Opinion
Case No. CV 20-6936-DMG (SKx)
2022-02-14
STOCKTON MARIPOSA, LLC, Plaintiff, v. WEST AMERICAN INSURANCE COMPANY, Defendant.
Sassoon Sales, Law Office of Sassoon Sales, Encino, CA, for Plaintiff. Jeffrey Neal Gesell, William S. Hoang, Jones Turner LLP, Irvine, CA, for Defendant.
Sassoon Sales, Law Office of Sassoon Sales, Encino, CA, for Plaintiff.
Jeffrey Neal Gesell, William S. Hoang, Jones Turner LLP, Irvine, CA, for Defendant.
ORDER RE DEFENDANT WEST AMERICAN INSURANCE COMPANY'S MOTION FOR PARTIAL SUMMARY JUDGMENT [43]
DOLLY M. GEE, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant West American Insurance Company's Motion for Partial Summary Judgment ("MSJ"). [Doc. # 43.] The motion is fully briefed. [Doc. ## 44, 45, 49.] The Court held a hearing on this motion on February 11, 2022. For the reasons stated herein, West American's MSJ is GRANTED .
I.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed unless otherwise noted.
The Court has reviewed the parties’ evidentiary objections. To the extent the Court does not address any of them, it is because the Court did not rely on the objected-to evidence in reaching its ruling. Any objections to such evidence are OVERRULED as moot .
A. The Claim
Plaintiff Stockton Mariposa, LLC owns property located at 2180 E. Mariposa Road, Stockton, CA (the "Property"), which from the 1970s until early 2019 was occupied by and operated as a Kmart store. SUF 1-2. The Property was insured by West American under a policy numbered BKW (20) 57 10 74 98 (the "Policy"), which was in effect from January 3, 2019 through January 3, 2020. SUF 4. On March 15, 2019, Kmart closed its store and vacated the Property. SUF 3. Although the Property remains vacant, a successor entity to Kmart, Transform Lease Co., LLC, remains the lessee and has continued to pay rent. Nobel Decl. ¶ 3 [Doc. # 44-2]. On April 19, 2019, the City of Stockton issued a Notice of Violation directing Plaintiff to "remove the graffiti from the property (buildings, fences, garages, etc.)" and ordering that the Property "must be kept secure from intrusion from unauthorized persons at all times." SUF 7; see also April 19, 2019 Notice of Violation [Doc. # 43-16]. The Notice of Violation prompted Plaintiff's owner, Dr. Sion Nobel, to visit the Property in mid to late April 2019. SUF 8. Dr. Nobel and a handyman, Antonio Salazar, boarded up a door in the rear loading dock that Dr. Nobel later said had been "violated" by vandals. SUF 9. Mr. Salazar went inside the loading dock area and told Mr. Nobel it was "a mess," with lots of debris and broken furniture. SUF 10. Mr. Nobel interpreted Mr. Salazar's description to mean that the Property had been vandalized. SUF 10. Mr. Salazar testified at his deposition that he had seen pieces of copper pipe and "things like that" in the loading area, which he imagined vandals had cut from the Property. SUF 11. He did not see the full extent of the damage to the interior of the Property, though, because he only accessed a portion of the rear loading dock. SUF 23. Mr. Salazar is the only person either party has identified who personally accessed the interior of the Property between March 15, 2019 and May 14, 2019. SUF 21-22. In August 2019, a code enforcement officer for the City of Stockton inspected the Property in response to notice that the Property was unsecured. SUF 20. The officer found the Property had been heavily vandalized. Id.
Citations to the undisputed facts herein refer to West American's Response to Plaintiff's Statement of Genuine Disputes ("SUF"). [Doc. # 45-2.]
