Krueger v. CSAA Insurance Services CA5

Filed 8/2/21 Krueger v. CSAA Insurance Services CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
DEBRA LYNN KRUEGER,
F078470
Plaintiff and Appellant,
(Super. Ct. No. 16CECG03394)
v.
CSAA INSURANCE SERVICES, INC., OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T.
McGuire, Judge.
Debra Lynn Krueger, in pro. per., for Plaintiff and Appellant.
Coddington, Hicks & Danforth, Hyon M. Kientzy and Min K. Kang, for
Defendant and Respondent.
-ooOoo-
Plaintiff and appellant Debra Lynn Krueger (Krueger) sued her homeowner’s
insurer, defendant and respondent CSAA Insurance Services, Inc. (CSAA),1 for breach of
1 Krueger’s complaint named “CSAA Insurance Services, L.L.C.” as defendant.
CSAA filed its answer as “CSAA Insurance Services, Inc.” During the relevant policy
period, CSAA was known as “AAA Northern California, Nevada & Utah Insurance
Exchange,” and subsequently changed its name. This name change is not relevant to the
contract, breach of the implied covenant of good faith and fair dealing, and for unfair
claims settlement practices. The trial court granted CSAA’s motion for summary
judgment (MSJ) on the basis that Krueger’s lawsuit against CSAA had been filed beyond
the one-year limitation period specified by CSAA’s policy of insurance (the Policy), and
denied Krueger’s own MSJ as moot at that point. Krueger appeals from the summary
judgment granted in favor of CSAA. Finding the trial court both properly granted
CSAA’s MSJ and denied Krueger’s MSJ as moot, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Krueger owned a residence in Fresno, California (the Insured Property), that was
insured during the period of November 10, 2012, to November 10, 2013, by the Policy
(specifically, CSAA homeowner’s policy No. HO-XE-88-55-2). On July 10, 2013,
Krueger reported claim No. 02-XE8855-2 under the Policy (the First Claim), after a
water leak from a rooftop-mounted swamp cooler resulted in a bedroom ceiling collapse
and mold damage to the Insured Property. Following an inspection of the damage,
CSAA paid Krueger the Policy’s $10,000 mold limit and on July 23, 2013, denied the
remainder of Krueger’s claim, which CSAA attributed to deferred maintenance. CSAA’s
July 23, 2013, coverage letter contained a notification of the Policy’s one-year limitation
period on any lawsuit Krueger intended to bring against CSAA arising out of its handling
of the insurance claim. The Policy’s limitation provision read as follows:
“SECTION I – CONDITIONS [¶] … [¶]
“8. Suit Against Us. No action shall be brought unless there has
been compliance with the policy provisions and the action is started within
one year after the date of loss or damage.”
On August 5, 2013, Krueger made a second water loss and mold growth claim to
CSAA regarding the Insured Property, claim No. 03-XE8855-2 (the Second Claim). An
underlying litigation or the instant appeal, and the respondent is therefore consistently
referred to herein as “CSAA.”
2.
inspection of the Insured Property, conducted at CSAA’s behest on or about August 9,
2013, resulted in CSAA determining the loss underlying the Second Claim was caused by
a toilet tank overflowing due to a stuck valve, which CSAA attributed to deferred
maintenance. CSAA paid Krueger for the aspects of the Second Claim it regarded as
covered under the Policy, less the applicable deductible.2 On August 20, 2013, CSAA
sent out a coverage letter to Krueger regarding the remaining elements of the Second
Claim. The August 20, 2013, coverage letter contained another citation to the Policy’s
one-year limitation period for suits arising out of the claim. Specifically, CSAA’s
August 20, 2013, coverage letter stated: “Further, your policy provides under SECTION
I - CONDITIONS, item 8, Suit Against Us, that no action shall be brought against us
unless there has been compliance with the policy provisions and the action is filed in a
court of competent jurisdiction within one year of the date of this letter.”
On September 27, 2013, CSAA sent Krueger another coverage letter in response
to Krueger’s request for additional policy funds related to the First Claim. CSAA’s
September 27, 2013 letter denied Krueger’s request for further payment for mold-related
losses on the ground that Krueger had at that point already exceeded the Policy’s mold
limit by over $1,000.
The Insured Property sustained a structural fire at some point in late 2014, after
the First and Second Claims. On December 3, 2014, the City of Fresno notified Krueger
by letter that the Insured Property had recently been inspected by the “Code Enforcement
Division” and was found to have violations of the Fresno County Municipal Code, which
violations were deemed to create “a public nuisance immediately dangerous to life, health
and public safety.”
2 CSAA ultimately also refunded Krueger’s deductible under the first claim, as the
mold remediation costs eventually exceeded the Policy’s mold coverage limit.
3.
Over three years later, on October 20, 2016, Krueger filed an initial complaint for
breach of contract and insurance bad faith against CSAA.3 On February 7, 2017, the trial
court granted CSAA’s demurrer to this complaint, with leave to amend.
