth and Plaintiffs’ contractor Tom Long in attendance, and that Nguyen
25 prepared a report of his observations, findings, and opinions that he provided to
26 Homesite, dated May 20, 2020. In his report, Nguyen noted that Hollingsworth and
27 Long had advised him that heavy rains and strong winds from late 2018 through
28 early 2019, resulted in water intrusions, primarily around the doors and windows
16
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 throughout Plaintiffs’ residence. After leaks to the interior of the Property were
2 noted, interior drywall and exterior stucco were removed, and it was determined
3 that there was rot around the doors, windows and wall assemblies. Nguyen
4 observed that a good deal of dry wall in the interior, and stucco on the exterior had
5 been removed. He observed deteriorated components of the wall assemblies, mold,
6 dark water stains on various wood and metal components of the walls and
7 window/door assemblies, as well as other faulty portions of the construction.
8 Nguyen identified the three measurable observations on the wood in the residence;
9 discoloration, deterioration and permanent swelling, that provide a scientific basis
10 for his conclusion that the water intrusion was long term.
11 “After he completed his inspection, Nguyen also reviewed the historical
12 weather data, and noted that there were no severe winds reported for the area
13 between November 2018 and February 2019, and that there appeared to only be
14 excessive rain in February 2019. Ultimately, Nguyen issued a report of his findings,
15 opining that there were normal cracks in the exterior stucco, that had allowed long
16 term water intrusions, primarily around the doors and windows, resulting in the
17 darkly stained and deteriorated wall assemblies. Nguyen also noted that in reaching
18 his conclusions, he relied in part on information provided him at the time of his
19 inspection by Long and Hollingsworth that rotted wall framing members had been
20 removed before his inspection, and that the totality of the deteriorated conditions in
21 the wall assembly provided scientific evidence of long-term water intrusion.”
22 Grounds for Objection:
23 Lack of foundation. (Evidence Code, § 702(a).) Other than reviewing the claim file to see
24 that Nyugen’s report is part of the file, Callahan has no personal knowledge of what Nguyen did
25 or why, other than what is stated in Nguyen’s report. His statements include his personal
26 interpretation of the contents of the report. Hearsay without an exception. (Ev. Code, § 1200.)
27 ///
28 ///
17
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 5:
2 Plaintiffs object to the paragraphs of the Callahan declaration which summarize and
3 analyze the report of Phu Nguyen, on the basis that Callahan’s summary is hearsay. Considering
4 Plaintiffs took Mr. Callahan’s deposition, who appeared as the person most qualified to speak as
5 to Homesite’s claims handling, this objection is somewhat baffling.
6 Mr. Callahan’s declaration, as well as his deposition testimony has been offered by
7 Homesite, for the purpose of demonstrating the reasonableness of Defendant’s claims handling.
8 Seeing as the test of whether Homesite committed bad faith in its claims handling is the
9 reasonableness of its claims handling (Chateau Chamberay Homeowners Ass'n v. Associated Int'l
10 Ins. Co. (2001) 90 Cal.4th 335, 347.), the question of what Homesite knew, when they knew it,
11 and what they did with what they knew is not just relevant; it is the ultimate issue!
12 Of course, Mr. Callahan’s recitation of what information Homesite had, and what it did
13 with that information is relevant and admissible not to establish the truth of the information, but to
14 establish what Homesite relied on and whether it was reasonable. If Plaintiffs wanted to rebut
15 engineer Nguyen’s opinions with the opinion of an engineer, they certainly could have, but they
16 never offered the opinion of an engineer prior to filing this action, and they offer none now in
17 Opposition to the Motion. Mr. Callahan’s testimony as to Homesite’s understanding of Mr.
18 Nguyen’s observations and opinions are admissible as to the precise subject of the bad faith claim;
19 the reasonableness of Homesite’s handling of Plaintiffs’ claim.
20
21 Court’s Ruling on Objection No. 5: Sustained: ______________
22 Overruled: ______________
23
24
25 PLAINTIFFS’ OBJECTION NO. 6:
26 Material Objected to: Defendant’s Exhibit S (Letter to Homesite by Attorney David
27 Hollingsworth dated September 2, 2020).
28 Grounds for Objection:
18
DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’
OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT,
OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 Evidence Code § 1152, privileged as the letter was intended to facilitate a settlement of
2 Plaintiffs’ claims against Defendant. Hearsay under Ev. Code § 1200(b) without an exception.
3 Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles (1987)194 Cal. App.
4 3d 822, 834. Improper opinion evidence that does not lay a foundation as to the individual's special
5 knowledge, skill, experience, training, and education or a statement of the basis of the opinion.
6 Hollingsworth’s letter makes statements constituting expert opinions that require expert
7 qualifications.
8
9 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 6:
10 Exhibit S does not fall within the purview of Evid. Code § 1152 because it did not contain
11 any evidence of an offer to compromise, and it was not submitted as proof of liability for any loss.
