Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court for the County No. LC 083022 of Los Angeles. Michael B. Harwin, Judge.
Law Office of Anthony Kornarens and Anthony Kornarens for Plaintiff and Appellant.
Angelo & Di Monda, Christopher E. Angelo and Joseph Di Monda for Cross-complainant and Appellant.
Law Office of Mark W. Hansen and Mark W. Hansen for Defendant, Cross-defendant and Respondent.
Waxler Carner Brodsky, Barry Z. Brodsky and Jodi L. Girten for Defendants and Respondents.
GRIMES, J.
SUMMARY
This appeal arises from orders granting summary judgment to defendants in a lawsuit for bad faith against an insurance company and for professional negligence against the lawyers hired by the insurance company to defend its insureds. A passenger injured in a single-car accident sued the two insureds, the named insured who owned the car and the plaintiff in this lawsuit, who was driving with the owner’s permission. The insurer did not meet the passenger’s demand for settlement, which included the policy limit of $30,000 and other terms. The passenger sued the insureds, and obtained a $1.6 million verdict against plaintiff in this action, the driver. Plaintiff assigned her claims against the insurer to the injured passenger in return for a covenant not to execute on the judgment.
Plaintiff then filed this lawsuit against the insurer and the lawyers who defended her. Plaintiff contended the insurer failed to adequately investigate the cause of the accident, and the lawyers, who intentionally excluded from the trial all evidence that worn tires were a cause of the accident, breached their duties to her, because evidence that the owner permitted her to drive a vehicle with dangerously worn tires would have reduced her liability for the accident. The passenger cross-complained against the insurer for insurance bad faith pursuant to plaintiff’s assignment of her claims against the insurer. The trial court granted summary judgment in favor of both the insurer and the lawyers without any statement of reasons. We reverse the judgment in all respects except as to plaintiff’s seventh cause of action for declaratory relief.
FACTS
1. The Accident and Underlying Personal Injury Lawsuit
One night in February 2007, plaintiff Sandita Mitsathaphone, then a teenager, was driving to San Diego in a car she had borrowed from her brother-in-law, Gabriel Pacheco. Sheila Vo, also a teenager, was asleep in the passenger seat. The weather that night was clear and dry. Plaintiff, who was not tired or intoxicated or using a cell phone, was driving at about 75-80 miles per hour when she lost control of the car. She swerved to the left and overcorrected by turning to the right; the car spun around, left the roadway, ran though a barbed-wire fence and struck a tree. Vo suffered serious injuries.
The police report on the accident, prepared by the investigating California Highway Patrol Officer A.W. Stacy, stated that plaintiff lost control of the car “[d]ue to a combination of worn tires and her unsafe speed....” Specifically, Stacy’s report stated:
“Based on statements and vehicle damage, I determined [plaintiff] to be at fault for driving in violation of [Vehicle Code section] 22350 (Unsafe speed for existing conditions). [Plaintiff] drove [the car] at a speed greater than that which would have allowed her to maintain control. [¶] I also determined there to be an Other Associated Factor of [Vehicle Code section 27465, subdivision (b)] (Tire tread depth). Upon inspecting [the car’s] tires, I noticed the tread on all 4 tires was well worn. I estimated the tread depth of each tire was less than 1/32 inch deep.”
In later deposition testimony, Officer Stacy stated that in his opinion, the accident occurred “due to a combination of worn tires and [plaintiff’s] unsafe speed, ” and was “confident that there was less than” 1/32 of an inch of tread on the tires. In his opinion, the tires were part of the cause of the accident. He stated that his reference to Vehicle Code section 22350 (unsafe speed for existing conditions) referred to the tire tread depth and nothing else. Plaintiff was not cited for exceeding the speed limit.
Pacheco’s car was insured by GEICO General Insurance Company; the policy contained a per person bodily injury limit of $30,000. Plaintiff was covered under the policy because she had Pacheco’s permission to drive the car.