Plaintiff's insurance broker reported a claim on July 22, 2019. SUF 12; see also Gebhardt Decl. ¶ 5 [Doc. # 43-4]. The claim initially reported that theft and vandalism losses began occurring around July 8, 2019. Gebhardt Decl. ¶ 5. On July 24, 2019, West American asked Dr. Nobel for access to the Property so West American could conduct an inspection. SUF 13. Dr. Nobel told West American's claims adjuster he could not provide access to the Property at that time. Craig Decl. ¶ 5. On July 24, 2019, West American emailed Dr. Nobel requesting access to the Property to inspect it. SUF 14. On August 2, 2019, West American sent Plaintiff a Reservation of Rights letter. In the letter, West American noted it was unable to access the Property for an inspection, requested a timeline of when Kmart vacated the Property and when Plaintiff discovered the vandalism, and quoted from policy provisions including the requirement to give prompt notice. West American also noted it was investigating the loss under a reservation of rights. August 2, 2019 Letter [Doc. # 43-19]. In September, October, and November of 2019, West American sent letters reiterating its request for access to the Property to inspect it. SUF 15.
Dr. Nobel states in a declaration that he wrote to Transform to try to obtain access to the Property, but received no response. Nobel Decl. ¶ 5 [Doc. # 44-2]. Dr. Nobel says the contact information for the individuals with whom he had previously communicated no longer worked. Id. Dr. Nobel declares he therefore retained counsel to obtain access to the building and after several months, in November 2019, Dr. Nobel's counsel was able to obtain the code to a lock on the building. Id. at ¶ 6. Dr. Nobel states two code officers from the City of Stockton had to use a wrench in addition to the code to access the building. Id. at ¶ 7. In January 2020, West American's counsel emailed Plaintiff's counsel to say he had communicated with counsel for Transform, and that Transform's counsel had "confirmed that [Transform] is, in fact, in control of access to the interior of the building." January 20, 2020 Email [Doc. # 44-4].
Plaintiff characterizes Dr. Nobel's declaration as stating he attempted to arrange for an inspection "as soon as" Plaintiff learned West American wanted to inspect the building. See SUF 30. Dr. Nobel's declaration does not provide dates for his attempts to obtain access to the building. Plaintiff also asserts it had no ability to grant access to the property until November 2019, but provides no evidence for this assertion. See SUF 33 (citing to SUF 32). This assertion is particularly puzzling considering that Plaintiff is the owner of the property.
West American objects that Plaintiff has failed to authenticate this document because Plaintiff did not provide an authenticating declaration from Plaintiff's former counsel, who was the recipient of the email in question. Plaintiff's counsel has provided a declaration, however, stating he obtained the email in discovery from West American, Sales Decl. ¶ 4, and there appears to be a Bates number on the exhibit. West American's objection is OVERRULED . See In re Entropin, Inc. Sec. Litig. , 487 F. Supp. 2d 1141, 1143 n.1 (C.D. Cal. 2007) (because documents attached to the plaintiffs’ declaration were produced by the defendants during the course of discovery, "any authentication objection is without merit"); Anand v. BP W. Coast Prods. LLC , 484 F. Supp. 2d 1086, 1092 n.11 (C.D. Cal. 2007) ("Documents produced in response to discovery requests are admissible on a motion for summary judgment since they are self-authenticating and constitute the admissions of a party opponent.").
West American's November 5, 2019 letter informed Plaintiff that if it did not provide requested information by November 29, 2019, the claim for Plaintiff's file would be closed. SUF 16. On November 14, 2019, West American inspected the Property. SUF 18. The inspection revealed the Property had been badly damaged. SUF 19. On November 18, 2019, the City issued another Notice of Violation, stating "the building has sustained extensive damage to its structure, electrical, mechanical, plumbing, and venting systems." November 18, 2019 Notice of Violation [Doc. # 43-25].
The parties dispute whether the damage is more properly characterized as "vandalism" or as "theft." Compare Gebhardt Decl. ¶ 9 (stating the November 14, 2019 inspection found the property "had been extensively vandalized" prior to the inspection) with Sales Decl. ¶ 3 (quoting an expert report in which Plaintiff's retained expert states building components "were damaged and destroyed" by thieves stripping the building).
