Preview
ORIGINAL
1 DAYLAWOFFICES
Montie S. Day, ¹073327
2 Attorneys at Law SAN MATEO QbUNTY
1235 Casa Palermo Circle
3 Henderson, Nevada 89011 ~EP ) h ttIt3
4
Tel: (20$ ) 280-3766
F~~i>: msdayesqaol.corn «lt of Superior Court
Attorney for PlaintiffGeorge Mariditisn By
5 C OEPUTY CLERK
SUPERIOR COURT OF THE STATE OF C ORNIA
COUN'F SAN MATEO
8
GEORGE INAIU3IIGAN,
9 CASENO. CIV517132
Plaintiff, MEMORANDUMOF LAWIN
10 OPPOSITIONTOMOTIONFORSUMMARY
vs. FOR SUMMARYJUDGIVIENI'ND/OR
11 SUMNARYADJUDICATION
WAWANESAGENERAI. )
12 INSURANCE COMPANY, a )
corporation, and DOES 1 dmeugh 50, ) Date: October 8, 2013
13 inclusive, ) Time: 9:00 tLm.
14 Defendants. (limited Jurisdiction)
Filed: October 3, 2012
Trial Date: November 12, 2013
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TASLK OF CONTENTS
3 1. INTRODUCTIONTO MOTION AND ESSENTIAL FACTS
4 IL INTRODUCTIONTO ARGUMENTS
5 IH. ARGUMIENTS
A. THE STANDARD FOR SUMMARY
IlDtMENTIB MMARY IUDIC IIO
B. THE MOTION FOR SVl464ARY ON
THE CONTRACT
I) THE TEjRMS OF THE CON'IRACT
gaterpretation of the Coatract)
10
2. THE APPLICABLE LAWON THE INSTANT 15
1RANSACTION
12 C. MOTIONFORSUMMARYADJUDICATIONOF 18
BAD FAITH
13
IV. CONCLUSION 20
14
15 TABLE OF AUTHORrrmS
16 Table of Cases
17 Aguilar v. Atlantic Eicigeld Co. (2001) 25 CaL4th 826
18 AIUIns. Co. v. Supevior Court (1990) 51 Cal3d 807 13
19 AIIstate vs. Chinn, (1969) 271CaLApp2d. 274
20 Bank ofthe 8'est v. Superior Court (1992) 2 CaL.4th 1254 12
21 Ehnmo v. Employers Life Ins. Co. (1972) 7 CaL3d 875
22 Barnry v. Aetna Casrtalty and Security Co.,
1985 CaL App. 3rd 966
23
Blackwoodv. Cutting Packing Co., 76CaL 212 15
24
Brinkttrann v. Libertykhttual etc. Ins. Co. (196$) 63 C 2d 41 13
25
Buss v. Superior Court (1997) 16 C. 4th 35
26
Cardinell v. Bennett (1877) 52 Cal 476
27 7.
Carr~au dc Co. v. Security Pacific Business Credit Inc. 6, 10,12
28 222 Cal App. 3d 1371
Carma Developers (California) Inc. V. Marathon Development
California, lnc. P~. Court) 2 C 4h 342 6
Chateau Chamberay Homeowners Assn. v. Assoc~ed 19
Internat. Ins Co. P001) 90 CaLApp.4th 335
Community Redevelopment Agency v. Aetna Canialty &Surety Co.
(1996) 50 CaL App 4th 329 .
Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 CaL 2d 423
Delgado v. Heritage Life Ins. Co. (19S4) 157 CaL App.3d 262 12
Egan v. Mittual ofOnaahaIns. Co. (1979) 24 C 3d 809 12
Foley v. Interactive Data Corporation, 47 C 3d 654 10
10 Gray v. Zurich Insurance Co. (1966) 65 C.2d 263
Gus v. Bechtel National, Inc. (2000) 24 CaL4th 31 7
12 Guebara v. Allstate Ins. Co. (9th Cir. 2001) 237 F.3d 987 19
13 Hackethal v. ¹tional Casualty Co. (1987) 189 Cal App. 3d 1102 12
14 Hinesley v. Chahhade Town Center (2005) 135 CaL App 4th 289
15 Hobson v. Mutua/Betjefit H. &A. Assn. (1950) 99 CaL App. 2d 330
16 Moore v.American United Life Ins. Co (1984) 150 CaL App 3d 610 12
17 0 Xelky-Eccllas Co. V.State ofCalifonaia (195S) 160 CaL App. 2d 60 15
1$ Param4oaet Properties Co. v. Transamerica Title Ins. Co. (1970) .13
1 C.3d $62
19
Montrose Chemical Corp. v. Admirallns. Co. (1995) 10 C 4th 64$
20
Rosenberg Bros. & Co. v. Becomes 56 Cal App. 212 1$
21
Sdberg v. California Life Ins. Co. (1974) 11 C 3d 452 6 12
22
Sheppard v. Morgan Keegan & Co. (1990) 218 Cal App.3d 61 10
23
State Farm Fire & Camcalty Co. P001) 88 CaL App. 4th 1329
24
Schoolcraft v. Ross (1978) S1 CaL App.3d 74 10
25
Tertian v California Cas. Imknl. Ex'1974) 42 CaL App. Jd 942
26
H%te v. 8'estern Title Insurance Company(1985) 40 Cal 3d 870 5,13
27
5"ikhum v. Government Empkyees'Ins. Co. (1957) 48C 2d31
28
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12
13
14
15
16
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18
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21
1
2
3
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5
6
7
8
9
'0 8"clkerson
CaL
v.
Table
California Code
Section
Section
Section
Section
Section
Section
IFellsFargo
of Authorities
1661
California Insurance
790.03
Uniform Commercial
2019
2319
2401
2509
California Yeiucie Code
Section 460
Miscellaneous
Code
California tudic:ial Counsel
Marcus D. Benning v.
Superior
Case No.
Court, County ofSan
Bank(19S9)
ofCivil Proced'ure
437c(c)
California Civil Code
Section
Code
212
Jury Instruction
I'awanesa
37-200S000SS5S5-CU-BC-CTL)
lFitkin, Sumnuuy
General
Diego.
of'Calijbrnia Law (Sales)
CaLApp.3d
2337
Insurance
P Ed)
1217
Company,
P'rial Court only)
6,7
15
16,
16
16
14
1S
20
17
17
24
26,
27
'8
1 L ININOOOOtlON 0 OtlO AIIO IANIIIAL t OIL
PlaintiR'Qeoqrp]4fggd»i» ( lgggdilii» or plaintifP) purchased an automobile ixLaxmice
3 policy&omthe defendant Wawanesa General Insuxaxsx, Company ("Wawanesa" or "defendant") on
4 or about August 2005. Marvel»i» performed all the terms and conditionsof thepolicypaying moxe
5 than $ 13,000.00 in pmniums over the years. Such policy was in effect as of February 20, 2012.
-6 Wavnmesaissued the policy,'willfullyaccepted all pxemiumswhenpaidbyMaxrl»i» and obli~ed
7 itself to pexfoxm the terms and conditions of such policy, inch~~ the implied covenaxit of good
8 kithandfiur~li~~ andtopaythebencfits~~thepolicy. (DcciaxationofMaxxl»i» Para.7)
9 In December of2011, Mamh»i» who had been seaMi~~ and sxxlang to purchase a unique
10 vehicle, namely a 1964 Csdill~ Eldoxado 2 door comrertible (hexeinaSer xefiexxed to as the
11 "Vehicle+ evt'-~t ~lla ~ aunique buy onsuch avehicle 1he Vehicle was inthe midstof
12 xestoxation, with significant xestoxation costs aixeady innuxed, and many parts to complete the
13 xestoration were available Sum the seller. Max'»i» estim~ed that by spelwlinc ~~vximately
14 $ 4,000.00-6,000.00, the restoration could be completed, with the resulting Vehicle worth
15 ap~xim~ely $ 48,000.00. The seller, however, did not renli~ the uniqueness ofthe situation and
16 value of the Vehicle.
