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November 14, 2005.


The opinion of the court was delivered by: JEFFREY WHITE, District Judge


Now before the Court is the motion filed by State Farm Mutual Automobile Insurance Company ("State Farm") for summary judgment pursuant to Federal Rule of Civil Procedure 56. Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the Court hereby GRANTS State Farm's motion for summary judgment. The Court finds this matter suitable for disposition without oral argument. Civil L.R. 7-1(b). Therefore, the hearing date of January 6, 2006 at 9:00 a.m. is HEREBY VACATED.


  This case concerns the denial by State Farm of a claim filed by its insured for the value of a 1998 BMW M3 coupe. Plaintiff claimed that his automobile, valued at $37,094, was stolen from a parking lot in Emeryville, California on January 27, 2002.

  Plaintiff's insurance policy with State Farm clearly stated that the insured was under a duty to "answer questions under oath when asked by anyone we name, as often as we reasonably ask, and sign copies of the answers." (Declaration of Wallace Lee ("Lee Decl."), Ex. 14 at 5.) In addition, under the terms of the policy, the insured was required to cooperate with State Farm and assist in "securing and giving evidence." (Id.)

  The evidence before the Court indicates that Plaintiff submitted to an initial examination under oath ("EUO") on August 21, 2002. (Declaration of Christopher L. Patton ("Patton Decl."), Ex. 21.) It is undisputed that after the initial examination, State Farm received materials from other sources which led to its conclusion that an additional examination was necessary. On March 12, 2003, State Farm sent a notice to Plaintiff requesting his attendance at a supplemental EUO on March 25, 2003. (Lee Decl., Ex. 12.) The letter was addressed to Plaintiff in care of his attorney. (Id.) Plaintiff contends that the letter was sent to the improper address and therefore, without notice of the request, Plaintiff could not be faulted for his failure to appear. (Opp. Br. at 1, 4-5; see also Declaration of Stephen P. Ellingson, Ex. 35.) However, the undisputed evidence demonstrates that Plaintiff's counsel received the letter as he responded to it directly and enclosed a copy of the March 23, 2003 letter in his response. (Patton Decl., Ex. 23.)

  In addition, there are numerous letters between Plaintiff and State Farm in which State Farm repeatedly discussed rescheduling the examination. (See Patton Decl., Ex. 23 (letter dated March 20, 2003 in which Plaintiff's counsel requests delay in scheduling the examination without proposing certain dates); Declaration of Greg Seidenberg ("Seidenberg Decl."), Ex. 9 (letter dated May 2, 2003 in which State Farm reiterates request for examination); Patton Decl., Ex. 24 (letter dated July 1, 2003 in which State Farm reiterates its request for a second examination); Seidenberg Decl., Ex. 10 (letter dated July 10, 2003 in which State Farm reiterates its request for the examination and indicates that Plaintiff's counsel schedule the examination); Patton Decl., Exs. 25, 26 (letters dated July 25, 2003 and August 11, 2003 from State Farm requesting rescheduling of the examination).) The undisputed evidence in the record indicates that Plaintiff's counsel responded to State Farm's requests for additional documents but did not offer any available dates for the second examination as requested. (See Patton Decl., Ex. 27.) Again, State Farm sent additional letters to Plaintiff's counsel requesting dates for the scheduling of the EUO. (Patton Decl., Ex. 28 (letter dated September 24, 2003 in which State Farm reiterates request to reschedule conclusion of EUO); Declaration of Chris Mauntz, Ex. 17 (letter dated October 28, 2003 in which State Farm requests that Plaintiff's counsel contact State Farm to discuss the requested EUO).)

  Despite numerous requests, Plaintiff never appeared for the requested EUO and was not made available to discuss the discrepancies of his former testimony, the documentary evidence compiled by State Farm and the testimony of newly discovered witnesses. On January 27, 2004, State Farm denied Plaintiff's claim on the basis that he had failed to cooperate with the investigation and that he had made material misrepresentations during the investigation of his claim. (Lee Decl., Ex. 13.)


  A. Legal Standard on Motion for Summary Judgment.

  A principal purpose of the summary judgment procedure is to identify and dispose of factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). Summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "In considering a motion for summary judgment, the court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

  The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A fact is "material" if it may affect the outcome of the case. Id. at 248. If the party moving for summary judgment does not have the ultimate burden of persuasion at trial, that party must produce evidence which either negates an essential element of the non-moving party's claims or that party must show that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party meets his or her initial burden, the non-moving party must go beyond the pleadings and, by its own evidence, "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

  In order to make this showing, the non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). In addition, the party seeking to establish a genuine issue of material fact must take care to adequately point a court to the evidence precluding summary judgment because a court is "`not required to comb the record to find some reason to deny a motion for summary judgment.'" Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (quoting Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1418 (9th Cir. 1988)). ...

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