Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 05CC11778 of Orange County, Gregory Munoz, Judge. Affirmed.
Willard Patrick Bakeman for Plaintiff and Appellant.
Demler, Armstrong & Rowland, Michael E. Wade, James P. Lemieux and Scott K. Murch for Defendant and Respondent.
OPINION
O’LEARY, ACTING P. J.
Norma C. Ramirez appeals from a judgment in favor of Infinity Insurance Services (Infinity) in her action for breach of contract, declaratory relief, and insurance bad faith brought after Infinity rescinded her automobile insurance policy. The trial court granted Infinity’s motion for summary judgment finding the facts undisputed that Ramirez made material misrepresentations in her application about her residence and the identity of other occupants of her residence. On appeal, Ramirez contends there were material issues of fact about whether she made any material misrepresentations and about the various defenses she asserted to Infinity’s right to rescind the insurance contract. We find no material issues of fact and affirm the judgment.
I
FACTS
Ramirez owned two cars insured by Infinity. She submitted damage claims on both vehicles two days apart—one car was stolen and then recovered in a damaged condition; the second car was damaged after a hit and run accident while it was parked. Infinity subsequently rescinded the insurance policy, and refused to provide coverage for Ramirez’s losses, on the grounds she had made material misrepresentations in her application about her residence (resulting in a substantial reduction in her premium), and failed to identify the other occupants of her residence. Ramirez’s third amended complaint against Infinity contained causes of action for breach of contract, declaratory relief, and insurance bad faith.
Infinity’s Separate Statement of Material Facts and Declarations
Infinity’s separate statement of material facts set out the following facts supported by documents from Infinity’s claim files and declarations from various Infinity employees and its outside coverage counsel.
On September 28, 2004, Ramirez applied for and obtained automobile insurance on her 2004 Acura and her 2001 Toyota. Ramirez’s application was made through Acme Insurance Services (Acme). The application required Ramirez to state the garaging address of the vehicles. The garaging address of the vehicles is a factor in calculating the premium charged for the policy. Ramirez’s application stated the garaging address of the vehicles and her residence was 615 S. Philadelphia, Anaheim, California. The annual premium was $2,653.
The application also asked for the identity of all persons age 15 or older, licensed or not, residing with Ramirez. Infinity’s policy is that members of an insured’s household are not covered as permissive users. It requires that all such persons be either named on the policy as rated drivers or specifically excluded from the policy as permissive users of the covered vehicle. If there are multiple rated drivers in a household and only one vehicle, the premium is based on the riskiest driver. If there are multiple vehicles and multiple drivers, the highest risk driver is named as primary driver of the highest risk vehicle when calculating the premium. Ramirez did not identify anyone who resided with her.
The application form contained a box titled in all capital letters, “APPLICANT’S STATEMENT—READ BEFORE SIGNING[.]” Below that title were seven numbered representations by the applicant including that the applicant had identified “all persons age 14 or older who live with me[,]” had an obligation to keep Infinity informed of any changes in the identity of persons who resided with her, and understood a misrepresentation about the persons who resided with her “may materially affect the risk accepted by [Infinity] and may render my policy null and void.” Another applicant representation was that his or her “principal residence address and place of vehicle garaging [is the] address shown on this application for ten (10) or more months each year.” The applicant represented she understood the policy would become null and void from the date of inception if any of the information in the application “is false, misleading, or would materially affect acceptance of the risk by [Infinity.]”
Although the first page of the application directed Ramirez to identify all persons age 15 or older residing with her, the applicant’s statement refers to persons age 14 or older.
Immediately above Ramirez’s signature on the application was the statement, “I certify that the statements and information in this application are true and correct. By signing below, I acknowledge that I have read the warnings and [s]tatements listed on this application.” Immediately below Ramirez’s signature was a “Producer’s Statement” signed by Acme employee Maria Becerra, certifying “all information contained herein is correct, [and] the statements herein are those of the applicant who has signed this application in my presence . . . . I am legally qualified to submit this application on behalf of the applicant. This advises the applicant that if this sentence is not crossed out and initialed by me, I am acting as the applicant’s broker in this transaction.” The latter sentence was not crossed out.
