Preview
18CV335946
Santa Clara — Civil
S. Vera
Electronically Filed
Jeffrey S. Kaplan, Esq., (SBN: 169009) by Superior Court of CA,
GAGLIONE, DOLAN & KAPLAN County of Santa Clara,
11400 W. Olympic Blvd., Suite 425 on 5/28/2020 4:12 PM
Los Angeles, CA 90064-1561 Reviewed By: S. Vera
T (310) 231-1600; F: (310) 231-1610 Case #18CV335946
E: jkaplan@gaglionedolan.com Envelope: 4389494
Attorneys for Defendant and Cross-Complainant,
COLONY INSURANCE COMPANY
SUPERIOR COURT OF THE STATE OF CALIFORNIA.
FOR THE COUNTY OF SANTA CLARA (Old Courthouse)
PAUL ELIAS, individually and dba Case No.: 18CV335946
APEC CONSTRUCTION, [Judge: Hon. Thang N. Barrett — Dept. 21]
Plaintiff, DEFENDANT/CROSS-COMPLAINANT
10 COLONY INSURANCE COMPANY'S
REPLY TO PLAINTIFF'S OPPOSITION TO
11 VS.
COLONY’S MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE,
12
INTERNATIONAL INSURANCE SUMMARY ADJUDICATION ON
13 COMPANY OF HANNOVER SE; PLAINTIFF'S FIRST AMENDED
PREMIER CLAIMS MANAGEMENT, COMPLAINT
14 LLC; COLONY SPECIALTY
Date: June 2, 2020 (Reserved)
INSURANCE COMPANY; and DOES 1-
I> Time: 9:00 a.m.
25, Inclusive,
Dept.: 21
16
Defendants. [Filed concurrently with:
17
) Colony's Objections to Plaintiff;s Evidence
18 in Opposition to Colony's MSJ/A Re First
AND RELATED CROSS-ACTION(S)
Amended Complaint [Re Decls of Elias and
19 Martini];
2) Colony's Reply to Plaintiff's Separate
20 Statement of Additional Facts in Opposition
to Colony's MSJ/A Re First Amended
21 Complaint; and.
3) [Proposed] Order Re Colony's Objections
22 to Plaintiffs Evidence in Opposition to
Colony's MSJ/A Re First Amended
23 Complaint]
24 Civil — General Jurisdiction
Complaint Filed: October 4, 2018
25 FAC Filed: March 5, 2019
Trial Date: None Set
26
27
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
28 1
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN:
Defendant, COLONY INSURANCE COMPANY (CIC), hereby submits its Reply to
Plaintiff, PAUL ELIAS', individually, and doing business as Apec Construction’s Opposition
to Colony’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication on
Apec’s First Amended Complaint for Damages, as follows:
MEMORANDUM OF POINTS AND AUTHORITIES
IL. SUMMARY OF REPLY
Plaintiff's Opposition does nothing to negate undisputed material facts that establish
that there is no potential for coverage for Apec in connection with the Brassfield v. Apec
10 litigation, Superior Court of the State of California, County of Santa Clara, Case No.
11 17CV305267 (Underlying Complaint).
12 Regardless of how Apec attempts to characterize or spin its work on the subject property
13 involved in the Underlying Complaint, it is undisputed that:
14 e Apec performed work in connection with the construction of a new single family
I> residence and that work is at issue in the Underlying Complaint;
16 e The subject property experienced repeated flooding in the basement that is claimed by
17 Jo Ann Brassfield and Shann Brassfield, co-trustees of the Jo Ann Brassfield Living
18 Trust (collectively Brassfield) to have caused property damage, that all began almost a
19 decade prior to the inception of CIC Policy No. 101 GL 0050190-00, issued to Apec for
20 the period from March 17, 2016 to March 17, 2017 (Policy); and
21 As set forth in the Policy’s Insuring Agreement, Endorsements, and Exclusions, there is
22 no coverage for: (1) work on new residential construction; (2) “continuous or
23 progressively deteriorating or repeated” property damage; (3) property damage that the
24 insured knew about prior to the inception of the Policy; or (4) work performed to correct
25 defective work of the insured.
26
27
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
28 2
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
The Opposition attempts to create the potential for coverage through a factually and
legally unsupported version of the facts and law that relies on a mischaracterization of Apec’s
work and impermissibly speculating about the claims in the Underlying Complaint.
IL. LEGAL ARGUMENT
The undisputed material facts establish that there is no potential for coverage for Apec
in connection with the Underlying Complaint. Where there is no potential for coverage, Apec’s
causes of action against CIC for Declaratory Relief on the Duty to Defend, Declaratory Relief
on the Duty to Indemnify, Breach of Contract, and Breach of the Implied Covenant of Good
Faith and Fair Dealing lack merit.
10 A Apec Admits that Its Initial Work at the Subject Property Was New
Residential Construction and the Policy Excludes Coverage For New
11 Residential Construction
12 It is undisputed that Elias has had a Class B- General Building Contractor License issued
13 by the California State Contractors Board since 2004. (Apec’s Response to CIC’s Separate
14 Statement [Responsive Statement], Undisputed Material Fact [UMF] No. 5.) Elias admits he
I> has been a licensed general contractor for over thirty years. (Declaration of Paul Elias [Elias
16 Declaration] §1, Page 1:25-27.) In connection with Apec’s work at the subject property, it is
17 further undisputed that Elias pulled permits for the construction of a new single-family
18 residence. (UMF No. 4.)
