Portugal v. Western World Ins. Co. CA3 ( 2016 )

Filed 7/21/16 Portugal v. Western World Ins. Co. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
SYLVIA PORTUGAL, C067875
Plaintiff and Respondent, (Super. Ct.
No. 34200900034576CUBTGD)
v.
WESTERN WORLD INSURANCE COMPANY,
Defendant and Appellant.
In this case, a judgment creditor seeks to collect on an underlying judgment from
the insurer of the judgment debtor who defaulted in the underlying action for unpaid
wages and employment benefits. The judgment creditor action was filed under
subdivision (b)(2) of Insurance Code section 11580,1 which authorizes a direct lawsuit by
a judgment creditor against the insurer of the judgment debtor under certain
circumstances.
1 Further undesignated statutory references are to the Insurance Code.
1
Plaintiff Sylvia Portugal, as representative of a class of former employees, filed
the underlying action against her former employer, Carequest, Inc. dba Real Care, an in-
home provider of household services for elderly and disabled persons. Real Care had
commercial general liability (CGL) and professional liability insurance through Western
World Insurance Company (Western). The underlying action was for unpaid wages,
overtime, and penalties. Western declined to defend or indemnify Real Care in the
underlying lawsuit, contending that plaintiffs did not have standing under section 11580,
subdivision (b)(2), since their lawsuit was not an action based upon bodily injury, death,
or property damage and the insurance policies did not cover the employees’ claims. Real
Care defaulted in the underlying action, and it is not a party to this appeal.
In this action by Portugal against Western, the trial court granted summary
judgment to Western. The court ruled that Portugal and her class lacked standing under
section 11580, because the underlying claims were for wages and employment benefits,
which were intangible economic interests, not bodily injury, death, or property damage.
The trial court also found that the underlying claims were not covered occurrences under
the insurance policies or were expressly excluded.
Portugal appeals from the judgment in favor of Western, arguing triable issues
preclude summary judgment.
We affirm.2
2 In addition to the judgment creditor claim against Western, Portugal’s complaint
asserts claims against others, alleging that Real Care fraudulently conveyed its assets to
alter egos. Our affirmance of summary judgment in favor of Western does not affect the
remaining counts. (Cuevas v. Truline Corp. (2004) 118 Cal.App.4th 56, 61; Millsap v.
Federal Express Corp. (1991) 227 Cal.App.3d 425, 430 [where summary judgment
disposes of all issues involving one of multiple defendants, a separate appealable
judgment can be entered as to that defendant].)
On August 11, 2010, while the trial court was considering Western’s summary
judgment motion, Portugal filed another state court action against Western, alleging she
2
FACTUAL AND PROCEDURAL BACKGROUND
The operative pleading in the underlying lawsuit was a first amended complaint
for damages and equitable relief filed by Portugal against Carequest Inc., dba Real Care,
for: (1) failure to pay overtime and other wage compensation in violation of California
labor laws; (2) violation of Business and Professions Code section 17200 et seq. (unfair
business practices); and (3) a demand for an accounting. The trial court certified the suit
as a class action.
The complaint against Real Care alleged that Real Care, an in-home service
provider of household services and assistance for the elderly and invalid, employed
Portugal and the class as “ ‘Caregivers,’ ” the job duties of which “included housework,
errands, shopping, and meal preparation and other . . . job tasks [not exempt from wage
laws].” The complaint further alleged that Real Care improperly classified plaintiff and
the class as “ ‘personal attendants’ ” exempt from overtime wages and “[f]ailed to pay
overtime, provide meal and rest breaks and failed to pay all hourly wages due to non-
exempt employees . . . .”