On January 17, 2005, Ramirez filed a claim with Infinity for damage to her Toyota that occurred on January 16. She left the car parked near a friend’s house in Los Angeles and when she returned a few hours later, the car had damage from having apparently been hit by another car. On January 19, 2005, Ramirez filed a claim for damages to her Acura. The car was stolen on January 18 from where it had been parked near an apartment building at 4020 Marathon Street, Los Angeles. It was recovered in a damaged condition the same day.
On January 25, 2005, Infinity’s claims adjuster called Ramirez to take her recorded statement. Ramirez asked that the statement be taken at her sister’s apartment located at 4020 Marathon Street No. 312, Los Angeles. The adjuster instructed Ramirez to bring proof of her residence address. The adjuster then conducted a background check which revealed Ramirez’s residence from August 2001 through December 2004 was 4020 Marathon Street No. 213, Los Angeles (i.e., a different apartment in the same building where Ramirez’s sister lived). The telephone number at 4020 Marathon Street No. 213, Los Angeles, was listed in Ramirez’s name and the Toyota vehicle was registered at that address. The adjuster could not find any records indicating Ramirez’s residence was 615 S. Philadelphia, Anaheim, California. Had the garaging address for Ramirez’s vehicles been 4020 Marathon Street No. 213, Los Angeles, the premium for the policy would have been $1,896 more annually.
During Ramirez’s recorded interview with the adjuster on January 27, 2005, she could not recite the Anaheim address listed on the policy without referring to a paper on which it was written. The adjuster observed the 4020 Marathon Street, Los Angeles apartment building directory listed Ramirez as the occupant of apartment No. 213. Ramirez provided the adjuster with a copy of her October 2004 car loan statement and her January 2005 bank statement both showing her address as 4020 Marathon Street No. 213, Los Angeles. Ramirez told the adjuster she had lived at 4020 Marathon Street No. 213, Los Angeles for four years, but since September 2004, had been living in Anaheim with her brother and his wife in their studio apartment behind a house in Anaheim. She did not know the landlord’s name.
Infinity retained legal counsel to conduct an examination of Ramirez under oath (as permitted by the policy), and to provide a legal opinion on whether Ramirez had made material misrepresentations in her insurance application. During counsel’s examination of Ramirez on March 7, 2005, she could not name the streets near the Anaheim address where she claimed she parked the insured vehicles. Ramirez also revealed the following additional facts: none of the utilities at the Anaheim address were in her name; Ramirez claimed she paid rent to her brother, but had no cancelled checks; she never filed a change of address with the post office and continued to receive all her mail at 4020 Marathon Street No. 213, Los Angeles; in addition to Ramirez’s brother and his wife, another man lived in the apartment at the Anaheim address as well.
Based on his review of the documents and his examination of Ramirez, Infinity’s legal counsel concluded all indicia of residence established Ramirez’s residence was 4020 Marathon Street No. 213, Los Angeles, and Ramirez misrepresented her address to obtain a reduced premium. Counsel also concluded Ramirez had misrepresented other material facts concerning the presence of other adult residents at either of the addresses: she lived with Enil Ferguson Bonilla, who Ramirez called her “common law husband,” at 4020 Marathon Street No. 213, Los Angeles and he drove both of the insured vehicles; or she resided with her brother and his wife (and possibly a third person) at the Anaheim address.
Counsel recommended Infinity rescind the policy and deny Ramirez’s claims. He forwarded his recommendation to an Infinity claims examiner who followed counsel’s advice and issued a letter rescinding Ramirez’s policy. The claims examiner declared that had counsel opined there was no legal basis for rescission, the claims would have been paid. Had legal counsel opined it was “dubious,” Infinity would have authorized the filing of a declaratory relief action.