12 Exhibit S was nothing but a sprawling list of legal citations and analysis from attorney
13 Hollingworth, with no actual offer to compromise. Addi
Preview
BARBARA J. MANDELL (SBN 106523) 1 MATTHEW B. ROBERTS (SBN 287616) 2 COLMAN PERKINS LAW GROUP 500 North Brand Boulevard, Suite 2200 Glendale, California 91203 3 Telephone (818)546-8686 Facsimile (818)546-8787 4 Email: bmandell@colmanlawgroup.com 5 mroberts@colmanlawgroup.com 6 Attorneys for Defendant, HOMESITE INSURANCE COMPANY OF CALIFORNIA 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF MONTEREY 10 ROBERT CLAMPETT, an individual, and ) Case No.: 21CV001804 11 MARIANNA CLAMPETT, an individual, ) Hon. Carrie M. Panetta 12 ) Dept.: 14 ) 13 Plaintiffs, ) DEFENDANT HOMESITE ) INSURANCE COMPANY OF 14 ) CALIFORNIA’S REPLY TO v. ) PLAINTIFFS’ OBJECTIONS TO 15 ) DEFENDANT’S EVIDENCE IN ) SUPPORT OF MOTION FOR 16 HOMESITE INSURANCE COMPANY OF ) SUMMARY JUDGMENT, OR IN THE CALIFORNIA, A California Corporation; ) ALTERNATIVE, SUMMARY 17 DOES 1 through 10, inclusive, ) ADJUDICATION ) 18 Defendants. ) Concurrently filed documents: ) [Reply Brief to Plaintiffs’ Opposition to 19 ) Motion for Summary Judgment, Or In The ) Alternative, Summary Adjudication; 20 ) Defendant’s Objections to Plaintiff’s ) Evidence in Opposition to Motion] 21 ) 22 ) Date: August 21, 2023 ) Time: 8:30 a.m. 23 ) Dept.: 14 ) 24 ) Complaint Filed: June 3, 2021 ) Trial Date: September 18, 2023 25 ) 26 Defendant HOMESITE INSURANCE COMPANY OF CALIFORNIA (“Homesite” or 27 “Defendant”) submits this Reply to Plaintiffs ROBERT CLAMPETT and MARIANNA 28 CLAMPETT’s (“Plaintiffs”) Evidentiary Objections in Opposition to Homesite’s Motion for 1 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Summary Judgment, or in the alternative, Summary Adjudication (“Motion”). 2 3 PLAINTIFFS’ OBJECTION NO. 1: 4 Material Objected to: Defendant’s Evidence, Exhibit AA at pp. 369 (Charles Linard 5 Depo., Exhibit 14 thereto.) 6 “Over an extended period of time, water has penetrated these cracks and caused the window 7 and door framing to rot. ” 8 Grounds for Objection: 9 Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles (1987)194 Cal. App. 10 3d 822, 834. Improper opinion evidence that does not lay a foundation as to the individual's special 11 knowledge, skill, experience, training, and education or a statement of the basis of the opinion. 12 Defendant’s Evidence does not include any foundation for Charles Linard to express an 13 expert opinion as to the cause of damage to Plaintiff’s residence. To the contrary, his deposition 14 testimony reveals he has no basis to render an expert opinion on this subject: 15 1. He had no engineering education or training other than one class he took in college 16 but could not remember (Plaintiffs’ Compendium, Ex. “5” at 17:5-18:14); 17 2. No college or general experience in construction (Plaintiffs’ Evidence, Ex. “5” at 18 18:3-19:20); and 19 3. No licenses in engineering or construction (Plaintiffs’ Evidence, Ex. “5” at 19:21- 20 23). 21 Mr. Linard’s statements are being asserted by Defendant as to causation of damages to 22 Plaintiffs’ residence, which is referred to in Defendant’s Memorandum at: 23 1. P. 20:1-3 (“As a result of Plaintiffs’ failure to make timely repairs, severe mold and 24 rot was allowed to develop throughout the Property. [UMF No. 12-13.]”) 25 2. P. 21 4-5 [“Independent adjuster, Linard, observed street cracks along the windows 26 and door openings, which allowed water to intrude, and mold and rot to develop over an extended 27 period of time.”] 28 Objection. Lack of foundation for expert opinion. (Ev. Code, §§ 720, 801-803.) If an expert 2 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 provides an opinion in support of a motion for summary judgment, he or she must provide the facts 2 upon which the expert's conclusions are based. “ ‘ “[A]n expert's opinion rendered without a 3 reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary 4 value because an expert opinion is worth no more than the reasons and facts on which it is based. 5 [Citations.]” [Citation.]’ ” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 530, italics added.) 6 “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material 7 fact issue for trial, as required for summary judgment.” (Kelley v. Trunk (1998) 66 Cal.App.4th 8 519 at p. 524, italics added.)” 9 There is no evidence presented by Defendant as to what facts Linard relied upon in making 10 conclusions as to the causation of damages to Plaintiffs’ residence. 11 12 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 1: 13 Plaintiffs’ objections are misplaced in several respects. First, they misstate the purpose of 14 the evidence being submitted. Plaintiffs’ object to Exhibit 14 attached to Mr. Linard’s deposition 15 (See UMF No. 13, Ex. AA), which is a status report from outside claims adjuster Mr. Linard to 16 Jacob Lee, the Homesite adjuster initially assigned to adjust Plaintiffs’ claim. This evidence, and 17 UMF No. 13, reference the undisputed chronology of the claims handling, as well as the fact that 18 Mr. Linard was reporting to Homesite as to what he personally observed at the Plaintiffs’ residence 19 at the time of his inspection of the property, on August 26, 2019, thirteen days after Mr. Clampett 20 first reported the claim to Homesite. [See UMF No. 8.] 21 Moreover, UMF Nos. 10-15, in the aggregate, document Mr. Linard’s personal 22 observations, including the fact that Plaintiffs’ contractor, Tom Long, had already removed 23 portions of the stucco, which exposed the framing around several windows, and portions of the 24 garage ceiling [UMF No. 11]; that as a result he was able to personally observe “severe” rot around 25 the window and door framing [UMF No. 12]; that Linard took extensive photographs of the rotted 26 door and window framing for the report of his observations for Homesite [UMF No. 12]; and that 27 the cost to repair the severe mold and rot he could personally see, was in excess of $100,000, and 28 therefore grossly exceeded the Policy’s $2500 mold and rot limit. [UMF Nos. 14, 15] Thus, this 3 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 evidence documents the personal observations of an experienced claims adjuster who was 2 providing information to Defendant as to what he could see, to allow Homesite to determine the 3 nature and extent of the benefits owed on the claim. 