On April 9, 2007 (about two months after the accident), Vo’s lawyer, Anh Nguyen, wrote to GEICO, enclosing a copy of the police report and medical records and bills exceeding $200,000. Nguyen’s letter stated that Vo would dismiss all claims against GEICO’s insured, “if, but only if, you timely fulfill the following conditions precedent to any settlement, ” all to be performed within 35 days (by May 14, 2007). The conditions precedent consisted of (1) “a declaration under penalty of perjury signed by your insured” stating that “your insured was not in the course and scope of employment at the time of [the] accident” and “does not have any additional and available liability insurance coverage”; (2) a draft in the amount of total available insurance coverage; and (3) a release of all claims. The letter also stated that “a mere letter promising or agreeing to settle in the future” would not be sufficient.
Jason Burger was GEICO’s claims representative handling Vo’s claim. Entries in an electronic claim activity log (referred to as the “ALOG”), purportedly made on April 16, 2007, by Burger, stated that Burger spoke with plaintiff that day and told her he needed a notarized letter stating that she had no other insurance and was not in the scope of employment, and that plaintiff said she would fax it to him. The April 16 ALOG entries also show that Burger called Pacheco and left a message to call him as soon as possible. GEICO’s ALOG entries show that Burger called plaintiff on April 27 and left two messages asking for a callback, and called again on May 1, and that Burger’s supervisor, Lynn Flanagan, also called plaintiff on May 2 and left a message to call Burger.
On May 2, 2007, Burger obtained authority from his superiors to offer the policy limits of $30,000. On May 3, 2007, Burger prepared declarations for Pacheco and plaintiff to sign and gave them to GEICO’s special investigations unit to obtain signatures. The investigator made no attempt to obtain signatures until May 14, 2007 (the date Nguyen’s offer expired); on that date the investigator drove to the addresses of both plaintiff and Pacheco, but no one was at home and no signatures were ever obtained.
Neither plaintiff nor Pacheco was ever told about Vo’s April 9, 2007 settlement demand.
Meanwhile, on May 9, 2007, GEICO responded to Vo’s April 9, 2007 settlement demand with a letter from Burger offering to pay Vo the $30,000 policy limits, contingent on honoring all hospital liens and on court approval because Vo was 17 years old (also stating court approval would not be necessary if Vo were to wait until her 18th birthday to conclude her case). Burger also noted he had not secured the letters Nguyen had requested, and was “having a very tough time contacting either [insured].”
On May 31, 2007, Vo sued plaintiff and Pacheco. In July, GEICO hired counsel for plaintiff and Pacheco and later substituted Michael Lehman as defense counsel for plaintiff and Pacheco.
Lehman did not depose or otherwise contact Officer Stacy in connection with Vo’s personal injury lawsuit. Before the trial, Lehman prepared a “neutral statement of the case, ” which stated that the lawsuit “involves a single vehicle accident in which the vehicle’s tires blew out and spun around resulting in injuries being claimed by plaintiff.” Lehman also filed a motion in limine to exclude all evidence regarding the possible causes of the accident, including all “testimony regarding the speed of the vehicle or the condition of the tires at the time of the accident....” Ultimately, Lehman and Vo’s counsel agreed to an order precluding any reference to the tires as being a cause of the accident, but not precluding the parties from presenting other evidence as to the cause of the accident. Vo’s counsel viewed this as very beneficial to Vo, in that it eliminated any argument plaintiff (Mitsathaphone) had that something other than her own negligence caused the accident.
Vo’s lawsuit resulted in a jury verdict finding plaintiff 100 percent responsible for the accident. Judgment was entered against her for $1,647,748. The jury found Pacheco liable for $15,000 based on his statutory liability as owner of the car.
Before the verdict was read, plaintiff entered into an agreement with Vo in which plaintiff assigned her bad faith claim against GEICO for the amount of the excess judgment, and reserved all other rights to herself. In return Vo provided a “Covenant Not to Levy Execution of Judgment or, in the Alternative, to Stay Levy of Execution of Judgment, ” subject to terms and conditions in the agreement. The agreement provided that the covenant to stay levy of execution of judgment “shall be deemed a permanent covenant not to execute as long as GEICO does not in any way attack the legal validity of any assignment and/or covenant herein.”