Ramirez’s Opposition
Ramirez’s separate statement of material facts was not supported by any declarations; rather it cited to depositions of numerous witnesses and those depositions were lodged in the entirety with the court. Infinity filed evidentiary objections to the cited testimony that the court overruled because the objections were not in the proper format required by the California Rules of Court.
Ramirez’s separate statement stated as an undisputed fact that she left 4020 Marathon Street No. 213, Los Angeles, in September 2004 and moved to escape domestic violence by Bonilla. Her children remained living at 4020 Marathon Street No. 213, Los Angeles. Ramirez’s sister lived in the same building. Ramirez moved in with her brother at 615 S. Philadelphia, Anaheim, a studio/converted garage behind a house, and sometimes offered him money to help pay the rent. She kept both vehicles at the Anaheim address. Her brother had his own car, and her brother’s wife did not drive.
Ramirez applied for the Infinity policy through Acme Insurance, located in Alhambra. Acme is an insurance agent for Infinity. Ramirez’s application was “taken” by Maria Becerra (aka Marilu Rios) who worked in Acme’s office in Alhambra. Ramirez was not physically in the Alhambra office, but was at the Los Angeles office of an employee of Acme, Teresa Perez, who operates under the name “Perez Insurance Services.” In her separate statement, Ramirez stated as a fact that she does not speak English.
When she filled out her application with Acme, Ramirez presented residency documentation all of which showed her residence to be 4020 Marathon Street No. 213, Los Angeles. She was told she must provide proof of her Anaheim residency or she would be charged a higher premium based on her Los Angeles address. Becerra sent Ramirez a letter asking her to provide proof of her residence in Anaheim, but no such proof was given by Ramirez, and Becerra and Infinity never followed up. When the Infinity claims adjuster went to the Anaheim address looking for Ramirez to determine if she lived there, an unidentified woman answered the door and told him Ramirez was at work.
The Order
The trial court granted the motion for summary judgment and entered judgment for Infinity. In its minute order, the court stated Infinity’s undisputed facts established grounds for rescission and Ramirez had failed to present evidence that established any material issue of fact. The court found the following facts were undisputed: In applying for insurance on September 28, 2004, Ramirez stated the garaging address for the vehicles and her residence was 615 S. Philadelphia, Anaheim. Garaging address is a factor in calculating premiums. A background check on Ramirez showed her residence was 4020 Marathon Street No. 213, Los Angeles and showed no past or current addresses for her in Orange County. Ramirez’s car was registered at the Los Angeles address, she received all her mail there and she never completed a change of address form for the Anaheim address. Had Ramirez listed her residence as being the Los Angeles address, her premium would have been $1,896 more annually. Infinity requires all residents age 15 or older be either specifically named on the policy or specifically excluded as a permissive user of the insured vehicles. On her application, Ramirez did not identify any persons age 15 or older residing with her at the Anaheim address. Ramirez testified she resided at the Anaheim address with her 34-year-old brother and his 32-year-old wife. Infinity referred Ramirez’s claims to legal counsel, who upon review of all the documents and examination of Ramirez under oath, concluded Ramirez had made material misrepresentations on her application. Infinity was following the advice of counsel when it rescinded Ramirez’s policy.
II
DISCUSSION
1. Standard of Review: Summary Judgment
Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “A defendant seeking summary judgment bears the initial burden of proving the ‘cause of action has no merit’ by showing that one or more elements of plaintiff’s cause of action cannot be established or there is a complete defense. [Citations.] Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. [Citation.] [¶] ‘[We] review[] de novo the trial court’s decision to grant summary judgment and we are not bound by the trial court’s stated reasons or rationales. [Citations.]’ We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.]” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 805.)
