Vega v. Farmers Ins. Grp.

Full title: TOBIAS VEGA, Plaintiff and Appellant, v. FARMERS INSURANCE GROUP et al.…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)

Date published: May 7, 2020

No. C080931 (Cal. Ct. App. May. 7, 2020)

Opinion

C080931

05-07-2020

TOBIAS VEGA, Plaintiff and Appellant, v. FARMERS INSURANCE GROUP et al., Defendants and Respondents.

MURRAY, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 39201400306624CUICSTK)

Plaintiff's 2004 Chevrolet Corvette was insured by a policy issued by defendant Farmers Insurance Exchange s/h/a Farmers Insurance Group (Farmers). On October 22, 2013, plaintiff notified Farmers of vandalism damage to the vehicle. Farmers investigated plaintiff's claim, concluded further investigation was warranted, and requested plaintiff undergo an examination under oath pursuant to the terms of the policy. After notifying plaintiff that it required he undergo an examination under oath, Farmers set a date for the examination, but it did not occur. Farmers again notified plaintiff of the requirement that he submit to an examination under oath. Instead, plaintiff commenced this action and he was never examined. Defendants moved for summary judgment and plaintiff failed to file timely opposition to the motion. The trial court granted defendants' summary judgment motion.

On appeal, plaintiff asserts the trial court abused its discretion (1) in refusing to consider his late-filed opposition papers, and (2) in granting defendants' motion for summary judgment.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Summary of Facts ¹

1 The underlying background facts are derived from defendants' separate statement of undisputed facts. For purposes of this brief factual recitation, defendants' facts that are disputed by plaintiff in his separate statement in opposition are excluded, even though plaintiff's opposition papers were not timely filed and were not considered by the trial court.

On October 22, 2013, plaintiff notified Farmers of vandalism damage to his 2004 Chevrolet Corvette. Plaintiff discussed the claim with Farmers on October 25, 2013, and a Farmers field adjuster inspected the vehicle on the same day, observing exterior damage due to vandalism and evidence of attempted theft. The vehicle had key marks on each exterior panel, a broken window, interior puncture marks, and damage to the seats, and there were indications of an attempted theft of the stereo. Plaintiff stated he recently had the seats and door trim reupholstered and the car painted with a special coat of paint and striping. Farmers determined the claim warranted further investigation because, among other reasons, title to the vehicle had been salvaged, plaintiff was not the registered owner, and the vehicle had already been modified from stock after a prior vandalism loss.

Farmers' investigator, David Bear, took a statement from plaintiff on November 7, 2013. On November 21 or 22, 2013, Farmers notified plaintiff that it was exercising its right under the policy to request plaintiff to submit to an examination under oath. By letter dated December 23, 2013, Farmers indicated it was still investigating the claim, and again requested plaintiff submit to an examination under oath.

Plaintiff sent defendants an e-mail dated December 30, 2013,² in which he unilaterally withdrew the authorization he had given Bear allowing Farmers to obtain information. Plaintiff also told Farmers that, if payment on his claim was not received by January 10, 2014, he would sue Farmers.

2 In its separate statement of undisputed facts, Farmers erroneously states that this e-mail was dated December 31, 2013. It was dated December 30, 2013. We discuss the contents of this e-mail in more detail, post.

Farmers responded in a letter to plaintiff stating that it was entitled to an examination under oath under the policy, indicating it had attempted to confirm with plaintiff the scheduled date of January 22, 2014, and further indicating the examination would go forward on that date. Defendants stated that plaintiff did not appear for the examination under oath on that date. Plaintiff stated he never agreed to that date, and Farmers never notified him of a time and location. Twice more, Farmers indicated it required plaintiff to submit to an examination under oath, but the examination never occurred.

Insurance Policy

The insurance policy covering the 2004 Corvette was effective as of October 21, 2013, the day before plaintiff's loss. Under the heading, "what to do in case of accident," the policy stated that a person seeking coverage under the policy must, among other things, "[a]uthorize us to obtain medical and other records," "[p]rovide any written proofs of loss we require," and "[s]ubmit to examination under oath upon our request."

David Bear's Declaration

In a declaration, Bear stated he was a claims investigator for Farmers. In November 2013 he was assigned to investigate plaintiff's claim. Based on his review of the claim file, Bear was aware coverage had lapsed two months prior to the loss, and it was not reinstated until the day before the loss. Additionally, Farmers had paid plaintiff approximately $8,000 in April 2013. Bear stated that "after the October 2013 loss, the car appeared to be different from its appearance in April 2013."

Bear took a recorded statement from plaintiff. In his statement, plaintiff acknowledged reporting damage to the same vehicle earlier in 2013. Plaintiff told Bear he had purchased the vehicle from the prior owner in 2011. He informed Bear he was seeking cash payment rather than paying an auto body shop for repairs. Bear and plaintiff "discussed that title was salvaged and that plaintiff was not the registered owner, nor was the registered owner listed on the Policy." However, according to Bear, he "never advised plaintiff that his policy was 'fraudulent', as coverage [had previously been] fully reinstated at the time of the loss."³

3 As we shall discuss post, plaintiff alleged in his causes of action for intentional infliction of emotional distress and negligent misrepresentation that Bear told plaintiff his policy was fraudulent.

Bear also spoke with Esmeralda Moreno, the registered owner of the vehicle who also happened to be an independent agent for Farmers who acted as plaintiff's agent in connection with his policy. Moreno acknowledged she was the registered owner of the vehicle, but indicated she sold it to plaintiff in 2011. Moreno told Bear that plaintiff had lost the bill of sale, and he could not register the car until a new bill of sale was created.

Michael Prucyk's Declaration

Michael Prucyk was a claims representative for Farmers. In October 2013, Prucyk was assigned to work on plaintiff's claim. Prucyk spoke with plaintiff on October 25, 2013, and also inspected the vehicle. The vehicle had " 'key' mark damage" to the exterior panels, a broken window, interior puncture marks, and damage to the seats. Plaintiff told Prucyk that he recently had the seats and door trim reupholstered, and the car repainted "with a special coat of paint and striping." Upon reviewing the file, Prucyk learned the policy had lapsed in August 2013, and that "coverage for the damaged vehicle was only reinstated one day before the loss was reported." Prucyk also determined that title to the vehicle was salvaged, and plaintiff was not the registered owner. Additionally, plaintiff sought cash payment rather than payment of repair bills. Prucyk also noted that the vehicle had been modified from stock. According to Prucyk, "[t]hese factors reasonably suggested further investigation of the loss."

On November 21, 2013, Prucyk notified plaintiff that Farmers was requesting plaintiff submit to an examination under oath pursuant to the terms of the policy. Prucyk notified plaintiff he would be contacted by Farmers to schedule the examination. On December 23, 2013, Prucyk sent plaintiff a letter requesting that plaintiff complete the examination under oath as discussed. However, before scheduling the examination under oath, plaintiff sent an e-mail to Farmers stating that he was rescinding all prior authorizations for the release of information.

Farmers responded by letter dated January 6, 2014, stating that its right to conduct an examination under oath was set forth in the policy, and directing plaintiff to relevant provisions of the policy. The letter also indicated that Farmers had previously attempted to confirm January 22, 2014, as the scheduled date for the examination under oath, and that it would go forward on that date. On January 3, 2014, Farmers received notice that a complaint had been filed against it. Prucyk stated that Farmers was nevertheless prepared to conduct the examination under oath on January 22, 2014, but plaintiff neither responded nor appeared.

In letters dated January 22, 2014 and February 18, 2014, Farmers again informed plaintiff he was required to appear for an examination under oath. However, again, plaintiff did not respond.

Correspondence Between the Parties Included in the Record

In a letter dated December 23, 2013, Prucyk stated that Farmers was investigating plaintiff's claim. However, Prucyk further stated that, to complete the investigation, Farmers required plaintiff to complete an examination under oath.⁴ But the letter did not expressly tell plaintiff to contact Prucyk to schedule the examination under oath.

4 The December 23, 2013, letter appears to be a form letter because it reads substantially the same as others we shall discuss. After explaining that Farmers was investigating plaintiff's claim and that more time was required to do so, the letter reads: "To complete our investigation, we need the following: Examination under oath completion. We will make every effort to resolve your claim as quickly as possible, upon the receipt of the requested information. [¶] We will contact you after we have received and reviewed all requested information. Please mail all documentation to the address above or fax it to [phone number omitted]. Please provide your claim number on the cover sheet along with each piece of correspondence included. [¶] Your patience is greatly appreciated and we will make every effort to process your claim as quickly as possible. [¶] If you have any questions or concerns, please contact me at [phone number omitted]. My scheduled office hours are Monday through Friday from 8:00 a.m. to 5 p.m. Pacific Time."