On June 16, 2020, Plaintiff filed a complaint in Los Angeles County Superior Court, asserting claims for breach of contract and breach of the implied covenant of good faith and fair dealing for West American's failure to pay Plaintiff's claim. [Doc. # 1-1.] West American filed its Answer on July 30, 2020. [Doc. # 1-7.] On July 31, 2020, West American removed the action to this Court, asserting subject matter jurisdiction based on 28 U.S.C. section 1332. [Doc. # 1.] On June 28, 2021, the Court approved the parties’ joint stipulation to dismiss Plaintiff's claims in its prayer for relief for mental and emotional distress and punitive damages and providing that West American agreed not to bring a motion for summary judgment on Plaintiff's bad faith claim. [Doc. # 28.]
Plaintiff's expert, Michael Villalba, conducted an inspection of the Property on September 10, 2021. See Villalba Expert Report at 5 [Doc. # 43-30]. In his report, Villalba opines that the damage to the building "occurred during the theft of [...] copper wire, copper plumbing, HVAC and electrical equipment [... T]he perpetrators knew exactly what they were looking for and where to get it." Id. at 7. Villalba also opines that "it is impossible for anyone to determine the timeframe when the building was damaged and all of the copper components were stolen." Id. ; see also SUF 27. Another expert retained by Plaintiff estimated the total cost of repairs at more than $9 million. Bogart Expert Report at 2 [Doc. # 43-33].
Page citations herein are to the page numbers inserted by the CM/ECF system.
On November 11, 2021, West American denied Plaintiff's claim. See SUF 29. West American's denial letter explains that "West American's claim investigation was delayed and impeded by Stockton Mariposa's late notice of the claim, by Stockton Mariposa's delays in making the Property available for site inspections and by Stockton Mariposa's repeated failure to respond to West American's reasonable requests for information and documentation." See Denial Letter at 2 [Doc. # 43-31]; see also SUF 29.
B. The Policy
Plaintiff's insurance policy contains the following vacancy provision (hereinafter the "vacancy exclusion"):
If the building where loss or damage occurs has been vacant for more than 60 consecutive days before that loss or damage occurs: (1) We will not pay for any loss or damage caused by any of the following even if they are Covered Causes of Loss: (a) Vandalism; [...] (e) Theft.
SUF 5. The Policy contains the following provisions regarding the insured's duties in the event of loss or damage:
You must see that the following are done in the event of loss or damage to Covered Property: (1) Notify the police if a law may have been broken. (2) Give us prompt notice of the loss or damage. Include a description of the property involved. [...] (8) Cooperate with us in the investigation or settlement of the claim.
SUF 6. The Policy contains the following provision regarding control of the property (hereinafter the "Control Clause"):
Any act or neglect of any person other than you beyond your direction or control will not affect this insurance.
Policy at 85 [Doc. # 43-13].
II.
LEGAL STANDARD
Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; accord Wash. Mut. Inc. v. United States , 636 F.3d 1207, 1216 (9th Cir. 2011). Material facts are those that may affect the outcome of the case. Nat'l Ass'n of Optometrists & Opticians v. Harris , 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby , 477 U.S. at 248, 106 S.Ct. 2505.
The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, Rule 56(c) requires the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ " Id. at 324, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c), (e) ); see also Norse v. City of Santa Cruz , 629 F.3d 966, 973 (9th Cir. 2010) (en banc ) (" Rule 56 requires the parties to set out facts they will be able to prove at trial."). "In judging evidence at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence." Soremekun v. Thrifty Payless, Inc. , 509 F.3d 978, 984 (9th Cir. 2007). "Rather, it draws all inferences in the light most favorable to the nonmoving party." Id.
Where the issues before the Court are questions of law, the case is particularly "well suited" for summary judgment. Del Real, LLC v. Harris , 966 F. Supp. 2d 1047, 1051 (E.D. Cal. 2013) ; see also Asuncion v. Dist. Dir. of U.S. Immigration & Naturalization Serv. , 427 F.2d 523, 524 (9th Cir. 1970) (district court properly resolved motion for summary judgment where issues presented were comprised solely of questions of law).