Portugal’s complaint against Real Care sought “payment, on behalf of herself and
all other similarly situated individuals, for overtime wages owed, unprovided meal and
rest breaks, a full accounting and payment for all other minimum and/or legally required
wages owed, plus all penalties, benefits, and interest, based on sums that were withheld,
unaccounted for, and/or not paid by DEFENDANTS. PLAINTIFF also seeks, on behalf
of herself and all other similarly situated, attorneys fees and costs and any and all other
and the class were suing as assignees of Real Care through a written assignment from
Real Care, but Western removed that case to federal court on the basis of diversity
jurisdiction. (Portugal v. Western World Ins. (E.D.Cal. Aug. 22, 2012, No. 2:10-cv-
02498-MCE-JFM) 2012 U.S. Dist. Lexis 119172.) On August 22, 2012, the federal court
stayed the federal court action pending resolution of this appeal. (Ibid.) In the case
before us, although Portugal’s opposition papers to summary judgment argued a direct
right of action as assignee, Portugal’s counsel told the trial court at the summary
judgment hearing that this case is not predicated on assignment of rights.
3
amounts as provided by statute.” The pleading also sought an injunction prohibiting Real
Care from requiring its Caregivers to work without meal/rest breaks or to work overtime
without overtime pay.
The pleading further alleged: “PLAINTIFF has suffered actual financial losses
and damage to her property rights and has standing to, and does, seek restitution and
disgorgement of all sums wrongfully obtained by DEFENDANTS in violation of the
Business & Professions Code section[] 17200 et seq., to prevent the DEFENDANTS
from benefitting from its violation of law and/or unfair acts. PLAINTIFF is also entitled
to costs, attorney’s fees, interest and penalties as provided for by the California Labor
Code and Business & Professions Code, and the Private Attorney General’s Act,
California Civil Procedure Code section 1021.5.”
The class action allegations stated, “Contrary to DEFENDANTS’ characterization
of this job as ‘exempt’ in order to avoid paying overtime, PLAINTIFF and other
Caregivers were required to perform daily tasks that fall outside any possible exemption
claim under California law. The majority of the job duties required by Caregivers
include: cooking, cleaning, running errands, and doing laundry, none of which falls under
the ‘personal attendant’ exemption of Wage Order 15-2001 and/or any other
exemption. . . .” In performing their job duties, the class members “were routinely
required to work in excess of 8 hours per day and/or 40 hours per week” without
overtime pay, were not provided with a fair accounting of all hours worked, and were
“deprived of meal breaks and rest breaks in violation of California law.”
The first count in the underlying pleading against Real Care was for “FAILURE
TO PAY OVERTIME AND WAGES IN VIOLATION OF CALIFORNIA LABOR
CODE AND APPLICABLE WAGE ORDERS AGAINST ALL DEFENDANTS.”
The second count was for “UNFAIR BUSINESS PRACTICES” (Bus. & Prof.
Code, § 17200 et seq.), which alleged Portugal and the class “ha[d] not been paid all
wages and benefits due to [them] through [their] employment” and “ha[d] suffered
4
property damage and/or financial loss in the form of unpaid overtime and other wages
and benefits.” Portugal and the class “have suffered injury . . . by way of lost wages and
tangible property benefits as a result of the unfair competition alleged herein.”
A third count in the underlying lawsuit sought an “ACCOUNTING” to determine
the amount of overtime wages and other compensation owed.
Real Care tendered defense of the lawsuit to Western, but Western responded with
a letter declining to provide coverage or defense, asserting that the CGL insurance
policies did not provide coverage for the claims. The letter explained there was no
coverage under the CGL policies’ “Coverage A,” bodily injury and property damage
liability, because there were no allegations of property damage or bodily injury caused by
an occurrence, plus the insurance did not cover the employer’s liability for unpaid wages
and overtime. The letter explained there was no coverage under the CGL policies’
“Coverage B,” personal and advertising injury liability, because the complaint’s
allegations did not fall within the policy definitions, plus the policies contained an
exclusion for employer’s liability. The letter stated Western reserved the right to assert
any additional terms, conditions, exclusions and/or policy provisions to deny coverage
and that nothing in the letter constituted a waiver or estoppel of Western’s right to assert
additional defenses.
Real Care filed an answer to the underlying complaint, but the trial court later
ordered the answer stricken and default was entered after Real Care, which went out of
business, refused to respond to discovery requests because the company was defunct.
Thereafter, the trial court held a hearing on the amount of damages.