On December 30, 2013, plaintiff sent a lengthy e-mail to a Farmers employee, with copies to Bear and Prucyk. Among other things, plaintiff purported to rescind the release of reasonable information he signed with Bear. Plaintiff also demanded the immediate payment of his claim, and stated that, if his claim was not paid by January 10, 2014, he would file a complaint "for Breach of Contract, Misrepresentation, and Bad Faith Practices" in the San Joaquin Superior Court on January 13, 2014. He also threatened to file a bad faith complaint with the California Insurance Commissioner. Plaintiff wrote: "I will no longer be toyed with by your office and allow you not to pay my loss. You have breached our contract and now you have demonstrated intentional bad faith practices in paying for my loss. I have waited in good faith for you to pay my loss. I was told on November 22, 2013 that within about 10 days I would have to do an Under Oath Examination. Well, 40 days have gone by since then and nothing has happened." Plaintiff stated his notice of intent to file a complaint was not a threat, but rather "a cordial request for you to stop acting in bad faith and pay my loss." He went on to state that, after filing his complaint, "I will be able to serve Interrogatories' and special interrogatories, I will be able to obtain reports of your Farmers' Dashboard to see your errors. I can have personnel deposed. I can hopefully deal with an Attorney you'll hire that does not see this as a billable deep pocket case and resolve this quicker than you are processing my claim. [¶] I believe that Farmers will not be able to demur my compliant [sic]. I believe through the court process a judge will ask Farmers to pay my legitimate claim and not waste the court^['^]s time." Plaintiff asserted that if the matter went to trial, a jury would find Farmers' defense "laughable." He also stated Farmers would learn nothing more at an examination under oath and that "Mr. Bear, if he needed, could have asked for one more recorded examination."

Farmers responded to plaintiff's e-mail in a letter from Steve Figgins, a field claims supervisor, stating that, while Farmers understood plaintiff's disappointment, Farmers required plaintiff's cooperation to complete its investigation. The letter itself is not dated, but it appears to bear a fax machine date stamp of January 6, 2014. Figgins stated that Farmers' legal office "has attempted to confirm with you an examination under oath date of January 22, 2014 and is proceeding with the preparation for this examination." Figgins emphasized the provisions in the policy requiring the insured to authorize Farmers to obtain medical and other records, provide any written proofs of loss Farmers required, and submit to an examination under oath. Figgins stated: "We do not want to extend this investigation any longer than is necessary, but it is our position that the examination under oath is necessary to clarify the facts surrounding this loss."

In a letter dated January 22, 2014, Prucyk stated that additional time was required to investigate plaintiff's claim. Prucyk again stated that, to complete the investigation, Farmers required that plaintiff submit to an examination under oath. The letter did not schedule a specific date, place, or time, and did not expressly tell plaintiff to contact Prucyk to schedule the examination under oath.

A letter from Prucyk to plaintiff dated February 18, 2014, essentially duplicated the January 22, 2014 letter, including the statement that Farmers required plaintiff to complete an examination under oath.⁵ Again, the letter did not schedule a specific date, place, or time, and did not expressly tell plaintiff to contact Prucyk to schedule the examination under oath.

5 The January 22, 2014 and February 18, 2014 letters appeared to be the same form and use the same language as Prucyk's letter of December 23, 2013. (See fn. 4, ante.)

Second Amended Complaint

Plaintiff's second amended complaint is the operative complaint.

First Cause of Action — Breach of Contract

Plaintiff asserted that, on or about October 21 or 22, 2013, at which time his insurance policy with Farmers was in effect, someone vandalized his Corvette. Plaintiff made a timely claim with Farmers, and, according to plaintiff, under the terms of the policy, Farmers was required to pay the claim. However, according to plaintiff, Farmers had willfully failed and refused to pay his claim "without contractual and legal cause." Plaintiff asserted that he had "performed all conditions of the insurance policy on his part that the insurance policy requires he perform . . . " and paid all of his premiums. Therefore, according to plaintiff, Farmers had breached their contract, resulting in damages.

Second Cause of Action — Intentional Infliction of Mental and Emotional Distress

Plaintiff stated that he had obtained the policy through Esmeralda Moreno, an authorized Farmers agent and plaintiff's good friend. According to the complaint, in investigating the claim, Bear engaged in extreme and outrageous conduct including informing plaintiff, on two occasions, that the policy he obtained through Moreno was fraudulent and unauthorized, that plaintiff had no insurance coverage, and informing plaintiff that Farmers had no record of receiving money from plaintiff. Plaintiff specifically asserted that Bear told him that "without authorization by defendant Farmers Insurance Exchange had produced a fraudulent memorandum of insurance." (Capitalization omitted.) Plaintiff alleged that Bear made these false representations to him with the intent of causing, or with reckless disregard of the probability of causing, emotional distress.

Plaintiff asserted that he initially, reasonably, relied on Bear's false representations. Plaintiff alleged that he suffered extreme emotional distress as a result of believing his loss was not covered; believing that he had been driving uninsured and, had an accident occurred, he could have been exposed to substantial financial liability; and, "perhaps most painfully of all," believing that his good friend, Moreno, had deceived him and fraudulently obtained money from him. Plaintiff stated that, acting under the erroneous belief that he was not insured, he paid approximately $11,000 to repair the property damage to his Corvette. However, soon thereafter, plaintiff learned that Bear's representations were false and that plaintiff's insurance had been valid and effective at the time of his loss.

Plaintiff asserted that Bear's conduct was so extreme as to exceed all bounds of that usually tolerated in a civilized society. Plaintiff further asserted that Bear owed him a duty of care to carefully investigate his claim and communicate truthfully with him, and that, in intentionally making false representations to him, Bear breached his duty of honesty and fair dealing.

Plaintiff asserted that, as a result of Bear's false representations, he sustained damages and suffered severe mental and emotional distress.

Third Cause of Action — Negligent Misrepresentation

Plaintiff asserted that Bear made the statements and assertions discussed in connection with the second cause of action without any reasonable grounds for believing them to be true, and with the intent to induce plaintiff's reliance on them. Plaintiff asserted that he justifiably relied on those misrepresentations, and, as a result, he sustained damages.

Fourth Cause of Action — Implied Covenant of Good Faith and Fair Dealing

Plaintiff asserted that Farmers breached the implied covenant of good faith and fair dealing by failing to pay his claim and failing to offer any reason for that failure, beyond representing that the claim was under investigation. Plaintiff acknowledged that Farmers demanded he undergo an examination under oath. However, plaintiff asserted, after he promptly informed Farmers he would comply, that he "has received no further communication from" Farmers to schedule a date, time, and location for the examination. Therefore, according to plaintiff, Farmers unreasonably delayed the investigation into plaintiff's claim and unjustly failed to pay the claim.

Punitive Damages

Finally, plaintiff asserted that Farmers acted in conscious disregard of plaintiff's rights, and that Farmers' conduct was malicious, oppressive, and fraudulent. Therefore, punitive damages were warranted.

Defendants' Summary Judgment Motion

On July 1, 2015, defendants filed a motion for summary judgment pursuant to Code of Civil Procedure section 437c.⁶ Defendants stated that, after plaintiff reported his loss, Farmers requested plaintiff to attend an examination under oath, and that, once requested, this became a condition precedent to coverage. However, plaintiff refused to appear for the examination under oath, and, instead, filed this action. Defendants asserted that plaintiff could not maintain an action for denial of insurance benefits where that denial is based on plaintiff's own failure to comply with a condition precedent to coverage. Further, defendants asserted that plaintiff's claims against Bear did not lie where the basis for plaintiff's claims was the non-payment of policy benefits resulting from plaintiff's failure to submit to the examination under oath.

6 Further undesignated statutory references are to the Code of Civil Procedure.

Defendants asserted that, because the implied covenant of good faith and fair dealing is based on the contractual relationship between the parties, in the absence of a breach of contract, and where policy benefits were not payable under the policy, plaintiff could not prevail on a claim alleging breach of that implied covenant.

Defendants further asserted that no facts supported plaintiff's claims of intentional infliction of emotional distress and negligent misrepresentation against Bear. Defendants asserted Bear had made a representation that plaintiff's coverage had previously lapsed, which was accurate. Further, defendants asserted there was no evidence Bear intended to induce reliance on a representation concerning a lapse in coverage, there was no evidence the prior lapse was asserted as a ground for denying coverage, and there was no evidence plaintiff changed his position in reliance on Bear's representations. With regard to the cause of action based on intentional infliction of emotional distress, defendants asserted Bear's correct representation that coverage had previously lapsed could not possibly be deemed sufficiently outrageous to support such a cause of action.