2. Record on Appeal
Infinity contends the record on appeal is inadequate to overcome the presumption of correctness. Ramirez’s separate statement was not supported by any declarations, but cited to specific pages from various witness depositions. Ramirez lodged the deposition transcripts in their entirety with the trial court (and has lodged them with this court as exhibits), but nothing in the appellant’s appendix indicating the depositions were received into evidence by the trial court.
The usual procedure for getting deposition testimony before the trial court on a summary judgment motion is to either set forth relevant excerpts from the deposition in declarations and/or to attach copies of the relevant pages of the deposition transcripts as exhibits to those declarations. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:164, p. 10-62.) Ramirez did not follow that procedure.
Infinity argues we must conclude none of the deposition testimony Ramirez cited in her separate statement is properly before us on appeal because we have no record the court actually received that testimony into evidence or considered the testimony to which Ramirez referred. But given that the court overruled Infinity’s evidentiary objections to the cited testimony, we may safely assume that in ruling, the court considered the deposition testimony to which Ramirez referred.
However, we reject Ramirez’s suggestion the depositions in their entirety were considered by the court or should be considered by us on appeal. Simply lodging an entire deposition transcript with the trial court does not make the entire deposition part of the record where the record does not indicate that the entire deposition was received into evidence. (Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962.) Accordingly, we conclude, as to Ramirez’s opposition to the summary judgment motion, our review must be limited to the specific portions of the depositions that were arguably before the court by virtue of her citations to those pages in her separate statement. We will not consider any parts of those depositions to which Ramirez refers in her appellate briefs that were not referred to in the papers filed in connection with the motion.
3. Rescission of Insurance Contract
Many of the issues concerning rescission presented in this case were quite recently addressed by a different panel of this court in LA Sound USA, Inc. v. St. Paul Fire & Marine Ins. Co. (2007) 156 Cal.App.4th 1259 (LA Sound). As in LA Sound, here “[t]he finding that the policy was void ab initio due to material misrepresentations on the application is at the crux of this case. . . . When a policy is void ab initio, it is ‘as though it had never existed.’ [Citation.] A policy void ab initio thus cannot be breached.” (Id. at p. 1266.)
“When a policyholder conceals or misrepresents a material fact on an insurance application, the insurer is entitled to rescind the policy. ‘Each party to a contract of insurance shall communicate to the other, in good faith, all facts within his knowledge which are or which he believes to be material to the contract.’ (Ins. Code, § 332.) Concealment, which is the ‘[n]eglect to communicate that which a party knows, and ought to communicate’ (§ 330), ‘entitles the injured party to rescind insurance.’ (§ 331.) Similarly, ‘[i]f a representation is false in a material point . . . the injured party is entitled to rescind the contract from the time the representation becomes false.’ (§ 359.) ‘[A] rescission effectively renders the policy totally unenforceable from the outset so that there was never any coverage and no benefits are payable.’ [Citation.]” (LA Sound, supra, 156 Cal.App.4th at pp. 1266-1267.)
All further statutory references are to the Insurance Code, unless otherwise indicated.
4. Material Misrepresentation About Residence
The trial court found as undisputed facts that when she applied for insurance on September 28, 2004, Ramirez gave the Anaheim address as the garaging address for the vehicles and her residence, when in fact her residence was the Los Angeles address. The court found as a matter of law the misrepresentation was material because it resulted in a substantial reduction in Ramirez’s insurance premium.
Ramirez points to no evidence in the record creating a material issue of fact as to her misrepresentation about her residence. On the insurance application, Ramirez stated her residence was 615 S. Philadelphia, Anaheim. She represented that address was her “principal residence address and place of garaging the vehicle . . . for ten (10) or more months each year.” Yet, everything Infinity uncovered in its investigation showed Ramirez’s permanent residence was 4020 Marathon Street No. 213, Los Angeles. Her “common law husband” and children lived there; she was listed on the building’s directory as the resident of that apartment; the telephone at that apartment was in her name; her car was registered at that address; her January 2005 bank statement was addressed to the Los Angeles address; she received all her mail there. Those facts are all undisputed.