2. This Lawsuit
In October 2008, plaintiff sued Lehman and his law firm (Lehman), GEICO, and Vo. She asserted causes of action for professional negligence, breach of fiduciary duty and constructive fraud against Lehman, and claims for breach of contract, breach of the covenant of good faith and fair dealing, and negligence against GEICO, and sought punitive damages against both. Plaintiff also alleged a cause of action for declaratory relief against GEICO and Vo, seeking a declaration as to whether the assignment and covenant not to levy execution of judgment was “completely in effect and enforceable” and whether GEICO had attacked the legal validity of the agreement (and if so, whether the attack had invalidated any part of the agreement).
Vo filed a cross-complaint against GEICO, alleging (under the assignment from plaintiff) GEICO breached the implied covenant of good faith and fair dealing by failing to provide an adequate defense, failing to reasonably adjust and settle Vo’s claim, failing to timely investigate and accept Vo’s conditional policy limits demand, failing to communicate the demand, and so on.
GEICO and Lehman filed motions for summary judgment and summary adjudication of issues. GEICO’s notice of motion simply asserted there were no material disputed facts as to any of plaintiff’s causes of action or as to Vo’s cross-complaint. In the supporting papers, GEICO argued that:
a. GEICO did not breach its contractual duty to settle as a matter of law, because it made a timely offer to settle by paying its policy limits before Vo filed suit.
b. GEICO did not breach its contractual duty to provide a proper defense because, as a matter of law, an insurance company is not vicariously liable for malpractice committed by defense counsel.
c. GEICO did not breach its contract by failing to provide separate counsel to plaintiff and Pacheco because, while there were potential conflicts between plaintiff and Pacheco, “GEICO never became aware of any actual conflict between its two insureds” and an insurer has no duty to provide separate counsel when conflicts are only potential.
d. An insurer’s negligent handling of its insured’s claim does not give rise to a separate negligence cause of action (and even if negligent selection of defense counsel is a valid theory, there was no evidence of any negligence on GEICO’s part in selecting Lehman).
e. Plaintiff’s insurance bad faith claim, premised on GEICO’s failure to accept a settlement demand within policy limits, fails as a matter of law because Vo’s settlement demand was defective. (This is said to be because Vo was a minor, the demand letter did not include her mother, the demand did not offer to release all GEICO insureds, and the demand required performance beyond policy limits because of the declarations it sought.)
f. While GEICO admitted a factual dispute over whether GEICO informed plaintiff of Vo’s settlement demand, this does not prevent summary judgment, GEICO said, because of the legal defects in the demand. And, GEICO asserted, it had no duty to inform plaintiff of a settlement demand because she was not a named insured, but only “an insured by definition.”
g. GEICO has not attacked the enforceability of the assignment.
h. There was no evidence of malice, oppression or fraud by GEICO to support punitive damages.
Lehman asserted entitlement to summary judgment because plaintiff cannot establish the elements of causation or damage. Specifically:
a. There was no admissible evidence to establish either the condition of the tires or that the tires were the cause of the accident. This is said to be because the car, which was sent to salvage in February 2007, many months before Lehman was retained to defend plaintiff and Pacheco, was not available for expert inspection (which Lehman claims is necessary as a matter of law to establish that the tires were a cause of the accident).
b. Plaintiff cannot establish any recoverable damages against Lehman because Vo made a permanent covenant not to execute on the judgment (which GEICO has done nothing to challenge or attack). Nor can plaintiff recover attorney’s fees or emotional distress damages, as a matter of law.
c. Plaintiff presented no admissible evidence of malice, oppression or fraud.
3. The Trial Court’s Rulings
The trial court granted both motions for summary judgment, finding no triable issue of material fact. The court, however, did not, as required by Code of Civil Procedure section 437c, subdivision (g), “specify the reasons for its determination.” Judgments were entered and appeals by plaintiff and Vo followed.
“Upon the grant of a motion for summary judgment, on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.” (Code Civ. Proc., § 437c, subd. (g).)
DISCUSSION
The rules on summary judgment are well settled. A defendant moving for summary judgment need only “‘show[] that one or more elements of the cause of action... cannot be established’ by the plaintiff.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Code Civ. Proc., § 437c, subd. (p)(2).) Summary judgment is proper if the moving party would prevail at trial without submission of any issue of material fact to a trier of fact. (Aguilar, at p. 855.) We review the trial court’s ruling on a motion for summary judgment de novo.