4 Notably, Plaintiffs’ contractor, Tom Long submitted a repair estimate stating that the 5 windows had failed, causing water intrusion and structural failure due to the rotted framing [See 6 Ex. I] and subsequently testified in his deposition that there was rot due to water intrusion around 7 all the door and window framing.[ See Ex. BB, p. 177] Moreover, Homesite later retained licensed 8 engineer, Phu Nguyen, who reached the same conclusion as Tom Long and Charlie Linard. [See 9 Motion, pp. 11-12] There is no mystery and no question of fact as to the observations of each of 10 these people, including the observations of Mr. Linard, which Plaintiffs find objectionable; there 11 was severe rot damage around the doors and the windows which required the replacement of the 12 window and door framing. 13 Second, Mr. Linard, an independent, experienced property insurance adjuster, is not 14 required to have a degree in engineering to be able to observe property damage in the form of rot 15 or mold. It should be noted that Mr. Long was also able to identify the rot without a degree. In 16 fact, anyone who has ever opened a container of long forgotten leftovers in their refrigerator, to 17 find the remains covered in black goop can identify it as mold, regardless of their education. 18 Evidence Code § 720 (a) provides that: “A person is qualified to testify as an expert if he 19 has special knowledge, skill, experience, training, or education sufficient to qualify him as an 20 expert on the subject to which his testimony relates. Against the objection of a party, such special 21 knowledge, skill, experience, training, or education must be shown before the witness may testify 22 as an expert.” An expert opinion is supported by personal foundation if the witness has sufficient 23 experience and familiarity within a particular field: 24 “[T]he qualifications of an expert must be related to the particular subject upon 25 which he is giving expert testimony. [. . .] The foundation required to establish the 26 expert's qualifications is a showing that the expert has the requisite knowledge of, 27 or was familiar with, or was involved in a sufficient number of transactions 28 involving the subject matter of the opinion. [T]he determinative issue in each case 4 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 is whether the witness has sufficient skill or experience in the field so his testimony 2 would be likely to assist the jury in the search for truth. [. . .] An expert may rely 3 upon hearsay and other inadmissible matter in forming an opinion.” Howard 4 Entertainment, Inc. v. Kudrow (2012) 208 Cal. App. 4th 1102, 1115 (citations 5 omitted). 6 In this case, Mr. Linard’s conclusions were based on his own personal observations of the 7 entire property, and his experience working as an insurance adjuster, since 2010, who had 8 investigated hundreds of property damage claims, every year, for nine years before he observed 9 Plaintiffs’ property. Plaintiffs and their counsel are aware of Mr. Linard’s experience because Mr. 10 Roe took his deposition and submitted portions of Mr. Linard’s deposition transcript in which he 11 describes his qualifications as an independent insurance adjuster, including his job experience and 12 training since. [See Plaintiffs’ Compendium of Exhibits, Ex. 5, pp 50-56]. Mr. Linard had 13 experience sufficient to lay a foundation to express his opinion as to the cause of the property 14 damage, and specifically, the mold and rot that he observed. 15 Additionally, Mr. Linard was not required to do a detailed scientific analysis, nor was he 16 required to have an engineering degree to identify the rot on the doors and windows. (Schreidel v. 17 American Honda Motor Co. (1995) 34 Cal. App. 4th 1242, 1251-53; [holding that an expert’s 18 testimony regarding cause of an auto accident was not speculative or inadmissible purely due to a 19 lack of scientific testing, product disassembly, or independent investigation]). 20 Finally, Mr. Linard testified that he did not make any coverage decisions as to Plaintiffs’ 21 claim. [See Ex. AA; Plaintiffs’ Compendium of Exhibits, Ex. 5. See also, Ex. Z, Deposition of 22 Scott Callahan.] Mr. Linard reported on what he observed, and Homesite made decisions as to how 23 the claim should be adjusted based in part on those observations. Mr. Linard was qualified to 24 communicate his observations to Homesite, and Homesite conducted itself reasonably by relying 25 on those observations. 26 27 Court’s Ruling on Objection No. 1: Sustained: ______________ 28 Overruled: ______________ 5 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 PLAINTIFFS’ OBJECTION NO. 2: 2 Material Objected to: Defendant’s Evidence, Exhibit AA at pp. 372 (Charles Linard 3 Depo., Exhibit 15 thereto.) 4 “Over an extended period of time, water has penetrated these cracks and caused the window 5 and door framing to rot. ” 6 Grounds for Objection: 7 Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles (1987)194 Cal. App. 8 3d 822, 834. Improper opinion evidence that does not lay a foundation as to the individual's special 9 knowledge, skill, experience, training, and education or a statement of the basis of the opinion. 