After the default prove-up hearing on damages, Portugal’s counsel sent a letter to
Western, advising that a default had been entered and a default judgment would be
forthcoming, and tendering the claims to Western for indemnity.
Western responded with a second letter explaining in detail that the claims made
in the underlying lawsuit were not covered by the insurance policies, because the claims
5
were for economic loss for unpaid wages/benefits, which were not covered by the
insurance policies.3 Western had issued six successive one-year policies of CGL and
professional liability insurance during the pertinent period. The CGL policies by their
own terms applied only to “ ‘bodily injury’ ”4 or “ ‘property damage’ ”5 “caused by” an
“ ‘occurrence,’ ”6 or “ ‘personal and advertising injury.’ ”7 Moreover, the CGL policies
expressly excluded from coverage (1) bodily injury or property damage “expected or
intended from the standpoint of the insured” (expected or intended injury), (2) bodily
injury or property damage “for which the insured is obligated to pay damages by reason
of the assumption of liability in a contract or agreement [with exceptions inapplicable
here]” (contractual liability), (3) personal and advertising injury “[a]rising out of breach
3 Western’s letter erroneously stated this was its first notice of the underlying lawsuit.
Portugal noted that Real Care had previously tendered defense of the lawsuit to Western
and she makes much of this oversight here. For purposes of this appeal, it does not
matter when Western learned of the underlying lawsuit, because Western never had a
duty to defend or indemnify Real Care, as we explain post.
4 The insurance policies defined “ ‘[b]odily injury’ ” as “bodily injury, sickness or
disease sustained by a person, including death resulting from any of these at any time.”
5 The insurance policies defined “ ‘[p]roperty damage’ ” as “a. Physical injury to
tangible property, including all resulting loss of use of that property. All such loss of use
shall be deemed to occur at the time of the physical injury that caused it; or [¶] b. Loss
of use of tangible property that is not physically injured. All such loss of use shall be
deemed to occur at the time of the ‘occurrence’ that caused it.” (Italics added.)
6 The insurance policies defined “ ‘[o]ccurrence’ ” as “an accident, including continuous
or repeated exposure to substantially the same general harmful conditions.” (Italics
added.)
7 The insurance policies defined “ ‘[p]ersonal and advertising injury’ ” as “injury,
including consequential ‘bodily injury,’ arising out of one or more of the following
offenses” -- false arrest/detention/imprisonment, malicious prosecution, wrongful
eviction/entry into private dwelling, slander or libel, privacy violation, use of another’s
advertising idea in the insured’s advertisement, or infringing on another’s copyright,
trade dress, or slogan in the insured’s advertisement.
6
of contract,” and (4) bodily injury or personal and advertising injury “arising out of any:
[¶] . . . [¶] [e]mployment-related practices, policies, acts or omissions, such as coercion,
demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation or
discrimination directed at that person . . . .”
As to the professional liability policies, Western asserted that they provided
coverage for “ ‘bodily injury,’ ‘property damage’ or ‘personal injury’ . . . caused by
‘professional incident.’ ”8 The policies expressly excluded injury or damage “for which
the insured is obligated to pay damages by reason of the assumption of liability in a
contract or agreement” (contractual liability) and they expressly excluded injury to “[a]n
‘employee’ of the insured arising out of and in the course of: [¶] (a) Employment by the
insured; or [¶] (b) Performing duties related to the conduct of the insured’s
business. . . .”
Western’s second letter explained the claims “are not covered by the general
liability/professional liability policies issued to Real Care. The under payment of wages
to hourly employees does not constitute an ‘occurrence’ under a general liability policy,
or a ‘professional incident’ under a professional liability policy. Also, the underpaid
wage claims seek recovery for ‘economic loss’ which does not constitute ‘bodily
injury[,’] ‘property damage[,’] or ‘personal and advertising injury’ under either the
general liability or professional liability coverage provided by the Western World
policies. The under payment of wage claims are further excluded by the policies’
‘employment related practices’ exclusion and ‘contractual liability’ exclusion. The
policies’ ‘expected or intended injury’ exclusion and ‘employer’s liability’ exclusion also
8 The policies defined “ ‘[p]rofessional [i]ncident’ ” as “any negligent act or omission:
[¶] (a) In the furnishing of healthcare services . . . ; [¶] (b) In the rendering of any other
professional services but only of the type described in the ‘Schedule’ of this coverage
part [which included ‘Home Health Care’].” (Italics added.)
