United States District Court, S.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT [DOC.
A. HOUSTON, UNITED STATES DISTRICT JUDGE
Russell Kane, originally filed a complaint in Superior Court
on November 27, 2017, asserting claims for breach of the
implied covenant of good faith and fair dealing, negligent
infliction of emotional distress and intentional infliction
of emotional distress. Plaintiff names United Services
Automobile Association (“USAA”) and Does 1
through 50 as defendants. Plaintiff alleges he was severely
injured in an automobile accident on August 15, 2013 and
opened an Underinsured Motorist (“UIM”) claim
with Defendant, with whom he had entered into a contract for
insurance, and Defendant refused to make an attempt to settle
the claim, and fraudulently and maliciously withheld benefits
due under the policy. Complaint ¶¶ 11, 16, 25, 48,
51, 56 (Doc. No. 1-2).
removed the action to federal court on December 28, 2017, and
later, filed a motion to dismiss the second cause of action
for negligent infliction of emotional distress and third
cause of action for intentional infliction of emotional
distress. Finding Plaintiff sufficiently alleges severe
emotional distress, the Court denied the motion as to the
claim for negligent infliction of emotional distress. The
Court granted the motion to dismiss the claim for intentional
infliction of emotional distress after determining
Plaintiff’s allegations of intentional conduct were
conclusory. Plaintiff was provided an opportunity to amend
the claim but did not do so. As such, the third cause of
action was dismissed.
December 10, 2018, Defendant filed a motion for summary
judgment, or in the alternative, partial summary judgment.
Later, Defendant filed an amended motion for summary
judgment. Plaintiff filed an opposition and Defendant filed a
reply. The parties appeared before this Court for a hearing
on the motion after which the Court took the matter under
August 15, 2013, Plaintiff was involved in a motor vehicle
accident with another driver who was determined to be at
fault for the accident. Jones Decl. ¶ 6, 7 (Doc. No.
22-4). Following his settlement with the other driver for his
insurance policy limit of $30, 000, Plaintiff filed a claim
for underinsured motorist bodily injury benefits pursuant to
an automobile policy issued by Defendant to Plaintiff. Jones
Dec. ¶ 9; Kane Decl. ¶ 6 (Doc. No. 25). Plaintiff
sent demand letters dated March 25, 2015 and June 11, 2015 to
Defendant seeking the policy limits. Jones Decl. ¶¶ 12,
16; Kane Decl. ¶ 7 (Doc. No. 24).
demanded binding arbitration and received an award of $30,
800 minus set off for disability payments on November 11,
2016, which was later reduced by the arbitrator to $25,
700.01 on December 22, 2016. Jones Decl. ¶ 18; Levy
Decl. ¶ 6 (Doc. No. 22-3); Laqua Decl. ¶¶ 23, 25
Exhs. 12, 14 (Doc. No. 22-2). Defendant issued payment of
$25, 700.01 to Plaintiff on January 9, 2017. Laqua Decl.
¶26, Exh. 15.
judgment is properly 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). Entry of summary judgment is appropriate
“against a party who fails to make a showing sufficient
to establish the existence of an element essential to that
party’s case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party moving for
summary judgment bears the initial burden of establishing an
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. Where the party moving for
summary judgment does not bear the burden of proof at trial,
as here, it may show that no genuine issue of material fact
exists by demonstrating that “there is an absence of
evidence to support the non-moving party’s case.”
Id. at 325. The moving party is not required to
produce evidence showing the absence of a genuine issue of
material fact, nor is it required to offer evidence negating
the non-moving party’s claim. Lujan v. National
Wildlife Fed’n, 497 U.S. 871, 885 (1990);
United Steelworkers v. Phelps Dodge Corp., 865 F.2d
1539, 1542 (9th Cir. 1989). “Rather, the motion may,
and should, be granted so long as whatever is before the
District Court demonstrates that the standard for the entry
of judgment, as set forth in Rule 56(c), is satisfied.”
Lujan, 497 U.S. at 885 (quoting Celotex,
477 U.S. at 323).
the moving party meets the requirements of Rule 56, the
burden shifts to the party resisting the motion, who
“must set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). Without specific
facts to support the conclusion, a bald assertion of the
“ultimate fact” is insufficient. See
Schneider v. TRW, Inc., 938 F.2d 986, 990-91 (9th Cir.
1991). A material fact is one that is relevant to an element
of a claim or defense and the existence of which might affect
the outcome of the suit. The materiality of a fact is thus
determined by the substantive law governing the claim or
defense. Disputes over irrelevant or unnecessary facts will
not preclude a grant of summary judgment. T.W. Electrical
Service, Inc. v. Pacific Electrical Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Anderson, 477 U.S. at 248).
making this determination, the court must view all inferences
drawn from the underlying facts in the light most favorable
to the nonmoving party. See Matsushita, 475 U.S. at
587. “Credibility determinations, the weighing of
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge, [when] ...
ruling on a motion for summary judgment.”
Anderson, 477 U.S. at 255.
argues Plaintiff’s causes of action for breach of the
implied covenant of good faith and fair dealing, and
negligent infliction of emotional distress fail as a matter
of law. Defendant also argues there is no evidence to support
the claim for punitive damages. Plaintiff opposes the motion.
Breach of the Implied Covenant of Good Faith ...