10 Defendant’s Evidence does not include any foundation for Charles Linard to express an 11 expert opinion as to the cause of damage to Plaintiff’s residence. To the contrary, his deposition 12 testimony reveals he has no basis to render an expert opinion on this subject: 13 1. He had no engineering education or training other than one class he took in college 14 but could not remember (Plaintiffs’ Compendium, Ex. “5” at 17:5-18:14); 15 2. No college or general experience in construction (Plaintiffs’ Evidence, Ex. “5” at 16 18:3-19:20); and 17 3. No licenses in engineering or construction (Plaintiffs’ Evidence, Ex. “5” at 19:21- 18 23). 19 Mr. Linard’s statements are being asserted by Defendant as to causation of damages to 20 Plaintiffs’ residence, which is referred to in Defendant’s Memorandum at: 21 1. P. 20:1-3 (“As a result of Plaintiffs’ failure to make timely repairs, severe mold and 22 rot was allowed to develop throughout the Property. [UMF No. 12-13.]”) 23 2. P. 21 4-5 [“Independent adjuster, Linard, observed street cracks along the windows 24 and door openings, which allowed water to intrude, and mold and rot to develop 25 over an extended period of time.”] 26 Objection. Lack of foundation for expert opinion. (Ev. Code, §§ 720, 801-803.) If an expert 27 provides an opinion in support of a motion for summary judgment, he or she must provide the facts 28 upon which the expert's conclusions are based. “ ‘ “[A]n expert's opinion rendered without a 6 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary 2 value because an expert opinion is worth no more than the reasons and facts on which it is based. 3 [Citations.]” [Citation.]’ ” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 530, italics added.) 4 “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material 5 fact issue for trial, as required for summary judgment.” (Kelley v. Trunk (1998) 66 Cal.App.4th 6 519 at p. 524, italics added.)” 7 There is no evidence presented by Defendant as to what facts Linard relied upon in making 8 conclusions as to the causation of damages to Plaintiffs’ residence. 9 10 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 2: 11 Plaintiffs’ objections are misplaced in several respects. First, they misstate the purpose of 12 the evidence being submitted. Plaintiffs’ object to Exhibit 15 attached to Mr. Linard’s deposition 13 which is a status report from outside claims adjuster Mr. Linard to Jacob Lee, the Homesite adjuster 14 initially assigned to adjust Plaintiffs’ claim. As previously noted, this evidence, references the 15 undisputed chronology of the claims handling, as well as the fact that Mr. Linard was reporting to 16 Homesite as to what he personally observed at the Plaintiffs’ residence at the time of his inspection 17 of the property, on August 26, 2019, thirteen days after Mr. Clampett first reported the claim to 18 Homesite. [See UMF No. 8.] 19 Moreover, UMF Nos. 10-15, in the aggregate, document Mr. Linard’s personal 20 observations, including the fact that Plaintiffs’ contractor, Tom Long, had already removed 21 portions of the stucco, which exposed the framing around several windows, and portions of the 22 garage ceiling [UMF No. 11]; that as a result he was able to personally observe “severe” rot around 23 the window and door framing [UMF No. 12]; that Linard took extensive photographs of the rotted 24 door and window framing for the report of his observations for Homesite [UMF No. 12]; and that 25 the cost to repair the severe mold and rot he could personally see, was in excess of $100,000, and 26 therefore grossly exceeded the Policy’s $2500 mold and rot limit. [UMF Nos. 14, 15] Thus, this 27 evidence documents the personal observations of an experienced claims adjuster who was 28 providing information to Defendant as to what he could see, to allow Homesite to determine the 7 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 nature and extent of the benefits owed on the claim. 2 Notably, Plaintiffs’ contractor, Tom Long submitted a repair estimate stating that the 3 windows had failed, causing water intrusion and structural failure due to the rotted framing [See 4 Ex. I] and subsequently testified in his deposition that there was rot due to water intrusion around 5 all the door and window framing.[ See Ex. BB, p. 177] Moreover, Homesite later retained licensed 6 engineer, Phu Nguyen, who reached the same conclusion as Tom Long and Charlie Linard. [See 7 Motion, pp. 11-12] There is no mystery and no question of fact as to the observations of each of 8 these people, including the observations of Mr. Linard, which Plaintiffs find objectionable; there 9 was severe rot damage around the doors and the windows which required the replacement of the 10 window and door framing. 11 Second, Mr. Linard, an independent, experienced property insurance adjuster, is not 12 required to have a degree in engineering to be able to observe property damage in the form of rot 13 or mold. It should be noted that Mr. Long was also able to identify the rot without a degree. In 14 fact, anyone who has ever opened a container of long forgotten leftovers in their refrigerator, to 15 find the remains covered in black goop can identify it as mold, regardless of their education. 16 Evidence Code § 720 (a) provides that: “A person is qualified to testify as an expert if he 17 has special knowledge, skill, experience, training, or education sufficient to qualify him as an 18 expert on the subject to which his testimony relates. Against the objection of a party, such special 19 knowledge, skill, experience, training, or education must be shown before the witness may testify 20 as an expert.” An expert opinion is supported by personal foundation if the witness has sufficient 21 experience and familiarity within a particular field: 22 “[T]he qualifications of an expert must be related to the particular subject upon which he is giving 23 expert testimony. [. . .] The foundation required to establish the expert's qualifications is a showing 24 that the expert has the requisite knowledge of, or was familiar with, or was involved in a sufficient 25 number of transactions involving the subject matter of the opinion. [T]he determinative issue in 26 each case is whether the witness has sufficient skill or experience in the field so his testimony 27 would be likely to assist the jury in the search for truth. [. . .] An expert may rely upon hearsay and 28 other inadmissible matter in forming an opinion.” Howard Entertainment, Inc. v. Kudrow (2012) 8 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 208 Cal. App. 4th 1102, 1115 (citations omitted). 