Preview
18CV335946
Santa Clara — Civil
Gitet3eystem
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Slate Bar number, and address): FOR COURT USE ONLY
|_Jeffrey S. Kaplan, Esq. (SBN: 169009)
Electronically Filed
Kaiulani S. Lie, Esq. (SBN: 207345)
GAGLIONE, DOLAN & KAPLAN by Superior Court of CA,
11400 W. Olympic Blvd., Suite 425, Los Angeles, CA 90064-1561 County of Santa Clara,
TevepHone No: 310-231-1600 FAX NO. (Optional): 310-231-1610 on 6/25/2020 12:02 PM
E-MAIL ADDRESS (Optiona): jkaplan@gaglionedolan.com; klie@gaglionedolan.com Reviewed By: System System
ATTORNEY FOR (Name) Defendant/Cross-Complainant, COLONY INSURANCE COMPANY Case #18CV335946
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA Envelope: 4506013
STREET ADDRESS: 161 N. First St.
MAILING ADDRESS: 191 N. First St.
CITY AND ZIP CODE: San Jose, CA 95113
BRANCH NAME: Old Courthouse
PLAINTIFF/PETITIONER: PAUL ELIAS, individually, and as APEC CONSTRUCTION
DEFENDANT/RESPONDENT: INTERNATIONAL INSURANCE COMPANY OF HANNOVER SE, et al.
NOTICE OF ENTRY OF JUDGMENT ‘CASE NUMBER:
18CV335946
OR ORDER
(Check one): & UNLIMITED CASE oO LIMITED CASE
(Amount demanded (Amount demanded was $25,000 or
exceeded $25,000) less)
TO ALL PARTIES :
1 A judgment, decree, or order was entered in this action on (date): 06/18/20
2. Acopy of the judgment, decree, or order is attached to this notice.
Order Re Motions for Summary Judgment/Adjudication
(Exh. )
Date: June 25, 2020
Kaiulani S. Lie, Esq. > !s/ Kaiulani S. Lie
(TYPE OR PRINT NAME OF & ATTORNEY Oo PARTY WITHOUT ATTORNEY) (SIGNATURE)
Page
1 of 2
Form Approved for Optional Use www.courtinfo.ca.gov
Judicial Council of California
ClV-130 [New January 1, 2010] NOTICE OF ENTRY OF JUDGMENT OR ORDER
www courtinfo.ca.gov
W:\Cases\3900.06\Pleadings\CIC's Notice Of Entry Of Order Re MSJ Re FAC.docx
CIV-130
PLAINTIFF/PETITIONER: PAuL ELIAS, individually, and as APEC CONSTRUCTION CASE NUMBER:
{_ 18CV335946
DEFENDANT/RESPONDENT: INTERNATIONAL INSURANCE COMPANY OF HANNOVER SE, et al.
PROOF OF SERVICE BY E-MAIL
(per Judicial Council Emergency Rule 12)
NOTICE OF ENTRY OF JUDGMENT OR ORDER
(NOTE: You cannot serve the Notice of Entry of Judgment or Order if you are a party in the action. The person who served
the notice must complete this proof of service.)
1 | am at least 18 years old and not a party to this action. | am a resident of or employed in the county where the e-mailing took
place, and my residence or business address is (specify):
11400 W. Olympic Blvd., Suite 425, Los Angeles, CA 90064-1561
E-Mail: brenda@gaglionedolan.com
| served a copy of the Notice of Entry of Judgment or Order by enclosing it in a sealed envelope with postage
fully prepaid and OR by electronic mail (check one):
a O deposited the sealed envelope with the United States Postal Service.
be [e) placed the sealed envelope for collection and processing for mailing, following this business's usual practices,
with which | am readily familiar. On the same day correspondence is placed for collection and mailing, it is
deposited in the ordinary course of business with the United States Postal Service.
c. KI electronic mail at the e-mail addresses listed below.
The Notice of Entry of Judgment or Order was e-mailed:
a. on (date): 06/25/20
b. from (city and state): Los Angeles, CA
c. brenda@gaglionedolan.com
The envelope was e-mailed as follows:
a. Name of person served: Alan L. Martini, Esq. G. Name of person served:
SHEUERMAN, MARTINI, TABARI, ZENERE & GARVIN
Street address: 1033 Willow St. Street address:
City: San Jose City:
State and zip co CA 95125 State and zip code:
-mail: amarti ismtlaw.com
(Attorneys for Plaintiff, Paul Elias,
individually, and as Apec Construction) d. Name of person served:
Name of person served: Michael B. Murphy, Esq.
David C. Hungerford, Esq. Street address:
SEVERSON & WERSON
City:
Street address: One Embarcadero Ctr.
Suite 2600 State and zip code:
City, State and zip code: San Francisco, CA 94111
-mail: mbm@severson.com;
dch@serverson.com
(Attorneys for Defendant, HDI Global
Specialty SE (formerly known as
"International Insurance Company of
Hannover SE")
(1 Names and addresses of additional persons served are attached. (You may use form POS-030(P).)
5. Number of pages attached 7
| declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: June 25, 2020
Brenda L. Hester Js! Brenda L. Hester
(TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT)
Page2 of2
CIV-130 [New January 1, 2010] NOTICE OF ENTRY OF JUDGMENT OR ORDER Ameri nc,
ww
JUN 18
of the
dba APEC
SE, et al.
Court orders
the court
(“CIC”), both
Order Re:
Cross-Complaint. Plaintiff opposes both motions and the opposition to the motion directed at the
Cross-Complaint requests a continuance of that motion to allow for necessary discovery to be
completed.