19 The Elias Declaration admits that Apec’s initial work at the subject property was on new
20 residential construction. However, Elias attempts to distract the Court by raising other,
21 unrelated factual arguments. (Responsive Statement, UMF Nos. 2-3 and 6.) For example, the
22 Responsive Statement’s dispute of UMF No. 6 concerning Brassfield’s allegation that Apec
23 was the general contractor for the construction of the new residence at the subject property,
24 Apec states: “Brassfield also contends that Apec performed work after substantial completion,
25 including [sic] installation of a second sump pump location outside of the basement retaining
26 walls, in order to properly address the nature of the flooding in the basement (Complaint, {| 32)
27
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
28 3
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
as well as allegedly cutting a hole in the basement slab at some unknown time. (Underlying
Complaint, § 39-40, 43)”.
Elias verifies that Apec’s original work was on new residential construction by stating:
“T have not been a general contractor on new residential construction since I completed work
on property located 177 Loma Alta Avenue in the Town of Los Gatos, County of Santa Clara,
California, which was completed sometime in 2006.” (Elias Decl. § 3, Page 2:3-9.) (Emphasis
added.)
It is further undisputed that the Policy contains endorsements that exclude coverage for
work on new residential construction (Responsive Statement, UMF Nos. 34-35.) As such, there
10 is no coverage under the Policy for the Underlying Complaint and Apec’s work on new
11 residential construction.
12 B The Underlying Complaint Involves Repeated Flooding and Resulting
Property Damage, Which Are Expressly Excluded
13
14 It is undisputed that the Underlying Complaint involves repeated allegations of flooding
I> in the basement of the subject property and damage therefrom. Four floods in the basements are
16 noted in the Underlying Complaint that first occurred in 2007 and occurred again in 2008, 2010,
17 and 2014. (Responsive Statement, UMF Nos. 9-19.) Each of the noted flood events and resulting
18 damage occurred several years prior to the inception of the Policy in 2016.
19 The Opposition argues that these floods are separate and discrete events. (Opposition,
20 Page 16:1-3.) Nevertheless, Apec cannot avoid the fact that these events involve repeated
21 flooding of the basement that all occurred several years prior to the inception of the Policy.
22 Endorsement U073A-0815 - Exclusion — Continuous, Progressive or Repeated — Bodily
23 Injury or Property Damage to the Policy excludes coverage for “property damage” that is
24 continuous or progressively deteriorating or repeated in nature that first occurred prior to the
25 effective date of the Policy. (Responsive Statement, UMF No. 33 and Exhibit 6, Page 103 of
26 the Exhibit List.)
27
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
28 4
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
The Opposition impermissibly argues with conclusory statements, speculation, and
conjecture in an attempt to create triable issues of material fact, through generic references to
“other unspecified occurrences producing different items of damage.” (Opposition, Page 18:5-
6)
Conclusory allegations, improbable inferences, and unsupported speculation may not be
used to defeat a summary judgment motion. (Nelson v. United Technologies (1999) 74
Cal.App.4th 597, 614; See also, Code of Civil Procedure, section 437c(p)(2).) Specific to
disputes over insurance coverage, an “insured may not speculate about unpled third party claims
to manufacture coverage.” (Hurley Construction Co. v. State Farm Fire & Cas. Co. (1992) 10
10 Cal.App.4th 533, 538.) (See also, Baroco West, Inc. v. Scottsdale Ins. Co. (2003) 110
11 Cal.App.4th 96, 104 [‘‘Assertions of potential coverage which are based entirely on speculation
12 do not give rise to a duty to defend.’”].)
13 The Opposition further cites to an order issued by the U.S. District Court granting in
14 part and denying in part a Motion for Summary Judgment. (Acceptance Ins. Co. v. Am. Safety
I> Risk Retention Group, Inc. (2011) 2011 WL 3475305.). Federal District Court orders are not
16 binding on this Court. Moreover, the focus of the court in Acceptance Ins. Co. was on the term
17 “continuous.” CIC’s Policy expressly limits coverage for Continuous, Progressive or Repeated
18 property damage. The undisputed material facts establish allegations of property damage caused
19 by repeated flooding of the basement of the subject property involved in the Underlying
20 Complaint.
21 c. Apec Knew that Repeated Flooding and Resulting Property Damage Had
Occurred at the Subject Property Prior to the Inception of the Policy.
22
The Policy’s Commercial General Liability Coverage Form [CGLCF] Insuring
23
Agreement specifically limits the “bodily injury” and “property damage” covered to damage
24
NOT known to the insured prior to the inception of the Policy. Apec admits that this limitation
25
is set forth in the Policy (Responsive Statement, UMF Nos. 31-32 and Section I, Subsections
26
l.c. and 1.d. of the CGLCF to the Policy, Exhibit 6, Page 72 of the Exhibit List).
27
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
28 5
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
Apec, through responses to Requests for Admissions propounded in this matter, and
again in the Elias Declaration submitted in connection with the Opposition, admits being
informed of floods that occurred in 2007, 2008, and 2010 and property damage in connection
therewith. (Responsive Statement, UMF Nos. 21-22; Elias Declaration {§8-9, Page 3:6-22.)
Apec again attempts to circumvent this limitation by again relying on speculation and
conjecture as to unidentified water intrusion events and damage therefrom. (See Hurley, supra,
10 Cal.App.4th at 538; Baroco West, Inc., supra, 110 Cal.App.4th at 104.) For instance, the
Opposition argues “[t]he complaint did not negate all potential for coverage. It is not clear from
these vague allegations just what all “defective conditions” are, when they first occurred, when
10 they first manifested themselves, or when they first caused damage to or destruction of tangible
11 property, including both the residence and the personal property contained therein at the time
12 of damage. For instance, there clearly could have been different items of personal property
13 contained in the basement which became damaged in the alleged water intrusion events which
14 occurred from unknown deficiencies at unknown times, continuing until at least February 2019.