III.
DISCUSSION
Most of the facts critical to deciding this motion are undisputed. Kmart vacated the Property on March 15, 2019, but its successor retained the lease and has continued to pay rent until the present day. Plaintiff's owner, Dr. Nobel, knew there had been damage to the Property as of April 2019, yet did not report this damage to West American until July 2019. The Policy provides that damage that occurs when a property has been vacant for more than sixty days is excluded from coverage. West American repeatedly sought access to the Property beginning on July 24, 2019. West American gained access to the Property on November 14, 2019. One important fact is disputed: neither party knows how much damage to the Property occurred between March 15, 2019 and May 14, 2019. In fact, it is undisputed that there is no way to determine what damage occurred before May 14, 2019 and what damage occurred after that date.
West American moves for summary judgment on the basis that Plaintiff failed to provide West American with prompt notice of Plaintiff's loss in violation of the Policy. West American argues Plaintiff's failure to provide timely notice caused West American substantial prejudice because the delay rendered West American unable to investigate the extent of the damage to the Property during the first sixty days after Kmart vacated the Property. Plaintiff responds in opposition that the Policy's Control of Property clause precludes West American from excluding damages incurred while the Property was vacant, because Plaintiff had no control over its tenant's decision to vacate the Property. Plaintiff also contends that West American waived its opportunity to object to West American's late notice. The Court addresses each of Plaintiff's arguments in turn.
A. Control Clause and Vacancy Exclusion
Plaintiff argues that, because Plaintiff had no control over Kmart's decision to vacate the Property, the vacancy exclusion does not apply, and West American must therefore cover all the damage to the Property.
1. Insurance Policy Interpretation Principles
"While insurance contracts have special features, they are still contracts to which the ordinary rules of contractual interpretation apply." Bank of the West v. Superior Court , 2 Cal. 4th 1254, 1264, 10 Cal.Rptr.2d 538, 833 P.2d 545 (1992). Interpretation of an insurance policy is a matter of law. Waller v. Truck Ins. Exch., Inc. , 11 Cal. 4th 1, 18, 44 Cal.Rptr.2d 370, 900 P.2d 619 (1995). A court must look to "the mutual intention of the parties at the time the contract is formed," and that "intent is to be inferred, if possible, solely from the written provisions of the contract." Montrose Chem. Corp. v. Admiral Ins. Co. , 10 Cal. 4th 645, 666, 42 Cal.Rptr.2d 324, 913 P.2d 878 (1995). In other words, "[i]f the meaning a layperson would ascribe to the language of a contract of insurance is clear and unambiguous, a court will apply that meaning." Id. at 666–67, 42 Cal.Rptr.2d 324, 913 P.2d 878. When the language of a contract is ambiguous, it "must be construed in favor of coverage that a lay policyholder would reasonably expect." Minkler v. Safeco Ins. Co. of Am. , 49 Cal. 4th 315, 319, 110 Cal.Rptr.3d 612, 232 P.3d 612 (2010) ; Cal. Civ. Code § 1649. Insurance "coverage is interpreted broadly so as to afford the greatest possible protection to the insured," while "exclusionary clauses are interpreted narrowly against the insurer." MacKinnon v. Truck Ins. Exch. , 31 Cal. 4th 635, 648, 3 Cal.Rptr.3d 228, 73 P.3d 1205 (2003) (internal punctuation excluded).
In general, before considering whether any policy exclusions apply, the Court must first determine whether affirmative coverage exists at all. Rosen v. Nations Title Ins. Co. , 56 Cal. App. 4th 1489, 1497, 66 Cal.Rptr.2d 714 (1997). The parties here do not dispute that Plaintiff's losses fall within the scope of the Policy's coverage.
