Sandpebble Apartments v. Nevada Capital Ins. CA2/4 ( 2022 )

Filed 9/30/22 Sandpebble Apartments v. Nevada Capital Ins. CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SANDPEBBLE APARTMENTS, B315903
LLC,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.19STCV29373)
v.
NEVADA CAPITAL
INSURANCE COMPANY,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Monica Bachner, Judge. Affirmed.
Law Offices of Wallace C. Doolittle, Wallace C. Doolittle,
and James P. Downs for Plaintiff and Appellant.
Gladstone Weisberg, Gene A. Weisberg and Ronald
Anthony DiPietra for Defendant and Respondent.
Non-party Sand Pebble Village Apartment Homes, LLC
(Sandpebble 1) owned real property and insured that property
under an insurance policy issued by respondent Nevada Capital
Insurance Company (Nevada Capital). After the property
sustained damage in a fire, Sandpebble 1 sold the property to
appellant Sandpebble Apartments, LLC (Sandpebble 2),
purportedly assigning its interest in the insurance policy as well.
A dispute subsequently arose between Sandpebble 2 and Nevada
Capital over the payments Nevada Capital issued under the
policy. Sandpebble 2 ultimately sued Nevada Capital, asserting
causes of action for breach of contract and declaratory relief.
Sandpebble 2 alleged Nevada Capital failed to pay the full
amount Sandpebble 2 was owed under the insurance policy.
Nevada Capital moved for summary judgment on the
grounds that Sandpebble 2 was not a named insured under the
policy and neither the named insured, non-party Sandpebble 1,
nor Sandpebble 2 incurred repair costs in excess of payments
Nevada Capital made. The trial court overruled Sandpebble 2’s
objections to Nevada Capital’s separate statement and entered
summary judgment for Nevada Capital.
Sandpebble 2 contends the judgment must be reversed. It
argues that the trial court erred in overruling its objections to
Nevada Capital’s separate statement; Nevada Capital failed to
carry its burden of showing summary judgment was warranted;
and Sandpebble 2 demonstrated triable issues of material fact
regarding its status as an assignee or third party beneficiary of
Sandpebble 1’s insurance policy, the accuracy of Nevada Capital’s
payment calculations, and the propriety of Nevada Capital’s
withholding of a depreciation payment. Sandpebble 2 also seeks
to amend its operative complaint. We affirm the judgment.
2
FACTUAL BACKGROUND
I. Insurance Policy
Sandpebble 1 owned real property in Las Vegas, Nevada.
It insured the property between April 28, 2015 and April 28, 2016
with an insurance policy issued by Nevada Capital. The policy
identified Sandpebble 1 as the named insured, and Canon
Financial Services Inc. and Wells Fargo Bank as additional
insureds. Neither Sandpebble 2 nor its principal, manager, and
sole member, Dmitry Piterman, was mentioned anywhere in the
policy.
In the event the insured property sustained covered
damage, the policy gave Nevada Capital the option of paying the
value of lost or damaged property; paying the cost of repairing or
replacing lost or damaged property; taking all or part of the
property at an agreed or appraised value; or repairing,
rebuilding, or replacing the property with other property of like
kind and quality. The policy also provided that Nevada Capital
would determine the value of the covered property “[a]t
replacement cost without deduction for depreciation,” subject to
various conditions.
The policy also provided, “Your rights and duties under this
policy may not be transferred without our written consent, except
in the case of the death of an individual Named Insured.” The
policy defined “your” to refer to “the Named Insured shown in the
Declarations,” Sandpebble 1. It defined “our” as “the Company
providing this insurance,” Nevada Capital.
3
II. Fire Loss
On or about June 28, 2015, the property was damaged in a
fire. Sandpebble 1 tendered a claim to Nevada Capital on or
about the same day.1
III. Limited Assignment of Rights and Claims
Around the time of the fire, Sandpebble 1 was in the
process of selling the property. In support of its summary
judgment opposition, Sandpebble 2 filed a “Limited Assignment
of Rights and Claims” purportedly between Sandpebble 1,
Nevada Capital, and Piterman. According to that document, “the
sale was not complete, title had not passed, and escrow had not
closed prior to the Fire Loss.” In the Limited Assignment of
Rights and Claims, Sandpebble 1, Nevada Capital, and Piterman
recognized the need to “facilitate the continued adjustment and
the balance of the Fire Claims that would be potentially
recoverable by the Insureds [Sandpebble 1] under the terms and
provisions of the Policy had there been no sale of the Property.”
