Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC 26982. Wendell Mortimer, Jr., Judge.
Robert H. Roe and Robert Silverberg for Plaintiffs and Appellants Marvin Landon and Jill Landon.
LHB Pacific Law Partners, Clarke B. Holland, Lisa L. Kirk and Anne M. Master; Robie & Matthai and James Robie; Crandall, Wade & Rowe and Michael J. McGuire, for Defendant and Respondent State Farm Fire and Casualty Company.
ZELON, J.
Plaintiffs Marvin and Jill Landon appeal summary judgment granted in favor of State Farm Fire and Casualty Company (State Farm) in their action seeking to recover the cost of additional Northridge earthquake repairs to their home made after the initial settlement of their claim. The Landons contend that the trial court improperly granted summary judgment because factual issues exist whether State Farm adequately investigated their claim, improperly refused to consider their supplemental proofs of claim, and deceived them when it told them further consideration of their claim in 1995 was barred by the one-year statute of limitations; they further argue that the facts of the case support punitive damages. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs’ complaint filed December 31, 2001, asserted causes of action for breach of contract and breach of the covenant of good faith and fair dealing, and sought punitive damages. The Landons claimed unreimbursed additional earthquake repair damages in the sum of $62,772.
The complaint was filed by numerous individuals and homeowners’ associations. Pursuant to a case management order, the Landons’ claim was segregated for separate disposition.
The Landons purchased a home in Encino in 1991, and shortly thereafter did extensive remodeling to the home. The home was damaged in the Northridge earthquake, and the Landons reported the damage to State Farm on January 23, 1994. State Farm sent an adjuster to the house, but not a structural engineer, to inspect the damage.
The earthquake damage to the Landons’ home consisted primarily of cracks in the interior drywall, which required plastering and painting. The pool had cracks, the chimney had detached from the roof, and the exterior stucco needed repairing. Additionally, State Farm agreed to pay for damage to the kitchen floor and to refill the pool with water. In total, the Landons’ repair bill for their home, including damage to their personal property, was $82,766.40. After subtraction of their 10 percent deductible under the policy of $38,900.00, State Farm paid them a total of $43.866.40; this sum included $18,000 for damage to personal property.
On February 23, 1994, State Farm wrote to the Landons and advised them that they could be reimbursed for the contractor’s overhead and profit by providing a copy of a signed contract. The letter advised plaintiffs of the one-year statute of limitations on the claim.
Ultimately, the Landons paid ARA Construction and Gaspar Papazyan, who did the repairs, $59,362.33 to repair their house. ARA did not advise the Landons that there was earthquake damage to their house that had not been repaired, or that was not covered by State Farm’s estimate. State Farm’s internal file notes indicate the file on the Landon’s claim was closed on February 22, 1994, but re-opened while the additional repairs were pending, and finally “returned to closed” status on May 4, 1994.
Marvin Landon claimed that within 12 months after the earthquake, he noticed continuing problems with the home, notably roof leaks and cracks in the driveway. He contends he reported the problems in 1995 to State Farm, but State Farm refused to investigate and told him that his claim was time-barred by the one-year statute of limitations. The Landons continued to repair the home at their own expense until 2001, when they learned of the earthquake claim revival statute. State Farm contends that it did not receive any communications from the Landons after closure of the file in 1994.
In December 2001, State Farm advised the Landons of the earthquake claims revival statute (Code of Civil Procedure section 340.9). In February and March 2002, State Farm requested additional documentation and information from the Landons to support their claim of additional earthquake damage.
In July 2002, a State Farm inspector came to the Landons’ house. The Landons gave him a March 2002 report prepared by a civil engineering firm, KCE Matrix (KCE Report). The KCE Report identified additional earthquake damage to the home that included moisture intrusion and cracks in the walls; out-of-plumb doors and windows; cracked tiles in the bathrooms; cracks in the garage floor slab; exterior stucco cracks; tilting in the wood-and-post beam supports under the house; and leaks in the roofing membrane. State Farm was also given a Construction Forensics, Inc. estimate that estimated a total cost of $126,927.89 to make the identified repairs. State Farm did not hire a contractor or engineer to inspect the home.
Marvin Landon claimed State Farm’s inspector did not inspect his home, but instead stated he found no damage. Landon contended the actual cash value of his earthquake loss was $62,772.85, and on his own hired several contractors to make the repairs identified in the KCE Report. He claimed he had submitted the invoices to State Farm, but they had refused to reimburse him.