I> (Opposition, Page 12:20-26.)
16 Apec offers no specific evidence of any damages that first occurred during the Policy
17 period to support its speculation and conjecture. Apec’s speculation and conjecture does not
18 circumvent CIC’s undisputed material facts and does not and cannot create a potential for
19 coverage under the Policy.
20 D. It is Undisputed that Apec’s Subsequent Work at the Subject Property Wa:
to_Remedy Flooding Issues That Occurred _as_a_ Result _of the New
21 Residential Construction
22 Apec does not dispute that the allegations in the Underlying Complaint concern Apec’s
23 subsequent repair recommendations and repair work at the subject property. These repair
24 recommendations and work were due to the fact that Apec’s work on new residential
25 construction allegedly caused repeated flooding of the basement that first occurred in 2007 and
26 again occurred in 2008 and 2010. (Responsive Statement, UMF Nos. 9-17; Elias Declaration
27 94, Page 2:19-19). Instead, Apec, in an attempt to create a triable issue of material fact,
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
28 6
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
characterizes such work as “remodeling” work. Elias disingenuously and self-servingly states
that “[t]he work described above would constitute “remodeling work” as the term is customarily
used as it involved the improvement of and adding on to existing structures of the RESIDENCE.”
(Elias Declaration 44, Page 2:21-23.)!
In fact, Apec’s work was performed to remedy its defective work with regard to the
original construction of the new single-family residence that allegedly caused repeated flooding
of the basement. To call such work “remodeling” is contrary to the undisputed material facts,
unsupported by the evidence, and must be disregarded by the Court. The subsequent repair work
Apec performed to address the repeated flooding problems at the subject property is similar to
10 repairing a leaky pipe in a bathroom, rather than remodeling the plumbing in a home from
11 galvanized steel pipping to copper pipping.
12 The Policy’s CGLCF Section I, Subsection 2.j.6., which sets forth the exclusions for
13 “COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY,” expressly
14 states that “your work” that is covered under the Policy does not include “[t]hat particular part
I> of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly
16 performed on it.” (UMF No. 37 and Section I, Subsection 2.j.6. of the CGLCF to the Policy,
17 Exhibit 6, Pages 73 and 76 of the Exhibit List.)
18 Apec’s attempts to dispute the importance of this provision of the CGLCF and its
19 applicability to the potential for coverage for the Underlying Complaint lacks merit. Apec
20 contends that this provision is inapplicable because it does not apply to “property damage”
21 included in the “Products Completed Operations Hazard.” (Opposition, Pages 19:25 to 20:8.)
22 However, the work performed by APEC does not fall under the definition of “property damage”
23 covered by the Products Completed Operations Hazard as Apec knew of claimed defects AND
24 the property damage allegedly caused by such claimed defective work prior to the inception of
25 the Policy. (Responsive Statement, UMF Nos. 31-32 and Section I, Subsections 1.c. and 1.d. of
26
27 ' CIC concurrently herewith has filed objections to the Elias Declaration.
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
7
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DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
the CGLCF to the Policy, Exhibit 6, Page 72 of the Exhibit List). Apec does not dispute the
definition of property damage contained in the Policy. (Responsive Statement, UMF Nos. 31-
32.)
Therefore, there is no coverage under the Policy for the subsequent repair work
performed by Apec at the subject property.
E The Undisputed Facts Establish that Apec Cannot Meet Its Burden of
Establishing the Potential For Coverage For the Underlying Complaint
CIC has met its burden to set forth undisputed material facts that establish that there is
no potential for coverage for Apec for the Underlying Complaint. The burden shifted to Apec
to establish the existence of material and triable issues of fact. (Nelson v. United Technologies
10
(1999) 74 Cal.App.4th 597, 614; See also, Code of Civil Procedure, section 437¢(p)(2)). In
11
order to meet this burden, Apec must set forth facts establishing the potential for coverage under
12
the Policy. (Delgado v. Interinsurance Exchange of Automobile Club of Southern California
13
(2009) 47 Cal.4th 302, 308 [“To prevail in an action seeking declaratory relief on the question
14
of the duty to defend, the ‘insured must prove the existence of a potential for coverage . . . .].)
I>
Apec failed to meet this burden in the Opposition as the “facts” cited by Apec are based on
16
speculation, conjecture, and erroneous interpretations of the Policy and law. (Hurley
17
Construction Co., supra, 10 Cal.App.4th at 538; Baroco West, Inc., supra, 110 Cal.App.4th at
18
104.)
19
“The duty to defend exists if the insurer ‘becomes aware of, or if the third party lawsuit
20
pleads, facts giving rise to the potential for coverage under the insuring agreement.’” (Delgado,
21
supra, 47 Cal.4th at 308.) Apec’s Opposition attempts to change this standard by arguing that
22
the potential for coverage exists if “there was a possibility that any property damage first
23
manifested itself “ during the Policy period. (Opposition, Pages 17:26-18:1.) THAT IS NOT
24
THE STANDARD. The relevant inquiry for the Court is whether there is any covered property
25
damage that first manifested itself during the Policy period. The undisputed facts establish that
26
there is no covered damage that first manifested itself during the Policy Period.