7
exclude coverage for the underpaid wage claims. The claims for punitive damages
asserted against Real Care are further excluded by Insurance Code Section 533’s
prohibition of coverage for ‘willful acts’ and the policies’ ‘punitive damages’ exclusion.”
After receiving Western’s second letter, Portugal’s counsel submitted a proposed
default judgment for the trial court to sign, in which Portugal’s counsel included language
stating Real Care had caused damages “and withheld tangible property of Plaintiff and
Plaintiff Class which was due and owing to them during the class period . . . ,” even
though the operative complaint did not include that language or theory.9 (Italics added.)
The trial court signed the judgment as proposed by Portugal’s counsel, including
the “withheld tangible property” language. The default judgment awarded Portugal’s
class approximately $23 million against Real Care.
Thereafter, Portugal filed the instant lawsuit as a judgment creditor lawsuit against
Western under section 11580, subdivision (b)(2).10 The same pleading alleged other
causes of action for fraudulent conveyance and alter ego against Real Care’s owner and
9 As we explain, post, the insertion of “withheld tangible property,” a theory not alleged
in the operative complaint, does not help Portugal.
10 Section 11580 provides in pertinent part: “A policy insuring against losses set forth in
subdivision (a) [including insurance against loss or damage resulting from liability for
injury suffered by another person other than worker’s compensation] shall not be issued
or delivered to any person in this state unless it contains the provisions set forth in
subdivision (b). Such policy, whether or not actually containing such provisions, shall be
construed as if such provisions were embodied therein. [¶] . . . [¶] (b) Such policy shall
not be thus issued or delivered to any person in this state unless it contains all the
following provisions: [¶] (1) A provision that the insolvency or bankruptcy of the
insured will not release the insurer from the payment of damages for injury sustained or
loss occasioned during the life of such policy. [¶] (2) A provision that whenever
judgment is secured against the insured or the executor or administrator of a deceased
insured in an action based upon bodily injury, death, or property damage, then an action
may be brought against the insurer on the policy and subject to its terms and limitations,
by such judgment creditor to recover on the judgment.” (Italics added.)
8
subsequent business entity which are not parties to this appeal. The only count alleged
against Western is the fourth cause of action, which alleged that, “plaintiff obtained a
judgment against . . . Real Care . . . for damages in the amount of $23,222,507.00, [plus
interest], for personal injury and property damage suffered by Plaintiff and the Plaintiff
Class as the proximate result of the negligence of the insured.”
The complaint alleged that, under the insurance policies, Western “agreed to ‘pay
those sums the insured becomes legally obligated to pay as damages because of any
‘bodily injury,’ ‘property damage’ or ‘personal injury’ to which this coverage part applies
caused by a ‘professional incident.’ Plaintiff is informed and believes that the
professional liability coverage part does not define the specific term ‘personal injury’
used in the professional liability coverage part and that the judgment for Plaintiff and the
Plaintiff Class is for ‘personal injury[,’] as that term is reasonably understood by a lay
person and interpreted against an insurer, caused by a ‘professional incident.’ Plaintiff is
informed and believes the judgment is covered as ‘property damage’ caused by an
occurrence.” The complaint also alleged, “Plaintiff is informed and believes that Plaintiff
and the Plaintiff Class are ‘temporary workers’ within the meaning of the policies who
worked temporary assignments in the insured’s clients’ homes to meet short term[] work
loads. Plaintiff alleges individually and on behalf of the Plaintiff Class that their
judgment is not excluded under the terms of the policies.”
The complaint also alleged plaintiff’s class was a third party beneficiary of the
insurance contracts between Real Care and Western, such that Western owed a duty of
good faith and fair dealing to plaintiff’s class, and Western breached that duty by refusing
to pay on the underlying judgment.