Citing the provision of the policy that required Nevada
Capital to consent in writing to the transfer of Sandpebble 1’s
“rights and duties under [the] policy,” the Limited Assignment of
Rights and Claims purportedly assigned to Piterman Sandpebble
1’s “rights to make claim [sic] and receive payment for
[Sandpebble 1’s] Fire Claims over the amount [Nevada Capital]
has already paid that would have been recoverable and collectible
by [Sandpebble 1] under the Policy terms had no sale of the
1 Although the operative complaint alleges the fire loss claim
was submitted “[o]n or about August 2014,” it is undisputed that
the fire and claim submission occurred during the effective term
of the policy, in or about June 2015.
4
Property taken place. . . .”2 The parties—Sandpebble 1, Nevada
Capital, and Piterman—further agreed that Sandpebble 1 and
Piterman “are responsible for paying vendors that perform actual
repairs, demolition, or restoration work upon the Property.”
They also agreed that “[t]his limited assignment does not confer
any status or standing as an insured or beneficiary under the
Policy to [Piterman] or to any other person or entity, or any right
or standing to sue [Nevada Capital], whether under theories of
contract, equity or tort, save and except the right to sue for
performance of the terms of this Agreement.”
Sandpebble 2 was neither a party to nor mentioned in the
Limited Assignment of Rights and Claims. The signature lines
for representatives of Sandpebble 1 and Nevada Capital indicated
that those individuals would be signing on behalf of their
respective corporate entities. Piterman’s signature line did not
mention Sandpebble 2 or indicate that he was signing on the
entity’s behalf. Piterman and a representative of Sandpebble 1
signed the Limited Assignment of Rights and Claims on
September 3, 2015. There is no signature by a representative of
Nevada Capital.
IV. Sale to Sandpebble 2
Sandpebble 1 sold the property to Sandpebble 2 on
September 28, 2015. Sandpebble 2 alleged in the operative
complaint that “[p]ursuant to the purchase agreement,
Sandpebble 1 assigned all its right [sic], title and interest in and
to the benefits of the policy and the claims loss to Sandpebble 2.”
Piterman declared the same in his declaration in support of
summary judgment. The purchase agreement was not provided
2 The parties agreed that Nevada Capital had paid “a total
sum of $0.00” at this point.
5
to the trial court at summary judgment and is not in the
appellate record.
V. Initial Repair Work and Payments
In December 2015, Belfor Property Restoration (Belfor)
issued an estimate to repair the property at a cost of
$1,298,025.88.3 Piterman signed the estimate and agreed to
unspecified terms contained therein. Belfor subsequently
commenced repair work on the property.
The cost of the repair work and the amount Nevada Capital
paid for it are disputed. These disputes are not material in light
of our ultimate conclusion that Sandpebble 1 did not assign the
insurance policy rights and benefits to Sandpebble 2. We note,
however, that the parties agreed that Nevada Capital issued
some payments to Piterman; Nevada Capital withheld
$245,803.11 for “depreciation”; and Belfor ultimately stopped
work, placed a lien on the property, and filed a lis pendens in
2017.
VI. Sale of Property, Final Repair Work, and Payments
It is undisputed that Sandpebble 2 sold the property to
non-party Wilshire Unlimited, LLC on or about May 18, 2018.
Wilshire Unlimited contemporaneously assigned its interest in
the property to non-parties Sandpebble Nevada LLC, CP
Sandpebble, LLC, and WU Nevada, LLC as tenants in common;
the parties refer to the latter entities collectively as the “Wu
Group.”
3 Sandpebble 2 asserted in its dispute facts, without
evidentiary support, that the estimate covered “building repair,
excluding demolition, asbestos removal, construction fencing, and
landscaping.”
6
The purchase and sale agreement, filed by Sandpebble 2
with its summary judgment opposition, recognized that some
rental units on the property remained “down” due to the fire.
Sandpebble 2 represented and warranted that the total cost to
complete repairs of the down units was approximately $700,000.