27
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
28 8
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
The Opposition argues that the third-party complaint must be considered and “the
insured is entitled to a defense if the underlying complaint alleges the insured’s liability for
damages potentially covered under the policy, or if the complaint might be amended to give rise
to a liability that would be covered under the policy.” (Opposition, Page 19:16-21, citing
Montrose v. Superior Court (1993) 6 Cal.4th 287, 299.) The undisputed material facts establish
that there is no potential for coverage for the Underlying Complaint. The claims asserted by
Brassfield against Apec relate to the performance of his work on new residential construction,
repeated flooding and resulting damage that Apec was informed of years prior to the inception
of the Policy, and Apec’s failed attempts to repair its allegedly defective work performed during
10 Apec’s construction of the new residence.
11 Ii. CONCLUSION
12 As established by CIC’s moving papers and the evidence submitted in support of its
13 Summary Judgment Motion on Apec’s First Amended Complaint, there is no potential for
14 coverage under the Policy for Apec in connection with the Underlying Complaint. Apec’s
I> Opposition fails to raise any triable issues of material fact to establish that a potential for
16 coverage exists. As such, each of Apec’s causes of action against CIC set forth in the FAC fails.
17 Apec cannot avoid the undisputed fact that the Policy’s Insuring Agreement,
18 Endorsements, and Exclusions do not provide coverage for the following:
19 ° New residential construction [CIC’s UMF Nos. 34-35];
20 e “[C]ontinuous or progressively deteriorating or repeated” property damage [CIC’s UMF
21 No. 33];
22 Property damage that the insured knew about prior to the inception of the Policy [CIC’s
23 UMF Nos. 31-32]; or
24 Correction and attempted repair of defective work [CIC’s UMF Nos. 36-37].
25
26
27
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
28 9
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
While Apec’s Opposition artfully and unsuccessfully attempts to re-characterize the
allegations and facts involved in the Underlying Complaint, the following material facts are
undisputed:
e Apec performed work in connection with the construction of the new single family
residence that was completed approximately nine to ten years before the inception of
the Policy [CIC’s UMF Nos. 2-7 and Elias Declaration 3, Page 2:3-9.];
The allegations in the Underlying Complaint include property damage from flooding in
the basement in 2007, 2008, 2010, and 2014, work that all occurred years prior to the
inception of the Policy [CIC’s UMF Nos. 9-17];
10 Apec was first informed of flooding in the basement of the new single family residence
11 and resulting damage in 2007, approximately nine years before the inception of the
12 Policy [CIC’s UMF Nos. 9-17]; and
13 Apec performed repair work at the new single family residence to address Apec’s
14 allegedly defective work that caused the floods in the basement in 2007, 2008, and 2010
I> [CIC’s UMF Nos. 9-17].
16
These undisputed material facts establish that there is no potential for coverage under
17
the Policy. CIC respectfully requests that the Court enter an Order granting summary judgment
18
in its favor.
19
20
Date: May 28, 2020
21 GAGLIONE, DOLAN & KAPLAN
A Professional Corporation
22
By: /s/ Jeffrey S. Kaplan
23 JEFFREY S. KAPLAN
Attorneys for Defendant/Cross-Complainant
24
COLONY INSURANCE COMPANY
25
26
27
WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
28 10
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
Iam employed in the County of Los Angeles, State of California. I am over the age of
18 and not a party to the within action; my business address is 11400 W. Olympic Blvd., Suite
425, Los Angeles, CA 90064.
On May 28, 2020, I served the foregoing document described as: DEFENDANT/
CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO P. INTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED
COMPLAINT on the interested parties in this action by placing a true copy thereof enclosed in
sealed envelopes, addressed as follows:
[SEE ATTACHED “SERVICE LIST”]
10 _/ BY MAIL As follows: I am "readily familiar" with the firm's practice of collection and
processing correspondence for mailing. Under that practice it would be deposited with U.S.
11 Postal Service on that same day, with postage thereon fully prepaid at Los Angeles,
12 California in the ordinary course of business. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or postage meter date is more than
13 one day after “date of deposit for mailing in affidavit.
14 BY ELECTRONIC SERVICE (Per Judicial Council Emergency Rule 12, per
COVID-19) On this date, I electronically-served the above-listed document(s) on the
I>
interested parties at the electronic addresses listed in the Service List attached to this Proof
16 of Service.
17 __/BY FEDERAL EXPRESS OVERNIGHT DELIVERY I personally deposited said
envelope in a Federal Express overnight delivery depository in time to be picked up for
18 delivery to be made the next business day according to the information posted by Federal
Express at the depository.
19
20 I declare under penalty of perjury under the laws of the State of California that the above
is true and correct.
21
Executed on May 28, 2020, at Los Angeles, California.
22
23
24 /s/ Brenda Hester
25
26
27
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28 ll
DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
Re: Elias v. International Insurance Company, et al.