On March 22, 2017, Krueger filed her second amended complaint (SAC) against
CSAA, stating three causes of action: breach of contract, breach of the implied covenant
of good faith and fair dealing, and unfair claims settlement practices. In the SAC,
Krueger asserted that she was excused from the Policy’s one-year limitation period on
lawsuits by virtue of the application of Business and Professions Code section 7199.4
On June 6, 2017, CSAA filed its answer and asserted, among its affirmative
defenses to Krueger’s SAC, the Policy’s one-year limitation period on lawsuits.
On May 30, 2018, CSAA filed its MSJ regarding Krueger’s SAC (and in the
alternative a motion for summary adjudication, or partial summary judgment).
On August 9, 2018, Krueger filed various unconventionally styled documents in
response to CSAA’s MSJ. Included among Krueger’s filings was a “REQUEST FOR A
SUMMARY JUDGMENT,” which the trial court handled as an MSJ. Notably absent
from Krueger’s filings were a formal opposition to CSAA’s MSJ and any proper
objections by Krueger to the evidence CSAA had offered in support of its MSJ.
On August 20, 2018, the trial court issued its tentative ruling regarding both
parties’ MSJ’s, granting CSAA’s and denying Krueger’s.
3 It also appears from the record that Krueger sent at least one letter of complaint to
the California State Department of Insurance (DOI) on or about November 9, 2015,
regarding CSAA’s handling of her First and Second Claims. Ultimately, after reviewing
the information provided, the DOI indicated to Krueger that it could offer no assistance to
her.
4 That section provides that “[t]he time for commencement of a legal action for
breach of duty arising from a home inspection report shall not exceed four years from the
date of the inspection.” (Bus. & Prof. Code, § 7199.)
4.
The MSJ’s proceeded to hearing on August 23, 2018, with both CSAA and
Krueger presenting evidence and argument in support of their respective motions.
On August 23, 2018, the trial court issued its ruling granting CSAA’s MSJ on the
basis that Krueger’s lawsuit against CSAA was untimely. In its ruling, the trial court
found that the untimeliness of Krueger’s lawsuit disposed of the need to address the other
issues raised in CSAA’s MSJ, and also rendered Krueger’s own MSJ moot. The trial
court noted that in its view, the Policy’s one-year suit limitation provision was valid and
conspicuous, and that Krueger had been specifically apprised of that limitation period in
each of CSAA’s coverage letters.
On October 16, 2018, Krueger filed a motion for reconsideration of the trial
court’s rulings on the mutual MSJ’s, which was denied on October 24, 2018. Krueger
filed her timely notice of appeal of order granting CSAA’s MSJ.
DISCUSSION
Krueger contends that the record in the instant case reveals that the trial court
improperly granted CSAA’s MSJ and did not properly consider her own MSJ. Krueger’s
appellate pleadings are not entirely comprehensible, but as best as can be discerned from
them, Krueger fundamentally contends that the Policy’s one-year limitation period was
either vitiated by operation of the delayed discovery rule due to CSAA’s alleged
concealment of material facts from Krueger, or by operation of the equitable doctrines of
estoppel and waiver.
I. APPLICABLE LAW AND STANDARD OF REVIEW
Motions for Summary Judgment
In this case, the fundamental question presented—whether the trial court properly
granted CSAA’s MSJ—is a question of law. We review pure questions of law de novo.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860; Bostean v. Los Angeles
Unified School Dist. (1998) 63 Cal.App.4th 95, 107–108.)
5.
An MSJ shall be granted where there is no triable issue of any material fact and
the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c,
subd. (c);5 Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) “A defendant
moving for summary judgment meets its burden of showing that there is no merit to a
cause of action if that party has shown that one or more elements of the cause of action
cannot be established or that there is a complete defense to that cause of action.” (Blue
Shield of Cal. Life & Health Ins. Co. v. Superior Ct. (2011) 192 Cal.App.4th 727, 732.)
“If the defendant does so, the burden shifts back to the plaintiff to show that a triable
issue of fact exists as to that cause of action or defense.” (Ibid.) The plaintiff must
produce admissible evidence to show that a triable issue of material fact exists in order to
overcome a showing that one or more elements of the cause of action cannot be
established. (§ 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66,
72.)
When the losing party appeals, the trial court’s judgment is presumed to be
correct, and the appellant bears the burden to affirmatively demonstrate prejudicial error.
(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; In re Marriage of Behrens
(1982) 137 Cal.App.3d 562, 575 [“ ‘[t]he burden is on the appellant, not alone to show
error, but to show injury from the error’ ”].) The ultimate consideration is not whether
the trial court’s stated reasoning was correct, but rather whether its ruling was correct.
(Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 966–967.) “No rule of
decision is better or more firmly established by authority, nor one resting upon a sounder
basis of reason and propriety, than that a ruling or decision, itself correct in law, will not
be disturbed on appeal merely because given for a wrong reason. If right upon any
theory of the law applicable to the case, it must be sustained regardless of the
considerations which may have moved the trial court to its conclusion.” (Davey v.
5 All statutory references are to the Code of Civil Procedure unless otherwise noted.
6.
Southern Pacific Co. (1897) 116 Cal. 325, 329.) We must affirm the trial court’s ruling if
there is any basis in the record for doing so. (Maryland Casualty Co., supra, at p. 966.)