Factual and Procedural Background
The case arises out of an insurance coverage dispute. Plaintiff Paul Elias dba Apec
Construction (“Plaintiff”) sued two of its insurers, International Insurance Company of Hannover]
(“Hannover”) and CIC, along with Premier Claims Management, Inc. (“Premier”) for their
refusal to indemnify and defend Plaintiff in an underlying action for negligence and fraud arising}
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from the construction of and repairs to a single-family home (Brassfield v. Elias, case no.
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12 17CV305267). The underlying action is still ongoing.
13 In the operative First Amended Complaint (“FAC”) filed March 6, 2019 Plaintiff states
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claims for: 1) Declaratory Relief on the Duty to Defend (against Hannover and CIC); 2)
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Declaratory Relief on the Duty to Indemnify (against Hannover and CIC); 3) Breach of Contract
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17 (the insurance policies, against Hannover and CIC); 4) Breach of the implied covenant of good
18 faith and fair dealing (against Hannover and CIC), and; 5) Negligent Misrepresentation (against
19 Premier only). Plaintiff dismissed Premier on July 8, 2019.
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On November 26, 2019 CIC filed a Cross-Complaint against Plaintiff, stating Cross-
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Claims for 1) Rescission of insurance policy and; 2) Declaratory Relief re: rescission based on
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23 alleged misrepresentations and nondisclosures by Plaintiff in its insurance policy applications.
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
Discussion
I. CIC’s motion for summary judgment/summary adjudication on the Cross-Complaint
The parties have submitted a stipulation requesting that the motion directed at the Cross-
Complaint be continued “to a date to be determined by the Court.” Accordingly, CIC’s motion
for summary judgment/summary adjudication on the Cross-Complaint is continued to August 18,
2020. Plaintiff may file a revised or amended opposition per code which will completely
supersede his original opposition papers. (See Code Civ. Proc., § 437c, subd. (b)(2) [an
opposition to the motion shall be served and filed not less than 14 days preceding the continued
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date of hearing].) CIC may file a reply per code. (See Code Civ. Proc., § 437c, subd. (b)(4) [a
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12 reply to the opposition shall be served and filed by the moving party not less than five days
13 preceding the continued date of hearing].)
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II. Motion for Summary Judgment/Adjudication re: Plaintiff's FAC
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Request for Judicial Notic
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17 In support of this motion CIC has submitted a request for judicial notice of a copy of the
18 complaint in the underlying case, Brassfield v. Elias, case no. 17CV305267, submitted as
19 Defense exhibit 1. The request is GRANTED pursuant to Evidence Code §452(d) (court
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records). While the complaint cannot be noticed as to the truth of its contents notice can be
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taken of the allegations supporting the claims against Defendant Paul Elias dba Apec
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23 Construction (Plaintiff here) in that action. These allegations are relevant to the analysis of
24 whether CIC owed Plaintiff a duty to defend under its policy.
25 The Underlying Complaint alleges (at 1) that it arises from the “construction of a new
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family home and separate garage... Defendants designed or constructed the residence . .-ina
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manner such that the structures contain deficiencies including, but not limited to deficiencies in
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
the architectural and structural systems, as well as product and installation defects. Defendants
also made false and misleading statements to Plaintiffs . . . and Defendants actively concealed
and covered up construction deficiencies . ..” It also alleges (at 16-23) that when Paul
Brassfield acquired the subject property in Feb. 2004 the contract with Defendant (Plaintiff here)
was already in place and he was reassured by Paul Elias that he knew how to build basements
and that construction started on the residence on or about May 1, 2004 and was completed on
January 19, 2007.
The Underlying Complaint further alleges (25-40) that the first flooding of the
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basement occurred in the winter of 2007 (damaging the baseboards, drywall and floor tile) and
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12 that Elias claimed that the cause was the fact that the power went out and the sump pump was
13 unable to operate. Plaintiffs installed a backup generator for the pump at Elias’ suggestion and
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paid him for repair work. The basement flooded again in the winter of 2008, again damaging the|
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baseboard, drywall and floor tile, and this time Elias told Plaintiff the cause was “poor
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17 engineering in the approved plans that only called for one sump pump.” Plaintiffs agreed to
18 install a second pump as well as a concrete curb and paid Elias for the work. The basement
19 flooded again on Christmas Day 2010 (again damaging baseboard, drywall and floor tile) and
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this time Elias told the Plaintiffs that another sump pump needed to be installed. Plaintiffs paid
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for this work. The basement flooded a fourth time on or about December 10, 2014 and this time
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23 Plaintiffs hired a different contractor. The new contractor eventually discovered “a gaping saw
24 cut hole. . in the basement concrete slab where raw earth was visible.” Based on this and his
25 other behavior Plaintiffs allege “that it was Defendant Elias’ common practice to knowingly and
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purposefully perform work so that there were deficiencies in the construction in order to create a
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need for future work/repairs that Defendant Elias could and would charge his clients for.”
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
Standard on Summary Judgment/Adjudicatio
The pleadings limit the issues presented for summary judgment/adjudication and such a
motion may not be granted or denied based on issues not raised by the pleadings. (See
Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of
Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins.
(2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a
summary judgment motion.”].) The moving party bears the initial burden of production to make
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a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic
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12 Richfield Co, (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted
13 only if it completely disposes of a cause of action, an affirmative defense, a claim for damages,
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or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass'n (2010) 189
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Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for
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17 summary judgment—or adjudication—-can be entered.”]; Palm Spring Villas II Homeowners
18 Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.)
19 On a motion for summary judgment/adjudication the moving party’s declarations and
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evidence will be strictly construed in determining whether they negate or disprove an essential
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element of a plaintiff's claim “in order to resolve any evidentiary doubts or ambiguities in
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23 plaintiffs (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th
24 56, 64, parentheses added.) While the same standards of admissibility govern both, the
25 opposition declarations are liberally construed while the moving party’s evidence is strictly
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scrutinized. (Saelzler v, Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must
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be liberally construed in support of the opposing party, resolving any doubts in favor of that
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
party. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) However, a party cannot
avoid summary judgment or adjudication by asserting facts “based on mere speculation and
conjecture, but instead must produce admissible evidence raising a triable issue of fact.”