It further agreed that if the costs exceeded that amount, “Buyer
shall be credited against the Purchase Price an amount equal to
the difference between the . . . costs determined by Buyer to be
necessary to complete the Down Units and the Estimated Cost to
Complete. . . . In review of the current quote from Belfor, Seller
agrees to provide a credit of $155,013.10 at Closing.” 4
The purchase and sale agreement also contained a
provision regarding insurance proceeds. Sandpebble 2
represented and warranted “that insurance proceeds of at least
Three Hundred Thousand Dollars ($300,000.00) will be available
to Buyer in order to complete the Down Units.” Sandpebble 2
agreed to either assign those proceeds, or, if “written evidence of
the assignability of the insurance proceeds to Buyer from the
insurance company is not provided . . ., then upon the Closing,
Buyer shall receive a credit toward the Purchase[ ] Price equal to
Three Hundred Thousand ($300,000.00) (or the difference
between the Available Funds and the proof of funds delivered by
the insurance company that are available).” Sandpebble 2 and
4 The quote from Belfor was contained in a May 18, 2018
services agreement between Belfor and the Wu Group. The
agreement provided that Belfor would be paid $845,013.10 for the
remaining work. It is unclear why there is a $10,000 discrepancy
between the $155,013.10 credit provided in the purchase and sale
agreement and the $145,013.10 difference between the Belfor
contract amount and the $700,000 estimate contained in the
purchase and sale agreement.
7
the Wu Group contemporaneously signed a “cooperation
agreement” pursuant to which they agreed no insurance proceeds
would be assigned. Instead, Sandpebble 2 would provide a
$300,000 credit.
At the time of the sale to Wilshire Unlimited/Wu Group,
Sandpebble 2 and Belfor entered an agreement pursuant to
which Belfor agreed to release the lis pendens and remove the
lien in exchange for payment of $430,000. The $430,000 payment
to Belfor was made out of escrow when the sale of the property
closed. Belfor released the lis pendens and removed the lien a
few days later.
After the May 18, 2018 sale, Wu Group and its agents and
assignees issued checks to Belfor totaling $814,039.78. 5 The last
of these checks was dated March 21, 2019.
In January 2019, counsel for Sandpebble 2 emailed Nevada
Capital and requested additional payment in an unspecified
amount under threat of legal action. He attached Belfor’s
invoices from 2018, as well as evidence of payment, including the
credits and payments made when the property was sold to
Wilshire Unlimited/Wu Group. Nevada Capital refused.
PROCEDURAL HISTORY
I. Operative Complaint
Sandpebble 2 filed its initial complaint against Nevada
Capital and insurance agent B&B Premier Insurance Solutions
(B&B Premier) on August 19, 2019. Sandpebble 2 asserted
causes of action for breach of contract, breach of the covenant of
5 Sandpebble 2 asserts the checks totaled $889,306.01, but
this total includes one of the checks twice: a $75,276.23 check
dated November 27, 2018 and numbered 001292. It also contains
a $10.00 discrepancy.
8
good faith and fair dealing, and declaratory relief against Nevada
Capital, and a cause of action for negligence against B&B
Premier. After a series of demurrers was sustained with leave to
amend, Sandpebble 2 ultimately dismissed its negligence cause of
action against B&B Premier and filed a third amended complaint
against Nevada Capital only, on February 5, 2021.
The third amended complaint asserted only two causes of
action: breach of contract and declaratory relief. Sandpebble 2
alleged that Sandpebble 1 submitted a fire loss claim to its
insurer, Nevada Capital, in or about August 2014. It alleged that
it bought the property from Sandpebble 1 on or about September
28, 2015, and the purchase agreement “assigned all [Sandpebble
1’s] right, title and interest in and to the benefits of the policy
and the claims loss to Sandpebble 2.” It further alleged that “[a]t
all times material hereto, Sandpebble 2 was and is the assignee
and beneficiary of the entire insurance policy and all claims
rights [sic] that are the basis of this action.” Sandpebble 2
alleged that Nevada Capital authorized Belfor to repair the
property, but Belfor “stopped work for lack of payment, and
Nevada Capital withheld further disbursements to Belfor. At that
time, approximately $450,000 was still owed to Belfor.” It alleged
that it then sold the property on or about May 18, 2018, providing
a credit to Belfor for the outstanding amounts in the purchase
and sale agreement. It alleged that Nevada Capital represented
that it would pay Sandpebble 2 when the construction was
completed, but refused to do so, even after Sandpebble 2 provided
requested documentation.