Santa Clara County Case No. 18CV335946
SERVICE LIST
Alan L. Martini, Esq. Attorneys for Plaintiff,
SHEUERMAN, MARTINI, TABARI, ZENERE PAUL ELIAS, individually and dba
& GARVIN APEC CONSTRUCTION
1033 Willow St.
San Jose, CA 95125
T: 408-288-9700
F: 408-295-9900
E: amartini@smtlaw.com
Michael B. Murphy, Esq. Attorneys for Defendant,
10 David C. Hungerford, Esq. HDI GLOBAL SPECIALTY SE, formerly
SEVERSON & WERSON known as “INTERNATIONAL INSURANCE
11 One Embarcadero Center, Suite 2600 COMPANY OF HANNOVER SE”
San Francisco, CA 94111
12
T: 415-398-3344
13 F : 415-956-0439
E mbm@severson.com
14 E : dch@severson.com
I>
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WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX
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DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S
OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT
Preview
18CV335946 Santa Clara — Civil S. Vera Electronically Filed Jeffrey S. Kaplan, Esq., (SBN: 169009) by Superior Court of CA, GAGLIONE, DOLAN & KAPLAN County of Santa Clara, 11400 W. Olympic Blvd., Suite 425 on 5/28/2020 4:12 PM Los Angeles, CA 90064-1561 Reviewed By: S. Vera T (310) 231-1600; F: (310) 231-1610 Case #18CV335946 E: jkaplan@gaglionedolan.com Envelope: 4389494 Attorneys for Defendant and Cross-Complainant, COLONY INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA. FOR THE COUNTY OF SANTA CLARA (Old Courthouse) PAUL ELIAS, individually and dba Case No.: 18CV335946 APEC CONSTRUCTION, [Judge: Hon. Thang N. Barrett — Dept. 21] Plaintiff, DEFENDANT/CROSS-COMPLAINANT 10 COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO 11 VS. COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, 12 INTERNATIONAL INSURANCE SUMMARY ADJUDICATION ON 13 COMPANY OF HANNOVER SE; PLAINTIFF'S FIRST AMENDED PREMIER CLAIMS MANAGEMENT, COMPLAINT 14 LLC; COLONY SPECIALTY Date: June 2, 2020 (Reserved) INSURANCE COMPANY; and DOES 1- I> Time: 9:00 a.m. 25, Inclusive, Dept.: 21 16 Defendants. [Filed concurrently with: 17 ) Colony's Objections to Plaintiff;s Evidence 18 in Opposition to Colony's MSJ/A Re First AND RELATED CROSS-ACTION(S) Amended Complaint [Re Decls of Elias and 19 Martini]; 2) Colony's Reply to Plaintiff's Separate 20 Statement of Additional Facts in Opposition to Colony's MSJ/A Re First Amended 21 Complaint; and. 3) [Proposed] Order Re Colony's Objections 22 to Plaintiffs Evidence in Opposition to Colony's MSJ/A Re First Amended 23 Complaint] 24 Civil — General Jurisdiction Complaint Filed: October 4, 2018 25 FAC Filed: March 5, 2019 Trial Date: None Set 26 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 1 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: Defendant, COLONY INSURANCE COMPANY (CIC), hereby submits its Reply to Plaintiff, PAUL ELIAS', individually, and doing business as Apec Construction’s Opposition to Colony’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication on Apec’s First Amended Complaint for Damages, as follows: MEMORANDUM OF POINTS AND AUTHORITIES IL. SUMMARY OF REPLY Plaintiff's Opposition does nothing to negate undisputed material facts that establish that there is no potential for coverage for Apec in connection with the Brassfield v. Apec 10 litigation, Superior Court of the State of California, County of Santa Clara, Case No. 11 17CV305267 (Underlying Complaint). 12 Regardless of how Apec attempts to characterize or spin its work on the subject property 13 involved in the Underlying Complaint, it is undisputed that: 14 e Apec performed work in connection with the construction of a new single family I> residence and that work is at issue in the Underlying Complaint; 16 e The subject property experienced repeated flooding in the basement that is claimed by 17 Jo Ann Brassfield and Shann Brassfield, co-trustees of the Jo Ann Brassfield Living 18 Trust (collectively Brassfield) to have caused property damage, that all began almost a 19 decade prior to the inception of CIC Policy No. 101 GL 0050190-00, issued to Apec for 20 the period from March 17, 2016 to March 17, 2017 (Policy); and 21 As set forth in the Policy’s Insuring Agreement, Endorsements, and Exclusions, there is 22 no coverage for: (1) work on new residential construction; (2) “continuous or 23 progressively deteriorating or repeated” property damage; (3) property damage that the 24 insured knew about prior to the inception of the Policy; or (4) work performed to correct 25 defective work of the insured. 26 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 2 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT The Opposition attempts to create the potential for coverage through a factually and legally unsupported version of the facts and law that relies on a mischaracterization of Apec’s work and impermissibly speculating about the claims in the Underlying Complaint. IL. LEGAL ARGUMENT The undisputed material facts establish that there is no potential for coverage for Apec in connection with the Underlying Complaint. Where there is no potential for coverage, Apec’s causes of action against CIC for Declaratory Relief on the Duty to Defend, Declaratory Relief on the Duty to Indemnify, Breach of Contract, and Breach of the Implied Covenant of Good Faith and Fair Dealing lack merit. 10 A Apec Admits that Its Initial Work at the Subject Property Was New Residential Construction and the Policy Excludes Coverage For New 11 Residential Construction 12 It is undisputed that Elias has had a Class B- General Building Contractor License issued 13 by the California State Contractors Board since 2004. (Apec’s Response to CIC’s Separate 14 Statement [Responsive Statement], Undisputed Material Fact [UMF] No. 5.) Elias admits he I> has been a licensed general contractor for over thirty years. (Declaration of Paul Elias [Elias 16 Declaration] §1, Page 1:25-27.) In connection with Apec’s work at the subject property, it is 17 further undisputed that Elias pulled permits for the construction of a new single-family 18 residence. (UMF No. 4.) 