In particular, Landon testified at his deposition that the repairs made consisted of fireplace repairs (Phil Marcoe Construction), replacement of tarpaper under the roof (Samson Roofing), repair and repaint of drywall (Vernon Painting), driveway repair (Futura Stone), and window repair (ARA Construction). Landon contended the drywall and painting had to be repaired because the cracks kept reopening due to what Landon believed were problems inside the walls, although he admitted ARA had not advised him that they had initially been incorrectly repaired. Landon believed the house was settling, although he had no basis for his conclusion. Plaintiffs had listed the property for sale in 2002, but it did not sell at that time. They sold the house for $1.3 million in 2004.
On April 7, 2006, State Farm moved for summary judgment. State Farm contended that it was entitled to judgment as a matter of law because State Farm paid for all earthquake damage to the Landons’ home in 1994, and plaintiffs could not identify any additional earthquake damage that State Farm had not paid for. Further, because State Farm had not breached the contract, it argued that plaintiffs could not establish bad faith or oppression, fraud or malice.
Plaintiffs opposed, disputing State Farm’s assertions that it told them it was closing its claim file in 1994 and that they had not contacted it in 1995, and further disputed that all earthquake repairs were completed in 1994 because not all earthquake damage became apparent until 1995. Plaintiffs contended that within 12 months after the earthquake, they noticed continuing problems with their house, including roof leaks and cracks in the driveway. Plaintiffs submitted four declarations in support of their opposition:
Papazyan Declaration. Gaspar Papazyan performed the original repairs to plaintiffs’ house in 1994 and is a licensed contractor in the State of California. Papazyan inspected the Landons’ home shortly after the Northridge earthquake and installed emergency bracing on the roof. The Landons asked him to repair the damage identified by State Farm in its adjustor’s report, and he did so and was paid for his work. Papazyan’s declaration stated that he was not a licensed engineer and did not perform an engineering assessment of the structural damage to the home, nor was he requested to do so by either State Farm or the Landons.
Vahe Kardjian Declaration. Kardjian is a civil engineer licensed in the State of California who prepared the KCE Report. Attached to his declaration was his curriculum vitae, which set forth that Kardjian had a B.S. in civil engineering, and more than 27 years in structural design, inspections, construction administration, and retrofitting. He had served as project engineer for several high-rise building structures, and as principal of KCE Matrix, Inc. since 1990 had been involved in the forensic investigations of 1,200 project sites that included commercial and residential structures, roads, bridges, warehouses, and parking structures. Kardjian had designed several institutional buildings and structures; in 1987/1988 participated in earthquake damage investigation and retrofit report preparation for 55 schools in the Alhambra and Glendale school districts; in 1997 and 1998 was involved in earthquake damage assessment and repair recommendations for 40 historic buildings in Los Angeles County; and had individually engineered the structures of over 350 residential and commercial developments. Kardjian had provided services to numerous insurance companies and had worked on institutional and commercial projects in the Los Angeles area.
Kardjian’s declaration stated that in early 2002, he conducted a visual structural and non-structural inspection of the Landon home. The purpose of his inspection was to determine, from an engineer’s perspective, the extent of damages to the structure sustained as a result of the Northridge earthquake and to prepare a report proposing repair methods. Kardjian stated that his report was based upon his special knowledge, skill, experience, training and education. During his inspection, Kardjian found substantial structural and non-structural damage that in his opinion was caused by the Northridge earthquake. This damage included bulging and loose wallboard; out-of-plumb door and window frames; damaged wood finishes and baseboards; cracked garage slab; loose and cracked exterior stucco and wood trim; cracked planters; displaced framing and piers; and leaking roof sheathing and membrane. Kardjian opined that this damage would have been readily discoverable in 1994 by a competent civil or structural engineer.
Robert McConihay Declaration. Robert McConihay is a licensed general contractor who prepared the Construction Forensics, Inc. estimate. Attached to his declaration was his curriculum vitae, which set forth that McConihay had been in the business for 30 years; he was licensed, bonded and insured and held an B-HIC rating; had qualified as a trial expert witness; had built numerous custom homes in developments in the San Fernando Valley and Los Angeles area; had performed earthquake damage repairs to numerous condominium complexes in the San Fernando and Simi Valleys; and had worked as an expert in numerous cases assessing earthquake damages.