Ramirez asserted she had moved to Anaheim with her brother because of domestic violence at home, but nothing indicated she intended that to have any sort of permanency. (See Smith v. Smith (1955) 45 Cal.2d 235, 239 [“‘residence’ connotes any factual place of abode of some permanency, more than a mere temporary sojourn”].) Ramirez had no documents whatsoever showing the Anaheim address as her residence, she could not demonstrate she ever contributed to rent or utilities, and she never attempted to change her address with the post office. When her examination under oath was taken, Ramirez could not recite the address of the Anaheim apartment, the streets near the apartment where she parked her cars, and did not know the name of the landlord. Her separate statement pointed to no evidence concerning how frequently she slept at the Anaheim apartment. “‘The question whether a person has changed his residence from one place to another must depend largely upon his intention.’ [Citation.]” (Michelman v. Frye (1965) 238 Cal.App.2d 698, 704.) Ramirez points to no evidence indicating she intended to, or did, establish the Anaheim apartment as a “place of abode of some permanency” as opposed to a place of respite from her marital problems.
Ramirez does not seriously dispute that misrepresenting her place of residence on an application for an automobile insurance policy was material, other than to suggest it should be viewed as a question of fact because a jury might not believe Infinity’s evidence about materiality. Her reliance on Thompson v. Occidental Life Ins. Co. (1973) 9 Cal.3d 904, 916, for the proposition “the trier of fact is not required to believe the ‘post mortem’ testimony of an insurer’s agents that insurance would have been refused had the true facts been disclosed[,]” is misplaced. That case was not a summary judgment case.
As noted in Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457 (Mitchell), at page 474, “The materiality of a misrepresentation is determined by its probable and reasonable effect upon the insurer. [Citation.] The misrepresentation need not relate to the loss ultimately claimed by the insured. [Citation.] The test for materiality is whether the information would have caused the underwriter to reject the application, charge a higher premium, or amend the policy terms, had the underwriter known the true facts. [Citations.]”
“‘The most generally accepted test of materiality is whether or not the matter misstated could reasonably be considered material in affecting the insurer’s decision as to whether or not to enter into the contract, in estimating the degree or character of the risk, or in fixing the premium rate thereon.’ [Citations.]” (Old Line Life Ins. Co. v. Superior Court (1991) 229 Cal.App.3d 1600, 1604.) Ramirez does not dispute that had she given the Los Angeles address as her residence, her annual premium would have been almost $2,000 a year higher. Ramirez’s material misrepresentation about her residence entitled Infinity to rescind the policy.
5. Material Misrepresentation About Other Occupants of Ramirez’s Residence
It is also undisputed that if, as Ramirez claimed, her residence was 615 S. Philadelphia, Anaheim, then Ramirez failed to identify the other adults occupying that residence—her brother, his wife, and another adult man. Ramirez argues there is an issue as to the materiality of that misrepresentation. We disagree.
“‘Materiality is determined solely by the probable and reasonable effect which truthful answers would have had upon the insurer. [Citations.] The fact that the insurer has demanded answers to specific questions in an application for insurance is in itself usually sufficient to establish materiality as a matter of law.’ [Citation.]” (LA Sound, supra, 156 Cal.App.4th at pp. 1268-1269.)
The insurance application specifically required the applicant to identify all persons 15 or older who resided with the applicant. Infinity presented uncontroverted evidence it requires all residents over the age of 15 be specifically named as rated drivers on the policy (which would directly impact the premium) or those individuals must be specifically excluded as permissive users of the insured vehicles. Ramirez did not identify any such persons.
Ramirez argues the application was ambiguous as to the need to identify other occupants of her residence. It was not. At the very top of the application, in all capital letters, was the directive that the information in the application be given for “all persons age 15 and older, licensed or not, who reside with the applicant . . . .” And immediately above Ramirez’s signature was her representation she had identified “all persons age 14 or older who live with me.”