17 Maxdikixua, located in South San Fxaxxcisco, negotiated the puxclxase ofthe Vehicle, as well
18 as the restoration parts, fiom the seller, Holt Auto Sales, of Lansing, Micliipm A contract was
19 eaaicxcd into for the purchase ofthe Vehicle as weH as the paxts, which were pxsdxed within the car,
20 by agreeing to pay $ 1+20.00 for the "Vehicle", $2+$ 0.00 for the "Parts", and agxexiug tbat
21 shipping to South San Francisco thxough Holt wouldcostnomoxe than$ 1,125.00. The <~~ed
22 condition of the written contract was that "Allears are shipped P.OJL I~~ Ml". This was
23 material —asMaxxli>i» resided m South San Fxancisco and the Vehicle was 1~ in T~~nc ML
24 (Declaration of ~»i»-. Para. 5, aud 6. MarIII~IIwould, of course, as part of the contract,
25 have to pay for the costs of shipping, whme, under the expressed terms of the contract, ie
26 "P.OJL <~~~II~- Ml,Holt had to perform the contract by placing the Vehide in the hands
27 of the shipper. 'Ihe seller agreed to ship the carte M~h~IIin South San Francisco at a cost
28 of no more than $ 1,125.00. (Declaration of Maud»i» Para. 5)
1 The contractwas not performed" with respect to theseller'sob~~ untilFebruary
2 14, 2012 when the seller shipped" the Vehicle. Mat@»~ had, on January 27, 2012 ~e: final
3 payment to the seller, completing his perform under this executory coxxtract, such being in the
4 amount of $ 1,125.00, bxI~~~~ h4ardiii~n's acquisition costs to a total of ~25.00. ($ 1+20.00+
5 ~80.00+ $ 1,125.00) .
6 Under the texxns of the Wawanesa insuxaxaa policy purchased in 2005, Maxdiiisn had
7 coverage for "newly acquired vehicles" and the policy provided that comprehensive coverage for a
8 "newly acquired auto" Qegi~ on the date you become the owner ifyou ask to insure itwitldn
9 "30 days aSer you become the owner."
10 Mm+>~. an attorney, beheved he berne the owner of the Vehieieon January 27,2012
11 when he completed his performance under the executory contract'n February 22, 2012,
12 pursuant to the terms of the policy, (and within 30 days of J~LI~ 27, 2012) hLudi~~ gave
13 Wawanesa timely notice ofthe "newly aatuixed vehicle", and asked to insure it (Declaration of
14 Manrh~~n-. Paxas. 5, 6, 7, and 8). The newly axxpxued vehicle was d~m~pxl in transit, aypucuuy
15 while being driven by the transport truck operator on Febxxxaxy 20, 2012
16 The vehicle eventually was shipped to South San Fran:iud. It was delivered to a xepair
17 shop. Plaintiff'btaixxed es~~~ for the repairs for the W~~m cxuxsed by the fire, the esti~~
18 only to xestore it to the "pxe-fixe condition". These esxI~es total $26+98.66.
19 Plaintiffbelieved the seller, shiplm or other xesponsible parties would fullycover the losses.
20 Thus PlainxiR'believed there was no need to initiallysubmit a claim to Wawane.a. However, the
21 seIer Holt Auto Sales denied any responsibiTkty,poiniingoutl&MI~~ became the owner on
22 February 14 ~12, the date the Vehicle was phxeed m the hands of the shipper and tru~e
23 company. Acconfing to the seller, February 14, 2012 was the date that ownership and
24 xesponsibihty for the losstxansfexxed, as that was the date seller pexfaxnxed the texxnsof theccnxtract,
25 and the Vehicle was placed on the truck (shipper) per the purchase amtract.x
26 On March 29, 2012, having ddcxxaIined that no other party was going to take
27
28
'egally, he was wrong as the Vehicle was "F.O33. Lansing, Ml",disc ~ supra.
This position is consistent with the intent ofthe contract, and is conaN as a ~m oflaw.
-2-
1 for the full extent ofthe loss,~i>~ telephoned Wawanesa to file a claim, expl»mne that the
2 Vehicle was being transported when it caught fire, and submitted the claim for r4m~oes. (See
3 Declaration ofMaafikiaa, Para 19, Exhibit F-1 and F-2, Declaration of Allen (filed by plainiM)
4 With the exposure to the politi>1 liabiTity of up to $ 50,000.00 or more, the claim was
5 immediately referred to the c1»ms adjustor s supervisor, and on April 26, 2012, was referred to
6 "SIU" as a fraudulent claim. W~~ refcned the m~~ to a Iuivate mvestientnr" who touts
7 his busiaess as "kaudulentc1»m~" investigation for insurance carriers, andtbea Wawanesatefused
8 to deal with Marry>i~n. directly, and raymsted Marr1i>~ to deal only with the "private
9 iavestigator" and Wawanesa s attorneys. ~i1fi~ did not wish to deal with contmwrs and
10 persons other than Wawanesa, as it was Wawanesa who had issued tbe policy. Wssran~ then
11 zefeaed the m~m to Mr. Doug Wood, an attonup,'ho ~1i~ in representinn insurance
12 companies, to conduct an "Fx»m~on Under Oath" of Mardiiian Mardiifian contin~ to
13 coolxnLte, submitting to the "F~»mmatloa Under Oath", providing Wau~~ donnnen~ and
14 responding to questions relating to the ~mmcQon. (Derjaratioa of Marrtitian).
15 With tepee to the purchase of the Vehicle, Mmrhtf » anted botmstly each question
16 asked ofhim, and the purchase donnments were reviewed. Mae4>~~ explained that in bis m~ be
17 purcbased the car when be completed bis performance under tbe contract, malrinc the final payment
18 on January 27, 2012, aad also explained that the Vehicle was not placed by the seller with the
19 sbilyeruatil February 14,2012. Mardi~~ nplied:
20 "Q. So as far you were concerned, when was it that you considered the purcbase-
considered yourself to have purdnsed the vehicle?
21 A. Right WeH, that's a question open for ink -t ~on.
-"~ The date the vehicle left the
dealer was February 14th. That's wbea nsk ofloss tran Som the dealer to the slnpIxr.
So I don't know ifyou want to consider that tbe date I took possession. I don't consider the
date I took possessioa until the date it arrived bere in South San Francisco.
Q. Okay. Let's take it one step at a time.
The date you agrcxxl with the seller that the car was yours, you purduLsed the car, when was
24
A. I would say January 27th.
Q. Why that date?
26
27 Mr. Douglas Wood, though an attorney, acted in the ~~ity of and as a cl»ms
tepresentative/adjustor with'respect to his mvcstilptioa" of the claim, before denial of the cLnm
28 it is the duty of the co~my to conduct
as insurance the ntve.aiydion of the cLum and to comply
with the requirements of the Insurance Code and Code of Regulations.
-3-
A. It's thepurchase date indicated on the documents.
Q. Which documents?
A. The Citi charge card."
Ex»ii~on Under Oath, 43:3-25
On July 30, 2012, Douglas Wood, Attorney wrote a letter to ManSkian which ~~
"Wauenesa General Insurance Company's previous oral notice to you of its decision to deny your
6
claim and rescind your entire policy effective February 22,2012, andre reasons fords decision".
7
The reasons given «nd the basis of denial and the teriii~on- the policy included allelyxl
8
concealment and mi~epmsenationof"3. The "purchase date" and The statenumt thatthe "purchase
9
10
date" was January 27 2012 beni'~ that was the date the credit card claaqle (payment) was ~.
