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LAW & MOTION TENTATIVE RULINGS
TUESDAY, SEPTEMBER 1, 2015 - 8:30 a.m.
COURTROOM 19 –Judge Arthur Wick
3055 Cleveland Avenue, Santa Rosa, CA 95403
Court Call is now available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. ** To set up Court Call- Please call them directly at (888) 882-6878.
1. SCV-245738 Liebling v. Goodrich:
This is on calendar for the Plaintiffs motion to strike Defendant Zuckerman’s answer to the Third Amended Complaint and Zuckerman’s cross-complaint. The motion is accompanied by a request for judicial notice. The Plaintiffs’ terse motion argues that Zuckerman’s answer should be stricken on account of the fact that the court, on March 7, 2014 issued an order deeming certain admissions admitted. The Plaintiffs premise the motion to strike Zuckerman’s cross-complaint on the fact that the court on August 1, 2012 dismissed an earlier cross-complaint filed by Zuckerman.
Zuckerman opposes the motion, arguing that the pleadings were “opened up” by the Plaintiffs filing an amended complaint with material changes. Further, Zuckerman argues that the Plaintiffs have failed to meet their burden on the motion. Zuckerman points out that the Plaintiffs did not seek judicial notice of the actual admissions that were admitted, only the order. Similarly, the Plaintiffs only sought judicial notice of the order dismissing the earlier cross-complaint.
The Plaintiffs’ motion is premised on CCP § 436(b), which provides: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper … Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”
Here, the Plaintiffs have simply failed to support their motion with any citation to legal authority that would entitle them to the relief they seek. Moreover, the Plaintiffs have failed to put sufficient documentary proof on the record that establishes that either the cross-complaint or the answer are subject to being stricken. The court surmises that the Plaintiffs contend that the answer may assert defenses and denials that are contrary to the admissions that were deemed admitted—but fails to provide the actual admissions that were admitted, or any analysis whatsoever. The court further surmises that the Plaintiffs are seeking to strike the currently filed cross-complaint on the basis of res judicata, or collateral estoppel; but again fail to provide any analysis of the application of those doctrines. Indeed, the Plaintiffs do not even cite either of those doctrines. The motion is unsupported by either evidence or citation to controlling legal authority.
Accordingly, the motion is denied in its entirety. Both requests for judicial notice are granted. The Defendant shall draft an order consistent with this ruling.
2. SCV-253746 Liquid Investments v. Lusardi:
This is on calendar for Defendant/Cross-Defendant Mancebo Corp.’s motion to determine good faith settlement pursuant to CCP § 877.6. The case involves alleged defects in the construction of a warehouse and office complex located in Sonoma County. Mancebo was a sub-contractor on the project, who performed rough and finish grading services. Macebo and the Plaintiff subsequently settled their dispute for $125,000. Further, the settlement calls for Mancebo to be dismissed from the Complaint and Lusardi’s (the GC) cross-complaint. This motion followed. The motion is uncontested.
Ordinarily, the elements that must be analyzed to determine the good faith of a settlement are discussed in detail in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal. 3d 488. If, however, a motion for good faith settlement is not contested, the court does not have to analyze the Tech-Bilt factors. (See City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261.) Here, the motion is uncontested and therefore the court need not analyze the Tech-Bilt factors. The moving party has filed a declaration indicating the basis for the determination of the settlement amount and a brief background of the case. (See Dec. Linn.)
Accordingly, the motion is granted in its entirety. The moving party shall draft an order consistent with this ruling.
3. SCV-255238 Vennes v. Hallengren:
Plaintiffs’ Motion to Continue Trial Call Date and Trial is granted. No appearances are required. All future appearance dates in this case are vacated. This matter is set for a Case Management Conference on November 12, 2015 at 8:30am in Department 19.
4. SCV-256196 Timmons v. Land and SCV-256255 Timmons v. Duclos:
This is on for Defendants Eugene Land, Marshall Bluestone, and Christine (Van Western) Land’s motions to dismiss for the Plaintiff’s failure to post security in Timmons v. DuClos et al., SCV 256255 and Timmons v. Land et al., SCV 256196. (CCP § 391.4.) The Defendants argue that the court ordered the Plaintiff to post security in the amount of $50,000 in SCV 256196 and $100,000 in SCV 256255, and he has failed to do so. The Defendants seek judicial notice of the orders declaring the Plaintiff a vexatious litigant, and the orders requiring security in the respective cases. This request is granted. The motions are unopposed.
CCP § 391.4 is clear and mandatory: “When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered furnished.” (CCP § 391.4 [emphasis added].)
Here, the court ordered the Plaintiff to furnish security, which he has not done. Consequently, due to the Plaintiff’s failure to provide security as ordered, the cases identified above are dismissed with prejudice. (CCP § 391.4.)
The Defendants are to draft orders consistent with these rulings.
5. SCV-256214 Lexington v. Gemini:
This is on calendar for Plaintiff Lexington Insurance Co.’s motion for summary adjudication. This is an insurance coverage dispute, where Lexington contends that Defendant Gemini Insurance Co. had a duty to defend and indemnify their mutual insured, AAA Energy. Lexington argues that Gemini failed to contribute to AAA’s defense in the underlying action. Lexington contends that Gemini is improperly relying on its “Continuous or Progressive Damages Claims” exclusion to deny coverage. Lexington argues that the issue presented is legal in nature, i.e. the interpretation of the insurance clause, and therefore amenable to summary adjudication. Moreover, Lexington contends that Gemini must prove that that there was no possibility of coverage—which it contends Gemini cannot.