Though our review is de novo, we would have been aided in our analysis by the trial court’s statement of reasons for granting the motions, specifically referring to the evidence which indicates no triable issue exists, as required by Code of Civil Procedure section 437c, subdivision (g). The trial court here gave no reasons in either its oral or written order granting the motions, other than to observe there was no expert evidence, which, standing alone, did not fulfill the trial court’s obligation to specify what undisputed facts established the defendants’ rights to summary judgment. In our analysis below, we will not address every argument raised on appeal but will address only the primary arguments to explain why defendants failed to establish their entitlement to summary judgment as a matter of law.
1. The Lehman Defendants
It is unnecessary to discuss the multiple ways in which plaintiff claims that Lehman breached his duties to her as her attorney. Lehman’s motion for summary judgment was based solely on the assertion that neither causation nor damages could be established, as a matter of law. Lehman is mistaken on both points.
a. Causation
Lehman contends that nothing he did or did not do could have changed the result in Vo’s lawsuit against plaintiff, because there was no evidence that could have been presented to support plaintiff’s claim that the tires on the car were the cause of the accident. This is because when he was retained, “it was [Lehman’s] understanding that the 2003 Dodge involved in the accident had been sent to salvage in February 2007 and was not available for viewing or inspection thereafter.” The evidence for this contention was Burger’s deposition testimony to the effect that GEICO took no steps to preserve the tires (even though Burger had read the police report), and an ALOG entry on February 23, 2007, showed that GEICO authorized the vehicle to be sold for salvage (“‘Insured vehicle will be taken to IAA branch’”).
From this evidence, Lehman concludes, as a matter of law, that plaintiff could not have proved that the tires were a cause of the accident, because the tires were not available for expert examination. He relies on Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363 (Stephen). Stephen was a product liability lawsuit in which the plaintiff, injured in an accident that occurred when the tread separated from a tire on her Ford Explorer, sued Ford and the tire manufacturer, claiming the tire was defectively designed. (Id. at p. 1365.) There, as here, the tire had not been preserved. The trial court excluded the testimony of the plaintiff’s tire expert (who had not examined the tire and had no basis for his conclusion that it was more likely than not that the detachment was caused by a defect rather than by some other factor). (Id. at pp. 1369-1370.) Non suit was then granted because there was no expert testimony to show the tire failed because of a design defect. (Id. at pp. 1366-1367.)
The Court of Appeal held that (1) expert testimony was necessary to establish the plaintiff’s design defect claim against the tire manufacturer, and (2) the tire expert’s testimony was properly excluded because there was no foundation for his opinions or conclusions (which it described as “nothing more than speculation”). (Stephen, supra, 134 Cal.App.4th at pp. 1365, 1373 [“A product liability case must be based on substantial evidence establishing both the defect and causation (a substantial probability that the design defect, and not something else, caused the plaintiff’s injury) and where, as here, the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.”].)
We begin with the obvious. This is not a product liability case, and it is unnecessary to prove a design defect in the tires caused the accident. All that must be proved is that worn tires were a cause of the accident. The causation issue in the case of worn tires is not “beyond common experience” (Stephen, supra, 134 Cal.App.4th at p. 1373), and to the extent expert testimony is needed, it was available in the person of Officer Stacy, who indeed opined at his deposition in this case that the accident occurred “due to a combination of worn tires and [plaintiff’s] unsafe speed, ” and was “confident that there was less than” 1/32 of an inch of tread on the tires. (See Veh. Code, § 27465, subd. (b)(1) [“[n]o person shall use on a highway a pneumatic tire on a vehicle axle when the tire has less than the following tread depth...: [¶] (1) One thirty-second (1/32) of an inch tread depth...”].)
In short, the unavailability of the car tires for expert review did not mean that, as a matter of law, Lehman could not have established in the personal injury lawsuit that worn tires were a cause of the accident. Consequently, Lehman has not shown, as he must to obtain summary judgment, that plaintiff cannot establish that, but for his alleged malpractice, it is more likely than not that she would have obtained a more favorable result in the Vo lawsuit.
b. Damages
Lehman also contends plaintiff cannot establish she sustained any damage as a result of his alleged malpractice, because Vo covenanted not to execute on the judgment so long as GEICO did not attack the legal validity of the assignment to Vo of plaintiff’s bad faith claims. Lehman is mistaken. There is an unsatisfied, final and enforceable judgment against plaintiff in favor of Vo in the amount of $1,647,748. The covenant not to execute does not release plaintiff from all liability on that judgment. The covenant is a promise not to execute on the judgment so long as Vo is able to satisfy the judgment by recovery from GEICO based on plaintiff’s assignment of her bad faith claims against GEICO. The covenant is subject to various qualifications and conditions.