McConihay’s declaration stated that in early 2002, he conducted a visual inspection of the interior and exterior of the Landon home in order to determine the extent of damages sustained in the 1994 Northridge earthquake and to prepare a repair estimate. Following his inspection, McConihay prepared a report based upon his observations and his review of the KCE Report. McConihay stated, “I based the opinions contained in my Report in part on the professional opinions, observations, and repair recommendations of Vahe Kardjian set forth in his report.” The declaration further set forth that McConihay’s report was based upon his special knowledge, skill, experience and training, and that in his opinion, the total cost to repair the earthquake damage would be $126,920 and the repairs required were not a reconstruction of previous repairs because the damage was either undiscovered in 1994, or the direct result of movement of plaintiffs’ home caused by structural damage sustained in the earthquake.
Marvin Landon Declaration. Marvin Landon’s declaration stated that prior to the earthquake, he and his wife had renovated the home. After the Northridge earthquake, State Farm sent an adjustor to inspect the home and prepare a loss report and estimate for repair costs. The adjustor did not bring an engineer or contractor to assist in the inspection. State Farm estimated the total dwelling loss to be $64,154.15, with an additional $18,000 for personal property loss and damage. Landon relied upon State Farm’s adjustor report to conclude that State Farm had identified all of the earthquake damage to the house, and Landon therefore did not hire any other professional to inspect for hidden damage.
Within 12 months after the earthquake, the Landons noticed continuing problems, particularly roof leaks and cracks in the driveway. They reported the problem to State Farm in late 1994 or early 1995, but State Farm refused further investigation. After enactment of the claims revival statute in 2001, Landon called State Farm, and in July 2002, Landon gave the State Farm inspector a copy of the Matrix Report and the Construction Forensics repair estimate. Based on the Construction Forensics estimate, the total damage to the home was $126,927.89; after subtraction of the $38,900 deductible and the $25,254.15 paid by State Farm in 1994, there remained $62,772.85 of damage. However, according to Landon, the inspector spent five minutes in the home and declared that there was no additional damage. State Farm did not hire an engineer or contractor to inspect the home. In 2003 and 2004, the Landons hired contractors to make the additional repairs to the home, spending more than $60,000. Invoices for those repairs were submitted to State Farm, but State Farm refused reimbursement. None of those invoices, nor any evidence of payment, was submitted to the trial court.
State Farm objected to plaintiffs’ declarations filed in support of their opposition to summary judgment, on the grounds the declarations were irrelevant, immaterial, vague, ambiguous, and with respect to the McConihay and Kardjian declarations, that they also lacked foundation.
The trial court sustained State Farm’s evidentiary objections to all of plaintiffs’ declarations, finding them lacking in foundation, vague, or irrelevant. In particular, the court found the Papazyan declaration irrelevant and that the Landon declaration was vague and ambiguous as to the specific items of damages and also the cause of the damage. The court found the Kardjian declaration lacked facts or evidence to support his conclusions on causation because he did not inspect the property until eight years later. The court noted that plaintiffs were not attempting to prove damages by establishing diminution in the sales price, but rather through repairs made before the sale, that the declarations were not specific enough to show that such repairs exceeded the amounts State Farm had already paid, and therefore the court expected to see cancelled checks or receipts to prove damages.
The court granted summary judgment for State Farm, concluding that plaintiffs failed to raise a triable issue of fact that their costs to repair earthquake damage exceeded the amounts paid by State Farm. In particular, the court noted that plaintiffs failed to establish the additional damages were caused by the Northridge earthquake, or that they suffered any damages because they did not show the actual cost of earthquake repairs with receipts; furthermore, they had sold their home in 2004 for a profit. The court entered judgment for State Farm.
DISCUSSION
Plaintiffs contend that the trial court abused its discretion in striking their declarations filed in opposition to State Farm’s motion, and that triable issues of fact exist as to whether State Farm adequately investigated their claim, improperly refused to consider their supplemental proofs of claim, or misled them concerning the expiration of the one-year statute. They further contend the facts fully support their claim for punitive damages. We conclude that the trial court erred in excluding plaintiffs’ evidence, but our consideration of that evidence establishes plaintiffs nonetheless failed to raise a triable issue of fact on their claims.
I. STANDARD OF REVIEW.
“[T]he 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action . . . .” (Code of Civ. Proc., § 437c, subd. (p)(1); Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists where “the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850.) Where summary judgment has been granted, we review the trial court’s decision de novo, “considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navigar, Inc. (2001) 26 Cal.4th 465, 476.)