According to Wawancsa, one becomes an "owner" of a Vehicle when an exccrrtury, but
11
uncompleted and unperformed con|ract is m t~- and rulprrdlcss of performance.
12
The evidence well establishes that Wawarlma not only breached the contract, but bre:ivied
13
the covenant of good fiuth aud Sir deiliiiu including, but not limited to, refusal and Wlinn to
14
maiiitain claim m»iial~ and prorxdures for a 5ur and good fiuth investigation of the c4iiii~
15
defined by California Insurance Code as impair cliiiiii~practices" (Declaration of Montie S. Day,
16
Para. 4), systematically ~miii~bias contracting ct~iiis adjustors, invesri~nrs, puqmtcd experts
17
and attorneys for the purpose ofrendering bias evaluations and opinions Qr the puqmse ofderrying
18
the clima (Declaration of Mariti~».—paras 14, 15, 24-25; Damnation of Montie S. Bay, Para. 6,
19
Declaration of hhucus ~iiigi,and most of all, not giving equal considerafion to the irrterest of
20
the insured as it does its own financial interest, a practice and policy admitted by Waar»~'s
21
22
m:dinner ofKciais. (See Declaration of Bganinng The ~ is tbat WiLmeugg~ has already been
found in bad Mh by a jury%a the same type of corlduct it displays in this case.
23
In this case, Wawancsa's breach of the coverrant ofgood 5ath and fiurdenlmi is continuing
24
in its litigation action and conduct, notwitli-'i~~iiii its coiitiiiiied duty to act in good hith. For
25
trample, Defeadant's counsel misreyreseatad to the Court that Pr~~ bad net mvealed ~
26
27
"USAA"policy during the cliiims process, m hcr a~~ti $1i, to ~ a Motion to Compel discovery.
Such fact was untrue and calculated to mislead the Court into gr - '~g her Motion (see Declaration
28
of Montie Day filed July 5, 2013). Tbe "co~~ of good hith and fur ~imp" contin ~ even
1 to this date, with the duties ofaproper investigation giving equal consideration to the itrterest ofthe
2 insured as is given to the insurer, and this covet of good faith continnes even through trial and
3 up to the time ofthe judgment. 8%te v. S'estern Title bmuance Company (1985) 40 CaL 3d 870.
IL INTRODUCTIONTO ARGUM>2fflS
5 The defendant brings essentially two motions, the first is on the "branch of contract", and
6 the second is on the "breach of the coven»t good faith and Mr dealing". 'Ibe aqpunents and
7 presentation of the defend»t is seriously flawed, and defendant knows this motion is merely a
8 continuance of the bad Mth conduct of the defendant toward tbe insured.
9 An automobile insurance policy is perhaps one ofthe most extteme mramples of contracts
10 of adhesion" that exist in today's society. Under the laws of each Rate in the United States,
11 including California, anyperson owning or operating a Vehicle ism»~~~ by~t'n language, the consumer, ifbe/she desues to nti>~e an autotnobile, is left with a "take it
22 or leave it" situation.
23 In Califonua, the Legislature as well as the Courts have reco~uzed that the public bas an
24 interest in Mr insuamce practices, and by both st im~ kom the jnsured. SiSerg v California Life lns. Co. p974) 11 CaL 3d
4$ 2, 460, 461.
17
'Ihe covenarC of good Mh is read into contracts and is part of the «Amtnu< Therefore, a
18 breach of the covenant ofgood Suth willalways tesult in a breach ofthe contract. Careau
«0 Co v. Security Pacijic Business Craft Inc. 222 C«rL App. 3d 1371
19
A party violates the co~nt ifit subjectively lacks belief in the validity ofits act or ifits
20 conduct is objectively unreteonable. Careaudc Co. v. SenuityPacificBNsinessCreditlnc.
222 CaL App. 3rd 1371; Canna Developers (California) Lac. V. Marthon Bevelopneent
21 CaliferrNo, Inc. P'ap. Court) 2 CaL 4h 342
The courts give cntpitasjstothe reasonable expectations ofthe insured and willlook beyond
the four corners of the policy to de~~ne whether the insurer is hable for bad %ash
conduct. "'la short, the insuree company may not ignore its insured and then seek
rr4sge in the See print ofits policy.'" ( Terzianv. Califonua Cas. Indent. Exch (1974) 42
24 CaL App. 3d 942, 9$ 0) Barmy v. Aetna CanaultyandS'ecurityCo., 19S$ CaL App. 3rd 966
25 Inthjs case, Wawancsawants this Court to djsrelprditsunethj«& andun~«ci~~ Iuat~
26 by ignorjng requuements of fajrncss and equhable claims settlement practices mam4terl by
27 California ~~(lns. Code Section 790.3), as well as any covenant ofgood 56th and Sar de iiig
28 imposed by the Supreme Court of the State of California. Mawanesa would Ike the Court to
1 ignore that it has no "claim manuals", a practice which is defined by Code ofhmuance Cade
2 Secxian 790.3 as an "un~r claimIuactice". The defendant would esse~»ly request this Court not
3 to consider that Wawxuxesa ~~e absolutely no attemixt to fairly investigate the claim, but ~
4 chose to deny the claim and attemla to noire Maxr4~~ to forgo and ahmdon the claim by its
5 pattern of unfair clima practices, and'gnored evidence which would support the claim,
immediately accusing Mardikian ofSaud withoutany fiIcts and even hiring purported investigators
~
6
7 to suggest Marxiitian Was guilty of alsgor axsoxL When tins j3ged, defendant used bias
8 experts, investigators and even attoxneys to improperly invesxI~e the claixxL This systexnic and
9 general bad faith practice of Wawanesa has not gone unnoticed and is docuxnented &om past
10 conduct.
11 In this case, the defendant Wssranesa desires the Court to also ignoxe the law regarding the
12 issue of"Owner", a tenn which is not d~~ed in the insurance policy. This case has a sINIIItIcant
13 impact upon consumers who regularly contract for the purclxase of automobBes and stiIIhave
14 no "ownership" of said automohne. >~~>»>y, Wawanesa's argument, ifacceptedby the Court,
15 would not be consistent with the common uxxdersx:~i~ of "ownership". The argument js
16 ridiculousand isa issue without any basis. Wawane.mdesixes this Court to conclude
17 that entering into an Exeeatory Contract is tbe same as Ownership and represents owxIen~x
18 ofproperty, not merely an executory contract to acquire an ownxmhip interest in the property, when
19 such is not the law and would disregard the common sense "incidents of owxMmhip" ofpmpexty.
20 The law~tm a distixxction with respect to the effect ofany contract, and specificaHy in Civil
21 Code Section 1661, provides thaL "An exccutccl contract is one, the object of which is fully
22 performaL Allothers are executory." It has been decided by the S~~me Court more than 100
23 years ago that one who enters into coalIxact with another whexeby it is agreed that he shall own
24 cextainpexsonalpxopertyonperlbxmanceofcertaincoxaditions has entered into "executoxycontxaet",
25 and aauxxhngly, has no complete ownership. either general or special m the property my by virtue
26 of contract until it is perfoxxned Carding v Bennett (1877) 52 Cal 476, 1877 Cal LEXIS 162
27 AMIxough the property in Cardinell was a "horse", a horse was the "vehicle" of the time, and the
28 distinctionbetweena "horse" and a "car" isnotxelevant. In December of2011, Man@~~ and Holt
MEbdO RE- OFPOQI ION 1Q b40lION fOR SIISA -7-
1 Auto Sales merely made an "executory contract" which was not completed by performance until
2 February 14, 2012.
IILARGUMIDllTS
4 A. rm; STANDARD FOR SUMMARYJUDG Y ADJUDICATION
5 The rules governing sruuunuy judpm~ are well establisherk. "A motion for sum~
6 judmnent shall be graxrted when'all the papers submitted show that thexe is no triable issue as to any
7 matenal Iact and that the moving party is entitled to ayutpn~r as a ~~ oflaw.'.." Hinesky v.