Sandpebble 2 alleged that Nevada Capital’s refusal to pay
“for the final amounts paid to Belfor” was a breach of the
9
insurance policy. It asserted that the breach caused it damages
“in the amount of at least $388,999.27, calculated as follows:
“a. The original contract with Belfor was in the amount
of $1,298,000;
“b. $117,000 was charged by Belfor in addition to the
original contract amount for demolition and pre-contract charges,
which was paid directly to Belfor;
“c. Belfor issued a change order for code upgrades in the
amount of $225,334.65;
“d. Belfor later discounted the code upgrade change
order by $99,335.38;
“e. To date, based upon the documents provided by
Belfor and Nevada Capital, Nevada Capital has paid Plaintiff
$1,035,000 toward the building repairs, not including payments
made for loss of rent.”
In its second cause of action for declaratory relief,
Sandpebble 2 requested a “judicial determination that Nevada
Capital is obligated under the express and implied terms of the
Policies [sic] to reimburse Plaintiff with respect to the remaining
cost of the fire loss.”
II. Summary Judgment Proceedings
A. Motion
On March 24, 2021, Nevada Capital filed a motion for
summary judgment, or, in the alternative, summary
adjudication. Nevada Capital argued that the undisputed
material facts established that it did not owe additional policy
benefits because it paid more on the underlying insurance claim
than either its insured, Sandpebble 1, or Sandpebble 2 paid to
repair the property. Nevada Capital further argued that it had
no obligation to Sandpebble 2 because, even if Sandpebble 2 had
10
been assigned the policy benefits, that was insufficient to make it
an insured under the policy. Nevada Capital contended that the
declaratory relief claim was entirely derivative of the breach of
contract claim, and it was entitled to summary judgment for the
same reasons. Nevada Capital filed a separate statement and
numerous exhibits in support of its motion.
B. Opposition and Objections
Sandpebble 2 filed a brief opposing the summary judgment
motion, supporting exhibits, and a separate statement
responding to the facts set forth in Nevada Capital’s separate
statement. In its opposition brief, Sandpebble 2 argued that
Nevada Capital’s admission that it retained $245,803.11 in
depreciation alone precluded summary judgment. Sandpebble 2
further argued that its evidence showed “the repair cost to
Sandpebble was $1,439,405.28, plus amounts for asbestos
removal, construction fencing, demolition and code upgrade
change order,” but Nevada Capital only paid approximately
$1,035,000 toward the repairs.
Sandpebble 2 also contended summary judgment was
unwarranted because “Nevada Capital’s mathematical
calculations of the numbers and/or its grasp of the facts are just
plain wrong.” According to Sandpebble 2, the “true and accurate
facts” showed that Sandpebble 2 and Wu Group collectively paid
Belfor “$1,439,405.28, plus [unspecified] amounts for asbestos
removal, construction fencing, demolition and code upgrade
change orders that was [sic] outside the $1,298,025.88 and
$845,013.18 contracts. Nevada Capital has only paid
[Sandpebble 2] $1,035,000 toward the building repair under the
contract with Belfor. Plaintiff and the Wu [G]roup entered into a
cooperation agreement regarding completion of the repairs.
11
Plaintiff paid for the repairs through escrow. . . .” Sandpebble 2
reiterated its separately made objections to Nevada Capital’s
separate statement, and accused Nevada Capital of misleading
the court through “attempts to pin Plaintiff down by citing
Plaintiff’s responses to Nevada Capital’s interrogatories.” It
contended that it “later discovered [unspecified] proof and facts in
discovery from Nevada Capital and by subpoena from third
parties that were obtained after Plaintiff [sic] interrogatory
responses.”
Sandpebble 2 separately objected to Nevada Capital’s
separate statement as “contain[ing] improper argument and
misleading statements.” Though it objected to “undisputed facts
numbered 6-11, 13, 16-22, 25, 28, 32-38,” it included only the
following explanation of its grounds, omitting some listed
paragraphs while adding others: “6 (‘substantial payments’); 7
(combining all loss payments together and not addressing
building repair costs); 11 (completely misleading); 15 [sic]
(argument); 17 (argument); 19 (argument); 24 [sic] (argument
and misleading); 28 (argument); 34 (misleading); 35
(argumentative and misleading); and 36 (argumentative and
misleading).” The objections refer to “Objections to Evidence filed
herewith,” but no such document appears in the trial court docket
or the appellate record.
