First Mortgage v. Cal. Casualty Ins. CA4/2 (2015) · DecisionDepot
First Mortgage v. Cal. Casualty Ins. CA4/2
California Court of Appeal Apr 23, 2015 No. E059442Unpublished
Filed 4/23/15 First Mortgage v. Cal. Casualty Ins. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
FIRST MORTGAGE CORPORATION,
Plaintiff and Appellant, E059442
v. (Super.Ct.No. CIVRS1203622)
CALIFORNIA CASUALTY OPINION INSURANCE COMPANY et al.,
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. Thomas S. Garza,
Judge. Affirmed.
Law Office of Robert E. Dougherty and Robert E. Dougherty for Plaintiff and
Appellant.
Murtaugh Meyer Nelson & Treglia, Lawrence J. DiPinto and Thomas N. Fay for
Defendants and Respondents.
1
I
INTRODUCTION
Plaintiff First Mortgage Corporation (First Mortgage) appeals from a summary
judgment granted in favor of defendant California Casualty.1 Defendant was the insurer
of residential real property in which First Mortgage held a security interest. When the
property was damaged by fire in January 2007, defendant issued a check to the property
owner and to First Mortgage. The owner cashed the check and did not share the proceeds
with First Mortgage. First Mortgage did not file its lawsuit against defendant until May
2012. We hold First Mortgage’s claim was time-barred and we affirm the summary
judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
As alleged in the complaint and set forth in defendant’s summary judgment
motion, only one material fact was purportedly disputed as discussed below.
Defendant issued a fire insurance policy to a Sun City residence owned by Leslie
Bollockus, the named insured. The mortgage lender on the property was First Mortgage.
One condition of the policy was that an action against defendant be brought within two
1Three companies are separate but related entities: California Casualty Insurance Company, California Casualty Management Company, and California Casualty Indemnity Exchange. For the purposes of this appeal, we treat them as a single defendant.
2
years of the date of loss. In its opposing separate statement, the only fact purportedly
disputed by First Mortgage is the applicability of the two-year limitation period in the
insurance policy. However, First Mortgage offered no evidence in support of its
contention that the two-year limitation does not apply. All of First Mortgage’s arguments
are based on legal issues.
Bollockus reported a fire loss occurring on January 8, 2007. On August 24, 2007,
defendant issued a settlement check in the amount of $179,025, payable to Bollockus and
to First Mortgage, and mailed the check to Bollockus. Provident Bank cashed the check
for Bollockus on August 28, 2007, without obtaining an endorsement from First
Mortgage.
On February 7, 2008, First Mortgage learned about the loss and the issuance of the
insurance check. Bollockus had died so the information was provided by her sister. First
Mortgage did not confirm until October 8, 2009—more than two years after the date of
loss of January 8, 2007—that the settlement check had been cashed. First Mortgage
apparently expected that defendant would pursue a claim against Provident Bank.
However, that claim expired three years after August 28, 2007, on August 28, 2010.
First Mortgage contacted defendant again on September 29, 2011—more than four
years after the date of loss and after the insurance check was cashed in August 2007.
First Mortgage then filed its lawsuit on May 10, 2012—more than five years after the
date of loss.
The trial court granted summary judgment, based on the two-year limitations
3
period under the insurance policy and the four-year statute of limitations for breach of a
written contract. (Civ. Code, § 337.) Additionally, the court granted summary judgment
on the grounds that First Mortgage had received constructive possession of the settlement
check and because Commercial Code section 3309 did not apply.
III
DISCUSSION
1. Standard of Review
Summary judgment was properly granted in this case if there were no triable
issues of material fact and defendant was entitled to judgment as a matter of law: “The
purpose of the law of summary judgment is to provide courts with a mechanism to cut
through the parties’ pleadings in order to determine whether, despite their allegations,
trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic
2 Commercial Code section 3309: “(a) A person not in possession of an instrument is entitled to enforce the instrument if (1) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (2) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (3) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. “(b) A person seeking enforcement of an instrument under subdivision (a) shall prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, Section 3308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.”
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Instead, the undisputed facts in this case demonstrate that Provident Bank accepted
the check for payment to Bollockus without requiring an endorsement from First
Mortgage. The check was not lost, stolen, or destroyed; the endorsement was not forged.
The conduct by Provident Bank and Bollockus did not give First Mortgage the right to
sue defendant many years after the loss was sustained and the check was negotiated.
(Bank of America, at p. 1145.)
IV
DISPOSITION
The only material dispute identified by First Mortgage involved whether the two-
year limitation period applied. We have independently reviewed First Mortgage’s legal
arguments and conclude the trial court properly granted summary judgment. We affirm
the summary judgment and order defendant, as the prevailing party, to recover its costs
on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
RAMIREZ P. J.
HOLLENHORST J.
11
AI Brief
AI-generated · verify before citing
Holding. The court held that the plaintiff's claims were time-barred by both the two-year limitation period in the insurance policy and the four-year statute of limitations for breach of a written contract.
Issues
Whether the plaintiff's claims were barred by the insurance policy's two-year limitation period and the four-year statute of limitations for breach of contract.
Whether the doctrine of equitable estoppel or tolling applied to the limitations period.
Whether the plaintiff could assert a claim under Commercial Code section 3309 for a lost, destroyed, or stolen instrument.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We hold First Mortgage’s claim was time-barred and we affirm the summary judgment.”
“First Mortgage’s claims were barred by the two-year limitations period of the insurance contract.”
“First Mortgage’s claims were also barred by the four-year statutory limitation for a complaint based on a written contract.”