8 Qahhade Town Center (2005) 135 CaL App.4th 289, 294, rlxroting Code CivilProcedure Section
9 437c(c). As the moving party in the trial court, the Superior Courtbad "the burdenofpersuasion that
10 there is no triable issue of material bet and that [it was] entitled to judpnerrt as a matter of law.",
11 S. omitted. A moving defendant is entitled to judson~ as a ~~ of law when the defendant
12 shows without xebuttal that one ormoxe elements ofthe p»m>~s case cannot be established or that
13 there is a complete defense to the pt~~~s causes of action. ARnesky, supra, 135 CaL App.4th at
14 p. 294, citing Gur v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356. And, on appeal afar a
15 zuumuryjurlpuent has been grrrnted, we review de novo the trial court's decision to grant surummy
16 jin did not timdy ask to insure the Vehicle within 30 days
pursuant to the "Newly Acquired Auto" provision ofthe policy, and then claims that Marrliti~'s
position that he actually became the owner" on February 14, 2012 must 5uL Essentially, this
poses the same ques@on: When did hhmliii~n become the "owner" ofthe Vehicles This prescmw
both issues of law and fact, and the Sctmust be decided by the jury. Defend~ cites Allstate vs.
Chmn, (1969) 271CaLApp2d. 274, which ~~a:
12
the quesbon whelm a party xs the owner of a motor vehicle is a question ofAct to be
detenained by the trial court. (McClary v. Coned Ave. Motors, supra, 202 CaL App. 2d
564.) [8] The finding that 1"unothy China was the owner of the Plymouth automobile was
14
grounded upon substantial evidence that he paid for the car, took possession of it,and
considered it to be his..."
15
As such, the question of ownership" must be decided by a jury and caanot be resolved
16 Ji<~ent ~~nI'~1
via Motion for Shimmery as a matter of law Further, in the present case
evidence shows that as of Decemlar 20, 2011, the dealer had NOT yet received aay payment for
the car, ~i~an had NOT yet taken possession of the car, MatrliWan did NOT yet consicler it
to be his, aad Maudikian did not even have any "right to possession" on Deceiaber 20, 2011, as
'efendant Sdsely claims.
Wavvmma's second for ~~ jument is also shoctin~ly Sdse. The claim
~~
argument
22
is made that Wawanesa never the policy. While the defe~~ ~M~~~ to @wive the
'Court with this arguinent, Wauauma's sulnnitted d~~~ show that on July 30, 2012, Mr.
Douglas Wood sent an exterlslve letter fo Jg8frliHan satin~ and coafilmine in the first paralpgph
that "%lac purpose of this letter is to confir Wawanesa's previous oral notice to you of it'
decision to deny your chim and to rescind your entire Policy effective February 22, 2012, and the
reasons for that decisioa. (Def Exhibit 13, Page 13.1), quoting the policy laaymge under the
2S
1 ~«lima Wawareas is Entitled to Term~~ and/or Carw& the Policy." (Def Exhibit 13, Page
2 13.1) The Court can see Wawanesa's continued misrepre.asrtations and bad Mth conduct.
3 Though Mardilcian's right to "newly acquired vehicle benefits inception arose when he obnnncd
4 his Wawanesa policy in 2005, what Wawarma did was to "rescirmF'he contract "efFective
5 February 22, 2012", and did not "resume" all premiums paid by Mar«t«~~ Further Wawancsa
6 denied his claim for benefits under the policy for a loss that accuraxi on February 20, 2012, a
7 date on which there is no dislike the policy was in force. It is elementary that rescission" and
& "restitution" are part of the same ~n~ction.-
9 These are stark examples ofbad Saith, and thc Ssct is that the brasch of the cov«suLnt of
10 good Saith and Mr dealing can itself be a lnasch of a contract, even without a breach ofthe
11 contract. Thus the motion for s«~~ j«Mt~may not be directed at the entire action.
12 ~e Plaint ffagrees a breach of the contract of insuratxe does not auton~cally msult
13 in a breach of the covenant of good faith aud Mr «l~lm« it is well established that a breach of
14 the covenant of good faith and $ 6r ~~«wiI by itself always result in a breach of the
15 contract, even ifthe ~riiiea terms of the contract are completed. Therefore, its breach will
16 always result in a breach of the contract, although a breach of a consneual (i.e„an express
17 or implied-in-fact) contract tean willnot necessariljj constitute a breach ofthe co~nt FoEey
1& '. Interactive Data Corporation, 4? C. 3d 654. The same ccmduct does mt necessarily
19 result in a breach of both a«xmsenmjnl contract term and the implied cove3>ant of Inod Snth.
20 Schoolcraft v. Ross (197S) Sl CaL App.3d 74; 8 dkerson v. 8'eNs Fargo Bank (1989) 212 CaL
21 App.3d 121 7, 1230-1231; 8beppard v. Morgan Xeegan Ck Co. (1%8) 21S CaL App.3d 61.-
22, Careau «0 Co. v. Secunty Pacific Busineu CreditInc. 222 CaL App. 3d 1371
23 Thus, the breach of the cov~~ of good Mth and Sur 8«"-«l~~ is itself and ~~a«
24 alone, a "breach of the contract".
25 Seamd, it is alsowell established that a cause of action may lie for break of an implied
26 covenant of good Mth and Mr «i«-'««li««g in the alxence of a breach of the written ~pressed terms
27 of a «xneasct. In Schwartz v. State Farm Fire 4 Casualty Co. (2MI) 88 CaL App. 4th 1329, &e
2& Court held that the principle that no breach of the covenant of good faith and Snr «lealin~ can
1 occur ifthere is no coverage or potential for coverage under the policy is quite dia~~ fiom the
2 arguarent that no brarch of the implied cove~~ can occur ifthere is no breach of an express
3 corrtractual provision: "[B]reach of a sped6ic provision of the coatrrrct is not a necessary
4 prerequisite to a e4I~ for breach of the implied covenant of good faith and fair dealiIIN
5 [E]vcn an insurer that pays the fall hmits of its policy may be liable for breach of the
6 imphed covenant, ifhnproper ~IIII~ban~IcE~ causes deiriiIIent to the insured." Schwarz,
7 at p. 1339; accord, Carma Developers (Cal.), hre. v. khrathorr Development Culifornia, Inc.
8 (1992) 2 C. 4th 342, 373 ["breach of a specific provision of the contract is not a necessary
9 prerequisite" to an action for breach of the'implied covenant of good Mth; "[w]ere it otlrerwise,
10 the covenant would have no practical memIn> for any breach thereof would acxxssarily mvolve
11 breach of some other term ofthe contract"3, see also Ccueau dc Co. v.Security Pacific Brrsiness
12 Credit, Inc. (1990) 222 C. A. 3d 1371, 1395 [allegations ofbreach of the implied covenant of
13 good fiLithand fair dealing "must show that the conduct of the d~~~~r wbetlsx or aot it also
14 constitutes a breach of a consensr3al contract tenn, demonstrates a Mare or refiLsal to disc~sr
15 contractual respoasibilities"].
16 Accordingly, the entire action cannot be dismissed upon the Waw'nresIr s aq panerrts in
17 this case.
18 1) IHK TRUSS OF THE CO%I%ACT interpretation of the Contr.rct)
19 It is undisputed that the policy of insurance ~I>~ obtained in 2005 states Marrl»i~a
20 has and had 30 days after beco~~~ the Owner" to ask to insure a newly acquired vehicle, but
21 the term "owner" is aot defined in the corrtract, aor is there any guidance as to its ~n~ within
22, the policy. There is, however, law on the subject as would apply to this case, and there is
23 "corrunon sense."
