The opinion of the court was delivered by: John A. Mendez United States District Court Judge
ORDER TO GRANT MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS ALAMEDA
Date: December 7, 2011 Time: 9:30 a.m. Place: Courtroom 6
Judge: Hon. John A. Mendez
Date Action Filed: February 17, 2010
Trial Date: March 12, 2012
This matter comes before the court on the Rule 56 Motion for Summary Judgment 15 (ECF #73) filed by defendants Alameda Associates Insurance Agency, Inc., and Rick Verne 16 McKinley (hereafter referred to collectively as "AAIA"). Plaintiff Energy 2001, Inc., filed 17 written opposition to the motion, and AAIA filed a written reply. A hearing on the motion was 18 calendared for 9:30 a.m. on December 7, 2011, with the Hon. John A. Mendez, District Judge, 19 presiding.
Factual and Procedural Background
In this action, plaintiff's Second Amended Complaint (ECF #48) alleges two claims 22 against AAIA. In a Fourth Cause of Action, entitled "Negligence," plaintiff alleges that AAIA 23 has breached an insurance broker's professional duty of care, in that AAIA owed to plaintiff an 24 alleged duty to obtain insurance coverage sufficient to cover a loss that plaintiff suffered on 25
August 8, 2008, and that AAIA failed to do so. In a Second Cause of Action, entitled "Breach 26 of Oral Contract," plaintiff alleges that AAIA breached an oral agreement to obtain insurance 27 coverage sufficient to cover that same August 2008 loss. Plaintiff's Breach of Contract claim 28 depends inter alia on the theory that it fell within the scope of AAIA's professional duty of care 2 to obtain such insurance. It follows that plaintiff's breach of contract claim necessarily depends 3 on the same factual showing regarding the scope of that duty as its negligence claim. 4
Plaintiff chose not to designate a standard of care expert within the July 1, 2011, 5 deadline that this court set in its Status (Pre-trial Scheduling) Order (ECF #24), or at all. AAIA 6 contends that California law requires the opinion evidence of a standard of care expert to sustain 7 plaintiff's claim of professional negligence, and that in the absence of such evidence plaintiff's 8 negligence claim must fail as a matter of law. 9
AAIA contends that plaintiff's claim for breach of contract claim must fail for the same 10 reason: that this claim necessarily depends on the theory that AAIA owed to plaintiff a 11 professional duty of care to procure insurance coverage sufficient to cover plaintiff's August 12 2008 loss. AAIA therefore contends that plaintiff's breach of contract claim must likewise fail 13 as a matter of law.
AAIA contends further that plaintiff's claim for breach of contract depends, in addition, on the theory that AAIA expressly agreed to research and procure the correct amount of insurance and appropriate insurance coverages to ensure plaintiff for any and all conceivable losses that were insurable, but that plaintiff can submit no evidence in support of that theory.
To the contrary, AAIA contends that undisputed facts show that its agreement with respect to 18 plaintiff's business property was to obtain insurance coverage sufficient to satisfy plaintiff's 19 creditor, Caterpillar Financial, and that AAIA performed that agreement without exception 20 throughout its relationship with plaintiff.
Plaintiff denies plaintiff's contentions and contends that triable issues of fact remain, 22 sufficient to preclude judgment as a matter of law
AAIA has filed a written Objections to the Declarations Submitted by Plaintiff (ECF 25 #84-1). AAIA objects to paragraphs 3 and 4 of Declaration of Geoffrey O. Evers (pages 51 to 26 53 of ECF #83-2), on the ground that they are hearsay not within any exception. AAIA objects 27 to paragraphs 3 and 4 of Declaration of Laura McClellan (pages 54 to 57 of ECF #83-2), on the ground that they are hearsay not within any exception. ...