As the appellant, Krueger bears the burden of proof of establishing her asserted
errors on appeal. (Evid. Code, § 500; Barrie v. California Coastal Com. (1987) 196
Cal.App.3d 8, 16.)
In reviewing a grant of summary judgment, an appellate court independently
reviews the record that was before the trial court and accepts as undisputed those portions
of the moving party’s evidence that are not contradicted by the opposing party’s
evidence. (A-H Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th
427, 433–434.)
Statutes of Limitations and Contractual Limitation Periods
Statutes of limitations prescribe the length of time a plaintiff is given to bring suit
and thereafter be barred from doing so. (Aryeh v. Canon Business Solutions, Inc. (2013)
55 Cal.4th 1185, 1191.) Generally, the limitation period “runs from the moment a claim
accrues.” (Ibid.; § 312 [action must be “commenced within the periods prescribed in this
title, after the cause of action shall have accrued”].) California follows the “last element”
accrual rule, which provides that the limitation period runs from the occurrence of the last
element essential to the cause of action. (Aryeh, supra, at p. 1191.) Our Supreme Court
has described the essential elements for statute of limitations purposes as “ ‘wrongdoing,
harm, and causation.’ ” (Ibid.) The foregoing general rules are subject to various
modifications and equitable exemptions that affect the initial accrual of a cause of action,
the subsequent running of the limitation period, or both. (Id. at p. 1192.) These
exemptions and modifications include the delayed discovery rule, equitable tolling,
equitable estoppel, the continuing violation doctrine, the theory of continuous accrual,
and waiver. (Ibid.) In this case, Krueger relied on the delayed discovery rule, equitable
estoppel, and waiver as exemptions to her otherwise required compliance with the
Policy’s one-year limitation period.
7.
Several policies underlie statutes of limitations, including giving defendants
reasonable repose, which protects parties from defending stale claims, and stimulating
plaintiffs to pursue their claims diligently. (Rubenstein v. Doe No. 1 (2017) 3 Cal.5th
903, 911.) Additionally, statutes of limitations promote efficiency, conserve judicial
resources, increase the accuracy of judgments by promoting the resolution of disputes
while the record is fresh, and aid the entry of final judgments within a reasonable time.
(Day v. McDonough (2006) 547 U.S. 198, 205–206.)
The covenant of good faith and fair dealing, which Krueger’s complaint alleges
CSAA violated, is implied by law in every contract, and exists to prevent one contracting
party from unfairly frustrating the other party’s right to receive the benefits of the
agreement actually made. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349.)
Further, as in this case, the parties to a contract may agree to a contractual suit
limitation period that, although not statutory, is supported by the same policies
underlying statutes of limitations. Indeed, a one-year limitation period on insurance
actions has long been recognized as valid in California. (E.g., Prudential-LMI Com.
Insurance v. Superior Court (1990) 51 Cal.3d 674, 682 (Prudential-LMI); Fageol T. & C.
Co. v. Pacific Indemnity Co. (1941) 18 Cal.2d 748, 753; Jang v. State Farm Fire &
Casualty Co. (2000) 80 Cal.App.4th 1291, 1296.) “Such a covenant shortening the
period of limitations is a valid provision of an insurance contract and cannot be ignored
with impunity as long as the limitation is not so unreasonable as to show imposition or
undue advantage. One year was not an unfair period of limitation.” (Fageol, supra, at
p. 753.) A one-year suit limitation provision is in fact the standard, default term in
standard form fire insurance policies. (Ins. Code, § 2071.)
Delayed Discovery Rule
The delayed discovery rule postpones the accrual of a cause of action until the
plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon Endo-
Surgery, Inc. (2005) 35 Cal.4th 797, 807.) Thus, a limitation period begins to run when
8.
the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff
pleads and proves that a reasonable investigation at that time would not have uncovered a
factual basis for the particular cause of action. (Id. at p. 803.)
Equitable Tolling
Equitable tolling is a judge-made doctrine that operates independently of the literal
wording of the Code of Civil Procedure to “suspend or extend a statute of limitations as
necessary to ensure fundamental practicality and fairness.” (Lantzy v. Centex Homes
(2003) 31 Cal.4th 363, 370 (Lantzy).) The one-year limitation period to sue on casualty
insurance policies such as the one at issue here begins running upon “inception of the
loss,” but is equitably tolled from timely notice of loss until the insurer denies the claim.
(Prudential-LMI, supra, 51 Cal.3d at pp. 687–693.)
In Collier v. City of Pasadena (1983) 142 Cal.App.3d 917 (Collier), the Second
District stated the three core elements of equitable tolling are “(1) timely notice to the
defendant in filing the first claim; (2) lack of prejudice to defendant in gathering evidence
to defend against the second claim; and, (3) good faith and reasonable conduct by the
plaintiff in filing the second claim.” (Id. at p. 924.) The Collier court noted “[i]t is not
altogether clear whether the Supreme Court would insist on all three prerequisites.” (Id.
at p. 924, fn. 5.) The Collier court further stated that equitable tolling is based on the
rationale that “a plaintiff should not be barred by a statute of limitations unless the
defendant would be unfairly prejudiced if the plaintiff were allowed to proceed.” (Id. at
p. 923.)