Plaintiff remains subject to enforcement of the judgment until it is fully satisfied, and thus Lehman has not demonstrated as a matter of law that plaintiff cannot prove damages. (Critz v. Farmers Ins. Group (1964) 230 Cal.App.2d 788, 803 (Critz) [covenant not to execute given in exchange for judgment debtor’s assignment of bad faith claims against insurer is not a release and does not “blot out” the personal judgment or extinguish insured’s claim for breach of contract against the carrier], disapproved in part on other grounds in Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433; cf. Xebec Development Partners, Ltd. v. National Union Fire Ins. Co. (1993) 12 Cal.App.4th 501, 538 (Xebec) [covenant not to execute given in exchange for judgment debtor’s assignment of rights under insurance policy does not ipso facto make the assignee’s claim for damages disappear], disapproved in part on other grounds in Essex Ins. Co. v. Five Star Dye House, Inc. (2006) 38 Cal.4th 1252, 1265, fn. 4.)
Lehman argues, without citation to authority or any reasoned analysis, that Critz and Xebec establish only that claims against an insurer may survive the grant of a covenant not to execute, not claims against counsel. We are not persuaded. These cases establish the sound principle that a covenant not to execute against a judgment debtor does not release or wipe out liability on the judgment. Since Vo has not satisfied her judgment, it remains to be seen whether the covenant not to execute will become permanent. Consequently, Lehman has not shown, as must be demonstrated to obtain summary judgment, that plaintiff cannot establish damages. We find it unnecessary to address whether there are material disputes as to plaintiff’s additional claims for consequential damages including attorney fees and emotional distress.
2. GEICO
GEICO moved for summary judgment on the general ground that none of plaintiff’s or Vo’s causes of action against GEICO presented a material disputed fact. The trial court granted GEICO’s motion without specifying the reasons for its determination that there were no triable issues of material fact. We will not discuss each of the arguments GEICO made in the trial court or on appeal, finding there is a material factual dispute whether GEICO adequately investigated Vo’s claim to determine to what extent the accident was caused by dangerously worn tires that its insured, Pacheco, knew were unsafe when he gave plaintiff permission to borrow his car. That material dispute requires reversal of summary judgment on plaintiff’s causes of action for breach of contract, breach of the covenant of good faith, and negligence, and on Vo’s cross-complaint against GEICO.
GEICO asserted there was no material dispute whether it fulfilled its duties toward plaintiff because no one ever informed GEICO of an actual conflict of interest between plaintiff and Pacheco or suggested that GEICO should hire separate counsel (citing testimony from Burger and Pacheco to the effect that they were unaware of a conflict). And, GEICO claimed there was no evidence GEICO became aware before the trial that plaintiff wanted to try to blame Pacheco for the accident (citing plaintiff’s deposition testimony that she did not tell Pacheco the accident was his fault, and never blamed anybody for the accident, but blamed the tires).
These facts were insufficient to demonstrate GEICO fulfilled its duty to investigate the cause of the accident. Plaintiff produced material disputed facts in support of her argument that GEICO should have spoken with the officer at the scene who wrote in the police report the accident was due to worn tires, and GEICO should have assured the tires were available for an independent inspection. GEICO had the police report showing the tread was well worn on all four tires, to “less than 1/32 inch deep, ” and stating the officer’s opinion that plaintiff lost control of the Dodge “[d]ue to a combination of worn tires and her unsafe speed.” Yet GEICO’s claims adjuster concluded plaintiff was solely at fault for “loss of control” of the car, though the adjustor never spoke with the officer or otherwise investigated why plaintiff lost control of the car. Moreover, the adjuster inspected the car and issued a report showing what the tread wear typically should have been (a depth significantly greater than that shown on the police report), yet GEICO sent the Dodge to salvage without preserving the tires for a later independent inspection.
