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Jacob Winding v. Allstate Insurance Company and Does 1 Through 25

October 31, 2011

JACOB WINDING, PLAINTIFF,
v.
ALLSTATE INSURANCE COMPANY AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS,
ALLSTATE INSURANCE COMPANY, COUNTER-CLAIMANT,
v.
JACOB WINDING, COUNTER-DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Presently before the court*fn1 is defendant and counter-claimant Allstate Insurance Company's ("Allstate") "Alternative Motion for Partial Summary Judgment/Summary Adjudication," which seeks summary judgment as to some of plaintiff's claims for relief alleged against Allstate, as well as plaintiff's request for punitive damages (Dkt. No. 60). Also before the court is a separate motion for summary judgment filed by Allstate, which pertains to Allstate's counterclaim.

The court heard this matter on its law and motion calendar on October 27, 2011. (Minutes, Oct. 27, 2011, Dkt. No. 104.) Attorney Dennis M. Campos appeared on behalf of Allstate. Plaintiff, who is proceeding without counsel, appeared and represented himself at the hearing.*fn2 The undersigned has considered the briefs, oral arguments, and appropriate portions of the record in this case.*fn3 For the reasons stated below, the undersigned sustains plaintiff's evidentiary objections in part, and overrules them in part. The undersigned also denies Allstate's request for judicial notice in its entirety. The undersigned ultimately recommends that Allstate's motion for partial summary judgment as to plaintiff's claims be granted in part and denied in part. Specifically, the undersigned recommends that Allstate be granted summary judgment as to plaintiff's insurance bad faith claim and the corresponding request for punitive damages, but that Allstate's motion be denied in all other respects. Finally, the undersigned recommends that Allstate's motion for summary judgment as to its counterclaim be denied.

I. BACKGROUND

A. Plaintiff's First Amended Complaint Plaintiff alleges that he is the owner of real property located at 1127 West Harding Way, Stockton, California 95203 ("Property"). (First Am. Compl. ¶ 6, attached as Ex. A to Notice of Removal, Dkt. No. 1.) He further alleges that Allstate solicited and provided general homeowner's insurance coverage for the Property under policy number 00924347169 ("Policy"), with a coverage period of August 2007 through August 2008. (Id.) Plaintiff alleges that the Policy insured him against loss or damage to the Property and its contents caused by theft or vandalism. (Id. ¶ 7.)

Plaintiff alleges that on or around July 12, 2008, the Property was subjected to theft and vandalism through no fault of plaintiff. (First Am. Compl. ¶ 10.) He alleges damages and loss to items including the "cabinets, fixtures, floor covering, plumbing, an HVAC system, sinks, refrigerator, stove, appliances, sprinkler system, and paint." (Id. ¶ 11.) Plaintiff further alleges that he repaired or replaced these items at a total cost of $114,816.44. (Id.)

Plaintiff alleges that he submitted a claim to Allstate on or around July 12, 2008, and made good faith efforts to cooperate with Allstate in regards to the investigation, adjustment, and settlement of the claim from approximately July 12, 2008, through August 6, 2009. (First Am. Compl. ¶¶ 12-13.) He alleges that although "Allstate's claims representative acknowledged coverage and accepted liability for the claim under the Policy" and sent plaintiff a check in the amount of $15,704.85, Allstate nonetheless "failed to fairly and promptly investigate, adjust, and settle the claim." (Id. ¶¶ 14-15 (emphasis omitted).) Plaintiff alleges that Allstate created artificial obstacles to and requirements for settling the claim, that he was forced to retain an attorney, and that Allstate thereafter refused to communicate with his attorney. (See id. ¶¶ 15, 17-19.)

Plaintiff alleges that on August 6, 2009, Allstate sent plaintiff a letter denying full payment of the claim. (First Am. Compl. ¶ 20.) He alleges that Allstate refused to communicate with plaintiff after issuing the denial letter. (Id. ¶ 21.)