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ORIGINAL 1 DAYLAWOFFICES Montie S. Day, ¹073327 2 Attorneys at Law SAN MATEO QbUNTY 1235 Casa Palermo Circle 3 Henderson, Nevada 89011 ~EP ) h ttIt3 4 Tel: (20$ ) 280-3766 F~~i>: msdayesqaol.corn «lt of Superior Court Attorney for PlaintiffGeorge Mariditisn By 5 C OEPUTY CLERK SUPERIOR COURT OF THE STATE OF C ORNIA COUN'F SAN MATEO 8 GEORGE INAIU3IIGAN, 9 CASENO. CIV517132 Plaintiff, MEMORANDUMOF LAWIN 10 OPPOSITIONTOMOTIONFORSUMMARY vs. FOR SUMMARYJUDGIVIENI'ND/OR 11 SUMNARYADJUDICATION WAWANESAGENERAI. ) 12 INSURANCE COMPANY, a ) corporation, and DOES 1 dmeugh 50, ) Date: October 8, 2013 13 inclusive, ) Time: 9:00 tLm. 14 Defendants. (limited Jurisdiction) Filed: October 3, 2012 Trial Date: November 12, 2013 16 17 1$ 19 20 21 24 26 27 2$ TASLK OF CONTENTS 3 1. INTRODUCTIONTO MOTION AND ESSENTIAL FACTS 4 IL INTRODUCTIONTO ARGUMENTS 5 IH. ARGUMIENTS A. THE STANDARD FOR SUMMARY IlDtMENTIB MMARY IUDIC IIO B. THE MOTION FOR SVl464ARY ON THE CONTRACT I) THE TEjRMS OF THE CON'IRACT gaterpretation of the Coatract) 10 2. THE APPLICABLE LAWON THE INSTANT 15 1RANSACTION 12 C. MOTIONFORSUMMARYADJUDICATIONOF 18 BAD FAITH 13 IV. CONCLUSION 20 14 15 TABLE OF AUTHORrrmS 16 Table of Cases 17 Aguilar v. Atlantic Eicigeld Co. (2001) 25 CaL4th 826 18 AIUIns. Co. v. Supevior Court (1990) 51 Cal3d 807 13 19 AIIstate vs. Chinn, (1969) 271CaLApp2d. 274 20 Bank ofthe 8'est v. Superior Court (1992) 2 CaL.4th 1254 12 21 Ehnmo v. Employers Life Ins. Co. (1972) 7 CaL3d 875 22 Barnry v. Aetna Casrtalty and Security Co., 1985 CaL App. 3rd 966 23 Blackwoodv. Cutting Packing Co., 76CaL 212 15 24 Brinkttrann v. Libertykhttual etc. Ins. Co. (196$) 63 C 2d 41 13 25 Buss v. Superior Court (1997) 16 C. 4th 35 26 Cardinell v. Bennett (1877) 52 Cal 476 27 7. Carr~au dc Co. v. Security Pacific Business Credit Inc. 6, 10,12 28 222 Cal App. 3d 1371 Carma Developers (California) Inc. V. Marathon Development California, lnc. P~. Court) 2 C 4h 342 6 Chateau Chamberay Homeowners Assn. v. Assoc~ed 19 Internat. Ins Co. P001) 90 CaLApp.4th 335 Community Redevelopment Agency v. Aetna Canialty &Surety Co. (1996) 50 CaL App 4th 329 . Continental Cas. Co. v. Phoenix Constr. Co. (1956) 46 CaL 2d 423 Delgado v. Heritage Life Ins. Co. (19S4) 157 CaL App.3d 262 12 Egan v. Mittual ofOnaahaIns. Co. (1979) 24 C 3d 809 12 Foley v. Interactive Data Corporation, 47 C 3d 654 10 10 Gray v. Zurich Insurance Co. (1966) 65 C.2d 263 Gus v. Bechtel National, Inc. (2000) 24 CaL4th 31 7 12 Guebara v. Allstate Ins. Co. (9th Cir. 2001) 237 F.3d 987 19 13 Hackethal v. ¹tional Casualty Co. (1987) 189 Cal App. 3d 1102 12 14 Hinesley v. Chahhade Town Center (2005) 135 CaL App 4th 289 15 Hobson v. Mutua/Betjefit H. &A. Assn. (1950) 99 CaL App. 2d 330 16 Moore v.American United Life Ins. Co (1984) 150 CaL App 3d 610 12 17 0 Xelky-Eccllas Co. V.State ofCalifonaia (195S) 160 CaL App. 2d 60 15 1$ Param4oaet Properties Co. v. Transamerica Title Ins. Co. (1970) .13 1 C.3d $62 19 Montrose Chemical Corp. v. Admirallns. Co. (1995) 10 C 4th 64$ 20 Rosenberg Bros. & Co. v. Becomes 56 Cal App. 212 1$ 21 Sdberg v. California Life Ins. Co. (1974) 11 C 3d 452 6 12 22 Sheppard v. Morgan Keegan & Co. (1990) 218 Cal App.3d 61 10 23 State Farm Fire & Camcalty Co. P001) 88 CaL App. 4th 1329 24 Schoolcraft v. Ross (1978) S1 CaL App.3d 74 10 25 Tertian v California Cas. Imknl. Ex'1974) 42 CaL App. Jd 942 26 H%te v. 8'estern Title Insurance Company(1985) 40 Cal 3d 870 5,13 27 5"ikhum v. Government Empkyees'Ins. Co. (1957) 48C 2d31 28 10 11 12 13 14 15 16 17 18 19 20 21 1 2 3 4 5 6 7 8 9 '0 8"clkerson CaL v. Table California Code Section Section Section Section Section Section IFellsFargo of Authorities 1661 California Insurance 790.03 Uniform Commercial 2019 2319 2401 2509 California Yeiucie Code Section 460 Miscellaneous Code California tudic:ial Counsel Marcus D. Benning v. Superior Case No. Court, County ofSan Bank(19S9) ofCivil Proced'ure 437c(c) California Civil Code Section Code 212 Jury Instruction I'awanesa 37-200S000SS5S5-CU-BC-CTL) lFitkin, Sumnuuy General Diego. of'Calijbrnia Law (Sales) CaLApp.3d 2337 Insurance P Ed) 1217 Company, P'rial Court only) 6,7 15 16, 16 16 14 1S 20 17 17 24 26, 27 '8 1 L ININOOOOtlON 0 OtlO AIIO IANIIIAL t OIL PlaintiR'Qeoqrp]4fggd»i» ( lgggdilii» or plaintifP) purchased an automobile ixLaxmice 3 policy&omthe defendant Wawanesa General Insuxaxsx, Company ("Wawanesa" or "defendant") on 4 or about August 2005. Marvel»i» performed all the terms and conditionsof thepolicypaying moxe 5 than $ 13,000.00 in pmniums over the years. Such policy was in effect as of February 20, 2012. -6 Wavnmesaissued the policy,'willfullyaccepted all pxemiumswhenpaidbyMaxrl»i» and obli~ed 7 itself to pexfoxm the terms and conditions of such policy, inch~~ the implied covenaxit of good 8 kithandfiur~li~~ andtopaythebencfits~~thepolicy. (DcciaxationofMaxxl»i» Para.7) 9 In December of2011, Mamh»i» who had been seaMi~~ and sxxlang to purchase a unique 10 vehicle, namely a 1964 Csdill~ Eldoxado 2 door comrertible (hexeinaSer xefiexxed to as the 11 "Vehicle+ evt'-~t ~lla ~ aunique buy onsuch avehicle 1he Vehicle was inthe midstof 12 xestoxation, with significant xestoxation costs aixeady innuxed, and many parts to complete the 13 xestoration were available Sum the seller. Max'»i» estim~ed that by spelwlinc ~~vximately 14 $ 4,000.00-6,000.00, the restoration could be completed, with the resulting Vehicle worth 15 ap~xim~ely $ 48,000.00. The seller, however, did not renli~ the uniqueness ofthe situation and 16 value of the Vehicle. 17 Maxdikixua, located in South San Fxaxxcisco, negotiated the puxclxase ofthe Vehicle, as well 18 as the restoration parts, fiom the seller, Holt Auto Sales, of Lansing, Micliipm A contract was 19 eaaicxcd into for the purchase ofthe Vehicle as weH as the paxts, which were pxsdxed within the car, 20 by agreeing to pay $ 1+20.00 for the "Vehicle", $2+$ 0.00 for the "Parts", and agxexiug tbat 21 shipping to South San Francisco thxough Holt wouldcostnomoxe than$ 1,125.00. The <~~ed 22 condition of the written contract was that "Allears are shipped P.OJL I~~ Ml". This was 23 material —asMaxxli>i» resided m South San Fxancisco and the Vehicle was 1~ in T~~nc ML 24 (Declaration of ~»i»-. Para. 5, aud 6. MarIII~IIwould, of course, as part of the contract, 25 have to pay for the costs of shipping, whme, under the expressed terms of the contract, ie 26 "P.OJL <~~~II~- Ml,Holt had to perform the contract by placing the Vehide in the hands 27 of the shipper. 