Martinez, Fernando vs. Fire Insurance Exchange

If FIE makes these respective showings, it need not make a separate showing that it did not deny plaintiff's claims in bad faith because that conclusion would necessarily follow from the first two showings.

"[A] moving defendant has two means by which to shift the burden of proof under the summary judgment statute: 'The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating ('disproving') an essential element of the plaintiff's cause of action.' [Citation.]" (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103 [236 Cal.Rptr.3d 128].)

If FIE carries its burden of production, it will cause a shift, subjecting plaintiff to "a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.)

Because plaintiff has failed to file any opposition, however, it necessarily follows that plaintiff cannot be deemed to have met such burden, and, therefore, if FIE carries its initial burden of production, it will necessarily establish entitlement to summary judgment.

Indeed, plaintiff's failure to have filed a separate statement that responds to each of the material facts contended by FIE to be undisputed may be deemed, itself, "a sufficient ground, in the court's discretion, for granting [FIE's] motion." (Code Civ. Proc., Sec. 437c, subd. (b)(3).)

FIE's showing 1. Plaintiff's policy(ies)

FIE submits that plaintiff's property was covered by a homeowner's policy issued by FIE that was in effect from July 11, 2024 until July 11, 2025, and it submits a copy of the policy.

The court notes, however, that one set of plaintiff's breach/bad faith claims are based on an alleged covered loss event on April 13, 2024, which precedes the policy period of the policy submitted by FIE.

The court additionally notes, however, FIE submitted requests for admissions that it sent plaintiff, which asked plaintiff to admit that an attached copy of a policy reflecting a policy period of June 3, 2023 to July 11, 2024 was his policy, and plaintiff admitted that it was.

Accordingly, the court concludes, based on plaintiff's discovery admission, that the copy of the policy attached to FIE's submitted requests for admissions is a copy of the policy that was in effect at the time of plaintiff's alleged covered loss event on April 13, 2024, and that the copy of the policy submitted by FIE as having been in effect for the policy period July 11, 2024 to July 11, 2025, was the policy in effect at the time of plaintiff's alleged covered loss event on October 23, 2024.

2. Kitchen Claim (10/23/2024 alleged loss) a. Submitted Facts

Under the policy as effective for the policy period July 11, 2024 to July 11, 2025, coverage is provided for water damage of covered property if the water results from "a sudden, abrupt, and accidental discharge, eruption, overflow, or release of water, other than a water - reverse flow, from within any portion of ... a plumbing system."

Coverage is not provided, however, for water damage from "a constant or repeating gradual or slow release of water, or the infiltration or presence of water over a period of time, regardless of the volume of water involved," and, similarly, coverage is not provided for "water, or the presence of water, over a period of time from any constant or repeating gradual or slow, seepage, leakage, trickle, collection, spray, or mist, infiltration or overflow of water from any source ... ."

FIE submits, based on the respective declarations of claims representatives Justin Norred and Megan Buchanan, and a declaration of its counsel, Robin Krutzsch, covering FIE's propounded discovery and plaintiff's responses, the following undisputed facts: Plaintiff submitted a claim on the alleged October 2024 leaking kitchen sink valve loss on October 29, 2024, and claims representative Buchanan reached out to plaintiff for documents and information regarding the claim.

Buchanan retained ServiceMaster to assist in inspection of the property, and an inspection was done on November 5, 2024. Buchanan, claims representative Norred, and a representative of Service Master inspected the property.

During inspection of the property, ServiceMaster checked for moisture but there was no moisture detected. Buchanan and ServiceMaster did not find any visible water damage in the interior of the property, including under the sink or in the adjoining cabinets and baseboard.

The bottom plate under the kitchen sink had been removed prior to the inspection and it appeared that a new drain line was installed, but there was no evidence of the cause of the loss or of a sudden escape of water.

Buchanan requested additional information from plaintiff's counsel, who provided their consultant reports, photographs, and estimates for review, but the reports and photographs did not show evidence of a sudden release of water.

Buchanan denied the claim because the inspection revealed no damages or moisture and because plaintiff failed to provide information revealing damages or moisture.

FIE additionally submitted discovery demands inquiring as to facts supporting liability by FIE. FIE asked plaintiff for all facts, persons with knowledge, and documents supporting his claims.

Plaintiff produced inspection reports, photographs, estimates, and invoices from plaintiff's consultants, Prime Restoration CA LLC and Global Estimates Inc., but these estimates and inspection reports did not reveal evidence of a covered loss or a covered occurrence.