The effect of equitable tolling is that the limitation period stops running during the
tolling event, and begins to run again only when the tolling event has concluded. (Lantzy,
supra, 31 Cal.4th at p. 370.) Consequently, the tolled interval, no matter when it took
place, is “tacked onto the end of the limitations period, thus extending the deadline for
suit by the entire length of time which the tolling event previously occurred.” (Id. at
pp. 370–371.)
9.
Generally, whether the elements for equitable tolling have been satisfied presents
questions of fact. (Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 745 [equitable
tolling presents questions of fact].) These questions of fact involving the elements of
equitable tolling are not presented to the jury. Rather, the trial court is the proper trier of
fact to decide whether a limitation period has been equitably tolled. (Id. at pp. 745–746.)
Equitable Estoppel
Equitable estoppel “ ‘arises as a result of some conduct by the defendant, relied on
by the plaintiff, which induces the belated filing of the action.’ ” (Prudential-LMI, supra,
51 Cal.3d at pp. 689–690.) It overcomes the statute of limitations affirmative defense to
an admittedly untimely action. (Cordova v. 21st Century Ins. Co. (2005) 129 Cal.App.4th
89, 96.) The existence of the factual elements of equitable estoppel may be decided as a
matter of law “when the undisputed evidence is susceptible of only one reasonable
inference.” (Santos v. Los Angeles Unified School Dist. (2017) 17 Cal.App.5th 1065,
1076.)
Equitable estoppel arises only after a limitation period has run, and “ ‘ “ ‘takes its
life … from the equitable principle that no man will be permitted to profit from his own
wrongdoing in a court of justice.” ’ ” ’ (Ashou v. Liberty Mutual Fire Ins. Co. (2006) 138
Cal.App.4th 748, fn. 3.)
Equitable tolling and equitable estoppel are distinct doctrines. Tolling is
concerned with the point at which the limitation period begins to run and with the
circumstances in which the running of the limitation period may be suspended. (Lantzy,
supra, 31 Cal.4th at p. 383.) Equitable estoppel comes into play only after the limitation
period has run and addresses the circumstances in which a party will be estopped from
asserting the statute of limitations defense to an admittedly untimely action because his
conduct has induced another into forbearing suit within the applicable limitation period.
(Ibid.)
10.
II. ANALYSIS
Sufficiency of the Record and Briefs on Appeal
Before analyzing these issues as they pertain to this case, we must begin by
addressing the threshold issue of appellant’s failure to provide an adequate record and
properly supported briefs.
An appellant must provide a sufficient record to enable the reviewing court to
analyze the appellant’s contentions. (Cal. Rules of Court, rule 8.124(b)(1)(B).)
Thus, if an appellant intends to raise any issue that requires consideration of the
oral proceedings in the trial court, the record on appeal must include a record of those
oral proceedings in the form of a reporter’s transcript, an agreed statement, or a settled
statement. (Cal. Rules of Court, rule 8.120(b)(1)–(3).)
Further, briefs must provide argument and legal authority for the positions taken;
they may not rely upon matters which are not part of the record on appeal. (Pringle v. La
Chapelle (1999) 73 Cal.App.4th 1000, 1003.) Without the proper record, we cannot
evaluate issues requiring a factual analysis and we presume the evidence is sufficient to
support the judgment. (Ibid.; Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, 1102
[without proper record, evidence conclusively presumed to support the judgment].)
Moreover, contentions based upon uncited assertions are forfeited on appeal.
(Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043, 1045, fn. 1 [contentions
forfeited when there is failure to support them with legal argument and citations to
authority]; People v. Dougherty (1982) 138 Cal.App.3d 278, 282–283 [argument of
counsel is insufficient; briefs must contain factual underpinning, record references,
argument, and authority]; County of Los Angeles v. Surety Ins. Co. (1984) 152
Cal.App.3d 16, 23 [sufficiency of evidence claims cannot be reviewed from clerk’s
transcript and exhibits].)
Here, Krueger’s briefs and record on appeal are in many respects inadequate to
competently evaluate the issues Krueger has asserted on appeal. While voluminous, the
11.
record and pleadings are not always focused or germane. Most of Krueger’s numerous
factual assertions are not germane to the fundamental issue on appeal—was there
prejudicial error in the trial court’s granting of CSAA’s MSJ? Moreover, Krueger has
suffused her briefs with myriad references to facts that do not otherwise appear in the
actual record of this case, without citations to the underlying documentary record. Such
factual contentions are not judicially cognizable here. (In re Hochberg (1970) 2 Cal.3d
870, 875 [reviewing court limited to matters contained in record and not those suggested
in briefs]; Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205 [on
appeal party must provide page citations to record].) Thus, improperly raised issues
predicated on such baseless assertions may be deemed forfeited. (Pringle v. La Chapelle,
supra, 73 Cal.App.4th at p. 1003; Ballard v. Uribe (1986) 41 Cal.3d 564, 574–575 [we
cannot evaluate contentions absent transcript or settled statement; party challenging
judgment has burden to show reversible error].) Further, appellate courts are not required
to search the record on appeal seeking errors sua sponte. (Del Real v. City of Riverside
(2002) 95 Cal.App.4th 761, 768.) In this case, Krueger has failed to provide a sufficient
record to enable us to fully analyze all of her contentions. We therefore need not reach
such unsubstantiated contentions on Krueger’s part, as they are properly deemed forfeited
on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Even if Krueger’s arguments were not forfeited on appeal, we conclude they lack
merit, for the reasons explained below.