2. The Vacancy Exclusion
Vacancy provisions in insurance agreements "are premised upon the recognition that unoccupied properties face an increased risk of damage, whether from property-related crime such as theft or vandalism or from building damage or loss related to neglect." St. Mary & St. John Coptic Orthodox Church v. SBC Ins. Servs., Inc. , 57 Cal. App. 5th 817, 825, 271 Cal.Rptr.3d 773 (2020), review denied (Mar. 10, 2021) (citing TRB Investments, Inc. v. Fireman's Fund Ins. Co. , 40 Cal. 4th 19, 22, 50 Cal.Rptr.3d 597, 145 P.3d 472 (2006) ). Here, the damage to the Property occurred while the Property sat vacant, and neither party knows when the majority of the damage occurred precisely because the Property sat vacant for so long.
Plaintiff argues its lack of control over Kmart's decision to vacate the Property vitiates the vacancy exclusion. Because Transform maintained its lease on the Property and continued to pay rent, and there is no evidence in the record indicating one way or the other, the Court assumes that Plaintiff had no control over how long the Property sat vacant. The issue then is whether it matters that Plaintiff lacked this control.
Plaintiff argues that a footnote in St. Mary & St. John Coptic Orthodox Church v. SBC Insurance Services, Inc. supports its argument that the Control Clause voids the vacancy exclusion here. In St. Mary & St. John , the California Court of Appeal reversed the superior court's judgment in favor of the defendant, an insurance broker. The insurance broker had procured insurance coverage for a home purchased by the St. Mary and St. John Coptic Orthodox Church for use by visiting clergy. The insurance policy contained a vacancy exclusion virtually identical to the one at issue here. The home was unfurnished and unoccupied at the close of escrow, and remained so for the following 57 days, at which time a representative of the Church discovered there was water coming from inside the house. The insurance broker reported the water damage to the insurer, and the insurer denied the claim on the basis that the property was vacant for 60 days before the loss. 57 Cal. App. 5th at 822-24.
After a bench trial, the superior court found the water damage was covered under the policy, in part because the court found the vacancy exclusion was ambiguous as to whether the three days before the Church actually owned the house counted toward the 60-day period covered by the vacancy provision. 57 Cal. App. 5th at 824. The Court of Appeal reversed. The Court of Appeal concluded the policy language was not ambiguous. Under the vacancy exclusion, the only question was whether the property had been vacant for 60 consecutive days, without regard to who owned the property. Id. at 827. The Court of Appeal also noted in a footnote, however, that it had requested supplemental briefing on the relationship between the policy's "control of property" condition—also nearly identical to the language at issue here—and the vacancy exclusion. See id. at 827 n.5. After briefing, the court declined to consider the issue because the factual issue of actual control of the property had not been developed in the court below. Id.
Plaintiff relies heavily on this footnote for the proposition that the Control Clause prevents West American from denying coverage based on the vacancy exclusion. It is unclear, however, what the Court of Appeal might have decided if it had considered the relationship between the "control of property" clause and the vacancy exclusion in St. Mary & St. John. Here, the plain language of the vacancy exclusion is unambiguous. The policy provides that "[i]f the building where loss or damage occurs has been vacant for more than 60 consecutive days before that loss or damage occurs," West American "will not pay for any loss or damage caused by" vandalism or theft. If the Property was vacant, then damage caused by vandalism or theft will not be covered. The Control Clause speaks in terms of "acts or neglect." But under the terms of the vacancy exclusion, it does not matter why the property was vacant, only whether the property was vacant. It is therefore irrelevant whose "act or neglect" might have caused the property to become vacant.