19 The Elias Declaration admits that Apec’s initial work at the subject property was on new 20 residential construction. However, Elias attempts to distract the Court by raising other, 21 unrelated factual arguments. (Responsive Statement, UMF Nos. 2-3 and 6.) For example, the 22 Responsive Statement’s dispute of UMF No. 6 concerning Brassfield’s allegation that Apec 23 was the general contractor for the construction of the new residence at the subject property, 24 Apec states: “Brassfield also contends that Apec performed work after substantial completion, 25 including [sic] installation of a second sump pump location outside of the basement retaining 26 walls, in order to properly address the nature of the flooding in the basement (Complaint, {| 32) 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 3 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT as well as allegedly cutting a hole in the basement slab at some unknown time. (Underlying Complaint, § 39-40, 43)”. Elias verifies that Apec’s original work was on new residential construction by stating: “T have not been a general contractor on new residential construction since I completed work on property located 177 Loma Alta Avenue in the Town of Los Gatos, County of Santa Clara, California, which was completed sometime in 2006.” (Elias Decl. § 3, Page 2:3-9.) (Emphasis added.) It is further undisputed that the Policy contains endorsements that exclude coverage for work on new residential construction (Responsive Statement, UMF Nos. 34-35.) As such, there 10 is no coverage under the Policy for the Underlying Complaint and Apec’s work on new 11 residential construction. 12 B The Underlying Complaint Involves Repeated Flooding and Resulting Property Damage, Which Are Expressly Excluded 13 14 It is undisputed that the Underlying Complaint involves repeated allegations of flooding I> in the basement of the subject property and damage therefrom. Four floods in the basements are 16 noted in the Underlying Complaint that first occurred in 2007 and occurred again in 2008, 2010, 17 and 2014. (Responsive Statement, UMF Nos. 9-19.) Each of the noted flood events and resulting 18 damage occurred several years prior to the inception of the Policy in 2016. 19 The Opposition argues that these floods are separate and discrete events. (Opposition, 20 Page 16:1-3.) Nevertheless, Apec cannot avoid the fact that these events involve repeated 21 flooding of the basement that all occurred several years prior to the inception of the Policy. 22 Endorsement U073A-0815 - Exclusion — Continuous, Progressive or Repeated — Bodily 23 Injury or Property Damage to the Policy excludes coverage for “property damage” that is 24 continuous or progressively deteriorating or repeated in nature that first occurred prior to the 25 effective date of the Policy. (Responsive Statement, UMF No. 33 and Exhibit 6, Page 103 of 26 the Exhibit List.) 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 4 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT The Opposition impermissibly argues with conclusory statements, speculation, and conjecture in an attempt to create triable issues of material fact, through generic references to “other unspecified occurrences producing different items of damage.” (Opposition, Page 18:5- 6) Conclusory allegations, improbable inferences, and unsupported speculation may not be used to defeat a summary judgment motion. (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 614; See also, Code of Civil Procedure, section 437c(p)(2).) Specific to disputes over insurance coverage, an “insured may not speculate about unpled third party claims to manufacture coverage.” (Hurley Construction Co. v. State Farm Fire & Cas. Co. (1992) 10 10 Cal.App.4th 533, 538.) (See also, Baroco West, Inc. v. Scottsdale Ins. Co. (2003) 110 11 Cal.App.4th 96, 104 [‘‘Assertions of potential coverage which are based entirely on speculation 12 do not give rise to a duty to defend.’”].) 13 The Opposition further cites to an order issued by the U.S. District Court granting in 14 part and denying in part a Motion for Summary Judgment. (Acceptance Ins. Co. v. Am. Safety I> Risk Retention Group, Inc. (2011) 2011 WL 3475305.). Federal District Court orders are not 16 binding on this Court. Moreover, the focus of the court in Acceptance Ins. Co. was on the term 17 “continuous.” CIC’s Policy expressly limits coverage for Continuous, Progressive or Repeated 18 property damage. The undisputed material facts establish allegations of property damage caused 19 by repeated flooding of the basement of the subject property involved in the Underlying 20 Complaint. 21 c. Apec Knew that Repeated Flooding and Resulting Property Damage Had Occurred at the Subject Property Prior to the Inception of the Policy. 22 The Policy’s Commercial General Liability Coverage Form [CGLCF] Insuring 23 Agreement specifically limits the “bodily injury” and “property damage” covered to damage 24 NOT known to the insured prior to the inception of the Policy. Apec admits that this limitation 25 is set forth in the Policy (Responsive Statement, UMF Nos. 31-32 and Section I, Subsections 26 l.c. and 1.d. of the CGLCF to the Policy, Exhibit 6, Page 72 of the Exhibit List). 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 5 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT Apec, through responses to Requests for Admissions propounded in this matter, and again in the Elias Declaration submitted in connection with the Opposition, admits being informed of floods that occurred in 2007, 2008, and 2010 and property damage in connection therewith. (Responsive Statement, UMF Nos. 21-22; Elias Declaration {§8-9, Page 3:6-22.) Apec again attempts to circumvent this limitation by again relying on speculation and conjecture as to unidentified water intrusion events and damage therefrom. (See Hurley, supra, 10 Cal.App.4th at 538; Baroco West, Inc., supra, 110 Cal.App.4th at 104.) For instance, the Opposition argues “[t]he complaint did not negate all potential for coverage. It is not clear from these vague allegations just what all “defective conditions” are, when they first occurred, when 10 they first manifested themselves, or when they first caused damage to or destruction of tangible 11 property, including both the residence and the personal property contained therein at the time 12 of damage. For instance, there clearly could have been different items of personal property 13 contained in the basement which became damaged in the alleged water intrusion events which 14 occurred from unknown deficiencies at unknown times, continuing until at least February 2019. I> (Opposition, Page 12:20-26.) 