(California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 631.) The opposing party may
be bound by admissions made in deposition testimony or discovery responses. (See Whitmire v.
Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 [Where a declaration submitted in
opposition to a motion for summary judgment clearly contradicts the declarant’s earlier
deposition testimony or discovery responses, the trial court may fairly disregard the declaration
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and ‘conclude there is no substantial evidence of the existence of a triable issue of fact.’”’])
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12 The moving party may generally not rely on additional evidence filed with its Reply
13 papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [The general rule of
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motion practice . .. is that new evidence is not permitted with reply papers. This principle is
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most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United
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Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego Watercrafts, Inc. v. Wells Fargo
18 Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)
19 “Summary judgment is properly granted when no triable issue of material fact exists and
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the moving party is entitled to judgment as a matter of law. A defendant moving for summary
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judgment bears the initial burden of showing that a cause of action has no merit by showing that
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23 one or more of its elements cannot be established or that there is a complete defense. Once the
24 defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of
25 one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a
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triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to
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find the underlying fact in favor of the party opposing the motion in accordance with the
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Case No. 18CV335946
Order Re: Mations for Summary Judgment
applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267,
1272 {internal citations omitted].) An opposing party will sometimes rely on circumstantial
evidence and/or inferences arising from declarations or other evidence. To defeat summary
judgment such inferences must be reasonable and cannot be based on speculation or surmise.
(McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1530 [“a material
triable controversy is not established unless the inference is reasonable.”])
Analysi!
The primary issue on this motion is whether CIC owes Plaintiff a duty to defend Plaintiff
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in the underlying lawsuit. “A liability insurer owes a broad duty to defend its insured against
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12 claims that create a potential for indemnity. [Citation.] The determination whether the insurer
13 owes a duty to defend is usually made in the first instance by comparing the allegations of the
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complaint with the terms of the policy. [Citation.] Facts extrinsic to the complaint also give rise
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to a duty to defend when they reveal a possibility that the claim may be covered by the policy.
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17 [Citation.] The obligation to defend, however, is not without limits. Rather, such a duty is
18 limited by the nature and kind of risk covered by the policy. [Citation.] The insurer does not
19 need to defend if the third party complaint can by no conceivable theory raise a single issue
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which could bring it within the policy coverage. [Citation.]” (Michaelian v. State Comp. Ins.
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Fund (1996) 50 Cal.App.4th 1093, 1106.)
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23 “[I]n order to prevail on the issue of the duty to defend, the insured must prove the
24 existence of a potential for coverage, while the insurer must establish the absence of any such
25 potential. In other words, the insured need only show that the underlying claim may fall within
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policy coverage; the insurer must prove it cannot.” (George F. Hillenbrand, Inc. v. Insurance
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Co, of North America (2002) 104 Cal.App.4th 784, 801 [internal quotation marks omitted].)
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
“Any doubts as to whether the insurer has a duty to defend must be resolved in the insured’s
favor.” (/d. at pp. 800-801.) Whether the insurer owes a defense depends on: the terms of the
policy; the allegations of the third party’s complaint against the insured; and all facts known to
the insurer from any source. (Scottsdale Ins. Co. v. MV Transp. (2005) 36 Cal.4th 643, 654;
Griffin Dewatering Corp. v. Northern Ins. Co. of N.Y. (2009) 176 Cal.App.4th 172, 197-198.)
The proper interpretation of an insurance policy is a question of law for the court. “As a
question of law, the interpretation of an insurance policy is reviewed de novo under well settled
rules of contract interpretation. ‘The fundamental rules of contract interpretation are based on
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the premise that the interpretation of a contract must give effect to the ‘mutual intention’ of the
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12 parties. ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the
13 time the contract is formed governs interpretation. (Civ. Code $1636.) Such intent is to be
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inferred, if possible, solely from the written provisions of the contract. (Id., $1639.) The ‘clear
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and explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular sense,’
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unless ‘used by the parties in a technical sense or a special meaning is given to them by usage.’
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18 (Id. $1644), controls judicial interpretation.” (E.M.M.L, Inc. v. Zurich American Ins. Co. (2004)
19 32 Cal.4th 465, 470, internal citations omitted.)
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CIC has established through admissible evidence, primarily the underlying complaint
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(Defense exhibit 1), the first policy it issued to Plaintiff with a policy period running from March|
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23 17, 2016 to March 17, 2017 (Defense exhibit 6), Plaintiff's verified responses to discovery
24 (Defense exhibits 7-9) and the July 5, 2017 email from Plaintiff Counsel Martini tendering the
25 claim for coverage to CIC (Defense exhibit 13), that it had no duty to defend Plaintiff in the
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underlying litigation for three separate and independent reasons: 1) The policy does not cover
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new residential work or repairs to such work, and the underlying complaint is clearly based on
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
Plaintiff's allegedly negligent construction of a new residential home and allegedly negligent
repair efforts. These efforts, including the installation of sump pumps, cannot reasonably be
construed as “remodeling work” as Plaintiff argues; 2) The policy does not cover property
damage that occurred prior to the policy period or property damage known to the insured prior to
the Policy period. The underlying complaint makes clear that the property damages allegedly
caused by Plaintiff began years before CIC’s first policy was issued and Plaintiff Paul Elias’
verified discovery responses admit that he was aware of the alleged property damages well
before CIC's first policy was issued; 3) The policy does not provide coverage for continuous or
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progressive property damage that first began prior to the start of the policy period, which the
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12 underlying complaint clearly alleges and Plaintiff Paul Elias’ verified discovery responses admit
13 his knowledge of.