Plaintiff initiated this action in state court and filed the operative First Amended Complaint in the California Superior Court on December 8, 2009. (See Notice of Removal, Ex. A, Dkt. No. 1.)*fn4 Allstate removed the action to federal court on December 21, 2009, on the basis of this court's diversity jurisdiction. (Id.)

Plaintiff alleges four claims for relief. In his first claim, plaintiff seeks declaratory relief in the form of a declaration of the parties' rights and obligations under the Policy with respect to plaintiff's claim thereunder. (See First Am. Compl. ¶¶ 23-25.) Plaintiff's second claim asserts that Allstate "breached the terms of the Policy by failing and refusing to pay" plaintiff the sums sought in connection with the insurance claim submitted by plaintiff. (See id. ¶ 28.) Plaintiff's third claim is for fraud, and is premised on allegedly false statements made by Jess Molina, Allstate's claims representative, that "Allstate had accepted liability for plaintiff's claim"; "Allstate would negotiate a fair and timely settlement of the amount of plaintiff's claim"; and "[t]hat plaintiff should proceed with making repairs to the Property because the insurer would promptly and fully reimburse him for the cost." (See id. ¶¶ 32-33.) Plaintiff's fourth claim is for "insurer bad faith," which is premised on Allstate's refusal to pay the claim despite accepting liability, Allstate's failure to negotiate in good faith, and Allstate's failure to communicate with plaintiff regarding the claim. (See id. ¶ 40.)

B. Allstate's Counterclaim

On March 7, 2011, Allstate filed its Amended Answer and Counterclaim with leave of court. (Am. Answer & Counterclaim, Dkt. No. 42; Order, Mar. 3, 2011, Dkt. No. 41.) Although the counterclaim is somewhat confusingly alleged, Allstate essentially alleges that plaintiff committed fraud that voided the Policy. (See Counterclaim ¶ 5.) Allstate alleges that plaintiff willfully concealed or misrepresented material facts concerning the insurance claim and that Allstate, in reliance on these misrepresentations or omissions, paid plaintiff more than $15,000 on the insurance claim. (Id. ¶¶ 1-2, 4.) Allstate alleges that "[a]s a result of the misrepresentations of plaintiff, under the policy, it is void and defendant is entitled to reimbursement of the funds paid to plaintiff." (Id. ¶ 5.)

II. LEGAL STANDARDS

Federal Rule of Civil Procedure 56(a) provides that "[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought." It further provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).*fn5 A shifting burden of proof governs motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting then-numbered Fed. R. Civ. P. 56(c). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Celotex Corp., 477 U.S. at 325); see also Fed. R. Civ. P. 56 advisory committee's notes to 2010 amendments (recognizing that "a party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact").

If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually exists. SeeMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate the existence of a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010), and genuine, i.e., "'the evidence is such that a reasonable jury could return a verdict for the nonmoving party,'" FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary judgment must support the assertion that a genuine dispute of material fact exists by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact."*fn6 Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party "must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252).

In resolving a motion for summary judgment, the evidence of the opposing party is to be believed. SeeAnderson, 477 U.S. at 255. Moreover, all reasonable inferences that may be drawn from the facts placed before the court must be viewed in a light most favorable to the opposing party. SeeMatsushita, 475 U.S. at 587; In re Oracle Corp. Sec. Litig., 627 F.3d at 387. However, to demonstrate a genuine factual dispute, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

III. ALLSTATE'S REQUEST FOR JUDICIAL NOTICE

Along with its reply briefs in support of the pending motions, Allstate filed a request for judicial notice (Dkt. No. 92). Offering no substantive argument and relying only a conclusory citation to Federal Rule of Evidence 201, Allstate requests that the court take judicial notice of the following facts:

1. In the Affidavit filed by plaintiff in opposition to the subject motions, plaintiff stated that he has paid $114,816.44 to make repairs. That is the amount stated in the estimate prepared by AYS Consulting, Inc., a copy of which is attached to the Supplemental Affidavit of Dennis M. Campos as Exhibit F.