2 Mr. Linard’s conclusions were based on his own personal observations of the entire 3 property, and his experience working as an insurance adjuster, since 2010, who had investigated 4 hundreds of property damage claims, every year, for nine years before he observed Plaintiffs’ 5 property. Plaintiffs and their counsel are aware of Mr. Linard’s experience because Mr. Roe took 6 his deposition and submitted portions of Mr. Linard’s deposition transcript in which he describes 7 his qualifications as an independent insurance adjuster, including his job experience and training 8 since. [See Plaintiffs’ Compendium of Exhibits, Ex. 5, pp 50-56]. Mr. Linard had experience 9 sufficient to lay a foundation to express his opinion as to the cause of the property damage, and 10 specifically, the mold and rot that he observed. 11 Additionally, Mr. Linard was not required to do a detailed scientific analysis, nor was he 12 required to have an engineering degree to identify the rot on the doors and windows. (Schreidel v. 13 American Honda Motor Co. (1995) 34 Cal. App. 4th 1242, 1251-53; [holding that an expert’s 14 testimony regarding cause of an auto accident was not speculative or inadmissible purely due to a 15 lack of scientific testing, product disassembly, or independent investigation]). 16 Finally, Mr. Linard testified that he did not make any coverage decisions as to Plaintiffs’ claim. 17 [See Ex. AA; Plaintiffs’ Compendium of Exhibits, Ex. 5. See also, Ex. Z, Deposition of Scott 18 Callahan.] Mr. Linard reported on what he observed, and Homesite made decisions as to how the 19 claim should be adjusted based in part on those observations. Mr. Linard was qualified to 20 communicate his observations to Homesite, and Homesite conducted itself reasonably by relying 21 on those observations. 22 23 Court’s Ruling on Objection No. 2: Sustained: ______________ 24 Overruled: ______________ 25 26 27 PLAINTIFFS’ OBJECTION NO. 3: 28 Material Objected to: Defendant’s Evidence, Exhibit G at p. 125-126 (Linard Report - 9 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 portions objected to are in italics and underlined). 2 “CAUSE OF LOSS 3 There are what appear to be consistent with stress cracks along the window 4 and door openings throughout the dwelling. The cracks appear on the stucco 5 exterior as well as the drywall interior. They could be caused from the settling and 6 shifting of the structure. The damages are more pronounced along the exposed rear 7 elevation that sits on the top of a mountain. Over an extended period of time, water 8 has penetrated these cracks and caused the window and door framing to rot. There 9 is also water and mold damage inside the dwelling. 10 11 “ADJUSTER NARRATIVE 12 Since the previous report I have proceed with a repair estimate for the 13 resulting water damages. The rot, mold, and long term damage will fall under the 14 $2,500 limit. The other water damages (within this last winter) fall under coverage 15 A. 16 The rot, mold, and long term water damages are extensive. It is not clear if 17 the stress cracks were caused as a result of the long term damages or the shifting 18 of the structure to allow water to penetrate over an extended period of time. 19 Regardless, I have included the rear elevation stucco along the garage/guest wing 20 of the dwelling in the estimate. These costs along exceed the $2,500 limit. The 21 insulation, framing, additional stucco, and interior stress cracks (without fresh 22 water damage) were not included. If all rot and long term damages were included 23 the cost of repairs would likely exceed $100,000.00. 24 The water stains and new leaks were included in the estimate in the dining 25 room, center hall, living room, side entry, garage, and master bedroom. Drywall, 26 insulation, and painting repairs are required. This does not include the stress cracks, 27 rot, or long term water damages. 28 To my understanding, the contractor is still completing the demo to try to 10 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 determine the extent of the long term damage. No estimate as been prepared. 2 3 SUBROGATION 4 There is no subrogation opportunity as the cause of the loss appears to be 5 consistent with normal wear and tear. 6 7 SALVAGE 8 The items involved with water and wind damage have no value.” 9 Grounds for Objection: 10 Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles (1987)194 Cal. App. 11 3d 822, 834. Improper opinion evidence that does not lay a foundation as to the individual's special 12 knowledge, skill, experience, training, and education or a statement of the basis of the opinion. 13 Defendant’s Evidence does not include any foundation for Charles Linard to express an 14 expert opinion as to the cause of damage to Plaintiff’s residence. To the contrary, his deposition 15 testimony reveals he has no basis to render an expert opinion on this subject: 16 1. He had no engineering education or training other than one class he took in college 17 but could not remember (Plaintiffs’ Compendium, Ex. “5” at 17:5-18:14); 18 2. No college or general experience in construction (Plaintiffs’ Evidence, Ex. “5” at 19 18:3-19:20); and 20 3. No licenses in engineering or construction (Plaintiffs’ Evidence, Ex. “5” at 19:21- 21 23). 