'Ihe seller agreed to ship the carte M~h~IIin South San Francisco at a cost 28 of no more than $ 1,125.00. (Declaration of Maud»i» Para. 5) 1 The contractwas not performed" with respect to theseller'sob~~ untilFebruary 2 14, 2012 when the seller shipped" the Vehicle. Mat@»~ had, on January 27, 2012 ~e: final 3 payment to the seller, completing his perform under this executory coxxtract, such being in the 4 amount of $ 1,125.00, bxI~~~~ h4ardiii~n's acquisition costs to a total of ~25.00. ($ 1+20.00+ 5 ~80.00+ $ 1,125.00) . 6 Under the texxns of the Wawanesa insuxaxaa policy purchased in 2005, Maxdiiisn had 7 coverage for "newly acquired vehicles" and the policy provided that comprehensive coverage for a 8 "newly acquired auto" Qegi~ on the date you become the owner ifyou ask to insure itwitldn 9 "30 days aSer you become the owner." 10 Mm+>~. an attorney, beheved he berne the owner of the Vehieieon January 27,2012 11 when he completed his performance under the executory contract'n February 22, 2012, 12 pursuant to the terms of the policy, (and within 30 days of J~LI~ 27, 2012) hLudi~~ gave 13 Wawanesa timely notice ofthe "newly aatuixed vehicle", and asked to insure it (Declaration of 14 Manrh~~n-. Paxas. 5, 6, 7, and 8). The newly axxpxued vehicle was d~m~pxl in transit, aypucuuy 15 while being driven by the transport truck operator on Febxxxaxy 20, 2012 16 The vehicle eventually was shipped to South San Fran:iud. It was delivered to a xepair 17 shop. Plaintiff'btaixxed es~~~ for the repairs for the W~~m cxuxsed by the fire, the esti~~ 18 only to xestore it to the "pxe-fixe condition". These esxI~es total $26+98.66. 19 Plaintiffbelieved the seller, shiplm or other xesponsible parties would fullycover the losses. 20 Thus PlainxiR'believed there was no need to initiallysubmit a claim to Wawane.a. However, the 21 seIer Holt Auto Sales denied any responsibiTkty,poiniingoutl&MI~~ became the owner on 22 February 14 ~12, the date the Vehicle was phxeed m the hands of the shipper and tru~e 23 company. Acconfing to the seller, February 14, 2012 was the date that ownership and 24 xesponsibihty for the losstxansfexxed, as that was the date seller pexfaxnxed the texxnsof theccnxtract, 25 and the Vehicle was placed on the truck (shipper) per the purchase amtract.x 26 On March 29, 2012, having ddcxxaIined that no other party was going to take 27 28 'egally, he was wrong as the Vehicle was "F.O33. Lansing, Ml",disc ~ supra. This position is consistent with the intent ofthe contract, and is conaN as a ~m oflaw. -2- 1 for the full extent ofthe loss,~i>~ telephoned Wawanesa to file a claim, expl»mne that the 2 Vehicle was being transported when it caught fire, and submitted the claim for r4m~oes. (See 3 Declaration ofMaafikiaa, Para 19, Exhibit F-1 and F-2, Declaration of Allen (filed by plainiM) 4 With the exposure to the politi>1 liabiTity of up to $ 50,000.00 or more, the claim was 5 immediately referred to the c1»ms adjustor s supervisor, and on April 26, 2012, was referred to 6 "SIU" as a fraudulent claim. W~~ refcned the m~~ to a Iuivate mvestientnr" who touts 7 his busiaess as "kaudulentc1»m~" investigation for insurance carriers, andtbea Wawanesatefused 8 to deal with Marry>i~n. directly, and raymsted Marr1i>~ to deal only with the "private 9 iavestigator" and Wawanesa s attorneys. ~i1fi~ did not wish to deal with contmwrs and 10 persons other than Wawanesa, as it was Wawanesa who had issued tbe policy. Wssran~ then 11 zefeaed the m~m to Mr. Doug Wood, an attonup,'ho ~1i~ in representinn insurance 12 companies, to conduct an "Fx»m~on Under Oath" of Mardiiian Mardiifian contin~ to 13 coolxnLte, submitting to the "F~»mmatloa Under Oath", providing Wau~~ donnnen~ and 14 responding to questions relating to the ~mmcQon. (Derjaratioa of Marrtitian). 15 With tepee to the purchase of the Vehicle, Mmrhtf » anted botmstly each question 16 asked ofhim, and the purchase donnments were reviewed. Mae4>~~ explained that in bis m~ be 17 purcbased the car when be completed bis performance under tbe contract, malrinc the final payment 18 on January 27, 2012, aad also explained that the Vehicle was not placed by the seller with the 19 sbilyeruatil February 14,2012. Mardi~~ nplied: 20 "Q. So as far you were concerned, when was it that you considered the purcbase- considered yourself to have purdnsed the vehicle? 21 A. Right WeH, that's a question open for ink -t ~on. -"~ The date the vehicle left the dealer was February 14th. That's wbea nsk ofloss tran Som the dealer to the slnpIxr. So I don't know ifyou want to consider that tbe date I took possession. I don't consider the date I took possessioa until the date it arrived bere in South San Francisco. Q. Okay. Let's take it one step at a time. The date you agrcxxl with the seller that the car was yours, you purduLsed the car, when was 24 A. I would say January 27th. Q. Why that date? 26 27 Mr. Douglas Wood, though an attorney, acted in the ~~ity of and as a cl»ms tepresentative/adjustor with'respect to his mvcstilptioa" of the claim, before denial of the cLnm 28 it is the duty of the co~my to conduct as insurance the ntve.aiydion of the cLum and to comply with the requirements of the Insurance Code and Code of Regulations. -3- A. It's thepurchase date indicated on the documents. Q. Which documents? A. The Citi charge card." Ex»ii~on Under Oath, 43:3-25 On July 30, 2012, Douglas Wood, Attorney wrote a letter to ManSkian which ~~ "Wauenesa General Insurance Company's previous oral notice to you of its decision to deny your 6 claim and rescind your entire policy effective February 22,2012, andre reasons fords decision". 7 The reasons given «nd the basis of denial and the teriii~on- the policy included allelyxl 8 concealment and mi~epmsenationof"3. The "purchase date" and The statenumt thatthe "purchase 9 10 date" was January 27 2012 beni'~ that was the date the credit card claaqle (payment) was ~. According to Wawancsa, one becomes an "owner" of a Vehicle when an exccrrtury, but 11 uncompleted and unperformed con|ract is m t~- and rulprrdlcss of performance. 12 The evidence well establishes that Wawarlma not only breached the contract, but bre:ivied 13 the covenant of good fiuth aud Sir deiliiiu including, but not limited to, refusal and Wlinn to 14 maiiitain claim m»iial~ and prorxdures for a 5ur and good fiuth investigation of the c4iiii~ 15 defined by California Insurance Code as impair cliiiiii~practices" (Declaration of Montie S. Day, 16 Para. 4), systematically ~miii~bias contracting ct~iiis adjustors, invesri~nrs, puqmtcd experts 17 and attorneys for the purpose ofrendering bias evaluations and opinions Qr the puqmse ofderrying 18 the clima (Declaration of Mariti~».