Plaintiff's responses did not identify particular property damage claimed as a covered loss or identify the cause of any property damage that could be considered a covered occurrence under the terms of his policy.

Plaintiff admitted at deposition that he had not noticed a leak under his sink before his counsel's consultants inspected his home, and he did not have any information about the cause of the leak under his sink.

b. FIE makes a sufficient prima facie showing as to both claims relating to the October 2024 incident and establishes entitlement to summary judgment.

FIE made both (a) a sufficient prima facie showing negating that plaintiff suffered a covered loss resulting from "a sudden, abrupt, and accidental discharge, eruption, overflow, or release of water ... from within any portion of ... a plumbing system"; and (b) a sufficient prima facie showing of discovery responses revealing that plaintiff does not have and cannot reasonably obtain evidence that he suffered such a covered loss.

FIE additionally made a sufficient prima facie showing negating that FIE failed to properly investigate plaintiff's claim.

Because plaintiff necessarily fails to carry his burden to show the existence of a triable issue of material fact, FIE is entitled to summary judgment on the breach and bad faith causes of action with respect to the October 2024 allegedly covered loss.

3. Roof Claim (4/13/2024 alleged loss) a. Submitted Facts

Under the policy as effective for the policy period June 3, 2023 to July 11, 2024, water damage is covered when entry of the water to the covered structure is caused by wind.

Water damage incident to construction defects, latent defects, wear and tear, and lack of maintenance and the failure to make repairs, however, is not covered under the policy.

Plaintiff submitted a claim on the alleged April 2024 wind/roof/water loss on November 4, 2024.

The same day Buchanan, Norred and ServiceMaster inspected the property in connection with the October 2024 kitchen valve leak claim they inspected the property in connection with the April 2024 wind/roof/water loss claim.

Norred did not find signs of wind damage. He found areas of staples through the roof shingles and a section roll roofing on a slope over the shingles, which were attributed to faulty workmanship.

The roof also showed signs of wear and tear. Norred found that any rainwater damage would have resulted from the compromised roof damages and, therefore, such damage would not be covered by the plaintiff's policy.

Plaintiff, through his counsel, requested reconsideration of the denial on or about February 19, 2025, submitting reports with their consultants' photographs of the roof, interior moisture readings, and cost of repair estimates, but the reports did not reveal evidence of covered roof damage or covered water damage, which required, under the terms of the effective policy, direct contact with water that results from rain entering the building structure due to wind.

FIE additionally submitted discovery demands inquiring as to facts supporting liability by FIE. FIE asked plaintiff for all facts, persons with knowledge, and documents supporting his claims.

Plaintiff produced inspection reports, photographs, estimates, and invoices from plaintiff's consultants, Prime Restoration CA LLC, Global Estimates Inc., and World Class Estimates, but these estimates and inspection reports did not reveal evidence of a covered loss or a covered occurrence.

Plaintiff's responses did not identify particular property damage claimed as a covered loss or identify the cause of any property damage that could be considered a covered occurrence under the terms of his policy.

Plaintiff testified at deposition that the only issue he was aware of with respect to his roof claim were holes that were made in the ceiling by his counsel's consultants as part of the investigation of the claim, which he had patched.

Plaintiff was unaware of any problems with his roof. Plaintiff was unaware of any damage to his home caused by wind.

b. FIE makes a sufficient prima facie showing as to both claims relating to the April 2024 incident and establishes entitlement to summary judgment.

FIE made both (a) a sufficient prima facie showing negating that plaintiff suffered a covered loss resulting from entry of the water to the covered structure caused by wind; and (b) a sufficient prima facie showing of discovery responses revealing that plaintiff does not have and cannot reasonably obtain evidence that he suffered such a covered loss.

FIE additionally made a sufficient prima facie showing negating that FIE failed to properly investigate plaintiff's claim.

Because plaintiff necessarily fails to carry his burden to show the existence of a triable issue of material fact, FIE is entitled to summary judgment on the breach and bad faith causes of action with respect to the April 2024 allegedly covered loss.

Conclusion

Because FIE makes a sufficient and unrefuted prima facie showing of entitlement to summary judgment as to each of plaintiff's claims, FIE's motion for summary judgment is granted.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary.

The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re: Miron, Sara vs. Porterville Lanes & Sports Center et al