C. Reply and Objections
In its reply, Nevada Capital argued that any expenditures
by the Wu Group were irrelevant, because the “policy does not
afford any benefits based on the amounts that the Wu Group
paid.” It further argued that the alleged assignment of benefits
under the policy did not make Sandpebble 2 an insured under the
policy—but, even if it had, “Nevada Capital paid more towards
12
the repairs than Sandpebble 1 and Plaintiff, combined, ever paid,
even after considering the credits that Plaintiff provided to the
Wu Group.” Nevada Capital disputed that it breached the policy
by withholding the depreciation, because the insured, Sandpebble
1, did not pay more to repair the property than Nevada Capital
disbursed. Nevada Capital also filed evidentiary objections to
numerous statements made in the declarations Sandpebble 2
submitted in opposition to the summary judgment motion.
D. Hearing and Ruling
The court heard the motion on June 10, 2021 and took the
matter under submission. The appellate record does not contain
a reporter’s transcript of the hearing.
The court issued a written ruling on July 1, 2021. The
court first addressed the parties’ objections. It overruled
Sandpebble 2’s objections to Nevada Capital’s separate statement
as “improper,” because “the summary of evidence set forth in the
Separate Statement is not evidence subject to objection,” and
Sandpebble 2 did “not object to the cited evidence supporting
these facts to which Plaintiff has raised objections.” The court
sustained eight of Nevada Capital’s objections and overruled 10
others. Because neither party challenges the rulings on Nevada
Capital’s objections, facts with sustained objections were omitted
from the recitation above.
The court then considered the breach of contract claim. It
determined that Sandpebble 2 would have to establish three
elements to prevail: “(1) that plaintiff suffered a loss, all or part
of which was covered under an insurance policy with defendant;
(2) that defendant was notified of the loss as required by the
policy; and (3) the amount of the covered loss that defendant
failed to pay.” The court concluded that Nevada Capital met its
13
initial burden of showing that Sandpebble 2 could not establish
the first of these elements. Specifically, “Defendant submitted
evidence the Policy provides that the rights and duties of the
Named Insured shown in the Declarations, Sandpebble 1, may
not be transferred without Defendant’s written consent . . . .
Defendant submitted evidence it never consented to an
assignment of the Sandpebble 1 Policy to Plaintiff. Defendant’s
evidence establishes that Sandpebble 1, not Plaintiff is the
insured party under the Policy. As such, given Defendant is
required to pay the cost to repair in an amount not more than the
policyholder actually spent to repair the Property, any amounts
purportedly paid by Plaintiff or the subsequent purchaser the Wu
Group were not made by the policyholder. To the extent the
claim is based on amounts paid by Plaintiff (or the Wu Group),
any rights Sandpebble 1 had to seek such payments pursuant to
the Policy were not assignable to Plaintiff or the Wu Group
absent Defendant’s written consent, which was not provided.”
The court accordingly concluded that the burden shifted to
Sandpebble 2 to demonstrate a triable issue of material fact.
The court concluded Sandpebble 2 failed to meet its burden.
The court found Sandpebble 2 did not submit evidence supporting
its allegations that it was an assignee or beneficiary of the policy,
or refuting Nevada Capital’s evidence that Sandpebble 1 was the
named insured and Nevada Capital did not provide the written
consent required for Sandpebble 1 to assign the policy. The court
further concluded that the Limited Assignment of Rights and
Claims did not create a triable issue of material fact, “because, by
its terms, it is between Sandpebble 1 as ‘Insureds’ and non-party
[Dmitry] Piterman (‘Piterman’) as ‘Buyers’ along with Defendant
as the insurance company, and Plaintiff is not a party to the
14
Assignment.” The court added that the Limited Assignment of
Rights and Claims was not signed by Nevada Capital, “and as
such, there is no triable issue of fact as to Defendant’s evidence it
did not sign or consent to any assignment of Sandpebble 1’s
rights and duties under the Policy.”
In light of the above, the court declined to reach Nevada
Capital’s arguments “relating to: (1) whether Plaintiff can
present evidence the costs incurred to repair the Property
exceeded the amount paid by Defendant for the purposes of
establishing a breach; and/or (2) whether Plaintiff can establish
that Sandpebble 1, the party insured by the Policy, incurred any
costs to repair the damage.”