22 Mr. Linard’s statements are being asserted by Defendant as to causation of damages to 23 Plaintiffs’ residence, which is referred to in Defendant’s Memorandum at: 24 1. P. 20:1-3 (“As a result of Plaintiffs’ failure to make timely repairs, severe mold and 25 rot was allowed to develop throughout the Property. [UMF No. 12-13.]”) 26 2. P. 21 4-5 [“Independent adjuster, Linard, observed street cracks along the windows 27 and door openings, which allowed water to intrude, and mold and rot to develop 28 over an extended period of time.”] 11 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Objection. Lack of foundation for expert opinion. (Ev. Code, §§ 720, 801-803.) If an expert 2 provides an opinion in support of a motion for summary judgment, he or she must provide the facts 3 upon which the expert's conclusions are based. “ ‘ “[A]n expert's opinion rendered without a 4 reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary 5 value because an expert opinion is worth no more than the reasons and facts on which it is based. 6 [Citations.]” [Citation.]’ ” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 530, italics added.) 7 “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material 8 fact issue for trial, as required for summary judgment.” (Kelley v. Trunk (1998) 66 Cal.App.4th 9 519 at p. 524, italics added.)” 10 There is no evidence presented by Defendant, what facts Linard relied upon in making 11 conclusions that the damage to Plaintiffs’ residence was “mold”, “rot” or “long term damage”. 12 13 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 3: 14 Plaintiffs’ objections are misplaced in several respects. First, they misstate the purpose of 15 the evidence being submitted. Plaintiffs’ object to Exhibit G attached to Mr. Callahan’s deposition 16 [UMF No. 11], which is an activity/status report from outside claims adjuster Mr. Linard to Jacob 17 Lee, the Homesite adjuster initially assigned to adjust Plaintiffs’ claim. This evidence, and UMF 18 No. 13, reference the undisputed chronology of the claims handling, as well as the fact that Mr. 19 Linard was reporting to Homesite as to what he personally observed at the Plaintiffs’ residence at 20 the time of his inspection of the property, on August 26, 2019, thirteen days after Mr. Clampett 21 first reported the claim to Homesite. [See UMF No. 8.] 22 Moreover, UMF Nos. 10-15, in the aggregate, document Mr. Linard’s personal 23 observations, including the fact that Plaintiffs’ contractor, Tom Long, had already removed 24 portions of the stucco, which exposed the framing around several windows, and portions of the 25 garage ceiling [UMF No. 11]; that as a result he was able to personally observe “severe” rot around 26 the window and door framing [UMF No. 12]; that Linard took extensive photographs of the rotted 27 door and window framing for the report of his observations for Homesite [UMF No. 12]; and that 28 the cost to repair the severe mold and rot he could personally see, was in excess of $100,000, and 12 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 therefore grossly exceeded the Policy’s $2500 mold and rot limit. [UMF Nos. 14, 15] Thus, this 2 evidence documents the personal observations of an experienced claims adjuster who was 3 providing information to Defendant as to what he could see, to allow Homesite to determine the 4 nature and extent of the benefits owed on the claim. 5 Notably, Plaintiffs’ contractor, Tom Long submitted a repair estimate stating that the 6 windows had failed, causing water intrusion and structural failure due to the rotted framing [See 7 Ex. I] and subsequently testified in his deposition that there was rot due to water intrusion around 8 all the door and window framing.[ See Ex. BB, p. 177] Moreover, Homesite later retained licensed 9 engineer, Phu Nguyen, who reached the same conclusion as Tom Long and Charlie Linard. [See 10 Motion, pp. 11-12] There is no mystery and no question of fact as to the observations of each of 11 these people, including the observations of Mr. Linard, which Plaintiffs find objectionable; there 12 was severe rot damage around the doors and the windows which required the replacement of the 13 window and door framing. 14 Second, Mr. Linard, an independent, experienced property insurance adjuster, is not 15 required to have a degree in engineering to be able to observe property damage in the form of rot 16 or mold. It should be noted that Mr. Long was also able to identify the rot without a degree. In 17 fact, anyone who has ever opened a container of long forgotten leftovers in their refrigerator, to 18 find the remains covered in black goop can identify it as mold, regardless of their education. 19 Evidence Code § 720 (a) provides that: “A person is qualified to testify as an expert if he 20 has special knowledge, skill, experience, training, or education sufficient to qualify him as an 21 expert on the subject to which his testimony relates. Against the objection of a party, such special 22 knowledge, skill, experience, training, or education must be shown before the witness may testify 23 as an expert.” An expert opinion is supported by personal foundation if the witness has sufficient 24 experience and familiarity within a particular field: “[T]he qualifications of an expert must be 25 related to the particular subject upon which he is giving expert testimony. [. . .] The foundation 26 required to establish the expert's qualifications is a showing that the expert has the requisite 27 knowledge of, or was familiar with, or was involved in a sufficient number of transactions 28 involving the subject matter of the opinion. [T]he determinative issue in each case is whether the 13 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 witness has sufficient skill or experience in the field so his testimony would be likely to assist the 2 jury in the search for truth. [. . .] An expert may rely upon hearsay and other inadmissible matter 3 in forming an opinion.” Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal. App. 4th 1102, 4 1115 (citations omitted). 