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As CIC has met its initial burden to establish that it had no duty to defend Plaintiff
in the
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underlying action it has also met its initial burden to establish that it did not owe any duty to
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indemnify Plaintiff. “[W]here there is no duty to defend, there cannot be a duty to indemnify.”
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18 (Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 958.) It
19 has further met its initial burden to establish that it did not breach the contract—the insurance
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policy by denying coverage, and that it did not breach the implied covenant of good faith and fait]
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dealing as its denial of coverage under the March 2016 to March 2017 policy was not
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23 unreasonable or without proper cause.
24 When the burden shifts Plaintiff is unable to raise any triable issue of material fact
25 through the declaration of Plaintiff Paul Elias or the declaration Plaintiff Counsel Alan Martini
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(which simply authenticates attached exhibits A and B).
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
Plaintiff Paul Elias’ statements in his opposing declaration as to what in his opinion
constitutes “remodeling work” as the term is used in the CIC policy are not relevant to the
court’s analysis of the policy as “a witness is incompetent to give an opinion on the meaning of
the contract language.” (DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176
Cal.App.4th 697, 715 {because interpretation of written contract is solely a judicial function
unless the interpretation turns upon the credibility of extrinsic evidence].) Thus a triable issue of,
material fact is not raised because Mr. Elias states that in his opinion his allegedly negligent
repair efforts (including the installation of sump pumps) should be considered “remodeling
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work” covered by the policy.
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12 Mr. Elias also remains bound by his verified discovery responses on summary judgment
13 and his attempt to amend or qualify his admissions in his opposing declaration is disregarded by
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the court (see Whitmire v. Ingersoll-Rand Co., supra) and therefore cannot raise a triable issue of}
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material fact. “An admission cannot be amended or withdrawn except by leave of court after
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noticed motion. . - [A]dmissions serve a function similar to pleadings in that they are aimed
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18 primarily at setting a triable issue to rest. Thus, like pleadings, leave of court is required before
19 admissions may be amended or withdrawn. .. A party will be permitted to withdraw or amend
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an admission only if the court finds: The admission resulted from ‘mistake inadvertence or
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excusable neglect . . . and no substantial prejudice to the requesting party will result from
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23 allowing the admission to be withdrawn or amended.” (Weil & Brown, Cal. Practice Guide:
24 Civil Procedure Before Trial (Rutter Group 2019) at §8:1386-1386.1, emphasis added, internal
25 citations omitted.)
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Plaintiff also cannot raise a triable issue by claiming (based on the correspondence
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between counsel submitted as exhibits A and B to the declaration of Plaintiff Counsel Mr.
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
Martini) that the allegations of the complaint in the underlying action are so general and vague
that some theoretical possibility of coverage remains and precludes summary judgment. CIC has
met its initial burden to show that its policy covering the period from March 2016 to March 2017
does not provide coverage of the underlying litigation and when the burden shifts Plaintiff cannot
avoid summary judgment by asserting facts “based on mere speculation and conjecture, but
instead must produce admissible evidence raising a triable issue of fact.” (California Bank &
Trust v, Lawlor (2013) 222 Cal.App.4th 625, 631.)
Accordingly, CIC’s motion for summary judgment on the FAC is GRANTED.
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Objection
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12 The court notes that with the opposition to the motion directed at the FAC Plaintiff has
13 submitted objections to CIC’s evidence. These objections do not comply with Cal. Rule of Coury
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3.1354, which requires two documents to be submitted: the objections and a separate proposed
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order on the objections, both of which must be in one of the two approved formats stated in the
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17 Rule. As the objections submitted do not comply with the Rule the Court will not rule on them.
18 (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only
19 have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm
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Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th I [trial court not required to rule on
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objections that do not comply with Rule of Court 3.1354 and not required to give objecting party
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23 a second chance at filing properly formatted papers].)
24 As Defendant CIC’s motion for summary judgment has been granted, the court does not
25 find it necessary to rule on the evidentiary objections CIC has submitted with its reply. “[T]he
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court need only rule on those objections to evidence that it deems material to its disposition of
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
1 the motion. Objections that are not ruled on are preserved for appellate review.” oe
2 |} §437¢(q).)
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Lat
Dated: 6-18-
Thang N.N. Barret
Barrett
Judge of the Superior Court
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Case No. 18CV335946
Order Re: Motions for Summary Judgment
he se SUPERIOR COURT OF CALIFORNIA (EN,. ’
aN COUNTY OF SANTA CLARA »,
DOWNTOWN COURTHOUSE
191 North FIRSTSTREET
é *
ee ) SAN JOSE, CALIFORNIA 95113
CIVIL DIVISION JUN 1 8 2029
Superior Cou,
Jeffrey Stuart Kaplan
————@- ane
11400 W Olympic Bivd Ste 425
%,
Los Angeles CA 90064
RE: Paul Elias vs International Insurance Company of Hannover SE et al
Case Number: 18CV335946
PROOF OF SERVICE
ORDER RE: MOTION FOR SUMMARY JUDGMENT/ADJUDICATION was delivered to the parties listed below
the above entitled case as set forth in the sworn declaration below.
If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with
Disabilities Act, please contact the Court Administrator's office at {408) 882-2700, or use the Court's TDD line (408) 882-2690 or the
Voice/TDD California Relay Service (800) 735-2922.
DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to
each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose,
CA on June 18, 2020, CLERK OF THE COURT, by Donna O'Hara, Deputy.
ce: Alan L Martini Sheuerman Martini Tabari Zenere & Garvin 1033 Willow Street San Jose CA 95125
David Christophe Hungerford Severson & Werson One Embarcadero Center Suite 2600 SAN FRANCISCO CA
94111
CW-9027 REV 12/08/16 PROOF OF SERVICE
Preview
18CV335946 Santa Clara — Civil Gitet3eystem ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Slate Bar number, and address): FOR COURT USE ONLY |_Jeffrey S. Kaplan, Esq. (SBN: 169009) Electronically Filed Kaiulani S. Lie, Esq. (SBN: 207345) GAGLIONE, DOLAN & KAPLAN by Superior Court of CA, 11400 W. Olympic Blvd., Suite 425, Los Angeles, CA 90064-1561 County of Santa Clara, TevepHone No: 310-231-1600 FAX NO. (Optional): 310-231-1610 on 6/25/2020 12:02 PM E-MAIL ADDRESS (Optiona): jkaplan@gaglionedolan.com; klie@gaglionedolan.com Reviewed By: System System ATTORNEY FOR (Name) Defendant/Cross-Complainant, COLONY INSURANCE COMPANY Case #18CV335946 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA Envelope: 4506013 STREET ADDRESS: 161 N. First St. MAILING ADDRESS: 191 N. First St. CITY AND ZIP CODE: San Jose, CA 95113 BRANCH NAME: Old Courthouse PLAINTIFF/PETITIONER: PAUL ELIAS, individually, and as APEC CONSTRUCTION DEFENDANT/RESPONDENT: INTERNATIONAL INSURANCE COMPANY OF HANNOVER SE, et al. NOTICE OF ENTRY OF JUDGMENT ‘CASE NUMBER: 18CV335946 OR ORDER (Check one): & UNLIMITED CASE oO LIMITED CASE (Amount demanded (Amount demanded was $25,000 or exceeded $25,000) less) TO ALL PARTIES : 1 A judgment, decree, or order was entered in this action on (date): 06/18/20 2. Acopy of the judgment, decree, or order is attached to this notice. Order Re Motions for Summary Judgment/Adjudication (Exh. ) Date: June 25, 2020 Kaiulani S. Lie, Esq. > !s/ Kaiulani S. Lie (TYPE OR PRINT NAME OF & ATTORNEY Oo PARTY WITHOUT ATTORNEY) (SIGNATURE) Page 1 of 2 Form Approved for Optional Use www.courtinfo.ca.gov Judicial Council of California ClV-130 [New January 1, 2010] NOTICE OF ENTRY OF JUDGMENT OR ORDER www courtinfo.ca.gov W:\Cases\3900.06\Pleadings\CIC's Notice Of Entry Of Order Re MSJ Re FAC.docx CIV-130 PLAINTIFF/PETITIONER: PAuL ELIAS, individually, and as APEC CONSTRUCTION CASE NUMBER: {_ 18CV335946 DEFENDANT/RESPONDENT: INTERNATIONAL INSURANCE COMPANY OF HANNOVER SE, et al. PROOF OF SERVICE BY E-MAIL (per Judicial Council Emergency Rule 12) NOTICE OF ENTRY OF JUDGMENT OR ORDER (NOTE: You cannot serve the Notice of Entry of Judgment or Order if you are a party in the action. The person who served the notice must complete this proof of service.) 1 | am at least 18 years old and not a party to this action. | am a resident of or employed in the county where the e-mailing took place, and my residence or business address is (specify): 11400 W. Olympic Blvd., Suite 425, Los Angeles, CA 90064-1561 E-Mail: brenda@gaglionedolan.com | served a copy of the Notice of Entry of Judgment or Order by enclosing it in a sealed envelope with postage fully prepaid and OR by electronic mail (check one): a O deposited the sealed envelope with the United States Postal Service. be [e) placed the sealed envelope for collection and processing for mailing, following this business's usual practices, with which | am readily familiar. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service. c. KI electronic mail at the e-mail addresses listed below. The Notice of Entry of Judgment or Order was e-mailed: a. on (date): 06/25/20 b. from (city and state): Los Angeles, CA c. brenda@gaglionedolan.com The envelope was e-mailed as follows: a. Name of person served: Alan L. Martini, Esq. G. Name of person served: SHEUERMAN, MARTINI, TABARI, ZENERE & GARVIN Street address: 1033 Willow St. Street address: City: San Jose City: State and zip co CA 95125 State and zip code: -mail: amarti ismtlaw.com (Attorneys for Plaintiff, Paul Elias, individually, and as Apec Construction) d. Name of person served: Name of person served: Michael B. Murphy, Esq. David C. Hungerford, Esq. Street address: SEVERSON & WERSON City: Street address: One Embarcadero Ctr. Suite 2600 State and zip code: City, State and zip code: San Francisco, CA 94111 -mail: mbm@severson.com; dch@serverson.com (Attorneys for Defendant, HDI Global Specialty SE (formerly known as "International Insurance Company of Hannover SE") (1 Names and addresses of additional persons served are attached. (You may use form POS-030(P).) 5. Number of pages attached 7 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: June 25, 2020 Brenda L. Hester Js! Brenda L. Hester (TYPE OR PRINT NAME OF DECLARANT) (SIGNATURE OF DECLARANT) Page2 of2 CIV-130 [New January 1, 2010] NOTICE OF ENTRY OF JUDGMENT OR ORDER Ameri nc, ww JUN 18 of the dba APEC SE, et al. Court orders the court (“CIC”), both Order Re: Cross-Complaint. Plaintiff opposes both motions and the opposition to the motion directed at the Cross-Complaint requests a continuance of that motion to allow for necessary discovery to be completed. Factual and Procedural Background The case arises out of an insurance coverage dispute. Plaintiff Paul Elias dba Apec Construction (“Plaintiff”) sued two of its insurers, International Insurance Company of Hannover] (“Hannover”) and CIC, along with Premier Claims Management, Inc. (“Premier”) for their refusal to indemnify and defend Plaintiff in an underlying action for negligence and fraud arising} 10 from the construction of and repairs to a single-family home (Brassfield v. Elias, case no. ll 12 17CV305267). The underlying action is still ongoing. 13 In the operative First Amended Complaint (“FAC”) filed March 6, 2019 Plaintiff states 14 claims for: 1) Declaratory Relief on the Duty to Defend (against Hannover and CIC); 2) 15 Declaratory Relief on the Duty to Indemnify (against Hannover and CIC); 3) Breach of Contract 16 17 (the insurance policies, against Hannover and CIC); 4) Breach of the implied covenant of good 18 faith and fair dealing (against Hannover and CIC), and; 5) Negligent Misrepresentation (against 19 Premier only). Plaintiff dismissed Premier on July 8, 2019. 20 On November 26, 2019 CIC filed a Cross-Complaint against Plaintiff, stating Cross- 21 Claims for 1) Rescission of insurance policy and; 2) Declaratory Relief re: rescission based on 22 23 alleged misrepresentations and nondisclosures by Plaintiff in its insurance policy applications. 