McCormick v. Foremost Ins. Co CA4/1 (2014) · DecisionDepot
McCormick v. Foremost Ins. Co CA4/1
California Court of Appeal Mar 4, 2014 No. D062812Unpublished
Filed 3/4/14 McCormick v. Foremost Ins. Co CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ALTON MCCORMICK et al., D062812
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2011-00098920- CU-IC-CTL) FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Joan M.
Lewis, Judge. Affirmed.
Ketti McCormick for Plaintiffs and Appellants.
Greve, Clifford, Wengel & Paras, Lawrence A. Wengel and Bradley W. Kragel for
Defendant and Respondent.
In this homeowners insurance coverage case, the trial court determined both that
the plaintiffs' complaint was untimely and that, in any event, their underlying claim was
subject to an earth movement exclusion that appeared on the face of their homeowners
insurance policy. We find no error and affirm the judgment dismissing the plaintiffs'
complaint.
FACTUAL BACKGROUND
On May 22th, 2007, plaintiffs and appellants Alton McCormick and Erinn
McCormick purchased a home in the Mount Soledad area of La Jolla. In addition to their
home, the McCormicks also purchased a basic dwelling policy from defendant and
In light of the fact the FAC alleges that Foremost denied the McCormicks' claim
on October 7, 2007, the face of the record shows that neither the original complaint nor
the FAC were filed within in two years of any negligence or breach of duty attributable to
Foremost, as required by Code of Civil Procedure section 339, subdivision 1. Foremost's
October 7, 2007 denial of the McCormicks' claim also shows both the original complaint
and the FAC were filed more than three years after the McCormicks should have
discovered any fraud on the part of Foremost. "The courts interpret discovery in [the]
context [of fraud] to mean not when the plaintiff became aware of the specific wrong
alleged, but when the plaintiff suspected or should have suspected that an injury was
caused by wrongdoing. The statute of limitations begins to run when the plaintiff has
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information [that] would put a reasonable person on inquiry. A plaintiff need not be
aware of the specific facts necessary to establish a claim since they can be developed in
pretrial discovery. Wrong and wrongdoing in this context are understood in their lay and
not legal senses. [Citation.] [¶] . . .'"Under this rule constructive and presumed notice or
knowledge are equivalent to knowledge. So, when the plaintiff has notice or information
of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain
knowledge from sources open to [her] investigation (such as public records or
corporation books), the statute commences to run." [Citation.]'" (Kline v. Turner (2001)
87 Cal.App.4th 1369, 1374.) Plainly, in October 2007, the McCormicks were put on
notice that they would not receive benefits under the policy and therefore had three years
to bring a claim that Foremost had no intention of paying the benefits. (Ibid.)
In sum, the record does not permit us to disturb the trial court's ruling on
Foremost's demurrer.
III
The trial court also properly found that the McCormicks' breach of contract claim
was time-barred.
Under Code of Civil Procedure section 337, subdivision 1, the McCormicks had
four years from the date of any breach of the written insurance policy in which to bring a
contract action against Foremost. The McCormicks original October 5, 2011 complaint
was brought within four years of Foremost's written denial of coverage and, if it had
named Foremost, it would have been timely with respect to the breach of contract claim.
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However, as we have indicated, Foremost was not named as a defendant until the FAC
was filed on November 30, 2011, more than four years after Foremost's written denial. In
light of the fact that Alton McCormick was able to identify Foremost as his insurer at his
deposition in 2009 in the related action against the city, the FAC did not relate back to the
date of the original complaint.
Code of Civil Procedure section 474 permits a plaintiff, who is unaware of the
name of a defendant, to sue the defendant as a fictitious party and, when the party's name
is discovered, amend the complaint and properly identify the defendant. For purposes of
applying the statute of limitations, a defendant is treated as if it was named at the time the
complaint was filed. (See Woo v. Superior Court (1999) 75 Cal.App.4th 169, 177
(Woo).) However, the relation back permitted by Code of Civil Procedure section 474
does not apply unless the plaintiff is genuinely ignorant of the defendant's identity at the
time the original complaint is filed. (Ibid.) "The omission of the defendant's identity in
the original complaint must be real and not merely a subterfuge for avoiding the
requirements of section 474. [Citation.] Furthermore, if the identity ignorance
requirement of section 474 is not met, a new defendant may not be added after the statute
of limitations has expired even if the new defendant cannot establish prejudice resulting
from the delay. [Citation.] However, if the plaintiff is actually ignorant of the
defendant's identity, the section 474 relation-back doctrine applies even if that ignorance
is the result of the plaintiff's negligence. [Citations.]" (Ibid.)