The court then considered the declaratory relief cause of
action. It concluded that Sandpebble 2’s failure to address the
cause of action in its opposition operated as a concession to
Nevada Capital’s argument that it was derivative of the breach of
contract cause of action. The court thus concluded that summary
adjudication was warranted on this cause of action for the same
reasons as the breach of contract action.
The court entered judgment for Nevada Capital on July 26,
2021. Sandpebble 2 timely appealed.
DISCUSSION
Sandpebble 2 contends the trial court erred by granting
summary judgment in favor of Nevada Capital. It argues that
the trial court improperly overruled its objections to Nevada
Capital’s separate statement, and Nevada Capital did not meet
its initial burden. Even if Nevada Capital successfully made its
prima facie showing, Sandpebble 2 argues that it demonstrated
“numerous triable issues of material fact,” including whether
Nevada Capital’s calculations were accurate, whether
15
Sandpebble 2 was an assignee of the policy or an intended
beneficiary of the assignment to Piterman, and whether Nevada
Capital improperly retained and was unjustly enriched by the
depreciation. Sandpebble 2 also requests an opportunity to
amend the operative complaint to name Piterman as a real party
in interest if we conclude Piterman was entitled to receive the
benefits of the insurance policy.
We conclude the trial court properly overruled Sandpebble
2’s improper objections, correctly concluded that Nevada Capital
met its burden of showing Sandpebble 2 could not establish one
or more elements of its causes of action, and correctly concluded
that Sandpebble 2 failed to demonstrate a material issue of
triable fact.
I. Standard of Review
We review the trial court’s summary judgment ruling de
novo. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763,
768.) “‘In performing our de novo review, we must view the
evidence in a light favorable to plaintiff as the losing party
[citation], liberally construing [the plaintiff’s] evidentiary
submission while strictly scrutinizing [the defendant’s] own
showing, and resolving any evidentiary doubts or ambiguities in
plaintiff's favor.’” (Andrews v. Foster Wheeler LLC (2006) 138
Cal.App.4th 96, 100.)
A defendant moving for summary judgment must make a
prima facie showing that there are no triable issues of material
fact in order to meet its initial burden of production. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861; see also
Code Civ. Proc. § 437c, subd. (c).) Once the defendant has met
that burden, the burden shifts to the plaintiff to make a prima
facie showing that a triable issue of material fact exists. (Aguilar
16
v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “The
motion for summary judgment shall be granted if all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
II. Rulings on Objections
Sandpebble 2 argues that Nevada Capital’s separate
statement was procedurally defective, and the trial court thus
abused its discretion in overruling Sandpebble’s objections
thereto. We agree with Sandpebble 2 and the weight of authority
that abuse of discretion is the proper standard of review for this
issue. (See Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th
1109, 1118; Eisenberg et al., Cal. Practice Guide: Civil Appeals
and Writs (The Rutter Group 2021) ¶ 8.168, p. 8-148 [“Pursuant
to the weight of authority, appellate courts review a trial court’s
rulings on evidentiary objections in summary judgment
proceedings for abuse of discretion.”].) We find no abuse of
discretion here.
Sandpebble 2 cited no legal authority for its objections in
the trial court, nor did it clarify what its objections to several
paragraphs even were. These deficiencies alone provided the
trial court a valid basis to overrule the objections. (See Evid.
Code, § 353.) They also remain largely unremedied on appeal.
Although Sandpebble 2 cites Code of Civil Procedure section
437c, subdivision (b)(1) for the proposition that a separate
statement must contain facts, and California Rules of Court, rule
3.1350(d)(2) for the proposition that a separate statement should
only include material facts, it does not explain how, or even what
portions of, the challenged paragraphs of the separate statement
violated those requirements.
17
More fundamentally, as the trial court observed,
Sandpebble 2 objected only to assertions made in Nevada
Capital’s separate statement, not the evidence those assertions
cited. Assertions made in a separate statement are not evidence.
“‘Objections’ to such statements are therefore ineffectual.” (Cole
v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 767 fn. 8
[referring to statements made in a memorandum of points and
authorities].) The trial court did not abuse its discretion in
overruling Sandpebble 2’s objections.
III. Satisfaction of Initial Burden
Sandpebble 2 contends Nevada Capital did not meet its
initial burden because its “calculations were inaccurate,
incomplete and mathematically incorrect. Most importantly, [sic]
failed to establish why they paid out a portion of the policy
benefits but refused to pay out $245,803.11 of remaining policy
benefits that they admitted they intentionally retained.”
