Defendant Calif. Fair Plan Assoc.’s motion for summary judgment and/or adjudication
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 29, 2026 TIME: 8:30 A.M.
If the parties cannot resolve this matter cooperatively and collaboratively, the Court will revisit the issue of assigning a discovery referee pursuant to Code of Civil Procedure section 695, subdivision (a)(5). The parties should be prepared to discuss such an assignment, the manner of appointment, and cost sharing. The Court notes that there are four discovery motions reserved for July 15, 2026, and there were nine on calendar on April 24, 2026. An order directing all discovery matters to a discovery referee is appropriate in the “unusual case where a majority of the factors favoring reference are present.
These include: (1) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertions of privilege) make the inquiry inordinately time-consuming.” (Taggares v. Superior Court (1998) 62 Cal.App.4th 94, 105.) When one or more of these factors “unduly impact the court’s time and/or limited resources, the court is clearly within its direction to make an appropriate reference.” (Id. at p. 106.)
No. 22CV00539
BRIGHT V. CALIF. FAIR PLAN ASSOC., et al.
DEFENDANT CALIF. FAIR PLAN ASSOC.’S MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION
Defendant California FAIR Plan Association’s motion for summary judgment and/or adjudication is denied. Disputed material facts exist as to all three bases for the motion – plaintiffs’ claims for breach of contract, bad faith, and punitive damages.
I. SUMMARY JUDGMENT STANDARD
In a summary judgment motion, the court must determine from the evidence presented that “there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law....” (Code Civ. Proc. §437c, subd. (c) (§ 473c).) In making this determination, the court may rely on “affidavits, declarations ... and matters of which judicial notice shall or may be taken.” (§ 437c, subd. (b).) The plaintiff “may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (§ 437c, subd. (p)(2).)
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The court’s sole function on a motion for summary judgment is issue-finding, not issue determination. To be material, the fact must relate to some claim or defense in issue under the pleadings and be in some way essential to the judgment; if proved, it could change the outcome
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 29, 2026 TIME: 8:30 A.M.
of the case. “There is a triable issue of material fact if, and only if, 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If there is a single such issue, the motion must be denied. (Versa Tech., Inc. v. Superior Court (1978) 78 Cal.App.3d 237, 240.)
A. Shifting burdens
Defendants moving for summary judgment bear the burden of persuasion that one or more elements of the cause of action in question cannot be established or that there is a complete defense thereto. In general, a moving defendant must present evidence that, if uncontradicted, “would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established....” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 879.) If defendant fails to meet this burden, its motion must be denied and plaintiff need not make any showing at all.
Defendant can show that an essential element of plaintiff’s claim cannot be established by presenting evidence (discovery responses, deposition testimony, etc.) that plaintiff does not possess and cannot reasonably obtain needed evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855, fn. 23.)
The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. If the moving party carries this burden, it causes a shift and the opposing party is then subject to its own burden of production to make a prima facie showing that a triable issue of material fact exists. (Id. at p. 850.) Each material fact must have a citation to supporting evidence. (§ 437c, subd. (b)(1).) If a triable issue is raised as to any of the facts in the separate statement, the motion may be denied. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Opposition declarations are to be liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
B. Separate statement requirements
“The separate statement ‘is an indispensable part of the summary judgment or adjudication process’ because it plainly identifies factual issues and allows the trial court to determine whether a trial is required to establish those facts and resolve the dispute. [Citations.] ‘Opposition separate statements must cite to facts and evidence for the evidence to be considered by the court.’ [Citations.]” (Champlin/GEI Wind Holdings, LLC v. Avery (2023) 92 Cal.App.5th 218, 226.)
Without a separate statement with references to supporting evidence it is impossible to demonstrate the existence of disputed facts. (Bacoka v. Best Buy Stores, L.P. (2021) 71 CalApp.5th 126, 131; Blackman v. Burrows (1987) 193 Cal.App.3d 889, 894; Cal. Rules of
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 29, 2026 TIME: 8:30 A.M.
Court, rule 3.1350(h).) “Admissible evidence is required to show that disputed issues of material fact exist. [Citation.] ‘Responsive evidence that ‘gives rise to no more than mere speculation’ is not sufficient to establish a triable issue of material fact.’ [Citations.]” (Champlin/GEI Wind Holdings, LLC v. Avery, supra, 92 Cal.App.5th at p. 226.)
II. MATERIAL FACTS ARE IN DISPUTE
Plaintiffs dispute defendant’s Separate Statement of Undisputed Facts, nos. 1, 3-5, 7-21, 23-27, 29-42 (summary judgment), nos. 1, 3-5, 7-21, 23-27, 29-42 (summary adjudication, issue 1), nos. 1, 3-5, 7-21, 23-27, 29-42 (summary adjudication, issue 2), and nos. 1, 3-5, 7-21, 23-27, 29-42 (summary adjudication, issue 3). They submit their own 159 separate facts, with references to the declarations of plaintiff Mark Bright, their experts Sandra L. Moriarty and Dawn Bolstad-Johnson, and evidence produced in discovery (party and witness depositions, document productions).
Despite defendant’s contentions on reply that plaintiffs have mischaracterized evidence and have no authority that smoke damage constitutes a direct physical loss, the Court finds disputed material facts exist as to all of plaintiffs’ claims, and the Court denies the motion for summary judgment and/or adjudication. Based partially upon the sheer volume of competing evidence in this action, and the assessment of the evidence presented, it is clear that material triable facts are in dispute.
III. OBJECTIONS TO EVIDENCE
Plaintiffs made 51 objections to defendant’s evidence. The Court sustains the following objections: nos. 13, 44, 47 (lacks foundation), 39, 40, 41, 43, 48 (hearsay); all other objections are overruled.
Defendant’s 175 objections to the declarations of Kevin M. Pollack, Sandra L. Moriarty, and Dawn Bolstad-Johnson are all overruled. (See Hook Media Group Inc. v. Apple, Inc. (2020) 55 Cal.App.5th 323, 338 [attorney declaration submitted in opposition to a summary judgment motion that documents were obtained through discovery in the action sufficed to show the attorney’s personal knowledge and authentication]; Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155 [expert opinion has evidentiary value when it is supported “by a reasoned explanation connecting the factual predicates to the ultimate conclusion”].) Defendant made nine objections to the Declaration of Mark Bright and the Court sustains nos. 4 and 8 only; the rest are overruled.
IV. REQUESTS FOR JUDICIAL NOTICE
Defendant’s request for judicial notice of the complaint in this action is denied; the Court need not take judicial notice of its own records.
LAW AND MOTION TENTATIVE RULINGS DATE: MAY 29, 2026 TIME: 8:30 A.M.
Plaintiffs’ request for judicial notice:
1. “Report of the Targeted Market Conduct Examination of the Claims Practices of the California FAIR Plan Association as of March 18, 2021, Adopted on May 25, 2022,” California Department of Insurance (“CDI”): Granted. 2. “Order to Show Cause, Notice of Hearing, Notice of Monetary Penalty, and Order to Cease and Desist,” CDI, July 21, 2025, file no. DISP-2025-00281: Granted.
3. Ruling in Aliff v. California FAIR Plan Association, Los Angeles Superior Court Case no. 21STCV20095, June 24, 2025: Granted only as to the existence of the document, not its contents.