To the extent Ramirez is suggesting materiality was a question of fact because the damages to her two vehicles did not involve any drivers at all, let alone a permissive user—one car was damaged while parked and unattended and the other was stolen while parked and unattended—we reject that assertion. “The misrepresentation need not relate to the loss ultimately claimed by the insured. [Citation.]” (Mitchell, supra, 127 Cal.App.4th at p. 474.) Infinity’s undisputed evidence was that the identity of other occupants of the applicant’s residence directly related to either the premium charged or the risk it assumed. That makes the information material to the issuance of the policy.
6. Other Defenses to Rescission
Ramirez contends there were material issues of fact as to several defenses she raised to Infinity’s right to rescind the insurance policy. We find none.
Ramirez first asserts she is unable to speak English and is “functionally illiterate.” She asserts rescission of an insurance contract is “absolutely barred” when the applicant does not read and understand English and could not read or understand the insurance application. But Ramirez cites absolutely no evidence to support her assertion. In her separate statement, she stated as an undisputed fact that she does not speak English. But the evidence she cited was the deposition of the owner of Acme Insurance Company, Lake Law, who never met or spoke to Ramirez, and he said nothing about her language skills. Ramirez provided no declaration and cited no other deposition testimony indicating she did not understand the application.
Ramirez next asserts Infinity is bound by information Acme had concerning her residence, but failed to follow up on. Ramirez points out that when she applied for insurance, all her documentation showed her residence was in Los Angeles, and she was told by the Acme agent she must provide documentary proof her residence was in Anaheim or she would be charged a higher premium. She never provided any such proof, and Acme did not follow through. Ramirez argues Infinity is estopped to assert her misrepresentation when its agent had information and failed to investigate her insurability at the Anaheim address.
But in preparing and submitting Ramirez’s insurance application, Acme was acting as her broker, not as an agent of Infinity. That was specifically acknowledged in the “Producer’s Statement” on the application which “advise[d] the applicant that if this sentence is not crossed out and initialed by [the producer], I am acting as the applicant’s broker in this transaction.” (Italics added.) The latter sentence was not crossed out. “As a matter of law, ‘if [an insurance] application was prepared by an insurance broker (the agent of the insured), the application’s contents are the insured’s responsibility.’ [Citations.]” (LA Sound, supra, 156 Cal.App.4th at p. 1268.)
Ramirez cites an unpublished federal court decision, National Liability & Fire Ins. Co. v. Fiore (9th Cir. 2006) 187 Fed.Appx. 733, for the proposition that as soon as an insurance application is submitted to the insurer by the applicant’s broker, the broker becomes the insurer’s agent and the broker’s knowledge is imputed to the insurer. The case says no such thing. That case involved the extent of an independent broker’s actual authority to bind coverage, and had nothing to do with whether the broker’s alleged knowledge of material misinformation on an application could be imputed to the insurer.
Finally, Ramirez argues the equitable doctrine of laches bars Infinity from rescinding the insurance policy because over four months had elapsed from the time she applied for the insurance policy until it was rescinded. Whether laches is to be applied is usually a question of fact “to be determined by the trial court in light of all of the applicable circumstances . . . .” (Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614, 624.) Ramirez never raised her laches theory below and cannot raise it for the first time on appeal.
Because we conclude Infinity was entitled to rescind the policy due to Ramirez’s material misrepresentations, we need not consider her argument concerning her bad faith cause of action—i.e., that there was a material issue of fact as to whether Infinity acted in bad faith by wrongfully rescinding the policy and whether it justifiably relied on advice from its coverage counsel in rescinding the policy. Nor need we consider Infinity’s contention that if the summary judgment is reversed, it is nonetheless entitled to summary adjudication of the insurance bad faith causes of action.
III
DISPOSITION
The judgment is affirmed. The Respondent is awarded its costs on appeal.
WE CONCUR: MOORE, J., IKOLA, J.