In Mariscal v. Old Republic Life Ins. Co. (1996) 42 Cal.App.4th 1617 (Mariscal), the court upheld a jury verdict for the wife of a decedent, who sued the insurer for breach of the covenant of good faith and fair dealing after it denied her claim for accidental death benefits. The insurer relied on a short statement in the death certificate that the immediate cause of death was heart failure to deny coverage under the policy, without investigating the facts showing the heart failure was the result of complications caused by head injuries suffered in a car accident. The insurer’s investigation included only the California Highway Patrol traffic collision report, the death certificate, some hospital records, the proof of loss form, and a brief synopsis prepared by its adjuster. (Id. at pp. 1621-1622.)
The court found substantial evidence that the insurer failed to consider all the information reasonably available to it at the time it denied the claim and breached its duty to thoroughly investigate the circumstances to determine if the accident was a factor causing death. The insurer never contacted any of the witnesses at the accident scene who spoke with the insured immediately after the accident, or with any doctor who evaluated him at the hospital. The insurer did not request the accident report prepared by a fire officer who came to the accident scene and submitted a Department of Forestry accident response report stating the insured suffered head trauma in the accident. The insurer did not have its own doctor review the records it obtained. On these facts, the court found the jury reasonably found breach of the covenant of good faith by violating the insurer’s duty to diligently search for evidence which supported the insured’s claim and looking only for evidence to defeat the claim. (Mariscal, supra, 42 Cal.App.4th at pp. 1624-1626.)
Here, plaintiff showed there is a material dispute whether GEICO breached its duty to reasonably investigate whether the worn tires were the sole or chief cause of the accident, which might have eliminated or substantially reduced plaintiff’s exposure to Vo. GEICO’s response that it cannot be liable for an inadequate defense by counsel it retained to represent plaintiff is no answer, because an insurer owes a non delegable duty to seek information relevant to a claim that is wholly independent of counsel’s duties to provide an adequate defense. (See Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 819; Hughes v. Blue Cross of Northern California (1989) 215 Cal.App.3d 832, 848.)
Since Vo’s bad faith claims (under the assignment from plaintiff) rest on the same basic allegations as plaintiff’s (failing to provide an adequate defense, failing to reasonably settle Vo’s claim, failing to investigate, and so on), and we have found material disputed facts defeat summary judgment on plaintiff’s causes of action for breach of contract, breach of the covenant of good faith, and negligence, we likewise find the same disputed facts (and others not discussed in this opinion) defeat summary judgment for GEICO on the cross-complaint.
Plaintiff clarified at oral argument that she has not appealed from the grant of judgment in favor of GEICO on her seventh cause of action for a declaration of her rights under the assignment to Vo of her bad faith claims against GEICO. On remand, the trial court shall enter summary adjudication for GEICO and against plaintiff on the seventh cause of action on the ground that there is no triable issue and no need for a declaration of rights under the assignment agreement, because GEICO has not attacked the enforceability of the assignment to Vo of plaintiff’s claims against GEICO for breach of the covenant of good faith and fair dealing.
3. Punitive Damages
We find the material disputed facts as to plaintiff’s causes of action against Lehman for breach of fiduciary duty and constructive fraud, and the cause of action against GEICO for breach of the covenant of good faith and fair dealing, demonstrate there are also material disputes whether punitive damages may be recovered against either Lehman or GEICO. Until a jury has considered all the circumstances of Lehman’s representation and GEICO’s performance under the insurance policy, it is premature to adjudicate the prayer for punitive damages.
DISPOSITION
The judgments for GEICO and for Lehman are reversed, and the cause is remanded to the trial court with directions to vacate its orders granting summary judgment and to enter new orders denying summary adjudication on all causes of action of the complaint except the seventh cause of action; granting summary adjudication of the seventh cause of action on the ground that there is no triable issue and no need for a declaration of rights under the assignment agreement, because GEICO has not attacked the enforceability of the assignment to Vo of plaintiff’s claims against GEICO for breach of the covenant of good faith and fair dealing; and denying summary judgment on the cross-complaint. Appellants are to recover their costs on appeal.
WE CONCUR: BIGELOW, P. J.RUBIN, J.