5 Mr. Linard’s conclusions were based on his own personal observations of the entire 6 property, and his experience working as an insurance adjuster, since 2010, who had investigated 7 hundreds of property damage claims, every year, for nine years before he observed Plaintiffs’ 8 property. Plaintiffs and their counsel are aware of Mr. Linard’s experience because Mr. Roe took 9 his deposition and submitted portions of Mr. Linard’s deposition transcript in which he describes 10 his qualifications as an independent insurance adjuster, including his job experience and training 11 since. [See Plaintiffs’ Compendium of Exhibits, Ex. 5, pp 50-56]. Mr. Linard had experience 12 sufficient to lay a foundation to express his opinion as to the cause of the property damage, and 13 specifically, the mold and rot that he observed. 14 Additionally, Mr. Linard was not required to do a detailed scientific analysis, nor was he 15 required to have an engineering degree to identify the rot on the doors and windows. (Schreidel v. 16 American Honda Motor Co. (1995) 34 Cal. App. 4th 1242, 1251-53; [holding that an expert’s 17 testimony regarding cause of an auto accident was not speculative or inadmissible purely due to a 18 lack of scientific testing, product disassembly, or independent investigation]). 19 Finally, Mr. Linard testified that he did not make any coverage decisions as to Plaintiffs’ claim. 20 [See Ex. AA; Plaintiffs’ Compendium of Exhibits, Ex. 5. See also, Ex. Z, Deposition of Scott 21 Callahan.] Mr. Linard reported on what he observed, and Homesite made decisions as to how the 22 claim should be adjusted based in part on those observations. Mr. Linard was qualified to 23 communicate his observations to Homesite, and Homesite conducted itself reasonably by relying 24 on those observations. 25 26 27 Court’s Ruling on Objection No. 3: Sustained: ______________ 28 Overruled: ______________ 14 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 PLAINTIFFS’ OBJECTION NO. 4: 2 Material Objected to: Defendant’s Evidence, Exhibit X at p. 322 3 Grounds for Objection: Hearsay without an exception. (Ev. Code, § 1200.) Relevance. 4 (Ev. Code, § 210.) The e-mails are irrelevant because the May 6, 2021 unanimous appraisal award 5 ultimately set the amount of plaintiffs' loss at $555,070.63, which was substantially higher than 6 Long's December 2019 estimate. Homesite is bound by the findings of the appraisal panel and 7 cannot dispute the scope of loss or cost of repair determined by the appraisal panel. 8 9 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 4: 10 Plaintiffs object to emails exchanged between Tom Long and Mr. Clampett, and it appears 11 in particular an email in which Mr. Long states that the estimate he submitted to Homesite was “a 12 bit high so there is room for you to negotiate”. [Ex. X, p 322.] But a review of the Mandell 13 Declaration, and the totality of Exhibit X, makes it clear that this email was contained in Mr. 14 Long’s business records, which were produced in response to a business records subpoena issued 15 by Homesite. Indeed, Exhibit X includes the Declaration of the Custodian of Records producing 16 the business records, which is clearly signed by Tom Long. [See Ex. X, p. 321] Thus, Exhibit X is 17 admissible hearsay, as a business record, pursuant to Evidence Code §1271. 18 Moreover, these emails are relevant to several issues in the case. First, it demonstrates that 19 months after Homesite had Charlie Linard inspect the property, Plaintiffs finally obtained an 20 estimate from Mr. Long, and that it was “currently… at 168K, does not include this month labor 21 or doors. Doors are 34K.” [See Ex. X. p. 322] Therefore, unless Mr. Long generated in excess of 22 $250,000 in labor for the work performed in the month of December 2019, there is a tremendous 23 gap between the estimate Mr. Long was providing to Mr. Clampett, and the $492,903.70 estimate 24 he provided to Homesite at the same time. [See Ex. I; Mandell Dec. 3:19-4:9] 25 Given the fact that Plaintiffs have placed enormous weight on Mr. Long’s opinion as to the 26 nature of the damage to their home, and his estimate became the basis for Plaintiffs’ contract claim, 27 and the appraisal award, on which Plaintiffs place so much emphasis, Mr. Long’s credibility in 28 providing these two very disparate numbers is certainly relevant. 15 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Furthermore, and apart from the actual amount of the repairs to be performed, these emails 2 reflect on the reasonableness of Defendant’s claim handling and, the fact that it explains in part 3 why Homesite found Mr. Long’s submission, as to the nature and extent of the repairs, less than 4 persuasive. As of December 2019, Homesite was in possession of the inspection report, containing 5 the observations and photographs taken by experienced insurance adjuster Charlie Linard, and 6 which indicated that the bulk of the damage to the home was mold and rot, which, was subject to 7 the previously exhausted $2500 mold and rot limit. Homesite was also in possession of Mr. Long’s 8 estimate that he submitted to Homesite which was completely consistent with Mr. Linard’s 9 findings and indicated that the windows and doors had failed and allowed water intrusion, which 10 damaged all the window and door framing, and required that all the windows and doors be 11 replaced. [Ex. I] There was nothing that was submitted by Plaintiffs that even came close to 12 supporting Plaintiffs’ current claim that an additional $550,000 in benefits were owed. To the 13 extent that Mr. Long’s business records raise serious doubts about the credibility of his estimate, 14 and all of his opinions, these emails and business records are relevant and admissible. 15 16 Court’s Ruling on Objection No. 4: Sustained: ______________ 17 Overruled: ______________ 18 19 20 PLAINTIFFS’ OBJECTION NO. 5: 21 Material Objected to: Callahan Decl., ¶ 33, 10:24-20 .) 