16 Apec offers no specific evidence of any damages that first occurred during the Policy 17 period to support its speculation and conjecture. Apec’s speculation and conjecture does not 18 circumvent CIC’s undisputed material facts and does not and cannot create a potential for 19 coverage under the Policy. 20 D. It is Undisputed that Apec’s Subsequent Work at the Subject Property Wa: to_Remedy Flooding Issues That Occurred _as_a_ Result _of the New 21 Residential Construction 22 Apec does not dispute that the allegations in the Underlying Complaint concern Apec’s 23 subsequent repair recommendations and repair work at the subject property. These repair 24 recommendations and work were due to the fact that Apec’s work on new residential 25 construction allegedly caused repeated flooding of the basement that first occurred in 2007 and 26 again occurred in 2008 and 2010. (Responsive Statement, UMF Nos. 9-17; Elias Declaration 27 94, Page 2:19-19). Instead, Apec, in an attempt to create a triable issue of material fact, WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 6 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT characterizes such work as “remodeling” work. Elias disingenuously and self-servingly states that “[t]he work described above would constitute “remodeling work” as the term is customarily used as it involved the improvement of and adding on to existing structures of the RESIDENCE.” (Elias Declaration 44, Page 2:21-23.)! In fact, Apec’s work was performed to remedy its defective work with regard to the original construction of the new single-family residence that allegedly caused repeated flooding of the basement. To call such work “remodeling” is contrary to the undisputed material facts, unsupported by the evidence, and must be disregarded by the Court. The subsequent repair work Apec performed to address the repeated flooding problems at the subject property is similar to 10 repairing a leaky pipe in a bathroom, rather than remodeling the plumbing in a home from 11 galvanized steel pipping to copper pipping. 12 The Policy’s CGLCF Section I, Subsection 2.j.6., which sets forth the exclusions for 13 “COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY,” expressly 14 states that “your work” that is covered under the Policy does not include “[t]hat particular part I> of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly 16 performed on it.” (UMF No. 37 and Section I, Subsection 2.j.6. of the CGLCF to the Policy, 17 Exhibit 6, Pages 73 and 76 of the Exhibit List.) 18 Apec’s attempts to dispute the importance of this provision of the CGLCF and its 19 applicability to the potential for coverage for the Underlying Complaint lacks merit. Apec 20 contends that this provision is inapplicable because it does not apply to “property damage” 21 included in the “Products Completed Operations Hazard.” (Opposition, Pages 19:25 to 20:8.) 22 However, the work performed by APEC does not fall under the definition of “property damage” 23 covered by the Products Completed Operations Hazard as Apec knew of claimed defects AND 24 the property damage allegedly caused by such claimed defective work prior to the inception of 25 the Policy. (Responsive Statement, UMF Nos. 31-32 and Section I, Subsections 1.c. and 1.d. of 26 27 ' CIC concurrently herewith has filed objections to the Elias Declaration. WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 7 28 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT the CGLCF to the Policy, Exhibit 6, Page 72 of the Exhibit List). Apec does not dispute the definition of property damage contained in the Policy. (Responsive Statement, UMF Nos. 31- 32.) Therefore, there is no coverage under the Policy for the subsequent repair work performed by Apec at the subject property. E The Undisputed Facts Establish that Apec Cannot Meet Its Burden of Establishing the Potential For Coverage For the Underlying Complaint CIC has met its burden to set forth undisputed material facts that establish that there is no potential for coverage for Apec for the Underlying Complaint. The burden shifted to Apec to establish the existence of material and triable issues of fact. (Nelson v. United Technologies 10 (1999) 74 Cal.App.4th 597, 614; See also, Code of Civil Procedure, section 437¢(p)(2)). In 11 order to meet this burden, Apec must set forth facts establishing the potential for coverage under 12 the Policy. (Delgado v. Interinsurance Exchange of Automobile Club of Southern California 13 (2009) 47 Cal.4th 302, 308 [“To prevail in an action seeking declaratory relief on the question 14 of the duty to defend, the ‘insured must prove the existence of a potential for coverage . . . .].) I> Apec failed to meet this burden in the Opposition as the “facts” cited by Apec are based on 16 speculation, conjecture, and erroneous interpretations of the Policy and law. (Hurley 17 Construction Co., supra, 10 Cal.App.4th at 538; Baroco West, Inc., supra, 110 Cal.App.4th at 18 104.) 19 “The duty to defend exists if the insurer ‘becomes aware of, or if the third party lawsuit 20 pleads, facts giving rise to the potential for coverage under the insuring agreement.’” (Delgado, 21 supra, 47 Cal.4th at 308.) Apec’s Opposition attempts to change this standard by arguing that 22 the potential for coverage exists if “there was a possibility that any property damage first 23 manifested itself “ during the Policy period. (Opposition, Pages 17:26-18:1.) THAT IS NOT 24 THE STANDARD. The relevant inquiry for the Court is whether there is any covered property 25 damage that first manifested itself during the Policy period. The undisputed facts establish that 26 there is no covered damage that first manifested itself during the Policy Period. 