—paras 14, 15, 24-25; Damnation of Montie S. Bay, Para. 6, 19 Declaration of hhucus ~iiigi,and most of all, not giving equal considerafion to the irrterest of 20 the insured as it does its own financial interest, a practice and policy admitted by Waar»~'s 21 22 m:dinner ofKciais. (See Declaration of Bganinng The ~ is tbat WiLmeugg~ has already been found in bad Mh by a jury%a the same type of corlduct it displays in this case. 23 In this case, Wawancsa's breach of the coverrant ofgood 5ath and fiurdenlmi is continuing 24 in its litigation action and conduct, notwitli-'i~~iiii its coiitiiiiied duty to act in good hith. For 25 trample, Defeadant's counsel misreyreseatad to the Court that Pr~~ bad net mvealed ~ 26 27 "USAA"policy during the cliiims process, m hcr a~~ti $1i, to ~ a Motion to Compel discovery. Such fact was untrue and calculated to mislead the Court into gr - '~g her Motion (see Declaration 28 of Montie Day filed July 5, 2013). Tbe "co~~ of good hith and fur ~imp" contin ~ even 1 to this date, with the duties ofaproper investigation giving equal consideration to the itrterest ofthe 2 insured as is given to the insurer, and this covet of good faith continnes even through trial and 3 up to the time ofthe judgment. 8%te v. S'estern Title bmuance Company (1985) 40 CaL 3d 870. IL INTRODUCTIONTO ARGUM>2fflS 5 The defendant brings essentially two motions, the first is on the "branch of contract", and 6 the second is on the "breach of the coven»t good faith and Mr dealing". 'Ibe aqpunents and 7 presentation of the defend»t is seriously flawed, and defendant knows this motion is merely a 8 continuance of the bad Mth conduct of the defendant toward tbe insured. 9 An automobile insurance policy is perhaps one ofthe most extteme mramples of contracts 10 of adhesion" that exist in today's society. Under the laws of each Rate in the United States, 11 including California, anyperson owning or operating a Vehicle ism»~~~ by~t'n language, the consumer, ifbe/she desues to nti>~e an autotnobile, is left with a "take it 22 or leave it" situation. 23 In Califonua, the Legislature as well as the Courts have reco~uzed that the public bas an 24 interest in Mr insuamce practices, and by both st im~ kom the jnsured. SiSerg v California Life lns. Co. p974) 11 CaL 3d 4$ 2, 460, 461. 17 'Ihe covenarC of good Mh is read into contracts and is part of the «Amtnu< Therefore, a 18 breach of the covenant ofgood Suth willalways tesult in a breach ofthe contract. Careau «0 Co v. Security Pacijic Business Craft Inc. 222 C«rL App. 3d 1371 19 A party violates the co~nt ifit subjectively lacks belief in the validity ofits act or ifits 20 conduct is objectively unreteonable. Careaudc Co. v. SenuityPacificBNsinessCreditlnc. 222 CaL App. 3rd 1371; Canna Developers (California) Lac. V. Marthon Bevelopneent 21 CaliferrNo, Inc. P'ap. Court) 2 CaL 4h 342 The courts give cntpitasjstothe reasonable expectations ofthe insured and willlook beyond the four corners of the policy to de~~ne whether the insurer is hable for bad %ash conduct. "'la short, the insuree company may not ignore its insured and then seek rr4sge in the See print ofits policy.'" ( Terzianv. Califonua Cas. Indent. Exch (1974) 42 24 CaL App. 3d 942, 9$ 0) Barmy v. Aetna CanaultyandS'ecurityCo., 19S$ CaL App. 3rd 966 25 Inthjs case, Wawancsawants this Court to djsrelprditsunethj«& andun~«ci~~ Iuat~ 26 by ignorjng requuements of fajrncss and equhable claims settlement practices mam4terl by 27 California ~~(lns. Code Section 790.3), as well as any covenant ofgood 56th and Sar de iiig 28 imposed by the Supreme Court of the State of California. Mawanesa would Ike the Court to 1 ignore that it has no "claim manuals", a practice which is defined by Code ofhmuance Cade 2 Secxian 790.3 as an "un~r claimIuactice". The defendant would esse~»ly request this Court not 3 to consider that Wawxuxesa ~~e absolutely no attemixt to fairly investigate the claim, but ~ 4 chose to deny the claim and attemla to noire Maxr4~~ to forgo and ahmdon the claim by its 5 pattern of unfair clima practices, and'gnored evidence which would support the claim, immediately accusing Mardikian ofSaud withoutany fiIcts and even hiring purported investigators ~ 6 7 to suggest Marxiitian Was guilty of alsgor axsoxL When tins j3ged, defendant used bias 8 experts, investigators and even attoxneys to improperly invesxI~e the claixxL This systexnic and 9 general bad faith practice of Wawanesa has not gone unnoticed and is docuxnented &om past 10 conduct. 11 In this case, the defendant Wssranesa desires the Court to also ignoxe the law regarding the 12 issue of"Owner", a tenn which is not d~~ed in the insurance policy. This case has a sINIIItIcant 13 impact upon consumers who regularly contract for the purclxase of automobBes and stiIIhave 14 no "ownership" of said automohne. >~~>»>y, Wawanesa's argument, ifacceptedby the Court, 15 would not be consistent with the common uxxdersx:~i~ of "ownership". The argument js 16 ridiculousand isa issue without any basis. Wawane.mdesixes this Court to conclude 17 that entering into an Exeeatory Contract is tbe same as Ownership and represents owxIen~x 18 ofproperty, not merely an executory contract to acquire an ownxmhip interest in the property, when 19 such is not the law and would disregard the common sense "incidents of owxMmhip" ofpmpexty. 20 The law~tm a distixxction with respect to the effect ofany contract, and specificaHy in Civil 21 Code Section 1661, provides thaL "An exccutccl contract is one, the object of which is fully 22 performaL Allothers are executory." It has been decided by the S~~me Court more than 100 23 years ago that one who enters into coalIxact with another whexeby it is agreed that he shall own 24 cextainpexsonalpxopertyonperlbxmanceofcertaincoxaditions has entered into "executoxycontxaet", 25 and aauxxhngly, has no complete ownership. either general or special m the property my by virtue 26 of contract until it is perfoxxned Carding v Bennett (1877) 52 Cal 476, 1877 Cal LEXIS 162 27 AMIxough the property in Cardinell was a "horse", a horse was the "vehicle" of the time, and the 28 distinctionbetweena "horse" and a "car" isnotxelevant. In December of2011, Man@~~ and Holt MEbdO RE- OFPOQI ION 1Q b40lION fOR SIISA -7- 1 Auto Sales merely made an "executory contract" which was not completed by performance until 2 February 14, 2012. IILARGUMIDllTS 4 A. rm; STANDARD FOR SUMMARYJUDG Y ADJUDICATION 5 The rules governing sruuunuy judpm~ are well establisherk. "A motion for sum~ 6 judmnent shall be graxrted when'all the papers submitted show that thexe is no triable issue as to any 7 matenal Iact and that the moving party is entitled to ayutpn~r as a ~~ oflaw.'