Motions for Summary Judgment
MSJ’s and oppositions thereto are evidence based. In particular, oppositions like
the one Krueger made to CSAA’s MSJ “shall consist of affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which judicial notice
shall or may be taken.” (§ 437c, subd. (b)(2).) Krueger did not formally file an
opposition to CSAA’s MSJ; however, the trial court charitably considered the evidence
12.
submitted by Krueger in support of her own MSJ to address the sufficiency of Krueger’s
proffered evidence to raise a triable issue of material fact as against CSAA’s MSJ.6
The trial court, giving Krueger the benefit of every reasonable doubt, generously
construed the hybrid pleading she filed in response to CSAA’s MSJ as a valid opposition
(i.e., as though it had the required separate statement), and evaluated Krueger’s
opposition accordingly. Ultimately, however, Krueger never produced any admissible
evidence or coherent argument showing that a triable issue of fact existed that would
overcome CSAA’s contentions in its MSJ.7 By way of contrast, CSAA provided the trial
court with a proper request for judicial notice in support of its MSJ, a 38-page objection
to Krueger’s evidence “IN SUPPORT OF MOTION FOR COURT ORDERED
SUMMARY JUDGMENT,” a 49-page reply separate statement of undisputed material
facts, as well as a 45-page objection to Krueger’s evidence in support of her opposition to
CSAA’s MSJ. CSAA also filed a 71-page response to Krueger’s ostensible
“ADDITIONAL STATEMENT OF UNDISPUTED MATERIAL FACTS IN
OPPOSITION” to CSAA’s MSJ. Viewed in this light, the court’s grant of CSAA’s MSJ
6 Krueger’s August 7, 2018 “SUBMISSION OF STATEMENT OF UNDISPUTED
FACTS IN OBJECTION TO DEFENDANT’S CROSS-MOTION FOR SUMMARY
JUDGMENT/ADJUDICATION” had virtually no judicially cognizable documentation.
On September 4, 2018, Krueger filed a document styled “PLAINTIFF’S SEPARATE
STATEMENT OF UNDISPUTED FACTS AND PROPOSED ORDER FOR
SUMMARY JUDGMENT/ADJUDICATION,” but this filing occurred after the trial
court’s decisions on the MSJ’s were announced and confirmed, and did not conform in
either format or substance with a proper separate statement of undisputed material facts.
7 By way of example, on August 8, 2018, and August 13, 2018, Krueger filed with
the trial court requests for judicial notice for numerous documents that were not proper
subjects of judicial notice. Rather, the documents in question should have had supporting
declarations to lay the foundation for the admission of each into evidence, but Krueger
provided no such declarations. Nevertheless, it appears the trial court considered even
these improvidently presented materials in reaching its decisions on the parties’
respective MSJ’s.
13.
was well within the bounds of propriety, and its solicitous treatment of Krueger was
nothing less than magnanimous.
The Policy’s One-Year Limitation Period
Krueger herself acknowledges that she was aware of the Policy’s one-year-to-sue
provision, and that she did not comply with it. Krueger’s very use of the term “excused”
in reference to the time of her filing of her lawsuit against CSAA is an admission on her
part that she did not comply with the Policy’s one-year suit limitation period. In basic
terms, the law of limitations of actions “is the product of interplay between two
competing sets of policies: those supporting the extinguishment of untimely claims and
those encouraging the resolution of all claims, whether timely or untimely, on their
substantive merits.” (Ochoa & Wistrich, The Puzzling Purposes of the Statutes of
Limitation (1997) 28 Pacific L.J. 453, 454–455.)
As the trial court correctly noted, the Policy’s one-year limitation on actions
relating to claims made pursuant to the Policy has long been recognized as valid and
common in California. (See, e.g., Prudential-LMI, supra, 51 Cal.3d at p. 682; Jang v.
State Farm Fire & Cas. Co., supra, 80 Cal.App.4th at p. 1296.) As the trial court also
correctly noted, when a court is reviewing claims made under an insurance policy, it must
hold the insured bound by clear and conspicuous provisions in the policy, even if
evidence suggests that the insured did not read or understand them. (Sarchett v. Blue
Shield of California (1987) 43 Cal.3d 1, 14–15.) Here, not only is the Policy’s one-year
limitation provision clear and conspicuous, there is no evidence in the record before us,
and no argument is made by Krueger on appeal, that she did not read or understand the
Policy’s one-year lawsuit limitation provision, or that she did not read or understand the
July 23, 2013 and August 20, 2013 coverage position letters that CSAA sent her
regarding the First and Second Claims, each of which reiterated the one-year suit
provision of the Policy (and each of which commenced the announced one-year suit
limitation period for each claim). Therefore, there is no basis to disturb the trial court’s
14.
determination that Krueger had proven no valid reason to deny CSAA’s MSJ (based on
an assertion of untimeliness).