Plaintiff's "Motion to Quash" ⁷

7 As defendants assert, plaintiff's motion to quash did not constitute a proper opposition to defendants' summary judgment motion. (See generally § 437c, subd. (b)(2) [procedure for opposing summary judgment motion].) Moreover, even if it did otherwise constitute proper opposition, it was not timely.

On September 18, 2015, plaintiff filed a motion to quash service of defendants' summary judgment motion. In his memorandum of points and authorities, plaintiff asserted that all documents served on him regarding defendants' summary judgment motion failed to state a hearing date on the motion, and therefore failed to comply with the requirements of California Rules of Court, rule 3.1110(b).

In a declaration in support of plaintiff's motion to quash, Mala Nop stated that, on July 31, 2015, on behalf of plaintiff, she discovered from the San Joaquin County civil clerk that the scheduled hearing date on defendants' summary judgment motion was September 22, 2015, and that the hearing date had been requested on July 1.

In his own declaration, plaintiff acknowledged that, on or about July 6 or 7, 2015, he received defendants' summary judgment motion, but stated the documents he received did not bear a hearing date. Plaintiff stated that, on August 31, 2015, due to great bodily pain, he realized he was not going to be able to submit his opposition to defendants' summary judgment motion by September 8, 2015. On September 8, 2015, plaintiff called defense counsel's office to ask for a three-week postponement of the hearing date on the summary judgment motion. However, plaintiff did not hear back from defense counsel. Plaintiff did not allege that he sent any request for a continuance to opposing counsel in writing; nor did he allege he requested a continuance with the court.

Sua Sponte Continuance

It appears the trial court issued a tentative ruling to continue the hearing prior to the scheduled September 22, 2015, hearing date. In a minute order of September 22, 2015, the trial court stated it confirmed its tentative ruling, continuing the hearing on defendants' summary judgment motion, on its own motion, to October 9, 2015.

Order Denying Motion to Quash and Granting Summary Judgment

In a tentative ruling for the continued motion, the trial court granted defendants' motion for summary judgment. The trial court reset the hearing date for October 14, 2015. In a tentative ruling dated October 7, 2015, the trial court denied plaintiff's motion to quash.

In a minute order dated October 14, 2015, the trial court stated it had heard oral argument and notified the parties it was not considering plaintiff's opposition to the summary judgment motion. The court stated it was adopting its tentative ruling denying plaintiff's motion to quash, stating plaintiff failed to meet his burden by furnishing evidence sufficient to overcome the presumption that service of defendants' summary judgment motion was proper.

The trial court noted that, in his late-filed opposition, plaintiff asserted he had not received proper notice of the hearing date on the motion. The court stated that, according to the proofs of service filed with the court, defendants served plaintiff on July 1, 2015, and on the papers served that day, the hearing date was blank, likely because the hearing date had not yet been assigned by the court's civil clerks. On July 2, 2015, defendants timely served endorsed copies of all moving papers which included the September 22, 2015, hearing date. However, plaintiff claimed he did not receive those copies.

The trial court noted plaintiff filed opposition to the summary judgment motion after the deadline had passed. The court noted, "The original hearing date for this motion was September 22, making Plaintiff's deadline for opposition September 8. On September 9, Plaintiff called defense counsel and said he was not aware of any hearing date and had not received notice of the motion. [Citation.] Plaintiff claims he called on September 8, not September 9, and requested a three-week extension, which defendant does not mention."

The trial court characterized plaintiff's version of the events as "somewhat incoherent, and ultimately not credible." Plaintiff failed to offer any explanation for why he received the unendorsed papers with no hearing date served by mail at his address on July 1, 2015, but did not receive the endorsed papers containing the hearing date also served by mail at the same address the next day, July 2, 2015. The trial court stated plaintiff's bare assertion that he was not served was insufficient to meet his burden of overcoming the presumption of proper service established by the proof of service. Therefore, the trial court denied plaintiff's motion to quash.

Turning to defendants' summary judgment motion, the trial court stated it was adopting its tentative ruling granting defendants' motion. Addressing the breach of contract cause of action, the trial court stated the insurance policy required the insured to submit to an examination under oath, and that it was undisputed plaintiff had failed to appear for such an examination "despite repeated requests by" Farmers. The trial court stated undergoing an examination under oath where required under the policy was a condition precedent to recovery under that policy. Therefore, plaintiff's refusal to undergo the examination under oath precluded any recovery for breach of contract. The trial court further stated that "if the insurer is not obligated to pay benefits under the policy, there can be no breach of the covenant of good faith and fair dealing."

Regarding the cause of action for intentional infliction of emotional distress, the court stated defendants "produced evidence demonstrating that neither Farmers nor Mr. Bear engaged in any 'outrageous' conduct sufficient to constitute intentional infliction of emotional distress. Plaintiff has provided no evidence to the contrary."

Finally, with regard to the cause of action for negligent misrepresentation, the court stated defendants offered evidence to prove there were no misrepresentations made by them to plaintiff regarding plaintiff's coverage, and that, in opposition, plaintiff failed to raise a triable issue of material fact.

Therefore, the trial court granted defendants' motion for summary judgment.

DISCUSSION

I. The Trial Court's Ruling on Late-filed Opposition Papers

A. Plaintiff's Contentions

Plaintiff asserts that the trial court abused its discretion in refusing to consider his late-filed papers opposing defendants' summary judgment motion. He asserts that, under applicable case law, trial courts should exercise their discretion to allow parties to file late oppositions to summary judgment motions or, in the alternative, grant continuances. Plaintiff emphasizes that the trial date remained months off at the relevant time, and further asserts defendants would have suffered no prejudice had the trial court considered his opposition papers. Plaintiff emphasizes that he appeared in propria persona. Plaintiff further asserts his failure to timely file his opposition papers was excusable because defendants did not properly serve him with their summary judgment motion, he believed defendants would reciprocate after he did not oppose an earlier extension of time sought by Farmers, and he had had medical issues.

B. Standard of Review and Trial Court's Discretion

Section 437c requires a party seeking summary judgment to serve the motion and supporting papers on all other parties to the action at least 75 days before the hearing. (§ 437c, subd. (a)(2).) Section 437c, subdivision (b)(2), provides that an opposition to a summary judgment motion "shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." (Italics added.) Section 437c, subdivision (b)(2), thus "forbids the filing of any opposition papers less than 14 days prior to the scheduled hearing, and the case law has been strict in requiring good cause to be shown before late filed papers will be accepted." (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 624-625 (Hobson), disapproved on another ground in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)

"A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission." (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 (Bozzi).) A party's neglect resulting in the untimely filing of opposition papers must be evaluated by the trial court "in light of the reasonableness of [his or her] conduct." (Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29, 33.) On appeal, we review a trial court's refusal to consider late-filed opposition papers for an abuse of discretion. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 30 (Mann); Bozzi, at p. 765.)

C. Plaintiff's Untimely Opposition

Defendants served plaintiff by mail with their summary judgment motion on July 1, 2015, with a version of the papers that did not contain a hearing date. In a declaration in support of his motion to quash, plaintiff acknowledged receiving these papers "[o]n or about July 6th or 7th," although he noted, and defendants do not dispute, that the first papers served did not include a hearing date.⁸ The record, as augmented, contains proof that, on July 2, 2015, defendants served plaintiff by mail at the same address with the clerk endorsed summary judgment motion papers bearing the September 22, 2015, hearing date. Thus, as mandated by section 437c, subdivision (b)(2), plaintiff's opposition to defendants' summary judgment motion was originally due on September 8, 2015, 14 days preceding the September 22, 2015, noticed hearing date. However, the trial court subsequently, on its own motion, continued the hearing from September 22, 2015, to October 9, 2015. Based on this new hearing date, plaintiff's opposition became due on September 25, 2015. (§ 437c, subd. (b)(2).) Yet, plaintiff did not file his opposition until October 7, 2015, 29 days after it was originally due, 12 days after its due date based on the continued hearing date, and two days before that hearing. And it appears that plaintiff never filed a written request for a continuance, nor asked defendants in writing to consent to a continuance. Thus, plaintiff's opposition was untimely, and the trial court was statutorily prohibited from accepting and considering the opposition papers unless plaintiff showed good cause for late submission. (Hobson, supra, 73 Cal.App.4th at pp. 624-625.)

8 Defendants assert that, pursuant to local court rule, a hearing date was to be assigned by the clerk at the time of the filing. The local rule on which defendants rely, both in July 2015 and as of now, provides: "Except where there is an order setting the date, the moving party may schedule the Law and Motion hearing in the Superior Court Clerk's office when the moving papers are filed (subject to mandatory time provisions of statutes and Rules of Court). Motions are heard Tuesdays through Fridays at 9:00 a.m. When submitting the moving papers for filing, please have at least three (3) dates (within the proper time provisions) for the clerk to check for availability. Proof of service must be on file with the Superior Court Clerk's office prior to the scheduled hearing." (Super. Ct. San Joaquin County, Local Rules, rule 3-113(A), italics added.)