II. THE TRIAL COURT ERRED IN STRIKING PLAINTIFFS’ DECLARATIONS.
Plaintiffs contend the trial court abused its discretion in excluding the declarations. They contend both the Kardjian and McConihay declarations establish their credentials; in any event, the trial court failed to rule on the admissibility of either of their reports (the Matrix Report and the Construction Forensics report), leaving those reports as part of the record. In addition, plaintiffs contend that the Papazyan declaration is relevant to refute State Farm’s contention that its adjuster reasonably relied on Papazyan to fix all damage, because Papazyan is not a licensed engineer. Finally, they assert that Marvin Landon is competent to testify to his personal knowledge.
We review the trial court’s rulings on evidentiary objections under the abuse of discretion standard. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 (Kleinman).) Summary judgment motions must be based upon admissible evidence. (Code Civ. Proc., § 437c, subd. (d).) Expert testimony is admissible if based on matter of a type that may reasonably be relied on by an expert in forming an opinion on the subject to which his or her testimony relates. (Evid. Code, § 801, subd. (b).) An expert’s opinion “may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510; Kleinman, supra, at p. 123.)
In determining the sufficiency of expert declarations in the summary judgment context, different standards are applied to those of the movant and the opposing party. (Kleinman, supra, 151 Cal.App.4that p. 125.) As Kleinman observed, under the standard set forth in Kelley v. Trunk (1998) 66 Cal.App.4th 519, the movant’s declarations must be sufficiently detailed and contain adequate foundation in order to meet the prima facie showing of the non-existence of any genuine issue of material fact, while as set forth in Hanson v. Grode (1999) 76 Cal.App.4th 601, the opponent’s declarations need not be as detailed and are entitled to all favorable inferences. (Ibid.) However, conclusory declarations are insufficient to meet the opponent’s burden on summary judgment. (Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire & Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1009-1010 (Lincoln Fountain).
Here, the trial court erred in excluding the declarations because its conclusion they lacked foundation is without support in the record and the determination of relevance, on this record, went to their weight as evidence, rather than their admissibility. Plaintiffs’ declarations here, while not minutely detailed, set forth sufficient relevant and factually supported information to be admissible to oppose State Farm’s summary judgment motion.
The trial court’s failure to rule on the two experts’ reports (the Matrix Report and the Construction Forensics Report) permits us to consider them on appeal, as a reviewing court may consider any objected-to evidence in the absence of a ruling in the trial court. (Lincoln Fountain, supra, 136 Cal.App.4th at p. 1010, fn. 4.)
III. PLAINTIFFS FAILED TO ESTABLISH TRIABLE ISSUES OF MATERIAL FACT.
To establish breach of contract, the plaintiff must show (1) the terms of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.ApP.3d 1371, 1388.) Here, plaintiffs’ policy provided for two measures of indemnity, replacement cost value and actual cash value. “Replacement cost value” consists of the lesser of the policy limit, or the estimated amount of the cost of repair, less the deductible, or the amount actually spent to repair the property. Because each contact imposes upon the parties a duty of good faith and fair dealing, where policy benefits are improperly withheld or delayed, the insured has a claim for breach of the covenant of good faith and fair dealing. The claim has two separate requirements: (1) benefits due under the policy were withheld; and (2) the insurer’s reasons for withholding such benefits was unreasonable or without proper cause. (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 276-278.)
The policy provided that: “(1) We will pay the cost of repair or replacement, without deduction for depreciation, but not exceeding the smallest of the following amounts: [¶] (a) the limit of liability under this policy applying to the building; [¶] (b) the replacement cost of that part of the building damaged for equivalent construction and use on the same premises; or [¶] (c) the amount actually and necessarily spent to repair or replace the damaged building. [¶] (2) We will pay the actual cash value of the damage to the buildings, up to the policy limit, until actual repair or replacement is completed. [¶] (3) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis and then make claim within 180 days after loss for any additional liability on a replacement cost basis.”
Based on the evidence submitted, plaintiffs have failed to raise a triable issue of fact whether State Farm breached its contract to pay for the costs to repair additional damages to the plaintiffs’ home caused by the Northridge earthquake and acted in bad faith in doing so. Plaintiffs have presented expert evidence on their theory of recovery, namely, cost to repair, but have failed to present any evidence establishing the repairs performed or the cost of those repairs. The expert declarations are evidence of repairs that could be performed, but, post-sale, it is the cost of actual repairs that is at issue. That evidence is absent, and plaintiffs have in no manner stated or even suggested that such evidence is available, other than the generalized recollection of Mr. Landon. In the absence of that basic element, plaintiffs have not established that any of their claims can have any basis.
DISPOSITION
The judgment of the superior court is affirmed. Respondents are to recover their costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.