8
In Woo, we held that where the plaintiff contends that he or she forgot the name of
the defendant, application of Code of Civil Procedure section 474 requires some proof the
plaintiff nonetheless reviewed readily available information likely to refresh his or her
memory. (Woo, supra, 75 Cal.App.4th at p. 180.) Here, the McCormicks offered no
such proof.
One court has permitted a plaintiff, who knew the name of a defendant and then
later forgot it, to rely on the relation back provided by Code of Civil Procedure section
474, without proof of the diligence we required in Woo. (See Balon v. Drost (1993) 20
Cal.App.4th 483, 489-490.) However, in Balon, which we criticized in Woo, the plaintiff
produced a declaration in which she explained she had been given a slip of paper with the
name of the driver of the car that had collided with her and later lost it. Here, of course,
we have no such evidentiary explanation from the McCormicks; rather, all we have in
terms of evidence is Alton McCormick's 2009 deposition testimony in which he was able
to recall Foremost's name and the argument, asserted by counsel, that the McCormicks
had forgotten the name of the insurer.1 Thus, even under the more liberal standard of
ignorance set forth in Balon, Alton McCormick's unrebutted deposition testimony shows
that the McCormicks were in fact aware of the name of the insurer at the time they filed
the original complaint.
1 We also note that neither the original complaint, which alleges ignorance of the identity of the insurer, nor the FAC, which identifies Foremost as one of the fictitious defendants, was verified by either one of the McCormicks. 9
In sum, the record shows the McCormicks' breach of contract claim was made
more than four years after Foremost's alleged breach and was therefore untimely.
IV
The record also demonstrates that, in any event, the McCormicks' losses were
subject to an earth movement exclusion in the Foremost policy.
"An insurer may 'seek[ ] summary judgment on the ground the claim is excluded,'
in which case it has 'the burden . . . to prove that the claim falls within an exclusion.
[Citation.]' [Citation.] To satisfy its burden, an insurer need not 'disprove every possible
cause of the loss' and once the insurer establishes the claim is excluded, the burden shifts
to the insured to show a triable issue of material fact exists. [Citation.]" (Roberts v.
Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1406.)
The Foremost policy expressly excludes: "3. Loss or damage resulting from earth
movement, meaning:
"a. earthquake, including land shock waves or tremors before, during or after
volcanic eruption;
"b. landslide;
"c. mudflow;
"d. earth sinking, rising or shifting;
"e. mine subsidence. But we will pay for direct loss by fire or explosion which
results from any of these."
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The face of the FAC alleges that the McCormicks' home was destroyed by a
landslide. Moreover, at his deposition in the related case against the city, Alton
McCormick stated that when he spoke to a Foremost claims representative he told the
representative his home had been damaged by a landslide. As Foremost contends, the
judicial admission that appears on the face of the FAC and Alton McCormick's
deposition testimony are more than sufficient to establish that the McCormicks' losses
were caused by a landslide and subject to the earth movement exclusion. Importantly, in
opposing Foremost's motion, the McCormicks did not present any evidence that their
home was damaged as the result of any circumstance or event other than the landslide.
Thus, the trial court properly found that, as a matter of law, the McCormicks' losses were
subject to the earth movement exclusion. (See Roberts v. Assurance Co. of America,
supra, 163 Cal.App.4th at p. 1406.)
DISPOSITION
The judgment is affirmed. Foremost to recover its costs on appeal.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
McDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the plaintiffs' claims were time-barred because they failed to timely name the insurer as a defendant, and that the insurance policy's earth movement exclusion barred coverage for the landslide damage.
Issues
Whether the plaintiffs' claims for negligence and tortious breach of contract were barred by the statute of limitations.
Whether the plaintiffs' breach of contract claim was time-barred due to failure to timely name the insurer as a defendant.
Whether the insurance policy's earth movement exclusion precluded coverage for the loss.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“the trial court determined both that the plaintiffs' complaint was untimely and that, in any event, their underlying claim was subject to an earth movement exclusion that appeared on the face of their homeowners insurance policy.”
“the record shows the McCormicks' breach of contract claim was made more than four years after Foremost's alleged breach and was therefore untimely.”
“the trial court properly found that, as a matter of law, the McCormicks' losses were subject to the earth movement exclusion.”