D. Plaintiff's Failure to Establish Good Cause for Late Submission

On appeal, plaintiff asserts, in effect, that he showed good cause for his late submission based on: (1) his showing he was not properly served with defendants' summary judgment motion bearing the hearing date; (2) his belief opposing counsel would accede to a continuance because he did not oppose a prior defense motion to set aside a default and for an extension of time to answer the second amended complaint; and (3) medical issues.

1. Service of Defendants' Summary Judgment Motion

As noted, notice of a motion for summary judgment and supporting papers "shall be served on all other parties to the action at least 75 days before the time appointed for hearing." (§ 437c, subd. (a)(2).) Under California Rules of Court, the first page of each motion paper must specify, among other things, "[t]he date, time, and location, if ascertainable, of any scheduled hearing and the name of the hearing judge, if ascertainable." (Cal. Rules of Court, rule 3.1110(b)(1).)

The record contains proof that defendants served plaintiff with the unendorsed motion papers without a hearing date by mail on July 1, 2015, and plaintiff acknowledges receipt of these papers. Also in the record is proof that defendants served plaintiff the next day with the clerk endorsed summary judgment motion papers bearing the September 22, 2015, hearing date. The July 2, 2015, proof of service demonstrates that service was effected by the same means—by mail sent to the same address as the July 1, 2015, service—and by the same person.

The filing of proof of service, if that proof of service complies with the applicable statutory requirements, gives rise to a rebuttable presumption that service was proper. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Also, a "letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail." (Evid. Code, § 641.) Additionally, as noted by the trial court, " 'service is complete at the time the document is deposited in the mail. [Citation.]' [Citations.] 'Further, the sender does not have the burden of showing the notice was actually received by the addressee.' [Citation.] Moreover, '. . . the addressee incurs the risk of the failure of the mail.' " (Silver v. McNamee (1999) 69 Cal.App.4th 269, 283.)

Defendants furnished proof of service of their endorsed summary judgment motion papers bearing the hearing date. That proof of service complied with the requirements of section 1013a, subdivision (3).⁹

9 Section 1013a, subdivision (3), provides that proof of service by mail may be established by: "An affidavit setting forth the exact title of the document served and filed in the cause, showing (A) the name and residence or business address of the person making the service, (B) that he or she is a resident of, or employed in, the county where the mailing occurs, (C) that he or she is over the age of 18 years and not a party to the cause, (D) that he or she is readily familiar with the business' practice for collection and processing of correspondence for mailing with the United States Postal Service, (E) that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, (F) the name and address of the person served as shown on the envelope, and the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and (G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices. Service made pursuant to this paragraph, upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit." The proof of service of the endorsed summary judgment motion papers bearing the September 22, 2015, hearing date complied with each of the foregoing requirements.

On appeal, plaintiff denies receiving these papers, and claims it was not until August 1, 2015, that he obtained a copy of the summary judgment motion papers with the hearing date. In his declaration in support of his motion to quash, plaintiff implied that he did not receive the papers served on July 2, 2015, stating, among other things, that service of the summary judgment was "inadequate" and asserting that, prior to August 1, 2015, he was unaware of the September 22, 2015, hearing date. However, while plaintiff asserts he did not receive "adequate notice" of the hearing date, he did not explicitly deny that he was properly served on July 2, 2015, with the endorsed papers bearing the hearing date or that he never received those papers from defendants. Additionally, plaintiff did not address service and/or nonreceipt of the summary judgment motion bearing the hearing date in any of the evidence in his late-filed summary judgment opposition papers, including the separate statement in opposition or his two declarations.

"The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate." (Evid. Code, § 604, italics added.) On this record, plaintiff did not submit evidence which would support a finding of the nonexistence of the presumed fact of proper service of the summary judgment motion papers bearing the hearing date. He did not, in admissible evidence, raise any defects in service or even expressly assert that he did not receive the relevant motion papers.

The trial court found plaintiff's "version of events . . . somewhat incoherent, and ultimately not credible." As the trial court also noted, faced with defendants' proofs of service of the summary judgment motion papers on successive days, the second set of which bore the hearing date, plaintiff "has offered no proof that he did not receive notice of the hearing, other than an implied assertion that the endorsed/filed documents never arrived." (Italics added.) Thus, the trial court concluded that plaintiff failed to provide credible evidence to overcome the presumption that proper service was effected.

We agree with the trial court that plaintiff failed to provide credible evidence so as to disregard the presumption of proper service. Indeed, plaintiff failed to provide any evidence to challenge the presumption of proper service. Therefore, plaintiff's claim that defendants' service of the endorsed summary judgment motion papers was inadequate does not constitute good cause to warrant consideration of plaintiff's late-filed opposition papers.

2. Assumption that Opposing Counsel Would Agree to Continuance

Plaintiff asserts as a basis for excusing the lateness of his opposition papers that he believed opposing counsel would agree to continue the summary judgment motion hearing date because he had extended the courtesy to the defense of not opposing a motion to set aside a default and agreeing to an extension of time for defendants to file an answer to the second amended complaint. He asserted in his declaration in support of his motion to quash that he called opposing counsel's office on September 8, 2015, "to ask her" to consider a three week continuance, and stated he had not heard from counsel as of the date of his declaration. On appeal, plaintiff relies on Section 6 of the California Attorney Guidelines of Civility and Professionalism promulgated by the State Bar, which provides, among other things, that an "attorney should not arbitrarily or unreasonably withhold consent to a request for scheduling accommodations . . . ." (State Bar of California, California Attorney Guidelines of Civility and Professionalism (July 20, 2007), at p. 6 <http://www.calbar.ca.gov/Portals/0/documents/ethics/Civility/Atty-Civility-Guide-Revised_Sept-2014.pdf> [as of March 10, 2020], archived at https://perma.cc/2WCQ-Q687.)

However, there is no indication in the record that plaintiff sought a continuance or an extension of time within which to file his opposition, through the court, to which defendants declined to accede. No written request to the trial court for a continuance appears in the record, even though plaintiff filed a written motion to quash on September 18, 2015. Nor is there evidence in the record plaintiff sought a continuance or extension of time beyond his representations in his declaration in support of his motion to quash that he called defense counsel's office to ask for an extension of time but received no response. No written request was apparently made of counsel, as there is no letter or e-mail in the record reflecting such a request. Plaintiff's contentions are not otherwise supported by any other evidence in the record. Furthermore, he appears to claim he made the oral request of defense counsel on September 8, 2015. Subsequently, on September 22, 2015, the trial court, on its own motion, continued the matter to October 9, 2015. Thus, plaintiff, in effect, received a brief extension of time.¹⁰

10 Based on this new hearing date, the deadline for the filing of plaintiff's opposition papers was extended from September 8, 2015, to September 25, 2015 (§ 437c, subd. (b)(2)), rendering plaintiff's opposition at that time not yet late, and affording him an additional three days to file those papers after the trial court's September 22, 2015, sua sponte continuance.

In any event, plaintiff's subjective belief that opposing counsel would not object to a continuance or extension of time does not demonstrate good cause.

3. Medical Issues

It appears plaintiff first raised the issue of a medical condition—acute back pain and immobility—in his declaration in support of his motion to quash, filed September 18, 2015, ten days after his opposition papers were originally due. In that declaration, plaintiff stated his back pain became severe "[t]oward the last two weeks of August" 2015. By this time, plaintiff had almost all of July (during which, we are aware, plaintiff claims he did not have notice of the hearing date) and half of August to prepare his opposition papers before his back pain became severe. Additionally, while we are sympathetic to plaintiff's condition, even after his back pain purportedly compromised his condition, he still had weeks before his opposition papers were due. He acknowledges going to the civil clerk's office on September 8, 2015, "to see if the Motion for Summary Judgment had been changed or still set for September 22, 2015." It therefore seems reasonable to infer that his condition was improving following the "shots for muscle relaxers and pills alike" he was administered at Mather VA hospital. Indeed, it apparently improved sufficiently for plaintiff to prepare and file the motion to quash. Furthermore, as stated ante, following the trial court's sua sponte continuance, plaintiff was, in effect, granted an extension of time, within which to timely file his opposition. (See fn. 10, ante.) Yet he failed to do so until October 7, 2015, two days before the continued hearing date and 12 days after his opposition was due based on the continued hearing date.

We conclude that plaintiff did not establish good cause for the lateness of his opposition papers by raising his medical issues.