22 “33. The Claim File confirms that California licensed, Donan civil engineer, 23 Phu Nguyen (“Nguyen”) inspected the Property on May 3, 2020, with 24 Hollingsworth and Plaintiffs’ contractor Tom Long in attendance, and that Nguyen 25 prepared a report of his observations, findings, and opinions that he provided to 26 Homesite, dated May 20, 2020. In his report, Nguyen noted that Hollingsworth and 27 Long had advised him that heavy rains and strong winds from late 2018 through 28 early 2019, resulted in water intrusions, primarily around the doors and windows 16 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 throughout Plaintiffs’ residence. After leaks to the interior of the Property were 2 noted, interior drywall and exterior stucco were removed, and it was determined 3 that there was rot around the doors, windows and wall assemblies. Nguyen 4 observed that a good deal of dry wall in the interior, and stucco on the exterior had 5 been removed. He observed deteriorated components of the wall assemblies, mold, 6 dark water stains on various wood and metal components of the walls and 7 window/door assemblies, as well as other faulty portions of the construction. 8 Nguyen identified the three measurable observations on the wood in the residence; 9 discoloration, deterioration and permanent swelling, that provide a scientific basis 10 for his conclusion that the water intrusion was long term. 11 “After he completed his inspection, Nguyen also reviewed the historical 12 weather data, and noted that there were no severe winds reported for the area 13 between November 2018 and February 2019, and that there appeared to only be 14 excessive rain in February 2019. Ultimately, Nguyen issued a report of his findings, 15 opining that there were normal cracks in the exterior stucco, that had allowed long 16 term water intrusions, primarily around the doors and windows, resulting in the 17 darkly stained and deteriorated wall assemblies. Nguyen also noted that in reaching 18 his conclusions, he relied in part on information provided him at the time of his 19 inspection by Long and Hollingsworth that rotted wall framing members had been 20 removed before his inspection, and that the totality of the deteriorated conditions in 21 the wall assembly provided scientific evidence of long-term water intrusion.” 22 Grounds for Objection: 23 Lack of foundation. (Evidence Code, § 702(a).) Other than reviewing the claim file to see 24 that Nyugen’s report is part of the file, Callahan has no personal knowledge of what Nguyen did 25 or why, other than what is stated in Nguyen’s report. His statements include his personal 26 interpretation of the contents of the report. Hearsay without an exception. (Ev. Code, § 1200.) 27 /// 28 /// 17 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 5: 2 Plaintiffs object to the paragraphs of the Callahan declaration which summarize and 3 analyze the report of Phu Nguyen, on the basis that Callahan’s summary is hearsay. Considering 4 Plaintiffs took Mr. Callahan’s deposition, who appeared as the person most qualified to speak as 5 to Homesite’s claims handling, this objection is somewhat baffling. 6 Mr. Callahan’s declaration, as well as his deposition testimony has been offered by 7 Homesite, for the purpose of demonstrating the reasonableness of Defendant’s claims handling. 8 Seeing as the test of whether Homesite committed bad faith in its claims handling is the 9 reasonableness of its claims handling (Chateau Chamberay Homeowners Ass'n v. Associated Int'l 10 Ins. Co. (2001) 90 Cal.4th 335, 347.), the question of what Homesite knew, when they knew it, 11 and what they did with what they knew is not just relevant; it is the ultimate issue! 12 Of course, Mr. Callahan’s recitation of what information Homesite had, and what it did 13 with that information is relevant and admissible not to establish the truth of the information, but to 14 establish what Homesite relied on and whether it was reasonable. If Plaintiffs wanted to rebut 15 engineer Nguyen’s opinions with the opinion of an engineer, they certainly could have, but they 16 never offered the opinion of an engineer prior to filing this action, and they offer none now in 17 Opposition to the Motion. Mr. Callahan’s testimony as to Homesite’s understanding of Mr. 18 Nguyen’s observations and opinions are admissible as to the precise subject of the bad faith claim; 19 the reasonableness of Homesite’s handling of Plaintiffs’ claim. 20 21 Court’s Ruling on Objection No. 5: Sustained: ______________ 22 Overruled: ______________ 23 24 25 PLAINTIFFS’ OBJECTION NO. 6: 26 Material Objected to: Defendant’s Exhibit S (Letter to Homesite by Attorney David 27 Hollingsworth dated September 2, 2020). 28 Grounds for Objection: 18 DEFENDANT HOMESITE INSURANCE COMPANY OF CALIFORNIA’S REPLY TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 Evidence Code § 1152, privileged as the letter was intended to facilitate a settlement of 2 Plaintiffs’ claims against Defendant. Hearsay under Ev. Code § 1200(b) without an exception. 3 Cal. Evid. Code §§ 720, 800-803; Greshko v. County of Los Angeles (1987)194 Cal. App. 4 3d 822, 834. Improper opinion evidence that does not lay a foundation as to the individual's special 5 knowledge, skill, experience, training, and education or a statement of the basis of the opinion. 6 Hollingsworth’s letter makes statements constituting expert opinions that require expert 7 qualifications. 8 9 DEFENDANT’S REPLY TO PLAINTIFFS’ OBJECTION NO 6: 10 Exhibit S does not fall within the purview of Evid. Code § 1152 because it did not contain 11 any evidence of an offer to compromise, and it was not submitted as proof of liability for any loss. 12 Exhibit S was nothing but a sprawling list of legal citations and analysis from attorney 13 Hollingworth, with no actual offer to compromise. Addi