Sandpebble 2 does not clarify which cause of action it is
discussing, or what the elements of the relevant causes of action
are.
A defendant moving for summary judgment has the initial
burden to show the plaintiff cannot establish one or more
elements of the challenged cause of action or there is a complete
defense to that cause of action. (Code Civ. Proc., § 437c, subd.
(p)(2).) A defendant meets its burden by presenting affirmative
evidence negating an essential element of the plaintiff’s claim, or
demonstrating that “the plaintiff does not possess, and cannot
reasonably obtain, needed evidence” to prove an essential
element. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at
p. 855.)
18
A. Breach of Contract
Sandpebble 2’s first cause of action was for breach of
contract. “To state a cause of action for breach of contract, a party
must plead the existence of a contract, his or her performance of
the contract or excuse for nonperformance, the defendant’s
breach, and resulting damage.” (Harris v. Rudin, Richman &
Appel (1999) 74 Cal.App.4th 299, 307.) “Wrongful failure to
provide coverage or defend a claim is a breach of contract.”
(Isaacson v. California Insurance Guarantee Association (1988)
44 Cal.3d 775, 791.) In the context of a claim alleging breach of
an insurer’s contractual duty to pay a covered claim, the plaintiff
must prove that it suffered a loss covered by the policy, that it
notified the insurer of the loss in the manner required by the
policy, and the amount of the covered loss the insurer failed to
pay. (See CACI 2300.)
Here, Nevada Capital submitted evidence showing that
Sandpebble 1 was the named insured under the insurance policy
at issue, and that Sandpebble 2 was not. Nevada Capital also
submitted evidence that the policy contained a provision stating
that the named insured could not transfer its rights and duties
under the policy without the written consent of Nevada Capital,
and that no such consent was provided to assign the rights and
duties to Sandpebble 2 or Wu Group. This evidence was
sufficient to show that Sandpebble 2 could not establish that
there was a contract between Nevada Capital and Sandpebble 2,
or that Sandpebble 2 suffered a loss that was covered by the
policy. The accuracy of mathematical calculations or retention of
benefits is not relevant to the threshold issue whether
Sandpebble 2 was covered by the policy in the first instance.
19
Sandpebble 2’s argument that Nevada Capital failed to carry its
initial burden on the breach of contract claim thus lacks merit.
B. Declaratory Relief
“[T]o state a cause of action for declaratory relief, there
must be an ‘actual controversy’ relating to the legal rights and
duties of the parties.” (Country Side Villas Homeowners Assn. v.
Ivie (2011) 193 Cal.App.4th 1110, 1118; see also Code Civ. Proc.,
§ 1060 [“Any person interested under a written instrument . . . or
under a contract, or who desires a declaration of his or her rights
or duties with respect to another, or in respect to, in, over or upon
property . . . may, in cases of actual controversy relating to the
legal rights and duties of the respective parties, bring an original
action or cross-complaint in the superior court for a declaration of
his or her rights and duties in the premises, including a
determination of any question of construction or validity arising
under the instrument or contract.”].) Notwithstanding the
existence of an actual controversy, a claim for declaratory relief
that is “wholly derivative” of a failed claim cannot stand. (See
Ball v. FleetBoston Financial Group (2008) 164 Cal.App.4th 794,
800.)
The declaratory relief Sandpebble 2 requested in the
operative complaint was “a judicial determination that Nevada
Capital is obligated under the express and implied terms of the
Policies [sic] to reimburse Plaintiff with respect to the remaining
cost of the fire loss.” This is in essence a restatement of the cause
of action for breach of contract: Sandpebble 2 requested a
declaration that Nevada Capital breached the policy. It is
therefore “wholly derivative” of the breach of contract cause of
action, and Nevada Capital met its initial burden by meeting its
burden on the breach of contract cause of action.
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IV. Failure to Meet Shifted Burden
Once the defendant has met its initial burden, the burden
shifts to the plaintiff to make a prima facie showing that a triable
issue of material fact exists. (Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 850.) Sandpebble 2 contends it met that
burden—presumably as to both intertwined claims—by
producing evidence showing that Nevada Capital paid funds to
and on behalf of Piterman. It argues, “If there was no
assignment of policy benefits, they [sic] why would [Nevada
Capital] be paying out benefits to Dmitry Piterman and
Sandpebble 2’s lender? The answer is: there had to have been an
assignment – otherwise [Nevada Capital] would not have been
paying out benefits to Dmitry Piterman and Sandpebble 2 and its
lender. The trial court committed error in finding there was no
enforceable assignment to either Dmitry Piterman or Sandpebble
2.”