E. Asserted Abuse of Discretion

We have concluded in part I.C. of the Discussion, ante, that plaintiff's opposition to defendants' summary judgment motion was untimely. We have further concluded in part I.D. of the Discussion, ante, that plaintiff failed to demonstrate good cause as to why the trial court should have accepted and considered plaintiff's late-filed opposition. We now conclude that the trial court did not abuse its discretion in declining to consider plaintiff's late-filed opposition.

As plaintiff observes, our high court has stated, "weighing the potential for interruption and delay against the policy in favor of disposition of cases on their merits, the drastic nature of the summary judgment remedy, and the potentially short time available to respond to the summary judgment motion, we are satisfied that courts [are] required to exercise their discretion and relieve the attorney from tardy opposition filings when his conduct was reasonable . . . ." (Mann, supra, 38 Cal.3d at pp. 29-30, italics added, overruled on another ground in Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543.) However, in Mann, the defendants' summary judgment motions were made on 10 days' notice; the motions and their supporting materials consisted of more than 800 pages; there were several other motions set for the same day for which the plaintiffs' attorney was required to prepare; and compliance with the local rule at issue in that case required the plaintiffs to file their opposition four days after the motions were made. (Mann, at p. 30.) Thus, the Mann court concluded that "[c]ompliance with the local rule obviously would have required Herculean efforts." (Ibid.) Here, plaintiff had far more time to respond than the plaintiffs in Mann, and far less material to which to respond. Mann does not demand a different result than that which we reach here.

In asserting that the trial court abused its discretion in declining to consider his late-filed opposition to defendants' summary judgment motion, plaintiff emphasizes that he appeared in propria persona. However, "[p]ro. per. litigants are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543, citing Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 ["A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation"].) Plaintiff's status as representing himself does not lead to the conclusion that the trial court abused its discretion in declining to consider his late-filed opposition.

Based on these considerations, and plaintiff's failure to demonstrate good cause for the lateness of his opposition papers, we conclude that the trial court did not abuse its discretion in declining to consider plaintiff's opposition.

II. Ruling on Summary Judgment Motion

A. Plaintiff's Contentions

Plaintiff asserts the trial court erred in granting defendants' motion for summary judgment. He contends defendants did not meet their initial burden of establishing their prima facie entitlement to summary judgment because defendants failed to fulfill their obligation of providing notice of the examination under oath, including its time and location. According to plaintiff, an explicit demand for an examination under oath, including the time, date, and location of the examination, were a condition precedent to an examination under oath. Plaintiff asserts that, even if defendants met their initial burden, in opposition, he succeeded in raising a triable issue of fact. We disagree.

B. Standard of Review for Ruling on Summary Judgment

" 'A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.' [Citations.] '[G]enerally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.' [Citation.] If a defendant shows that one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action, the burden shifts to the plaintiff to show that a triable issue exists as to one or more material facts. [Citations.] If the trial court finds that no triable issue of fact exists, it then has the duty to determine the issue of law." (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 553 (Jimenez); see § 437c.)

"On appeal, we review the trial court's decision de novo. [Citation.] We independently review the papers supporting and opposing the motion, considering all the evidence offered in connection with the motion and any inferences that the evidence reasonably supports, applying the same rules and standards as the trial court. [Citation.] We view the evidence in the light most favorable to plaintiffs as the losing parties. [Citation.] In liberally construing the evidence in favor of the party opposing the motion, we resolve all doubts concerning the evidence in favor of the opponent." (Jimenez, supra, 237 Cal.App.4th at pp. 553-554; see § 437c.)

C. Breach of Contract and of Implied Covenant of Good Faith and Fair Dealing

1. Failure to Submit to Examination Under Oath

As we noted ante, plaintiff's policy with Farmers stated that a person seeking coverage under the policy must, among other things, "[s]ubmit to examination under oath upon our request."

" 'The right to require the insured to submit to an examination under oath concerning all proper subjects of inquiry is reasonable as a matter of law.' " (California Fair Plan Assn. v. Superior Court (2004) 115 Cal.App.4th 158, 162 (California Fair Plan Assn.), quoting Globe Indemnity Co. v. Superior Court (1992) 6 Cal.App.4th 725, 731 (Globe Indemnity Co.).) "An insured's compliance with a policy requirement to submit to an examination under oath is a prerequisite to the right to receive benefits under the policy." (Brizuela v. CalFarm Ins. Co. (2004) 116 Cal.App.4th 578, 587 (Brizuela).) " ' "If the insured cannot bring himself within the terms and conditions of the policy he cannot recover. The terms of the policy constitute the measure of the insurer's liability. If it appears that the contract has been violated, and thus terminated by the assured, he cannot recover. He seeks to recover by reason of a contract, and he must show that he has complied with such contract on his part." ' " (Ibid., quoting Hickman v. London Assurance Corp. (1920) 184 Cal. 524, 534 (Hickman).) Thus, "a claim for policy benefits may be denied as a consequence of failing to submit to a policy condition for examination under oath." (Brizuela, at p. 590.)

Plaintiff was first notified that Farmers required him to submit to an examination under oath on November 21, 2013, according to Prucyk, or on November 22, 2013, according to plaintiff. Prucyk notified plaintiff he would be contacted by Farmers to schedule the examination under oath.

In a letter dated December 23, 2013, Prucyk stated that, to complete its investigation, Farmers required plaintiff to complete an examination under oath. This letter did not set forth a particular date for the examination under oath. Instead of scheduling an examination under oath, plaintiff sent an e-mail to Farmers on December 30, 2013, stating that he was rescinding all prior authorizations for the release of information and threatening to sue Farmers if his claim was not paid by January 10, 2014. He stated, "I will no longer be toyed with by your office and allow you not to pay my loss." He implied that the litigation he was about to commence would be costly and asserted if the matter went to trial, a jury would find Farmers' position "laughable."

Farmers sent plaintiff a letter date stamped January 6, 2014, calling plaintiff's attention to Farmers' contractual right under the policy to require him to submit to an examination under oath. The letter indicated that January 22, 2014, had been set as the date for the examination under oath, that Farmers had attempted to confirm that date with plaintiff, and that Farmers was proceeding with the preparation for the examination under oath on that date. However, before that date, Farmers learned plaintiff had commenced this action. Nonetheless, according to Prucyk, Farmers was prepared to conduct the examination under oath on January 22, 2014, but plaintiff neither responded nor appeared.

In a letter dated January 22, 2014, Prucyk again stated that, to complete the investigation, Farmers required plaintiff submit to an examination under oath. Like the December 23, 2013 letter, this letter did not set forth a date for the examination under oath.

In a letter dated February 18, 2014, Prucyk again stated that, to complete the investigation, Farmers required plaintiff to complete an examination under oath. Again, this letter did not schedule a date. Plaintiff did not respond.

Thus, in support of its motion for summary judgment, defendants established that, on at least four occasions—in letters dated December 23, 2013, January 6, 2014, January 22, 2014, and February 18, 2014—Farmers informed plaintiff that it required him to submit to an examination under oath pursuant to the terms of the policy. These occasions followed Prucyk previously notifying plaintiff, on November 21 or 22, 2013, that Farmers required him to submit to an examination under oath. In one of the letters, Farmers indicated January 22, 2014, had been set as the date for the examination under oath. Plaintiff did not respond to that letter.

Plaintiff claims in the second amended complaint that, after he purportedly promptly informed Farmers he would comply with its demand that he submit to an examination under oath, he "received no further communication from" Farmers to schedule a date, time, and location for the examination. Plaintiff's claim is belied by the record, which indicates that on at least one occasion, Farmers set a date for the examination under oath—January 22, 2014.

The pattern exhibited here is reminiscent of Brizuela. Like plaintiff here, the plaintiff in Brizuela asserted "he never 'refused' to submit to an examination under oath." (Brizuela, supra, 116 Cal.App.4th at p. 587.) However, similar to the plaintiff in Brizuela, plaintiff did fail to appear at the examination as initially scheduled. (Ibid.) "After Brizuela failed to comply with CalFarm's initial demand for an examination under oath, it became incumbent upon him to fulfill the requirement of being examined 'by offering to submit to such an examination at a later time.' [Citation.] He did not submit, or agree to submit to an examination under oath, on any specific date after [the originally scheduled date]. CalFarm 'had done all that it was required to do to set in motion the policy provisions for an examination of the insured under oath.' [Citation.] Although CalFarm reiterated its demand numerous times thereafter by asking Brizuela to provide dates for the examination, Brizuela failed to do so." (Id. at p. 588, quoting Bergeron v. Employers' Fire Ins. Co. (1931) 115 Cal.App. 672, 676 (Bergeron).)