Plaintiff also points to Sentience Studio, LLC. v. Travelers Insurance Co. for the idea that a Control Clause similar to this one will void a coverage exclusion found elsewhere in the policy. See 102 F. App'x 77, 81 (9th Cir. 2004). But that case did not involve a vacancy exclusion. In Sentience Studio , the Ninth Circuit determined that Control Clause language imposed a limitation on an exclusion for loss caused by "acts or decisions" of a person, group, or organization. Id. at 81. The question there was whether the "act" that triggered the exclusion was taken by the insured or another party. Accord Mon Chong Loong Trading Corp. v. Travelers Excess & Surplus Lines Co. , No. 12 CIV. 6509 CM, 2013 WL 3326662, at *6 (S.D.N.Y. June 27, 2013) (reasoning a Control Clause identical to the one at issue in Sentience Studio "protect[ed] the Insured when a person beyond its direction or control--i.e. , a stranger to the Policy--does or fails to do something that would affect the Policy if that the [sic] same act or failure to act had been committed by a person who is not a stranger to the Policy."). The Control Clause, in other words, may control when the issue is whether a particular individual took (or failed to take) an action. But the vacancy exclusion at issue here is not concerned with the question of who acted. It is triggered simply by the state of the Property—i.e. , occupied or vacant—not by any "act."
This decision is not citable pursuant to Ninth Circuit Rule 36-3, but the Court will address it because Plaintiff raised the decision in its Notice of Supplemental Authority. [See Doc. # 49.]
The California Court of Appeal's holding in St. Mary & St. John , and the cases cited therein, support this reading of the vacancy exclusion, even though the Court there expressly declined to consider the exclusion's relationship to the Control Clause. If a period during which the Church did not even own the property still counts toward the 60-day trigger of the vacancy exclusion, there can be no question that the exclusion does not inquire about the cause of the vacancy. The Court concludes, therefore, that as a matter of contract interpretation, the Control Clause does not limit the vacancy exclusion here. Only damage that occurred before May 14, 2019 will be covered by the Policy.
B. Waiver of Objection to Late Notice
Plaintiff argues that West American failed to specifically object to Plaintiff's delay in providing notice in its Reservation of Rights letter, and therefore that it has waived the issue. "If the insurer fails to promptly and specifically object to a delay in the presentation of notice, any objections based on delay are waived." Henderson v. Farmers Grp., Inc. , 148 Cal. Rptr. 3d 385, 399 (Ct. App. 2012), review granted sub nom. Henderson v. Farmers Grp. , 151 Cal.Rptr.3d 106, 291 P.3d 327 (2013), review dismissed , 161 Cal.Rptr.3d 698, 307 P.3d 877 (2013) (citing Cal. Ins. Code § 554 ). Plaintiff argues that West American waived its opportunity to object to the delay because the paragraph under the heading "Investigation Under a Reservation of Rights" at the end of West American's August 2, 2019 letter to Plaintiff did not mention the delay.
Plaintiff is incorrect. The Reservation of Rights letter specifically asks for information regarding the timeline of the loss, quotes from the Policy provision requiring prompt notice, and notes that West American is unable to access the Property. Moreover, West American has introduced uncontroverted evidence that Plaintiff initially notified West American that the loss began on July 8, 2019. Because West American apparently believed, at the time of its Reservation of Rights letter, that the notice had been prompt, there would be no reason for West American to object more specifically to the delay as of that date. West American's letter denying coverage is clear that the late notice was the reason for the denial. The Court concludes that West American did not waive its right to object to Plaintiff's late notice.
C. Prejudice to West American from Delay
West American denied Plaintiff's claim on the basis that Plaintiff's late notice impaired West American's investigation into Plaintiff's claim. Under California law, late notice may serve as the basis for denying an insurance claim only if the insurer can show actual prejudice from the delay. Ins. Co. of State of Pennsylvania v. Associated Int'l Ins. Co. , 922 F.2d 516, 523 (9th Cir. 1990) (citing Campbell v. Allstate Ins. Co. , 60 Cal. 2d 303, 305-306, 32 Cal.Rptr. 827, 384 P.2d 155 (1963) ). The insurer must "prove that the insured's late notice of a claim has substantially prejudiced its ability to investigate and negotiate payment for the insured's claim." Pitzer Coll. v. Indian Harbor Ins. Co. , 8 Cal. 5th 93, 101, 251 Cal.Rptr.3d 701, 447 P.3d 669 (2019). West American bears the burden of proof to show it suffered "actual prejudice, not the mere possibility of prejudice." Pitzer Coll. , 8 Cal. 5th at 105, 101, 251 Cal.Rptr.3d 701. Although prejudice is a factual issue, "it may be established as a matter of law by the facts proved. Nw. Title Sec. Co. v. Flack , 6 Cal. App. 3d 134, 141, 85 Cal.Rptr. 693 (1970).