Construed in the light most favorable to Sandpebble 2, the
evidence shows that Nevada Capital made payments to
Sandpebble 2’s principal, Piterman, notwithstanding Nevada
Capital’s failure to sign the Limited Assignment of Rights and
Claims. It is reasonable to infer from this evidence that Nevada
Capital consented to an assignment of rights to Piterman. It is
not reasonable, however, to make the secondary inferential leap
that Nevada Capital consented to an assignment of rights to
Sandpebble 2. The Limited Assignment of Rights and Claims
does not mention Sandpebble 2 or indicate that Piterman was
signing the agreement on the entity’s behalf. To the contrary, the
Limited Assignment of Rights and Claims specifically states that
it “does not confer any status or standing as an insured or
beneficiary under the Policy to [Piterman] or to any other person
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or entity.” The check ledger submitted by Sandpebble 2 does not
identify Sandpebble 2 as a payee on any of the 35 checks Nevada
Capital issued in connection with the claim.6 Even the Belfor
estimate signed by Piterman does not mention Sandpebble 2.
This evidence accordingly does not establish that Sandpebble 2, a
legal entity separate and distinct from Piterman, received any
benefits under the policy or was treated as an assignee by
Nevada Capital.
Sandpebble 2 additionally points to Piterman’s declaration,
in which he asserted that “Sandpebble 1 assigned all its right,
title and interest in and to the benefits of the policy and the
claims loss to Sandpebble 2” pursuant to the purchase
agreement. The purchase agreement is not in the record, and
there is no suggestion in the declaration or elsewhere that
Nevada Capital was party to the agreement or consented to the
assignments it purportedly contained as required by the policy.
This conclusory statement accordingly does not raise a triable
issue of material fact regarding assignment of the policy.
Nor does it or the other evidence warrant granting
Sandpebble 2’s belated request to amend the operative complaint
to add Piterman as the real party in interest. “If the motion for
summary judgment presents evidence sufficient to disprove the
plaintiff’s claims, as opposed to merely attacking the sufficiency
of the complaint, the plaintiff forfeits an opportunity to amend to
state new claims by failing to request it.” (Bostrom v. County of
San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) “[A] plaintiff
6 It also shows that all checks that were made jointly payable
to Sandpebble 1 and its lenders, or to the entity Sandpebble 2
asserts without evidentiary support was Sandpebble 2’s lender,
were either voided or had payment stopped.
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wishing ‘to rely upon unpleaded theories to defeat summary
judgment’ must move to amend the complaint before the
hearing.” (Oakland Raiders v. National Football League (2005)
131 Cal.App.4th 621, 648.) No such request was made in the
trial court, despite the numerous opportunities Sandpebble 2 was
given to amend its complaint. We decline leave to amend at this
juncture.
Sandpebble 2 asserts for the first time on appeal that
Nevada Capital “is estopped from denying their consent to the
assignment since Appellant incurred the expense of the ongoing
repairs in reliance upon [Nevada Capital’s] previous performance
and payment of repairs.” This argument cannot be raised for the
first time on appeal. Nor can Sandpebble 2’s alternative
contention that it is an intended beneficiary of any assignment to
Piterman. Even if the latter argument were properly raised,
Sandpebble 2 has not pointed to any evidence that “the
contracting parties must have intended to benefit [Sandpebble 2]
and such intent appears on the terms of the agreement.” (Harper
v. Wausau Ins. Co. (1997) 56 Cal.App.4th 1079, 1087.) To the
contrary, the Limited Assignment of Rights and Claims
specifically states that it “does not confer any status or standing
as an insured or beneficiary under the Policy to [Piterman] or to
any other person or entity.”
Sandpebble 2 has not raised a triable issue of material fact
regarding the assignment of the insurance policy rights and
benefits to Sandpebble 2. It accordingly has not demonstrated
that the trial court erred in granting summary judgment for
Nevada Capital on that basis. We need not and do not address
its arguments regarding the accuracy of Nevada Capital’s
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calculations or its retention of the depreciation and alleged
unjust enrichment thereby.
DISPOSITION
The judgment of the trial court is affirmed. Nevada Capital
is awarded its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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