2. Melinda Smith*fn7 is the principle [sic] of AYS Consulting, Inc. which became a licensed contractor in the State of California on July 7, 2008. See Exhibit G attached to the Supplemental Affidavit of Dennis M. Campos filed in support of the subject motions.

3. Melinda Smith and plaintiff Jacob Winding share an interest in a vessel which was the subject of an Admiralty action filed in this Court and it is requested that judicial notice be taken of Case No.: 10-CV-1916-JAM-EFB filed in the United States District Court, Eastern District of California.

(Req. for Judicial Notice at 1-2.) Plaintiff filed objections to Allstate's request for judicial notice (Dkt. No. 99).

In relevant part, Federal Rule of Evidence 201(b) provides that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

In regards to the first fact of which Allstate asks the court to take judicial notice, pertaining to the amount plaintiff claims to have paid for repairs as stated in an estimate, this fact is not the proper subject of judicial notice. Such a fact is plainly not "either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Accordingly, Allstate's request is denied as to this fact.

The undersigned denies Allstate's request that the court take judicial notice of the fact that Belinda Smith is principal of AYS Consulting, Inc. In support of its request, Allstate relies on a web page printout from the Contractors State Licensing Board. (See Campos Suppl. Decl., Ex. G, Dkt. No. 93.) At the outset, it is unclear why Allstate cannot simply argue the relevance or materiality of this evidence in connection with its motions. There is no material reason to consider this a "judicially noticeable" fact. In any event, the internet printout relied on by Allstate contains numerous disclaimers, including that "[d]ue to workload, there may be relevant information that has not yet been entered onto the Board's license database." (Id., Ex. G at 1.) Accordingly, the printout, and the facts derived therefrom, are not capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Therefore, Allstate's request is denied as to this fact.

Finally, the undersigned denies Allstate's request that the court take judicial notice of the fact that "Melinda Smith and plaintiff Jacob Winding share an interest in a vessel which was the subject of an Admiralty action filed in this Court," and the district court case from which that fact is derived.*fn8 As an initial matter, Allstate does not allude to a particular document filed in PNC Bank, N.A. v. Smith et al., 2:10-cv-01916 JAM EFB (E.D. Cal.), of which Allstate would have the court take notice. Nor does Allstate cite to a document from PNC Bank, N.A. v. Smith that establishes with certainty that Belinda Smith and plaintiff share an interest in a vessel. Instead, the only document filed in PNC Bank, N.A. v. Smith that is also appended to Allstate's counsel's supplemental declaration in this case consists of an application for relief and a memorandum of points and authorities that contain an attorney's arguments, not judicially noticeable facts. (See Campos Suppl. Decl., Ex. H.) Moreover, although the court may take judicial notice of records from other federal actions, see, e.g., Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995), it may not take notice of findings of fact in those other cases, see Wyatt v. Terhune, 315 F.3d 1108, 1114 & n.5 (9th Cir. 2003) ("[W]e have held that taking judicial notice of findings of fact from another case exceeds the limits of [Federal Rule of Evidence] 201."). Accordingly, Allstate's request for judicial notice is denied.

IV. PLAINTIFF'S EVIDENTIARY OBJECTIONS

In opposing Allstate's motions for summary judgment and partial summary judgment, plaintiff filed evidentiary objections that attack the declaration of Fred Satariano filed in support of Allstate's motions. (Pl.'s Evid. Objections, Dkt. No. 82; see also Satariano Decl., Dkt. No. 73.) Mr. Satariano is a former employee of the Code Enforcement Division of the City of Stockton, who investigated an October 17, 2007 complaint concerning the condition of the Property. (See Satariano Decl. ¶¶ 1-2.) Mr. Satariano declares that he visited or inspected the Property on several dates between October 26, 2007, and July 14, 2008. (See id. ¶¶ 3-4, 7-11.) The undersigned sustains one of plaintiff's evidentiary objections on the basis of Allstate's concession and overrules the remaining objections.