There is no question that Plaintiff did not provide West American with prompt notice of the loss or damage: Plaintiff provided notice on July 22, 2019, despite knowledge that the damage began in at least April 2019. Plaintiff argues, however, that it was unable to provide West American with access to the Property any sooner than November 14, 2019. Plaintiff has produced some evidence that Dr. Nobel was impaired in his ability to provide West American with access to the Property, but does not explain why Plaintiff, as the owner of the property, could not have accessed the Property even without Transform's cooperation. According to Plaintiff, if Plaintiff's late notice was not the cause of West American's inability to investigate Plaintiff's claim—i.e. , if the actual cause was Plaintiff's inability to provide West American with access sooner because of Transform's unwillingness to provide that access—this would prevent West American from denying coverage for that reason. But the undisputed facts make clear that Transform's unwillingness to provide West American with access was not an intervening cause that prevented West American from conducting its investigation, because Dr. Nobel did not tender his claim to West American until July, well after the vacancy exclusion was triggered in May, despite knowledge that the Property had been damaged in April. Even if Dr. Nobel had difficulty gaining access to the Property beginning in July, this would not change the undisputed fact that Plaintiff failed to give West American timely notice after it discovered the damage. The undisputed facts show Plaintiff's late notice impaired West American's investigation and ability to pin down the nature and extent of the damage that occurred within the 60-day vacancy window.
The lease on the Property provides that Plaintiff "shall make a pay for all repairs and replacements (except those which Tenant shall be specifically obligated to make under the provisions of this Article and those due to Tenant's negligence) to said buildings which shall be necessary to maintain the same in a safe, dry and tenantable condition, and in good order and repair." See Lease ¶ 14 [Doc. # 43-12]. This provision further suggests that Plaintiff had some right to access the building.
Plaintiff's counsel argued at the hearing on this motion that Plaintiff's failure to provide access is not related to Plaintiff's late notice. The Court agrees, as explained herein. The Court notes that Plaintiff contended in its Opposition that the question of whether Plaintiff could provide access should preclude summary judgment, see Opp. at 8. Thus, the Court's discussion regarding whether Plaintiff had access to the building merely addresses Plaintiff's argument on that point.
It is further undisputed that there is no way now to determine what damage occurred between March 15 and May 14 and what damage occurred after that time. The Court has concluded that the vacancy exclusion applies, so only damage that occurred between March 15 and May 14 is covered under the Policy. Because even Plaintiff's expert agrees that it is impossible to tell what damage is covered and not covered based on a temporal analysis, the Court concludes that there is no factual dispute as to whether West American suffered substantial prejudice due to Plaintiff's late notice. Accord Gilbert v. Infinity Ins. Co. , 186 F. Supp. 3d 1075, 1086–87 (C.D. Cal. 2016) (finding prejudice caused by Plaintiff's failure to cooperate where Plaintiff's failure "prevented Defendant from determining whether there was coverage for the loss"); Henderson , 148 Cal. Rptr. 3d at 398 (stating insurer had shown prejudice from late notice where insured did not give notice of smoke and soot damage from a fire for eight months and the superior court found "the passage of time [...] had confused, confounded and generally concealed any real attempt to obtain at [the time of the insurer's investigation] an evaluation of the true conditions as they existed [at the time of the fire]."). West American has carried its burden of showing with undisputed facts that it suffered actual prejudice inasmuch as it is now impossible to determine whether and to what extent Plaintiff's loss was covered.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS West American's partial MSJ in its entirety. The Court ORDERS the parties to file a joint status report regarding the remainder of Plaintiff's claims by February 25, 2022 .