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 8 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT The Opposition argues that the third-party complaint must be considered and “the insured is entitled to a defense if the underlying complaint alleges the insured’s liability for damages potentially covered under the policy, or if the complaint might be amended to give rise to a liability that would be covered under the policy.” (Opposition, Page 19:16-21, citing Montrose v. Superior Court (1993) 6 Cal.4th 287, 299.) The undisputed material facts establish that there is no potential for coverage for the Underlying Complaint. The claims asserted by Brassfield against Apec relate to the performance of his work on new residential construction, repeated flooding and resulting damage that Apec was informed of years prior to the inception of the Policy, and Apec’s failed attempts to repair its allegedly defective work performed during 10 Apec’s construction of the new residence. 11 Ii. CONCLUSION 12 As established by CIC’s moving papers and the evidence submitted in support of its 13 Summary Judgment Motion on Apec’s First Amended Complaint, there is no potential for 14 coverage under the Policy for Apec in connection with the Underlying Complaint. Apec’s I> Opposition fails to raise any triable issues of material fact to establish that a potential for 16 coverage exists. As such, each of Apec’s causes of action against CIC set forth in the FAC fails. 17 Apec cannot avoid the undisputed fact that the Policy’s Insuring Agreement, 18 Endorsements, and Exclusions do not provide coverage for the following: 19 ° New residential construction [CIC’s UMF Nos. 34-35]; 20 e “[C]ontinuous or progressively deteriorating or repeated” property damage [CIC’s UMF 21 No. 33]; 22 Property damage that the insured knew about prior to the inception of the Policy [CIC’s 23 UMF Nos. 31-32]; or 24 Correction and attempted repair of defective work [CIC’s UMF Nos. 36-37]. 25 26 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 9 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT While Apec’s Opposition artfully and unsuccessfully attempts to re-characterize the allegations and facts involved in the Underlying Complaint, the following material facts are undisputed: e Apec performed work in connection with the construction of the new single family residence that was completed approximately nine to ten years before the inception of the Policy [CIC’s UMF Nos. 2-7 and Elias Declaration 3, Page 2:3-9.]; The allegations in the Underlying Complaint include property damage from flooding in the basement in 2007, 2008, 2010, and 2014, work that all occurred years prior to the inception of the Policy [CIC’s UMF Nos. 9-17]; 10 Apec was first informed of flooding in the basement of the new single family residence 11 and resulting damage in 2007, approximately nine years before the inception of the 12 Policy [CIC’s UMF Nos. 9-17]; and 13 Apec performed repair work at the new single family residence to address Apec’s 14 allegedly defective work that caused the floods in the basement in 2007, 2008, and 2010 I> [CIC’s UMF Nos. 9-17]. 16 These undisputed material facts establish that there is no potential for coverage under 17 the Policy. CIC respectfully requests that the Court enter an Order granting summary judgment 18 in its favor. 19 20 Date: May 28, 2020 21 GAGLIONE, DOLAN & KAPLAN A Professional Corporation 22 By: /s/ Jeffrey S. Kaplan 23 JEFFREY S. KAPLAN Attorneys for Defendant/Cross-Complainant 24 COLONY INSURANCE COMPANY 25 26 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 10 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA Iam employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 11400 W. Olympic Blvd., Suite 425, Los Angeles, CA 90064. On May 28, 2020, I served the foregoing document described as: DEFENDANT/ CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO P. INTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT on the interested parties in this action by placing a true copy thereof enclosed in sealed envelopes, addressed as follows: [SEE ATTACHED “SERVICE LIST”] 10 _/ BY MAIL As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. 11 Postal Service on that same day, with postage thereon fully prepaid at Los Angeles, 12 California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than 13 one day after “date of deposit for mailing in affidavit. 14 BY ELECTRONIC SERVICE (Per Judicial Council Emergency Rule 12, per COVID-19) On this date, I electronically-served the above-listed document(s) on the I> interested parties at the electronic addresses listed in the Service List attached to this Proof 16 of Service. 17 __/BY FEDERAL EXPRESS OVERNIGHT DELIVERY I personally deposited said envelope in a Federal Express overnight delivery depository in time to be picked up for 18 delivery to be made the next business day according to the information posted by Federal Express at the depository. 19 20 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 21 Executed on May 28, 2020, at Los Angeles, California. 22 23 24 /s/ Brenda Hester 25 26 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 ll DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT Re: Elias v. International Insurance Company, et al. Santa Clara County Case No. 18CV335946 SERVICE LIST Alan L. Martini, Esq. Attorneys for Plaintiff, SHEUERMAN, MARTINI, TABARI, ZENERE PAUL ELIAS, individually and dba & GARVIN APEC CONSTRUCTION 1033 Willow St. San Jose, CA 95125 T: 408-288-9700 F: 408-295-9900 E: amartini@smtlaw.com Michael B. Murphy, Esq. Attorneys for Defendant, 10 David C. Hungerford, Esq. HDI GLOBAL SPECIALTY SE, formerly SEVERSON & WERSON known as “INTERNATIONAL INSURANCE 11 One Embarcadero Center, Suite 2600 COMPANY OF HANNOVER SE” San Francisco, CA 94111 12 T: 415-398-3344 13 F : 415-956-0439 E mbm@severson.com 14 E : dch@severson.com I> 16 17 18 19 20 21 22 23 24 25 26 27 WACASES\3900.06\PLEADINGS\CIC'S REPLY-OPPS TO MSJ-A RE FAC.DOCX 28 12 DEFENDANT/CROSS-COMPLAINANT COLONY INSURANCE COMPANY'S REPLY TO PLAINTIFF'S OPPOSITION TO COLONY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON PLAINTIFF'S FIRST AMENDED COMPLAINT