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Bruce Newland et al v. Superior Court of Placer County

July 22, 2011

BRUCE NEWLAND ET AL., PETITIONERS,
v.
SUPERIOR COURT OF PLACER COUNTY, RESPONDENT; PROGRESSIVE MARATHON INSURANCE COMPANY, REAL PARTY IN INTEREST.



(Super. Ct. No. SCV18066)

The opinion of the court was delivered by: Blease , Acting P. J.

Newland v. Superior Court

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Petitioners Bruce and Jenne Newland seek mandate review of a commissioner's decision granting summary adjudication in favor of real party in interest Progressive Marathon Insurance Company (Progressive) on petitioners' punitive damages claim. (Code Civ. Proc., § 437c, subd. (m)(1).)*fn1

Petitioners brought this bad faith action against Progressive and others*fn2 following the denial of petitioners' automobile insurance claim. Petitioners' complaint alleged various causes of action and sought, among other things, punitive damages.

Progressive moved for summary adjudication on petitioners' punitive damages claim on the ground petitioners had "no evidence of conduct, knowledge or ratification by a Progressive 'managing agent.'" Petitioners "object[ed] to the appointment of a court commissioner to hear [the] matter for all purposes" and argued the motion was barred pursuant to section 437c, subdivision (f)(2), which prohibits a party from moving for summary judgment "based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." Alternatively, petitioners claimed triable issues of fact existed on the issue of punitive damages.

Commissioner Margaret Wells, the regularly scheduled law and motion bench officer at the Placer County Superior Court, overruled petitioners' objection to the appointment of a commissioner as untimely based on Placer County Local Rule 20.2(b) (rule 20.2(b)), which provides:

"When the regularly scheduled law and motion calendar is heard by a Commissioner, the parties must file written notice indicating whether or not they stipulate to the Commissioner. Failure to file such notice of stipulation or non-stipulation at least five (5) court days prior to the hearing date for the motion will be deemed a stipulation to the Commissioner for all purposes other than trial."

The commissioner explained that she had "been the regularly scheduled law and motion bench officer in this court since at least 2005," and she "ha[d] heard and decided several motions in this matter without any objection from either party." Accordingly, the commissioner found petitioners "are deemed to have stipulated to this Commissioner." The commissioner rejected petitioners' assertion that the motion was barred pursuant to section 437c, subdivision (f)(2) "as the issue raised in this motion was not raised in the earlier motion for summary adjudication . . . ." Finally, the commissioner granted summary adjudication on petitioners' punitive damages claim, finding that petitioners "failed to present any evidence that a managing agent of [Progressive] ratified, or even knew of, the alleged oppressive or malicious conduct by Investigator [Greg] Jackson or Claims Adjuster [Kelly] Dobbins."

Petitioners seek a writ of mandate. We granted an alternative writ to review the propriety of the order granting summary adjudication and stayed the proceedings pending filing of opposition and further order of this court.

Petitioners argue: (1) the summary adjudication order is void because "they did not stipulate to a court commissioner acting as a temporary judge for the specific matter as required," and rule 20.2(b) constitutes "an unconstitutionally overbroad delegation of judicial power"; (2) the motion was barred pursuant to section 437c, subdivision (f)(2) because it essentially was a renewal by Progressive of an earlier motion; and (3) summary adjudication was improper on the merits because Progressive failed to meet its burden of producing evidence to support its motion in the first instance, and petitioners raised triable issues of fact "concerning the involvement, concurrence and ratification of the claims decisions of the claims adjuster and special investigator by . . . the applicable 'managing agents.'"

We shall reject petitioners' first two arguments, but shall conclude that Progressive failed to meet its burden of showing petitioners' punitive damages claim had no merit. Accordingly, we will issue a peremptory writ of mandate directing the trial court to vacate its order granting summary adjudication of petitioners' punitive damages claim.

FACTUAL AND PROCEDURAL BACKGROUND

On September 11, 2003, Mr. Newland reported to Progressive that his family's 2001 S80 Volvo had been stolen from their driveway. He also advised Progressive that the car was locked and the alarm was set at the time the car was taken.

Petitioners' claim was assigned to Senior Claims Representative Kelly Dobbins. Dobbins' investigation of petitioners' claim disclosed that: the S80 Volvo was not a commonly stolen car; it had a computer chip inside the key that corresponded to a computer chip inside the ignition, meaning "you must have the key to steal the car"; there were two sets of keys to the car, both of which were accounted for; the car had been for sale at the time it was stolen; and petitioners' $1,350 monthly car payments ($750 for the Volvo and $600 for a second car) represented a large portion of their $6,000 monthly take home pay. Dobbins suspected "possible fraud" and requested assistance from the Special Investigations Unit (SIU). SIU representative Greg Jackson was assigned to petitioners' claim.

On September 22, 2003, the car was recovered. Jackson inspected the car and noted there were no visible signs of forced entry or ignition tampering. The front seats and speakers were missing, but the stereo, heating and air conditioning units, and air bags were intact. Mr. Newland suggested someone at Turner Volvo, the dealership from which they purchased the car, may have been involved in the theft because of the car's security system. Dobbins contacted Turner Volvo and learned the car came with three keys -- two standard keys and one valet key. Mr. Newland denied ever receiving a valet key.

On September 30, 2003, Jackson obtained recorded statements from petitioners. During his interview of Mr. Newland, Jackson told Mr. Newland the facts of the theft made no sense. Among other things, there was no evidence of forced entry, the keys were accounted for, and the stereo and air bags were intact. Jackson suggested that petitioners or one of their friends may have taken the car. Mr. Newland indicated he may have been mistaken about locking the car on the night it was taken. Jackson treated Mr. Newland in a "mocking [and] demeaning" manner, and appeared to get a "sick thrill out of the way he was treating [Mr. Newland]."

During his interview of Mrs. Newland, Jackson again suggested petitioners or one of their friends stole the car, which Mrs. Newland found very offensive. Jackson bullied Mrs. Newland, had a "cocky air about him," and invaded her personal space, which intimidated and humiliated her.

On October 2, 2003, Mrs. Newland advised Jackson that someone at Turner Volvo told her that they "would put the valet key in the wallet that holds the [owner's] manual" and suggested there may have been a valet key inside the glove box. The salesperson who sold petitioners the car recalled providing petitioners with three keys. He would never put a key in the glove box. ...


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