Plaintiff emphasizes that Farmers' demands did not set forth specific times and locations for the examination under oath, and, in all but one, did not set forth a specific date. This is true. However, we do not agree with plaintiff to the extent that he argues these omissions dispensed with the requirement that he comply with the examination under oath provision of the insurance policy or nullified the fact that Farmers had demanded plaintiff submit to an examination under oath. An insurer's contractual duty to pay under the policy does not arise until the insured provides the information necessary to allow the insurer to determine whether the loss was covered under the policy. (California Fair Plan Assn., supra, 115 Cal.App.4th at p. 162; Globe Indemnity Co., supra, 6 Cal.App.4th at p. 731.) Farmers had no duty to pay on plaintiff's claim in the absence of information necessary to allow it to determine whether plaintiff's loss was covered, specifically plaintiff's testimony at his examination under oath. By repeatedly demanding plaintiff submit to an examination under oath, and on one occasion unilaterally setting a date for that examination, Farmers " 'had done all that it was required to do to set in motion the policy provisions for an examination of the insured under oath.' " (Brizuela, supra, 116 Cal.App.4th at p. 588, quoting Bergeron, supra, 115 Cal.App. at p. 676.) It was incumbent upon plaintiff to schedule and appear for the examination under oath if he wanted to be paid for his loss under the policy.

We do not disagree that it would be the better practice for Farmers to be more communicative and proactive in its exchanges with insureds concerning the scheduling of specific dates, times, and locations for examinations under oath. However, Farmers set one date for an examination under oath, awaited plaintiff to confirm it (apparently before establishing a specific time and location) and subsequently repeatedly demanded that plaintiff submit to an examination under oath, notwithstanding plaintiff's December 30, 2013, e-mail indicating his future cooperation would be withheld and declaring his intent to commence this action. Plaintiff never attempted to schedule the examination under oath; nor did he do anything to comply with Farmers' repeatedly communicated demand. In the face of Farmers' repeated demand that plaintiff submit to an examination under oath, plaintiff's compliance with which constituted "a prerequisite to the right to receive benefits under the policy" (Brizuela, supra, 116 Cal.App.4th at p. 587), plaintiff could not simply choose not to respond.¹¹

11 We also note that, while plaintiff, in his responsive separate statement in opposition, (not considered by the trial court), faults Farmers for failing to set a specific date, time, and location for the examination under oath unilaterally, he conversely faults Farmers for unilaterally setting the January 22, 2014, date for an examination under oath without confirming that date with him.

Farmers established that it demanded plaintiff submit to an examination under oath as authorized by the policy, and plaintiff failed to satisfy that condition precedent to recovery under the policy that he do so. (Brizuela, supra, 116 Cal.App.4th at p. 587.) Because plaintiff did not "bring himself within the terms and conditions of the policy he cannot recover." (Ibid.)

2. Willfulness

Plaintiff asserts defendants had the burden of demonstrating any failure to submit to an examination under oath was willful or part of a pattern of refusal or persistent noncooperation before such failure can be deemed breach of a condition precedent and a bar to suit. For this proposition, plaintiff relies on two New York State trial court cases and one New York State Appellate Division case. However, we need not delve deeply into this issue. First, as plaintiff acknowledges, these New York cases are not binding authority. Second, relevant California case law does not require that an insured's failure to comply with a policy requirement to submit to an examination under oath be "willful" before it will be found that the insured failed to satisfy a condition precedent to recovery. (See Brizuela, supra, 116 Cal.App.4th 578.)

The court in Brizuela mentioned the New York authority, stating the following in response to the plaintiff's assertion that dismissal of his action was improper because his failure to appear for the examination under oath was not willful: "Under New York law, summary judgment dismissing an insured's complaint because of the insured's failure to submit to examination under oath has been held to be inappropriate without affording the insured a last opportunity to comply, unless the insured's failure to appear was willful. [Citations.] There is no California authority allowing such an opportunity. Even if the standard prescribed by New York law were applicable, Brizuela's conduct here could properly be deemed willful. When the insured's failure to fulfill his obligations under an insurance policy ' "is indicative of a pattern of non-co-operation [sic] for which no reasonable excuse for noncompliance has been proffered," his conduct is properly deemed willful.' [Citation.] Brizuela's persistent failure to provide CalFarm with available dates for the examination under oath evidences a pattern of noncooperation." (Brizuela, supra, 116 Cal.App.4th at p. 595, fn. omitted, italics added.) We reach the same conclusion here. Willfulness is not required. And in any event, plaintiff's stridently articulated position in his December 30, 2013, e-mail, including his assertion that Farmers would learn nothing more at an examination under oath and his persistent failure to cooperate with defendants to provide available dates or otherwise arrange to sit for the examination under oath, evinces a pattern of willful noncooperation.

3. Insurance Code section 2071.1

Plaintiff asserts that defendants failed to include in the demands for examination under oath the text of Insurance Code section 2071.1. As defendants note, plaintiff raises this issue for the first time on appeal.

"As a general rule, 'issues not raised in the trial court cannot be raised for the first time on appeal.' [Citation.] On a number of occasions, however, appellate courts have relaxed this rule and have permitted a party to raise belatedly 'a pure question of law which is presented on undisputed facts.' [Citations.] This forgiving approach has been most frequently invoked when 'important issues of public policy are at issue.' " (Sea & Sage Audubon Society, Inc. v. Planning Com. of the City of Anaheim (1983) 34 Cal.3d 412, 417.) It is undisputed here that defendants did not include reference to Insurance Code section 2071.1 in any demand for plaintiff to submit to an examination under oath. Therefore, we are presented with a pure question of law—whether Farmers' failure to include reference to this statute in its demand for an examination under oath nullified that demand.

However, there is very good reason for defendants' omission of reference to Insurance Code section 2071.1 in the demands for an examination under oath. Insurance Code section 2071.1 applies only to residential insurance policies. (Ins. Code, § 790.031;¹² 350 W.A. LLC and Hokojitsuguyu Co., Ltd. v. Chubb Group of Insurance (S.D. Cal. 2007) 2007 U.S. Dist. Lexis 89881.) This provision has no applicability to plaintiff's automobile insurance policy with Farmers.

12 Insurance Code section 790.031 provides: "The requirements of subdivision (b) of Section 790.034, and Sections 2071.1 and 10082.3 shall apply only to policies of residential property insurance as defined in Section 10087, policies and endorsements containing those coverages prescribed in Chapter 8.5 (commencing with Section 10081) of Part 1 of Division 2, policies issued by the California Earthquake Authority pursuant to Chapter 8.6 (commencing with Section 10089.5) of Part 1 of Division 2, policies and endorsements that insure against property damage and are issued to common interest developments or to associations managing common interest developments, as those terms are defined in Sections 4080 and 4100 or Sections 6528 and 6534 of the Civil Code, and to policies issued pursuant to Section 120 that insure against property damage to residential units or contents thereof owned by one or more persons located in this state." (Italics added.) This section was amended, effective January 1, 2014, in the midst of Farmers' numerous demands for plaintiff to undergo an examination under oath (Stats. 2012, ch. 181, § 78, operative Jan. 1, 2014; Stats. 2013, ch. 605, § 47), but these amendments did not affect any aspect of the statute relevant here.

4. Consideration of Plaintiff's Opposition Papers

In support of their summary judgment motion, defendants established, prima facie, that plaintiff failed to satisfy a condition precedent to recovery under the insurance policy. Therefore, we conclude defendants established there was no triable issue of material fact as to the breach of contract cause of action, and they were entitled to summary judgment on that cause of action. (See generally § 437c; Jimenez, supra, 237 Cal.App.4th at p. 553.) In the absence of any opposition to defendants' summary judgment motion, the trial court correctly determined defendants were entitled to summary judgment on plaintiff's breach of contract cause of action.

Even if we were to consider plaintiff's opposition papers, we would not reach a different result. In one of his declarations submitted with his untimely opposition, plaintiff stated that "on or about January 27, 2014," he returned a voicemail message referencing "an issue with Farmers insurance" and spoke with "a gentleman" who told plaintiff he had called about an examination under oath with plaintiff. Plaintiff did not identify the man. When plaintiff notified the gentleman that he had commenced this action for bad faith against Farmers, the gentleman said the examination under oath would have to be "on hold until he contacted his client to find out how they will proceed with this now that a complaint has been filed." When plaintiff asked if he could serve the person with whom he was speaking with the complaint, the man told plaintiff to "hold tight" and he or someone else would get back to plaintiff if the examination under oath would still be scheduled. According to plaintiff, the gentlemen stated that he did not represent Farmers.