.." Hinesky v. 8 Qahhade Town Center (2005) 135 CaL App.4th 289, 294, rlxroting Code CivilProcedure Section 9 437c(c). As the moving party in the trial court, the Superior Courtbad "the burdenofpersuasion that 10 there is no triable issue of material bet and that [it was] entitled to judpnerrt as a matter of law.", 11 S. omitted. A moving defendant is entitled to judson~ as a ~~ of law when the defendant 12 shows without xebuttal that one ormoxe elements ofthe p»m>~s case cannot be established or that 13 there is a complete defense to the pt~~~s causes of action. ARnesky, supra, 135 CaL App.4th at 14 p. 294, citing Gur v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356. And, on appeal afar a 15 zuumuryjurlpuent has been grrrnted, we review de novo the trial court's decision to grant surummy 16 jin did not timdy ask to insure the Vehicle within 30 days pursuant to the "Newly Acquired Auto" provision ofthe policy, and then claims that Marrliti~'s position that he actually became the owner" on February 14, 2012 must 5uL Essentially, this poses the same ques@on: When did hhmliii~n become the "owner" ofthe Vehicles This prescmw both issues of law and fact, and the Sctmust be decided by the jury. Defend~ cites Allstate vs. Chmn, (1969) 271CaLApp2d. 274, which ~~a: 12 the quesbon whelm a party xs the owner of a motor vehicle is a question ofAct to be detenained by the trial court. (McClary v. Coned Ave. Motors, supra, 202 CaL App. 2d 564.) [8] The finding that 1"unothy China was the owner of the Plymouth automobile was 14 grounded upon substantial evidence that he paid for the car, took possession of it,and considered it to be his..." 15 As such, the question of ownership" must be decided by a jury and caanot be resolved 16 Ji<~ent ~~nI'~1 via Motion for Shimmery as a matter of law Further, in the present case evidence shows that as of Decemlar 20, 2011, the dealer had NOT yet received aay payment for the car, ~i~an had NOT yet taken possession of the car, MatrliWan did NOT yet consicler it to be his, aad Maudikian did not even have any "right to possession" on Deceiaber 20, 2011, as 'efendant Sdsely claims. Wavvmma's second for ~~ jument is also shoctin~ly Sdse. The claim ~~ argument 22 is made that Wawanesa never the policy. While the defe~~ ~M~~~ to @wive the 'Court with this arguinent, Wauauma's sulnnitted d~~~ show that on July 30, 2012, Mr. Douglas Wood sent an exterlslve letter fo Jg8frliHan satin~ and coafilmine in the first paralpgph that "%lac purpose of this letter is to confir Wawanesa's previous oral notice to you of it' decision to deny your chim and to rescind your entire Policy effective February 22, 2012, and the reasons for that decisioa. (Def Exhibit 13, Page 13.1), quoting the policy laaymge under the 2S 1 ~«lima Wawareas is Entitled to Term~~ and/or Carw& the Policy." (Def Exhibit 13, Page 2 13.1) The Court can see Wawanesa's continued misrepre.asrtations and bad Mth conduct. 3 Though Mardilcian's right to "newly acquired vehicle benefits inception arose when he obnnncd 4 his Wawanesa policy in 2005, what Wawarma did was to "rescirmF'he contract "efFective 5 February 22, 2012", and did not "resume" all premiums paid by Mar«t«~~ Further Wawancsa 6 denied his claim for benefits under the policy for a loss that accuraxi on February 20, 2012, a 7 date on which there is no dislike the policy was in force. It is elementary that rescission" and & "restitution" are part of the same ~n~ction.- 9 These are stark examples ofbad Saith, and thc Ssct is that the brasch of the cov«suLnt of 10 good Saith and Mr dealing can itself be a lnasch of a contract, even without a breach ofthe 11 contract. Thus the motion for s«~~ j«Mt~may not be directed at the entire action. 12 ~e Plaint ffagrees a breach of the contract of insuratxe does not auton~cally msult 13 in a breach of the covenant of good faith aud Mr «l~lm« it is well established that a breach of 14 the covenant of good faith and $ 6r ~~«wiI by itself always result in a breach of the 15 contract, even ifthe ~riiiea terms of the contract are completed. Therefore, its breach will 16 always result in a breach of the contract, although a breach of a consneual (i.e„an express 17 or implied-in-fact) contract tean willnot necessariljj constitute a breach ofthe co~nt FoEey 1& '. Interactive Data Corporation, 4? C. 3d 654. The same ccmduct does mt necessarily 19 result in a breach of both a«xmsenmjnl contract term and the implied cove3>ant of Inod Snth. 20 Schoolcraft v. Ross (197S) Sl CaL App.3d 74; 8 dkerson v. 8'eNs Fargo Bank (1989) 212 CaL 21 App.3d 121 7, 1230-1231; 8beppard v. Morgan Xeegan Ck Co. (1%8) 21S CaL App.3d 61.- 22, Careau «0 Co. v. Secunty Pacific Busineu CreditInc. 222 CaL App. 3d 1371 23 Thus, the breach of the cov~~ of good Mth and Sur 8«"-«l~~ is itself and ~~a« 24 alone, a "breach of the contract". 25 Seamd, it is alsowell established that a cause of action may lie for break of an implied 26 covenant of good Mth and Mr «i«-'««li««g in the alxence of a breach of the written ~pressed terms 27 of a «xneasct. In Schwartz v. State Farm Fire 4 Casualty Co. (2MI) 88 CaL App. 4th 1329, &e 2& Court held that the principle that no breach of the covenant of good faith and Snr «lealin~ can 1 occur ifthere is no coverage or potential for coverage under the policy is quite dia~~ fiom the 2 arguarent that no brarch of the implied cove~~ can occur ifthere is no breach of an express 3 corrtractual provision: "[B]reach of a sped6ic provision of the coatrrrct is not a necessary 4 prerequisite to a e4I~ for breach of the implied covenant of good faith and fair dealiIIN 5 [E]vcn an insurer that pays the fall hmits of its policy may be liable for breach of the 6 imphed covenant, ifhnproper ~IIII~ban~IcE~ causes deiriiIIent to the insured." Schwarz, 7 at p. 1339; accord, Carma Developers (Cal.), hre. v. khrathorr Development Culifornia, Inc. 8 (1992) 2 C. 4th 342, 373 ["breach of a specific provision of the contract is not a necessary 9 prerequisite" to an action for breach of the'implied covenant of good Mth; "[w]ere it otlrerwise, 10 the covenant would have no practical memIn> for any breach thereof would acxxssarily mvolve 11 breach of some other term ofthe contract"3, see also Ccueau dc Co. v.Security Pacific Brrsiness 12 Credit, Inc. (1990) 222 C. A. 3d 1371, 1395 [allegations ofbreach of the implied covenant of 13 good fiLithand fair dealing "must show that the conduct of the d~~~~r wbetlsx or aot it also 14 constitutes a breach of a consensr3al contract tenn, demonstrates a Mare or refiLsal to disc~sr 15 contractual respoasibilities"]. 16 Accordingly, the entire action cannot be dismissed upon the Waw'nresIr s aq panerrts in 17 this case. 18 1) IHK TRUSS OF THE CO%I%ACT interpretation of the Contr.rct) 19 It is undisputed that the policy of insurance ~I>~ obtained in 2005 states Marrl»i~a 20 has and had 30 days after beco~~~ the Owner" to ask to insure a newly acquired vehicle, but 21 the term "owner" is aot defined in the corrtract, aor is there any guidance as to its ~n~ within 22, the policy. There is, however, law on the subject as would apply to this case, and there is 23 "corrunon sense."