Moreover, Krueger’s own assertions fundamentally undermine her statute of
limitations arguments. For example, she claims that she “was unaware of any material
facts that would state a Cause of Action against RESPONDENT until 11/19/2014 when
her house was condemned by the City of Fresno Building and Code Enforcement
Division as ‘substandard and unsafe housing’ after she had suffered two perils the year
prior (2013) when she had an active Homeowner’s Insurance Policy with
RESPONDENT, Policy No. HO-XE8855-2.” Even if Krueger’s assertion in this regard
were to be taken at face value (leaving aside the lack of any established connection
between the municipal inspection of her home and the decisions and actions of CSAA in
adjusting the First and Second Claims, and/or the effects of the intervening structural fire
on the Insured Property’s habitability), her causes of action against CSAA would have
accrued on November 19, 2014, which was still more than a year prior to October 20,
2016, the date on which Krueger filed her lawsuit against CSAA.
Further, Krueger’s assertion that “the suppression of the material fact that
hazardous levels of friable asbestos particles was the material fact which respondent
suppressed from appellant and she was not aware of until a public adjuster she contracted
with discovered it and informed her of his discovery on 01/20/2015” (unnecessary
capitalization omitted) is not helpful to her cause. Aside from the lack of competent
evidence that CSAA was aware of any “hazardous levels of friable asbestos” in the
Insured Property as of August 20, 2013, if Krueger’s assertion in this regard is accepted
as true, her cause of action against CSAA would have accrued as of January 20, 2015,
giving her one year from that date (i.e., until January 20, 2016) to file her bad faith
complaint against CSAA. Krueger, however, did not file against CSAA until October 20,
2016. By Krueger’s own narrative of events, then, her basic timeliness arguments fail.
15.
Delayed discovery
While not precisely focused, the gravamen of Krueger’s argument that the delayed
discovery doctrine is applicable in this case seems to be her contention that her causes of
action against CSAA for its handling of her homeowner’s claims did not accrue until she
became aware of the presence of asbestos in the Insured Property. Krueger asserts that
this information was not known to her until the November 19, 2014 inspection of the
Insured Property by the City of Fresno. However, Krueger establishes no factual or legal
connection between the presence of asbestos at the Insured Property in 2014 and CSAA’s
handling of Krueger’s water damage claims in 2013.8 Krueger argues extensively on this
point, but mere argument is neither fact nor law. There is no evidence in the record that
either Krueger’s First or Second Claim had anything to do with asbestos. There was no
charging allegation in Krueger’s SAC that causally linked any damages she asserted she
sustained to the presence of asbestos at the Insured Property (e.g., no evidence that
Krueger developed mesothelioma attributable to friable asbestos at the Insured Property,
etc.). Consequently, the point in time at which Krueger claims she became aware of the
presence of such asbestos in the Insured Property is of no import to when she needed to
file any bad faith claim against CSAA. The quantity of Krueger’s argument on this point
notwithstanding, the record is bereft of any judicially cognizable facts that would make
application of the delayed discovery doctrine appropriate in the underlying
circumstances.
Further undermining Krueger’s arguments in this regard is the presence in the
record she herself submitted to the trial court of a March 25, 2015 letter from Absolute
8 Prior to its deliberations on the parties’ MSJ’s, Krueger herself presented the trial
court with a July 30, 2013 asbestos air clearance report from the SierraWest Group,
prepared on behalf of CSAA, which report indicated that testing performed at the Insured
Property on July 26, 2013 (following an asbestos abatement project there) met relevant
recommended final air clearance levels for friable asbestos.
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Public Adjusters to Krueger, indicating that Absolute Public Adjusters had by that time
“spoken with 6 different Attorneys to take on your 3 cases however none of them would
agree to do so.” If nothing else, this correspondence shows that Krueger was
contemplating litigation against CSAA over its handling of her First and Second Claims
as far back as March 2015 (i.e., more than 18 months before the date she actually filed
suit against CSAA), though March 2015 was still more than a year after CSAA denied
her claims. Krueger offers no explanation or justification on appeal for that continuing
delay in her filing.
Equitable tolling
Krueger argues the Policy’s suit limitation period should be equitably tolled. “As
with other general equitable principles, application of the equitable tolling doctrine
requires a balancing of the injustice to the plaintiff occasioned by the bar of his claim
against the effect upon the important public interest or policy expressed by the …
limitations statute.” (Addison v. State of California (1978) 21 Cal.3d 313, 321.)
Moreover, equitable tolling should not apply if it is “inconsistent with the relevant
statute.” (United States v. Beggerly (1998) 524 U.S. 38, 48.)
We give a broad reading to the elements of California’s equitable tolling doctrine,
based on the policy considerations underlying the doctrine, and conclude tolling of the
Policy’s limitation period is not appropriate on the circumstances of this case.