Khalil Abdulsatter, whose declaration was also in plaintiff's opposition papers, stated that "on or about January 27, 2014," he overheard a conversation between plaintiff and "a representative of Farmers" on speaker phone during which plaintiff asked if they could set a time, place, and date for the examination under oath. Plaintiff asked if he could serve them with his complaint and the man said he was only interested in the examination under oath and he did not know plaintiff had filed a complaint. The man said, "I do not know what to do, no one has told us you have filed a complaint at this point let me get back with my client and make him aware of your lawsuit . . . and we will notify you . . . with a date time and location . . . ."

However, according to both plaintiff and Abdulsatter, this conversation took place on January 27, 2014, after the January 22, 2014, date for the scheduled examination under oath. Moreover, plaintiff stated in his declaration that the gentleman did not represent Farmers.

Plaintiff's declaration described a second telephone conversation about an examination under oath with another man plaintiff did not identify and who also did not represent Farmers. According to plaintiff, this conversation took place "on or about late February, 2014," when plaintiff returned another phone call. Plaintiff asserted he told the man to just give him a date, time, and location for the examination under oath. Plaintiff stated that he informed this "Farmer's representative" he was waiting for his default judgment against Farmers, and the man told plaintiff to "forget about any EUO until these issues are resolved." When plaintiff asked if he could serve "his firm" with discovery for Farmers, the man said he did not represent Farmers. The man also said plaintiff would be given proper notice if the examination under oath was to take place. However, as noted, according to plaintiff, this conversation apparently occurred in late February 2014, after Farmers had demanded plaintiff submit to an examination under oath on four or five occasions (the fifth occurring by letter dated February 18, 2014), and after one examination under oath had been scheduled the previous month and plaintiff failed to appear or respond. Thus, plaintiff's late-filed opposition papers, if considered, would not have raised a triable issue of material fact as to the first cause of action for breach of contract.

Moreover, "absent any potential for coverage under an insurance policy, there can be no breach of the implied covenant of good faith and fair dealing 'because the covenant is based on the contractual relationship between the insured and the insurer.' " (Brizuela, supra, 116 Cal.App.4th at p. 594, quoting Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 36.) Therefore, for the same reasons, the trial court correctly concluded that defendants were entitled to summary judgment on plaintiff's fourth cause of action for breach of the implied covenant of good faith and fair dealing.

D. Intentional Infliction of Emotional Distress ¹³

13 Plaintiff asserts in his reply brief that the legal sufficiency of both the intentional infliction of emotional distress and negligent misrepresentation causes of action "was decided against [Bear] and in favor of [plaintiff] at a demurrer hearing in the trial court." The record on this appeal does not document these proceedings.

"A cause of action for intentional infliction of emotional distress exists when there is ' " ' "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." ' " ' [Citations.] A defendant's conduct is 'outrageous' when it is so ' " 'extreme as to exceed all bounds of that usually tolerated in a civilized community.' " ' [Citation.] And the defendant's conduct must be ' " 'intended to inflict injury or engaged in with the realization that injury will result.' " ' " (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 (Hughes).)

In the second cause of action, plaintiff asserted that, after he filed his claim with Farmers, Bear contacted him and indicated he was investigating the claim. According to plaintiff, on two occasions, Bear told him the policy he obtained through Moreno was fraudulent and unauthorized and plaintiff had no insurance coverage, and informed plaintiff that Farmers had no record of receiving money from plaintiff. Plaintiff alleged that Bear made these false representations to him with the intent of causing, or with reckless disregard of the probability of causing, emotional distress. Plaintiff asserted that he initially, reasonably, relied on Bear's false representations and suffered extreme emotional distress as a result. Plaintiff further stated that, acting under the erroneous belief that he was not insured, he paid approximately $11,000 to repair the damage to his Corvette.

In his declaration submitted in support of defendants' summary judgment motion, Bear stated that, based on his review of the claim file, coverage had lapsed on the plaintiff's vehicle two months prior to the loss, and it was not reinstated until the day before the loss. However, Bear denied telling plaintiff that his policy was "fraudulent," noting that coverage was "fully reinstated at the time of the loss." As defendants assert, Prucyk stated in his declaration that upon reviewing the file he learned the policy had lapsed in August 2013, and that "coverage for the damaged vehicle was only reinstated one day before the loss was reported." The policy submitted by defendants in support of their summary judgment motion indicates an effective date of October 21, 2013, the day before plaintiff's loss.

In granting defendants' motion for summary judgment on the second cause of action, the trial court stated that defendants "produced evidence demonstrating that neither Farmers nor Mr. Bear engaged in any 'outrageous' conduct sufficient to constitute intentional infliction of emotional distress. Plaintiff has provided no evidence to the contrary."

In his opening brief, plaintiff's contentions concerning this cause of action are limited to bare assertions that, in opposition to defendants' summary judgment motion, he succeeded in raising a triable issue of fact as to whether Bear's and Farmers' conduct was outrageous based on Bear's allegations. However, plaintiff then immediately returns to discussing the issue of the examination under oath. He is substantially more expansive on his claim of intentional infliction of emotional distress in his reply brief. But new arguments may not be raised for the first time in an appellant's reply brief. " ' "Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before." ' " (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764, quoting Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; accord Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) No good reason for withholding these arguments has been shown here.

We agree with the trial court that defendants submitted evidence sufficient to eliminate all triable issues of material fact as to whether Bear made statements to plaintiff that were "so ' " 'extreme as to exceed all bounds of that usually tolerated in a civilized community,' " ' " and which were " ' " 'intended to inflict injury or engaged in with the realization that injury will result.' " ' " (Hughes, supra, 46 Cal.4th at pp. 1050-1051.) Bear's statements as Bear recounted them essentially amounted to informing plaintiff that his policy had lapsed, but that it had been reinstated immediately prior to the loss. This did not even give rise to a denial of coverage. Rather, based on this and other factors described by Prucyk, Farmers sought to have plaintiff submit to an examination under oath to further investigate the matter. Based on this statement of facts, defendants eliminated all material triable issues of fact as to whether Bear's conduct in making these factual representations to plaintiff could be deemed extreme and outrageous so as to support a cause of action to recover for intentional infliction of emotional distress. Inasmuch as plaintiff failed to submit timely opposition to defendants' summary judgment motion, plaintiff failed to raise a triable issue of fact.

Furthermore, even if we were to consider plaintiff's late-filed opposition papers, we would conclude that he failed to raise a triable issue of material fact. In his declaration relevant to Bear's conduct, plaintiff disagrees with Bear's representation that Bear never characterized plaintiff's Farmers policy procured through Moreno as "fraudulent." Plaintiff asserted that Bear told plaintiff Bear and his supervisors "knew [plaintiff's] policies . . . [were] . . . fraudulent." However, in his declaration, plaintiff states: Bear and his supervisors "believe [Moreno] . . . embezzled [plaintiff's] money and the policies are fraudulent just so [Moreno] can get double commissions"; Bear and his supervisors were "wrong" about plaintiff lacking coverage; Bear and his supervisors "don't know how to read the Farmers' Dash board to see their mistakes"; and that "it just comes down to lack of knowledge of knowing how to read the Farmers' Dash Board." (Italics added.)

These representations are consistent with those in Moreno's declaration, which plaintiff also submitted in his late-filed opposition papers. Moreno described a conversation with Bear in which Bear told her "he does not know how to read the Farmers' Insurance Dash Board," and in which Bear thanked Moreno "for showing his mistakes and he will let his supervisors know." Moreno also stated that Bear "seemed very embarrassed, [and] told [her] in his database [plaintiff] showed canceled policies." Moreno concluded that Bear and his supervisors "[did] not know how to use the Farmers Insurance agent dashboard," and she then described the process of showing Bear, on two occasions, how the dashboard worked and how to verify coverage.¹⁴

14 Moreno also stated in her declaration that Bear said he did "not know how to verify if clients have active policies so he and Farmers tell clients they are not insured," and that, while Bear acknowledged he did not know how to read the Farmers dashboard, "he said things he was knowingly wrong about [plaintiff's] policies being inactive or fraudulent . . . ." These vague and conclusory statements do not change our conclusions.

Even if we were to consider plaintiff's late-filed opposition, at most, it would raise a triable issue of fact as to whether Bear mistakenly, or even negligently, represented to plaintiff that his policy had lapsed and/or was fraudulent, and that plaintiff had no coverage. "Whether conduct is outrageous is usually a question of fact." (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204 (Ragland).) However, "the court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) We conclude that, even if plaintiff's version in his opposition papers were true, Bear's mistaken representations as to these facts would not, as a matter of law, constitute outrageous conduct " so ' " 'extreme as to exceed all bounds of that usually tolerated in a civilized community,' " ' " and which was " ' " 'intended to inflict injury or engaged in with the realization that injury will result.' " ' " (Hughes, supra, 46 Cal.4th at pp. 1050-1051.) We note here by way of analogy, as did defendants, that "California courts have held that delay or denial of insurance claims is not sufficiently outrageous to state a cause of action for intentional infliction of emotional distress." (Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 417.) Here, Farmers never denied coverage.