24 “it 25 “Wi 26 “i 27 28 Case No. 18CV335946 Order Re: Motions for Summary Judgment Discussion I. CIC’s motion for summary judgment/summary adjudication on the Cross-Complaint The parties have submitted a stipulation requesting that the motion directed at the Cross- Complaint be continued “to a date to be determined by the Court.” Accordingly, CIC’s motion for summary judgment/summary adjudication on the Cross-Complaint is continued to August 18, 2020. Plaintiff may file a revised or amended opposition per code which will completely supersede his original opposition papers. (See Code Civ. Proc., § 437c, subd. (b)(2) [an opposition to the motion shall be served and filed not less than 14 days preceding the continued 10 date of hearing].) CIC may file a reply per code. (See Code Civ. Proc., § 437c, subd. (b)(4) [a iT 12 reply to the opposition shall be served and filed by the moving party not less than five days 13 preceding the continued date of hearing].) 14 II. Motion for Summary Judgment/Adjudication re: Plaintiff's FAC 15 Request for Judicial Notic 16 17 In support of this motion CIC has submitted a request for judicial notice of a copy of the 18 complaint in the underlying case, Brassfield v. Elias, case no. 17CV305267, submitted as 19 Defense exhibit 1. The request is GRANTED pursuant to Evidence Code §452(d) (court 20 records). While the complaint cannot be noticed as to the truth of its contents notice can be 21 taken of the allegations supporting the claims against Defendant Paul Elias dba Apec 22 23 Construction (Plaintiff here) in that action. These allegations are relevant to the analysis of 24 whether CIC owed Plaintiff a duty to defend under its policy. 25 The Underlying Complaint alleges (at 1) that it arises from the “construction of a new 26 family home and separate garage... Defendants designed or constructed the residence . .-ina 27 manner such that the structures contain deficiencies including, but not limited to deficiencies in 28 Case No. 18CV335946 Order Re: Motions for Summary Judgment the architectural and structural systems, as well as product and installation defects. Defendants also made false and misleading statements to Plaintiffs . . . and Defendants actively concealed and covered up construction deficiencies . ..” It also alleges (at 16-23) that when Paul Brassfield acquired the subject property in Feb. 2004 the contract with Defendant (Plaintiff here) was already in place and he was reassured by Paul Elias that he knew how to build basements and that construction started on the residence on or about May 1, 2004 and was completed on January 19, 2007. The Underlying Complaint further alleges (25-40) that the first flooding of the 10 basement occurred in the winter of 2007 (damaging the baseboards, drywall and floor tile) and 11 12 that Elias claimed that the cause was the fact that the power went out and the sump pump was 13 unable to operate. Plaintiffs installed a backup generator for the pump at Elias’ suggestion and 14 paid him for repair work. The basement flooded again in the winter of 2008, again damaging the| 15 baseboard, drywall and floor tile, and this time Elias told Plaintiff the cause was “poor 16 17 engineering in the approved plans that only called for one sump pump.” Plaintiffs agreed to 18 install a second pump as well as a concrete curb and paid Elias for the work. The basement 19 flooded again on Christmas Day 2010 (again damaging baseboard, drywall and floor tile) and 20 this time Elias told the Plaintiffs that another sump pump needed to be installed. Plaintiffs paid 21 for this work. The basement flooded a fourth time on or about December 10, 2014 and this time 22 23 Plaintiffs hired a different contractor. The new contractor eventually discovered “a gaping saw 24 cut hole. . in the basement concrete slab where raw earth was visible.” Based on this and his 25 other behavior Plaintiffs allege “that it was Defendant Elias’ common practice to knowingly and 26 purposefully perform work so that there were deficiencies in the construction in order to create a 27 need for future work/repairs that Defendant Elias could and would charge his clients for.” 28 Case No. 18CV335946 Order Re: Motions for Summary Judgment Standard on Summary Judgment/Adjudicatio The pleadings limit the issues presented for summary judgment/adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make 10 a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic 11 12 Richfield Co, (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted 13 only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, 14 or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass'n (2010) 189 15 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for 16 17 summary judgment—or adjudication—-can be entered.”]; Palm Spring Villas II Homeowners 18 Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) 19 On a motion for summary judgment/adjudication the moving party’s declarations and 20 evidence will be strictly construed in determining whether they negate or disprove an essential 21 element of a plaintiff's claim “in order to resolve any evidentiary doubts or ambiguities in 22 23 plaintiffs (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 24 56, 64, parentheses added.) While the same standards of admissibility govern both, the 25 opposition declarations are liberally construed while the moving party’s evidence is strictly 26 scrutinized. (Saelzler v, Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must 27 be liberally construed in support of the opposing party, resolving any doubts in favor of that 28 Case No. 18CV335946 Order Re: Motions for Summary Judgment party. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) However, a party cannot avoid summary judgment or adjudication by asserting facts “based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 631.) The opposing party may be bound by admissions made in deposition testimony or discovery responses. (See Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 [Where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant’s earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration 10 and ‘conclude there is no substantial evidence of the existence of a triable issue of fact.’”’]) 11 12 The moving party may generally not rely on additional evidence filed with its Reply 13 papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [The general rule of 14 motion practice . .. is that new evidence is not permitted with reply papers. This principle is 15 most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United 16 17 Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego Watercrafts, Inc. v. Wells Fargo 18 Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) 19 “Summary judgment is properly granted when no triable issue of material fact exists and 20 the moving party is entitled to judgment as a matter of law. A defendant moving for summary 21 judgment bears the initial burden of showing that a cause of action has no merit by showing that 22 23 one or more of its elements cannot be established or that there is a complete defense. Once the 24 defendant has met that burden, the burden shifts to the plaintiff ‘to show that a triable issue of 25 one or more material facts exists as to that cause of action or a defense thereto.’ ‘There is a 26 triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to 27 find the underlying fact in favor of the party opposing the motion in accordance with the 28 Case No. 18CV335946 Order Re: Mations for Summary Judgment applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 {internal citations omitted].) An opposing party will sometimes rely on circumstantial evidence and/or inferences arising from declarations or other evidence. To defeat summary judgment such inferences must be reasonable and cannot be based on speculation or surmise. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1530 [“a material triable controversy is not established unless the inference is reasonable.”]) Analysi! The primary issue on this motion is whether CIC owes Plaintiff a duty to defend Plaintiff 10 in the underlying lawsuit. “A liability insurer owes a broad duty to defend its insured against i 12 claims that create a potential for indemnity. [Citation.] The determination whether the insurer 13 owes a duty to defend is usually made in the first instance by comparing the allegations of the 14 complaint with the terms of the policy. [Citation.] Facts extrinsic to the complaint also give rise 15 to a duty to defend when they reveal a possibility that the claim may be covered by the policy. 16 17 [Citation.] The obligation to defend, however, is not without limits. Rather, such a duty is 18 limited by the nature and kind of risk covered by the policy. [Citation.] The insurer does not 19 need to defend if the third party complaint can by no conceivable theory raise a single issue 20 which could bring it within the policy coverage. [Citation.]” (Michaelian v. State Comp. Ins. 21 Fund (1996) 50 Cal.App.4th 1093, 1106.) 22 23 “[I]n order to prevail on the issue of the duty to defend, the insured must prove the 24 existence of a potential for coverage, while the insurer must establish the absence of any such 25 potential. In other words, the insured need only show that the underlying claim may fall within 26 policy coverage; the insurer must prove it cannot.” (George F. Hillenbrand, Inc. v. Insurance 27 Co, of North America (2002) 104 Cal.App.4th 784, 801 [internal quotation marks omitted].) 28 Case No. 18CV335946 Order Re: Motions for Summary Judgment “Any doubts as to whether the insurer has a duty to defend must be resolved in the insured’s favor.” (/d. at pp. 800-801.) Whether the insurer owes a defense depends on: the terms of the policy; the allegations of the third party’s complaint against the insured; and all facts known to the insurer from any source. (Scottsdale Ins. Co. v. MV Transp. (2005) 36 Cal.4th 643, 654; Griffin Dewatering Corp. v. Northern Ins. Co. of N.Y. (2009) 176 Cal.App.4th 172, 197-198.) The proper interpretation of an insurance policy is a question of law for the court. “As a question of law, the interpretation of an insurance policy is reviewed de novo under well settled rules of contract interpretation. ‘The fundamental rules of contract interpretation are based on 10 the premise that the interpretation of a contract must give effect to the ‘mutual intention’ of the 11 12 parties. ‘Under statutory rules of contract interpretation, the mutual intention of the parties at the 13 time the contract is formed governs interpretation. (Civ. Code $1636.) Such intent is to be 14 inferred, if possible, solely from the written provisions of the contract. (Id., $1639.) The ‘clear 15 and explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular sense,’ 16 unless ‘used by the parties in a technical sense or a special meaning is given to them by usage.’ 17 18 (Id. $1644), controls judicial interpretation.” (E.M.M.L, Inc. v. Zurich American Ins. Co. (2004) 19 32 Cal.4th 465, 470, internal citations omitted.) 20 CIC has established through admissible evidence, primarily the underlying complaint 21 (Defense exhibit 1), the first policy it issued to Plaintiff with a policy period running from March| 22 23 17, 2016 to March 17, 2017 (Defense exhibit 6), Plaintiff's verified responses to discovery 24 (Defense exhibits 7-9) and the July 5, 2017 email from Plaintiff Counsel Martini tendering the 25 claim for coverage to CIC (Defense exhibit 13), that it had no duty to defend Plaintiff in the 26 underlying litigation for three separate and independent reasons: 1) The policy does not cover 27 new residential work or repairs to such work, and the underlying complaint is clearly based on 28 Case No. 18CV335946 Order Re: Motions for Summary Judgment Plaintiff's allegedly negligent construction of a new residential home and allegedly negligent repair efforts. These efforts, including the installation of sump pumps, cannot reasonably be construed as “remodeling work” as Plaintiff argues; 2) The policy does not cover property damage that occurred prior to the policy period or property damage known to the insured prior to the Policy period. The underlying complaint makes clear that the property damages allegedly caused by Plaintiff began years before CIC’s first policy was issued and Plaintiff Paul Elias’ verified discovery responses admit that he was aware of the alleged property damages well before CIC's first policy was issued; 3) The policy does not provide coverage for continuous or 10 progressive property damage that first began prior to the start of the policy period, which the i 12 underlying complaint clearly alleges and Plaintiff Paul Elias’ verified discovery responses admit 13 his knowledge of. 14 As CIC has met its initial burden to establish that it had no duty to defend Plaintiff in the 15 underlying action it has also met its initial burden to establish that it did not owe any duty to 16 indemnify Plaintiff. “[W]here there is no duty to defend, there cannot be a duty to indemnify.” 