Gemini opposes, arguing that a clear interpretation of the relevant exclusion relieved Gemini of any duty to defend AAA. Gemini argues that the damages from AAA’s allegedly defective work began prior to the August 7, 2009 policy date—and therefore Gemini had no duty to defend AAA. Gemini argues that evidence extrinsic to the allegations of the property owner conclusively establish that there was no possibility that the damages were covered. Gemini further argues that Lexington failed to establish a prima facie case.
In the present motion, Lexington has the initial burden of establishing a prima facie case showing a potential for coverage. (Montrose Chem. Corp. of Calif. v. Sup.Ct. (Canadian Universal Ins. Co., Inc.) (1993) 6 Cal.4th 287, 300, 304; see Vann v. Travelers Cos. (1995) 39 Cal.App.4th 1610, 1614.) Once Lexington makes the prima facie showing, Gemini must establish that there is no possibility the claim falls within coverage. (Montrose Chem. Corp. of Calif. v. Sup.Ct. (Canadian Universal Ins. Co., Inc.), supra, 6 Cal.4th at 300, 304; see Vann v. Travelers Cos., supra, 39 Cal.App.4th at 1614.)
Insofar as the complaint in the underlying action is vague and ambiguous as to the timeframe of the damages caused aby AAA alleged negligence, Lexington has made its prima facie case for a “possibility” of coverage. (See Montrose, supra, at 298-301.) What is not veiled by the artful drafting of the complaint is the fact that the first formal claim against AAA occurred during Gemini’s policy period—further supporting Lexington’s initial burden.
As dictated by Montrose and its progeny, the burden now shifts to Gemini to establish that there was no possibility that the property owner’s claim falls within coverage. This burden, of course, is read in light of the well-known rules governing motions for summary adjudication. Thus, if there is a material issue of fact in dispute, Lexington’s motion must be denied.
The dispute involves the proper interpretation and application of Gemini’s “Continuous or Progressive Damages Claims” exclusion, which provides:
In the event of any claim against the insured…for property damage…which is or is alleged to be continuing in nature, this policy shall not apply to any such claim if the damage or any portion of it began or is alleged to have begun prior to the date of this policy becomes effective. This exclusion shall apply whether or not the cause of the alleged damages was known prior to the effective date of the policy.
[Gemini has] no duty to defend any insured against any loss, claim, “suit”, or other proceeding alleging damages arising out of or related to … “property damage” …to which this exclusion applies.
(Def.’s AUMF No. 8.)
Despite Lexington’s argument to the contrary, this motion does not present a pure question of law. The interpretation of the salient clause is straight forward—it is the application of the clause to the facts which are at issue. Here, Lexington submits evidence that it contends supports the conclusion that the damages in the underlying suit occurred after Gemini’s policy inception date. (Plain.’s UMF Nos. 14-17.) The evidence submitted by Lexington (and objected to by Gemini), however, does not prove that the cause of the damages alleged occurred prior to August 7, 2009. Indeed, the evidence submitted is in the form of letters between attorneys for the parties, and as such is objectionable as lacking foundation and inadmissible hearsay. (See Gemini Objs. Nos. 3, 6-7, 9, 11, 12, 14.) Indeed, Gemini in response submits evidence from expert’s reports in the underlying action which tend to demonstrate that the damages alleged to have been caused by AAA were due to “construction deficiencies dating from the original construction….” (Gemini, AUMF Nos. 4-5.) Gemini’s evidence disputes Lexington’s contentions that the damages were caused post August 7, 2009. (Gemini AUMF Nos. 16-18, 21.) Directly on point is Gemini’s expert’s opinion that the buildings in question were subject to water intrusion damages due to AAA’s work as soon as the work itself was completed—well before August 7, 2009. (Id. at 21, 23.)
Lexington contends that such evidence is immaterial, as the question of coverage is determined by the facts known by Gemini at the time it denied coverage. The court notes that the Montrose court did not present such a binary test as suggested by Lexington. Indeed, Montrose explained that “that evidence extrinsic to the underlying complaint can defeat as well as generate a defense duty.” (Montrose, supra at 291.) Lexington submits evidence it contends demonstrates that Gemini dropped coverage due to the “landslide” claims, not the envelope claims. Lexington’s evidence is not so clear. The letter relied on by Lexington (Ex. G to the Lewis Dec.) suffers a similar obscuration as the property owner’s own complaint. The letter simply states that the “[d]amages were discovered in 2008….” Further, that same letter notes that AAA’s work on the subject property was “completed in 2003.” This would suggest that the denial of coverage stemmed not from the 2008 landslide, but rather from the fact that the damages were alleged to have been caused by negligent construction—and discovered prior to the inception of Gemini’s coverage. Further, Gemini points to the property owner’s own expert’s investigation of damages which commenced in March 2009, five months prior to the inception of Gemini’s coverage.
Accordingly, Lexington’s motion is denied. The parties’ respective requests for judicial notice are granted. Gemini’s evidentiary objections nos. 2, 3, 5-15, 17, 18 are sustained; the balance of Gemini’s evidentiary objections are overruled. Lexington’s evidentiary objections are overruled; Lexington’s motion to strike is denied. Gemini shall draft an order consistent with this ruling.
6. SCV-256870 Verrazono v. Gehl:
This is on calendar for Defendant Worthington Cab’s motion to quash service of summons for lack of personal jurisdiction. The Plaintiff has filed a notice indicating that he does not oppose the relief sought by Defendant Worthington Cab.
Accordingly, the motion is granted. The moving party shall draft an order consistent with this ruling.