Because Krueger has never shown a justifiable reason for her more-than-three-
year delay in bringing her bad faith claims against CSAA, she has not engaged in the
“good faith and reasonable conduct by the plaintiff in filing the second claim” that the
doctrine of equitable tolling requires. (Collier, supra, 142 Cal.App.3d at p. 924.)
Moreover, Krueger has never demonstrated with competent evidence why the important
public interest in having a one-year standard, specified, and agreed-upon limitation
period to bring suit against CSAA should or must yield on the facts of this case to
Krueger’s interest in being able to sue CSAA over its alleged bad faith after more than
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three times the limitation period had passed. Krueger offers no persuasive justification
for that delay.
Equitable estoppel
Krueger argues that CSAA’s conduct influenced how and when her complaint
against CSAA was presented to the trial court, and that CSAA is therefore estopped from
asserting a statute of limitations defense. Krueger asserts that “[t]he suppression of the
material fact that hazardous levels of friable asbestos particles was the material fact
which [CSAA] suppressed from [Krueger] and she was not aware of until a public
adjuster she contracted with discovered it and informed her of his discovery on
1/20/2015. This was an act of concealment, which is an act of fraud pursuant to
California Civil Code 330.” (Unnecessary capitalization omitted.) However, despite her
voluminous filings, Krueger has not shown how any delayed knowledge on her part
regarding asbestos in the Insured Property affected the filing of her lawsuit against CSAA
contesting CSAA’s handling of her homeowner’s claims.
The undisputed facts establish that Krueger had been apprised in writing by CSAA
of CSAA’s partial denial of both the First and Second Claims on July 23, 2013, and
August 20, 2013, respectively. It is also undisputed that asbestos was never an issue of
expressed concern in either the First or Second Claim; rather, water damage and mold
growth were. Despite extended argument in her briefing, Krueger has articulated no
actual material facts regarding her claims handling allegations against CSAA that she did
not possess at the time of her receipt of the coverage letters (i.e., by August 20, 2013).
While Krueger spends a great deal of her briefing raising various factual allegations
about CSAA not providing her with information about friable asbestos being present in
her residence, Krueger provides no evidence (nor even fully formed argument) that
CSAA knowingly concealed from her information about friable asbestos levels in the
Insured Property at the time of the adjustment of her homeowner’s claims, or how the
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alleged presence of such asbestos in the Insured Property is the fault of CSAA and has
caused Krueger specific injury.
Therefore, CSAA was not equitably estopped from asserting the running of the
Policy’s one-year limitation period. Krueger’s lawsuit against CSAA was thus not
timely, being filed more than three years after Krueger’s receipt of the last of CSAA’s
coverage letters. The trial court’s determinations in this regard were proper.
Krueger’s Other Contentions
Krueger’s appeal raises various other contentions that either misstate the law,
betray a misunderstanding of the law, or lack proper citations to the factual record, and
fail to provide any adequate bases upon which to disturb the trial court’s rulings on the
MSJ’s.
Krueger’s contentions that CSAA’s answer to the operative complaint “did not
state any material facts to warrant a defense with merit against the complaint to constitute
a triable issue of fact and had technically defaulted” and that CSAA “has not met [its]
burden of proof to state sufficient acts to constitute a triable issue of material fact in
answer to the statements of fact in the causes of action in the SAC” are nonsensical.
(Unnecessary capitalization omitted.) Answers to complaints need not raise triable issues
of material fact, and answering parties bear no particular burden of proof in such
pleadings.9 MSJ’s are only properly granted when no disputed issues of material fact
exist with respect to a complainant’s charging allegations, and one party or the other is
thereby entitled to judgment as a matter of law. (§ 437c, subd. (c).) Krueger appears to
be confounding these two distinct concepts, perhaps through a lack of understanding of
9 While under section 446, subdivision (a), an answer to a complaint generally must
be verified when the complaint itself is verified, verification is not the same as a burden
of proof. Moreover, while Krueger’s SAC was ostensibly filed “under penalty if [sic]
perjury that they are true statements to the best of [Krueger’s] knowledge,” the pleading
was unsigned by Krueger, and therefore was not properly verified, and should not be
considered as such.
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the separate legal principles they animate. Answers and MSJ’s are different legal
instruments, with different purposes, burdens of proof, and implementation mechanisms.
Krueger’s assertions in this regard are more reflective of confusion and misunderstanding
on her part regarding these differing legal instruments than any actual well-founded legal
contentions concerning them. Further, by failing to file any objections to the evidence
submitted to the trial court by CSAA in support of its MSJ, Krueger forfeited any
objections to such evidence she might have otherwise made. (§ 437c, subd. (b)(5); Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 529–530.) Consequently, Krueger’s assertions on
these points are rejected.
