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Shadi Bishara, An Individual Dba v. Century Surety Company; Century Insurance Group; Procentury

April 6, 2011

SHADI BISHARA, AN INDIVIDUAL DBA
HAVANA SPORT BAR AND GRILL, PLAINTIFF,
v.
CENTURY SURETY COMPANY; CENTURY INSURANCE GROUP; PROCENTURY CORPORATION, AND DOES 1 TO 30, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Before the Court is a Motion for Summary Judgment ("Motion") filed by Defendant Century Surety Company ("Defendant"). After consideration of the papers in support of, and in opposition to, the Motion, the Court GRANTS Defendant's Motion.

I. PROCEDURAL HISTORY

On August 11, 2009, Plaintiff "Shadi Bishara d.b.a. Havana Sport [sic] Bar and Grill" ("Bishara" or "Plaintiff") filed a Complaint ("Complaint") in the California Superior Court for the County of San Bernardino, asserting claims for (1) declaratory relief;

(2) breach of contract, (3) bad faith denial of an insurance claim, and (4) breach of the implied covenant of good faith and fair dealing, arising out of an insurance coverage dispute. (See Doc. No. 1 (Not. of Removal), Ex. A.) On September 14, 2009, Defendant removed the action to this Court on the basis of the Court's diversity jurisdiction. (See id., ¶ 3.)

On December 17, 2010, Defendant filed its Motion for Summary Judgment for Partial Summary Judgment. (Doc. No.

19.) In support of its Motion, Defendant attached the following documents and exhibits:

1. Statement of Uncontroverted Facts ("SUF");

2. Declaration of H. Douglas Galt ("Galt Declaration");

3. Declaration of Michael C. Phillips ("Phillips Declaration");

4. Declaration of Rande L. Kaufman ("Kaufman Declaration");

5. Contract for Sale of Personal Property ("Ex. 1");

6. Articles of Incorporation for Havanas Inc.*fn1 ("Ex. 2");

7. Statement of Information (Havanas Inc.) ("Ex. 3");

8. Application for Seller's Permit (Havanas Inc.) ("Ex. 4");

9. Rialto Fire Department Report ("FIR");

10. Advanced Analysis, Inc., Report ("Ex. 6");

11. Commercial Insurance Application on ACORD Form 128 ("Ex. 7" or "ACORD Form");

12. Century Surety Group Liquor Liability Application ("Ex. 8" or "LLA");

13. Restaurant/Bar/Tavern/Nightclub Supplemental Questionnaire ("Ex. 9" or "Supplemental Questionnaire");

14. Century Surety Co., Policy No. CCP 55947 ("Ex. 10" or "Policy");

15. Sworn Proof of Loss from October 5, 2008, Fire*fn2

16. November 14, 2007, Richdon Metals Invoices ("Ex. 12");

17. January 12, 2010, letter to Mr. Witsoe, attorney for Bishara ("Ex. 13");

18. July 21, 2010, letter to Bishara ("Ex. 14");

19. July 21, 2010, letter to Havana's Inc. ("Ex. 15");

20. Deposition of Ashraf Swidan given in Swidan v. Allied Insurance Company on September 23, 2008 ("Swidan Dep.");

21. Ashraf Swidan Examination under Oath given on December 4, 2009 ("Swidan EUO");

22. Shadi Bishara Examination under Oath given on April 9, 2009 ("Bishara April EUO");

23. Shadi Bishara Examination under Oath given on December 4, 2009 ("Bishara December EUO"); and

24. April 2, 2010, Deposition of Richard Ragsdale ("Ragsdale Dep.")

On February 10, 2011, by stipulation of the parties, the Court permitted Plaintiff to file an Opposition by March 7, 2011, and Defendant to file a Reply no later than March 14, 2011. (Doc. No. 31.) On March 7, 2011, Plaintiff filed his Opposition. (Doc. No. 35.) In support of his Opposition, Plaintiff submitted the following documents and exhibits:

1. "Statement of Response to Uncontroverted Facts" ("SGI");

2. Declaration of Shadi Bishara ("Bishara Declaration");

3. Declaration of D. Scott Mohney ("Mohney Declaration");

4. Century Surety Group Liquor Liability Application;*fn3

5. Restaurant/Bar/Tavern/Nightclub Supplemental Questionnaire;*fn4

6. Page 4 of the ACORD Form, bearing Bates label CS 02557;*fn5

7. Notice of Cancellation, dated November 26, 2008 ("Ex. D"); and

8. Page 50 of the Swidan EOU.

On March 14, 2011, Defendant filed its Reply. (Doc. No. 37.)

II. LEGAL STANDARD

A motion for summary judgment shall be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party must showthat "under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson, 477 U.S. at 250.

Generally, the burden is on the moving party to demonstrate that it is entitled to summary judgment. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998); Retail ...


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