17 18 (Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 958.) It 19 has further met its initial burden to establish that it did not breach the contract—the insurance 20 policy by denying coverage, and that it did not breach the implied covenant of good faith and fait] 21 dealing as its denial of coverage under the March 2016 to March 2017 policy was not 22 23 unreasonable or without proper cause. 24 When the burden shifts Plaintiff is unable to raise any triable issue of material fact 25 through the declaration of Plaintiff Paul Elias or the declaration Plaintiff Counsel Alan Martini 26 (which simply authenticates attached exhibits A and B). 27 28 Case No. 18CV335946 Order Re: Motions for Summary Judgment Plaintiff Paul Elias’ statements in his opposing declaration as to what in his opinion constitutes “remodeling work” as the term is used in the CIC policy are not relevant to the court’s analysis of the policy as “a witness is incompetent to give an opinion on the meaning of the contract language.” (DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 715 {because interpretation of written contract is solely a judicial function unless the interpretation turns upon the credibility of extrinsic evidence].) Thus a triable issue of, material fact is not raised because Mr. Elias states that in his opinion his allegedly negligent repair efforts (including the installation of sump pumps) should be considered “remodeling 10 work” covered by the policy. 11 12 Mr. Elias also remains bound by his verified discovery responses on summary judgment 13 and his attempt to amend or qualify his admissions in his opposing declaration is disregarded by 14 the court (see Whitmire v. Ingersoll-Rand Co., supra) and therefore cannot raise a triable issue of} 15 material fact. “An admission cannot be amended or withdrawn except by leave of court after 16 noticed motion. . - [A]dmissions serve a function similar to pleadings in that they are aimed 17 18 primarily at setting a triable issue to rest. Thus, like pleadings, leave of court is required before 19 admissions may be amended or withdrawn. .. A party will be permitted to withdraw or amend 20 an admission only if the court finds: The admission resulted from ‘mistake inadvertence or 21 excusable neglect . . . and no substantial prejudice to the requesting party will result from 22 23 allowing the admission to be withdrawn or amended.” (Weil & Brown, Cal. Practice Guide: 24 Civil Procedure Before Trial (Rutter Group 2019) at §8:1386-1386.1, emphasis added, internal 25 citations omitted.) 26 Plaintiff also cannot raise a triable issue by claiming (based on the correspondence 27 between counsel submitted as exhibits A and B to the declaration of Plaintiff Counsel Mr. 28 10 Case No. 18CV335946 Order Re: Motions for Summary Judgment Martini) that the allegations of the complaint in the underlying action are so general and vague that some theoretical possibility of coverage remains and precludes summary judgment. CIC has met its initial burden to show that its policy covering the period from March 2016 to March 2017 does not provide coverage of the underlying litigation and when the burden shifts Plaintiff cannot avoid summary judgment by asserting facts “based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (California Bank & Trust v, Lawlor (2013) 222 Cal.App.4th 625, 631.) Accordingly, CIC’s motion for summary judgment on the FAC is GRANTED. 10 Objection ll 12 The court notes that with the opposition to the motion directed at the FAC Plaintiff has 13 submitted objections to CIC’s evidence. These objections do not comply with Cal. Rule of Coury 14 3.1354, which requires two documents to be submitted: the objections and a separate proposed 15 order on the objections, both of which must be in one of the two approved formats stated in the 16 17 Rule. As the objections submitted do not comply with the Rule the Court will not rule on them. 18 (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only 19 have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm 20 Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th I [trial court not required to rule on 21 objections that do not comply with Rule of Court 3.1354 and not required to give objecting party 22 23 a second chance at filing properly formatted papers].) 24 As Defendant CIC’s motion for summary judgment has been granted, the court does not 25 find it necessary to rule on the evidentiary objections CIC has submitted with its reply. “[T]he 26 court need only rule on those objections to evidence that it deems material to its disposition of 27 28 i Case No. 18CV335946 Order Re: Motions for Summary Judgment 1 the motion. Objections that are not ruled on are preserved for appellate review.” oe 2 |} §437¢(q).) 3 Lat Dated: 6-18- Thang N.N. Barret Barrett Judge of the Superior Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 — —— Case No. 18CV335946 Order Re: Motions for Summary Judgment he se SUPERIOR COURT OF CALIFORNIA (EN,. ’ aN COUNTY OF SANTA CLARA », DOWNTOWN COURTHOUSE 191 North FIRSTSTREET é * ee ) SAN JOSE, CALIFORNIA 95113 CIVIL DIVISION JUN 1 8 2029 Superior Cou, Jeffrey Stuart Kaplan ————@- ane 11400 W Olympic Bivd Ste 425 %, Los Angeles CA 90064 RE: Paul Elias vs International Insurance Company of Hannover SE et al Case Number: 18CV335946 PROOF OF SERVICE ORDER RE: MOTION FOR SUMMARY JUDGMENT/ADJUDICATION was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you, or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact the Court Administrator's office at {408) 882-2700, or use the Court's TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on June 18, 2020, CLERK OF THE COURT, by Donna O'Hara, Deputy. ce: Alan L Martini Sheuerman Martini Tabari Zenere & Garvin 1033 Willow Street San Jose CA 95125 David Christophe Hungerford Severson & Werson One Embarcadero Center Suite 2600 SAN FRANCISCO CA 94111 CW-9027 REV 12/08/16 PROOF OF SERVICE