Moreover, plaintiff's own statements contradict facts in the complaint and in his opposition submissions. In his December 30, 2013, e-mail, he threatened to file a complaint for breach of contract, misrepresentation, and bad faith practices. He did not threaten to sue for intentional infliction of emotional distress. His comments about Bear were laudatory, and he made no claim that Bear told him his policy was fraudulent. We may consider the admissions contained in the e-mail, and their inconsistency with plaintiff's pleadings and opposition papers, in determining whether there was a triable issue of fact. (See Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 549 ["[w]e cannot accept as substantial evidence of a triable issue of fact a declaration that directly contradicts the declarant's prior statement, where the contradiction is unexplained. We may not ignore this significant contradiction."].)

In the e-mail, plaintiff wrote the following: "I also conducted business dealings on your behalf with Mr. David Bear, in which he did a fair and complete investigation for your office, even though your office gave Mr. Bear erroneous information. Your premise of his investigation reference the standing of my policies was wrong and misleading. Even with the correct information provided from your Farmers' Insurance Agent was provided [sic] you did not change your assumptions. I believe he was given inadequate information reference [sic] the standing of my policies and time and time again of the correct coverage of my vehicles. We both had information that put us at 180 degrees in our information. Still today I feel he could have been given better information about my policies and could have avoided a waste of money and more importantly time. He was very professional in his dealings with me. He was prompt, informative and I believe him to be sincere in his ability to confidentially protect my privacy . . . ." Plaintiff further stated, "Mr. Bear . . . treated me with respect and more importantly the truth of our meeting."

Also in his December 30, 2013, e-mail, plaintiff said Bear informed him that, based on information Farmers had given him, both plaintiff's Corvette and his Mercedes SL500 had been "uninsured and canceled since August of 2013," but the policy on his Corvette was reinstated a "couple of days" before the claim, while his Mercedes remained uninsured. Plaintiff said he told Bear he had been given bad information and encouraged Bear to check with plaintiff's agent. Plaintiff again asserted in the e-mail that Bear had been given erroneous information by Farmers and that Bear "was not misrepresenting the issue of whether [his] vehicles had coverage before the vandalism." Plaintiff further stated he "was very comfortable working with Bear," that Bear was "just the messenger," and that Bear had been "surprise[d]" at the "misinformation" he had been given from Farmers claims personnel. Plaintiff said he felt "embarrassed" for Bear. Plaintiff had nothing negative to say about Bear and nowhere in his December 30, 2013, e-mail did plaintiff accuse Bear of telling him his policy was fraudulent.

Therefore, and without need to consider the other elements of an intentional infliction of emotional distress cause of action, we conclude that the trial court properly granted defendants' motion for summary judgment as to the second cause of action.

E. Negligent Misrepresentation

In the third cause of action, to recover damages for negligent misrepresentation, plaintiff asserted that Bear made the statements and assertions discussed in connection with the second cause of action without any reasonable grounds for believing them to be true, and with the intent to induce plaintiff's reliance on them. Plaintiff asserted that he justifiably relied on those misrepresentations, and, as a result, he sustained unspecified damages.

" 'The elements of negligent misrepresentation are (1) a misrepresentation of a past or existing material fact, (2) made without reasonable ground for believing it to be true, (3) made with the intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.' " (Bock v. Hansen (2014) 225 Cal.App.4th 215, 231 (Bock), quoting Ragland, supra, 209 Cal.App.4th at p. 196.) "[A] cause of action for negligent misrepresentation can lie against an insurance adjuster." (Bock, at p. 231.)

We conclude that, in support of their motion for summary judgment, defendants eliminated all triable issues of material fact as to whether Bear made negligent misrepresentations to plaintiff resulting in damages. In his declaration, Bear stated that, based on his review of the claim file, coverage had lapsed on the plaintiff's vehicle two months prior to the loss, and it was reinstated the day before the loss. Bear denied telling plaintiff his policy was "fraudulent," noting coverage was "fully reinstated at the time of the loss." We conclude that this eliminated all material triable issues of fact as to the allegations in the third cause of action concerning Bear's alleged misrepresentations that plaintiff's policy he obtained through Moreno was fraudulent and unauthorized, that plaintiff had no insurance coverage, and that Farmers had no record of receiving money from plaintiff. In the absence of opposition, plaintiff did not raise a triable issue of fact.

Once again, even if we were to consider plaintiff's late-filed opposition papers, we would conclude plaintiff failed to raise a triable issue of material fact. Without reproducing the entirety of the relevant statements here, as addressed in part II.D. of the Discussion, ante, plaintiff's submissions in opposition to defendants' summary judgment motion would have raised a triable issue of fact, at most, as to whether Bear misrepresented to plaintiff that plaintiff had no coverage, and that his policy was fraudulent. However, plaintiff's submissions in opposition to summary judgment would not raise a triable issue of fact as to whether Bear's representations were " 'made without reasonable ground for believing it to be true . . . .' " (Bock, supra, 225 Cal.App.4th at p. 231; Ragland, supra, 209 Cal.App.4th at p. 196.) Based on plaintiff's own summary judgment opposition submissions, these alleged misrepresentations were made as a result of Bear and his supervisor misreading the Farmers' dashboard. Moreover, in his December 30, 2013, e-mail, he indicated Bear had received erroneous information from Farmers claims personnel and that Bear "was not misrepresenting the issue of whether [his] vehicles had coverage before the vandalism."

Additionally, plaintiff's summary judgment opposition submissions do not raise a triable issue of fact as to whether plaintiff justifiably relied on the alleged misrepresentations, and whether that reliance resulted in damages. Based on his declaration, plaintiff consulted with Moreno after each occasion when Bear made the alleged misrepresentations. Plaintiff stated in his declaration that he "believed [Bear] to know that his allegations were true, why would he tell me if this was not true?" However, plaintiff also stated that he told Bear he trusted Moreno. Plaintiff stated, "Believing Mr. Bear I became irritated and upset I was driving uninsured since August 2013 and my 2004 Corvette policy had been reinstated one day prior to my loss October 22, 2013 and Ms. Moreno had not informed me of this information Mr. Bear was certain of." Faced with Bear's alleged misrepresentations, plaintiff told Bear to call Moreno. Plaintiff also told Bear he planned to call Moreno as soon as possible, which he did. Plaintiff was reassured by Moreno that his coverage was active and that Bear and his supervisors were incorrect. Moreno calmed plaintiff down and reassured him he had coverage on all of his vehicles. Plaintiff agreed to let Moreno deal with Bear. After speaking with Bear, Moreno called plaintiff and told him to allow the process to continue. When Bear again called plaintiff and claimed that Moreno issued fraudulent policies, plaintiff told Bear to contact Moreno. Plaintiff called Moreno and told her Bear was making the same allegations. Plaintiff told Moreno to "try to figure it out as best she can." The next day, Moreno called plaintiff and again explained to him Bear and his supervisors were wrong. Moreno told plaintiff "she was assured by Mr. Bear they would be paying [his] claim and the check would most likely be paid to her. [Plaintiff] told her whatever they wrote on the check was fine with [him] as long as they stop making false allegations." Additionally, according to plaintiff's statements in his December 30, 2013, e-mail, he did not rely on Bear's statements concerning the status of his policy, but rather relied on the information provided by his agent, who "assured" him he was covered.

Based on plaintiff's own representations in his summary judgment opposition submissions and his December 30, 2013, e-mail, he realized that the policy covering the loss was reinstated prior to the loss, he trusted Moreno, he did not rely on Bear's representations, justifiably or otherwise, and there is no evidence whatsoever that he suffered any damages resulting from reliance on Bear's representations. Therefore, even if we considered plaintiff's late-filed opposition, we would conclude that, in opposition to defendants' prima facie showing of entitlement to summary judgment on the third cause of action, he failed to raise a triable issue of fact.

F. Conclusion

We conclude the trial court correctly granted defendants' summary judgment motion. Defendants satisfied their initial burden in support of their motion by eliminating all triable issues of material fact as to each of the four causes of action. Plaintiff failed to file a timely opposition to the motion, and therefore the trial court properly granted the motion. Even if we were to consider plaintiff's late-filed opposition papers, as to all four causes of action, he failed to raise a triable issue of material fact.

DISPOSITION

The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278, subd. (a)(1), (2).)

/s/_________

MURRAY, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
MAURO, J.