Krueger’s contention that “[CSAA] cannot enforce the one year statute of
limitations contained within the policy provisions without first proving by a
preponderance of evidence that [it] did not act negligently when [it] subcontracted with a
contractor, ‘DRI’ and paid them directly for services to be performed at [the Insured
Property], for a job or service that required an active license issued by the California
State Contractor’s Licensing Board” (unnecessary capitalization omitted) is likewise
nonsensical, and is unsupported by any citations to legal authority. Krueger’s misguided
averments in this regard again reflect confusion and misunderstanding on her part with
respect to legal concepts and principles. There is no threshold burden of proof on a party
raising the statute of limitations affirmative defense to prove that it “did not act
negligently.” Krueger’s lack of citation to statutory, regulatory, or decisional authority
for the contrary proposition belies the fact that no such authority exists. Further, any
deficiencies in CSAA’s subcontractor’s licensure or certification are irrelevant to whether
CSAA had a basis to enforce its contractual suit limitation provision.
Krueger’s contention that she is “excused” from the Policy’s one-year limitation
period pursuant to Business and Professions Code section 7199 is also misguided. That
section provides that “[t]he time for commencement of a legal action for breach of duty
arising from a home inspection report shall not exceed four years from the date of the
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inspection.” (Bus. & Prof. Code, § 7199.) Krueger apparently construes the inspection
of the Insured Property that was conducted by the City of Fresno’s Building and Code
Enforcement Division following a structural fire sustained (post-First and Second
Claims) by the Insured Property as a “home inspection report” within the meaning of
Business and Professions Code section 7199. Krueger is mistaken in this regard. The
term “home inspection” is specifically defined for purposes of the Business and
Professions Code by section 7195 thereof as “a noninvasive, physical examination,
performed for a fee in connection with a transfer, as defined in subdivision (e), of real
property, of the mechanical, electrical or plumbing systems or the structural and
essential components of a residential dwelling of one to four units designed to identify
material defects in these systems, structures, and components.” (Bus. & Prof. Code,
§ 7195, subd. (a)(1), italics added.) Simply put, there is no evidence that the City of
Fresno’s November 19, 2014 post-fire inspection of the Insured Property to determine its
habitability was a “home inspection” as that term is defined for purposes of Business and
Professions Code section 7199. Moreover, Krueger has provided no linkage between
CSAA’s adjustment of her homeowner’s claims and the City of Fresno’s condemnation
of the Insured Property.
Further, even if the City of Fresno’s November 19, 2014 habitability inspection
were somehow construed as a “home inspection” as that term is defined by and used for
purposes of Business and Professions Code section 7199, Krueger’s prospective cause of
action would not lie against CSAA because CSAA did not conduct such an inspection,
nor did it have the inspection conducted on its behalf. The City of Fresno alone was
responsible for the November 19, 2014 habitability inspection. Therefore, Business and
Professions Code section 7199’s four-year statute of limitations period is in no way
applicable to the facts of the instant case.
Krueger’s invocation of the three-year statute of limitations for fraud-based causes
of action, as well as the two-year statute of limitations for negligent infliction of
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emotional distress are similarly misplaced. Krueger’s SAC against CSAA (the subject of
CSAA’s MSJ and the trial court’s ruling thereon) contained neither a fraud-based cause
of action nor a cause of action for negligent infliction of emotional distress. The statutes
of limitation for such causes of action are therefore irrelevant in this matter.
Krueger’s arguments and pleadings in this matter, both at the trial and appellate
levels, reflect a misunderstanding of many legal principles and rules, which is perhaps
understandable given Krueger’s status as a self-represented party. However, mere self-
representation is not a ground for exceptionally lenient treatment.
III. CONCLUSION
There was no error in the trial court’s granting of CSAA’s MSJ. Krueger’s
complaints about CSAA’s handling of her First and Second Claims were made
approximately three years after CSAA’s partial denial of those claims, in the teeth of the
Policy’s stated one-year lawsuit limitation period, and Krueger’s reliance on the legal
doctrines of delayed discovery, equitable tolling, and equitable estoppel are unavailing on
the facts and circumstances of this case. Krueger’s lawsuit against CSAA was untimely,
and she has offered no sufficient excuse or justification for that untimeliness.
Taken as a whole, we believe the trial court’s discussion and pronouncements
concerning its review and consideration of CSAA’s and Krueger’s MSJ’s demonstrate
that the trial court properly considered both motions appropriately, as well as all evidence
presented by the parties concerning them. Indeed, by all appearances Krueger received
solicitous treatment from the trial court in this regard. Notwithstanding the fact that
Krueger did not file a proper separate statement of undisputed material facts in support of
her own MSJ, the trial court apparently construed the materials Krueger supplied in
opposition to CSAA’s MSJ as constituting such a separate statement, and gave Krueger
the benefit of numerous doubts, as well as allowing filings well in excess of usual page
limitations. Far from being error laden, the trial court’s evaluation and decisions
concerning the MSJ’s were exemplary approaches to Krueger’s often unfocused
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litigation. Furthermore, the trial court’s grant of CSAA’s MSJ mooted Krueger’s MSJ,
since a finding that Krueger’s complaint against CSAA was inexcusably untimely
obviated any claims Krueger had in that regard, in whatever form they were raised.
For these reasons, the trial court’s rulings on the CSAA’s MSJ was factually,
procedurally, and legally correct.
DISPOSITION
The judgment is affirmed. Each party shall bear its own costs on appeal.
FRANSON, J.
WE CONCUR:
HILL, P.J.
PEÑA, J.
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