First, plaintiff objects to Mr. Satariano's statement that when he visited the Property on October 26, 2007, "[t]here was a partially dismantled HVAC unit on the roof of the house." (Satariano Decl. ¶ 3.) Plaintiff argues, in reliance on provisions of the California Code of Evidence-not the Federal Rules of Evidence-that Mr. Satariano's statement is irrelevant because plaintiff "has already stipulated that an old HVAC resided on the roof." (Pl.'s Evid. Objections at 2.) The undersigned overrules plaintiff's objection on the grounds that Mr. Satariano's statement is relevant and admissible under the Federal Rules of Evidence. In regards to Allstate's motion for summary judgment on its counterclaim, Allstate argues that plaintiff never installed a new HVAC unit prior to the date of the alleged theft, that an old HVAC unit remained on the roof after the theft, that plaintiff misrepresented to Allstate that he had installed a newer unit that was subsequently stolen, and that such misrepresentation voided the Policy. Mr. Satariano's statement tends to establish that an old HVAC unit was on the roof of the house prior to the date of the alleged theft, which is central to Allstate's argument in support of its counterclaim. It is of no matter that plaintiff purportedly "stipulated" to this fact.

Second, plaintiff objects on hearsay grounds to statements made by plaintiff's former tenants at the Property, which are restated in Mr. Satariano's declaration. The hearsay statements were made by tenants at the property on October 26, 2007, and concerned whether a new HVAC unit had been delivered to the house:

The tenants told me that there were extensive problems in the premises and that they were moving out. There was a partially dismantled HVAC unit on the roof of the house. I was told that a new unit had been delivered but that the air conditioner was taken back by the contractor because he was not paid. (Satariano Decl. ¶ 3.) Defendant concedes that "[t]he statement to Mr. Satariano by the tenants who were moving out reciting that a new air conditioning unit had been delivered but taken away by the contractor because he was not paid does constitute hearsay." (Allstate's Reply to Evid. Objections at 1, Dkt. No. 93, Doc. No. 93-1.) On the basis of Allstate's concession, plaintiff's objection is sustained.

Third, plaintiff objects to the numerous photographs appended to Mr. Satariano's declaration on the grounds that "[a]ll of the photos . . . presented are not of Plaintiff's property located at 1127 West Harding Way, Stockton [sic] California 95203." (Pl.'s Evid. Objections at 2.) At the hearing, plaintiff clarified his argument in part. He stated that his objection is primarily that Allstate did not attach to Mr. Satariano's declaration photographs showing all aspects of the Property, especially the entire roof of the house on the property. However, Allstate was entitled to choose which evidence it filed in support of its motions and was under no obligation to produce evidence to suit plaintiff's preferences. Plaintiff also stated at the hearing that some of the pictures are not actually of the Property, but was unable to identify which particular photographs are not of the Property. Without more from plaintiff, the undersigned overrules plaintiff's objection to the photographs taken by Mr. Satariano.

Finally, plaintiff asserts a conclusory objection to Mr. Satariano's entire declaration on the grounds that "Mr. Satariano's Affidavit are [sic] full of convulsionary arguments, hearsay statements, and unfounded self-serving declarations." (Pl.'s Evid. Objections at 2.) The undersigned overrules this generic objection, which lacks detail and argument supported by relevant legal authority.*fn9 In short, a party moving for summary judgment is entitled to rely on declarations of third party witnesses that are based on personal knowledge. See Fed. R. Civ. P. 56(c)(4).

V. ALLSTATE'S MOTION ADDRESSED TO PLAINTIFF'S CLAIMS

Allstate moves for partial summary judgment in regards to plaintiff's First Amended Complaint. Specifically, Allstate's notice of motion reflects Allstate's request for summary judgment as to plaintiff's: (1) breach of contract claim; (2) insurance bad faith claim; and (3) request for punitive damages. (Notice of Alt. Mot. & Alt. Mot. for Partial Summ. J. at 1-2, Dkt. No. 60.) Contrary to the notice of motion and motion, Allstate's memorandum of points and authorities also seeks summary judgment as to plaintiff's fraud claim. (See Allstate's Memo. ...


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