Western moved for summary judgment on two alternative grounds: (1) Portugal
and the class lacked standing to sue under section 11580 because the claims were not
based on bodily injury, death, or property damage; and (2) the lawsuit was for wages and
employment benefits, which were not even potentially covered under the insurance
9
policies. Western submitted copies of the insurance policies, attached to a declaration by
Western claims consultant Richard Hazard. Western’s separate statement of undisputed
facts asserted that plaintiff provided “in-house medical services to Real Care’s clients.”
The separate statement quoted the allegations from the underlying complaint as to what
claims were being made, quoted the insurance policy provisions, and cited its two letters
to plaintiffs explaining denial of the tender of defense.
Portugal opposed the motion, arguing Western failed adequately to investigate the
claims and was bound by the default judgment’s reference to “ ‘withheld tangible
property.’ ” Portugal argued triable issues existed regarding coverage. Whereas
Western’s separate statement of undisputed facts asserted (incorrectly) that Real Care
provided “medical services,” Portugal’s response disputed that assertion and noted
(correctly) that “the complaint does not allege ‘in-house medical services’−see
description of non-medical professional services.”
Portugal did not dispute the contents of the insurance policies but objected on
grounds of irrelevance as well as lack of foundation, authentication, and personal
knowledge of the declarant, Western claims’ consultant Hazard, who submitted true and
correct copies of the insurance policies, because there was no foundation that Hazard
worked in the underwriting department. The trial court overruled Portugal’s objections.
Portugal also presented her own separate statement purporting to contain
additional undisputed facts. She cited an “Industrial Welfare Commission Wage Order
NO. 15,”11 addressing “personal attendants,” and she presented a declaration from her
11 The Industrial Welfare Commission (IWC) is authorized to issue wage orders fixing
wages, hours, and working conditions. (Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004, 1026-1027.) According to Wage Order No. 15, “ ‘[p]ersonal
attendant’ ” includes persons employed “by any third party employers recognized in the
health care industry to work in a private household, to supervise, feed, or dress a child or
person who by reason of advanced age, physical disability, or mental deficiency need
10
human resources management expert and consultant, Richard Danehy, opining that
“[p]rofessional incidents” alleged in the underlying lawsuit included the furnishing of
professional services, and factual disputes existed concerning whether or not Real Care’s
services were “home health care services” or other professional services within the scope
of the insurance policies. Portugal submitted her own declaration attesting she “sustained
personal injury, damages and harm . . . ,” and attaching her employment agreement, pay
records, and a Real Care brochure. Additionally, Portugal submitted a declaration by her
insurance claims expert, David Peterson. Portugal also submitted a declaration from her
attorney, Michael Parks, arguing a dispute existed over Western’s first coverage
declination letter, because it was unsigned, bore no letterhead, and Western’s second
letter said it was previously unaware of the claim which, according to Parks, should
preclude Western from denying coverage.
The trial court sustained Western’s evidentiary objections to Danehy’s entire
declaration on grounds of hearsay, lack of personal knowledge, confusion of issues and
undue prejudice, lack of foundation, and irrelevance. The trial court sustained Western’s
evidentiary objections to Peterson’s declaration on grounds it merely presented argument.
The trial court sustained Western’s objection to the portion of Parks’s declaration in
which Parks argued that a dispute existed as to whether Western’s first declination letter
should be disregarded.
Following a hearing, the trial court entered judgment in favor of Western based on
the court’s written order granting summary judgment, in which the court ruled as follows:
Portugal and her class lacked standing to bring a judgment creditor suit under section
11580, because the statute authorized suit only where the underlying judgment was based
upon bodily injury, death, or property damage. The judgment to compensate Portugal’s
supervision. The status of ‘personal attendant’ shall apply when no significant amount of
work other than the foregoing is required.”
11
class for unpaid wages and overtime and meal and rest breaks was not a judgment based
upon bodily injury, death, or property damage. The default judgment’s reference to
“ ‘withheld tangible property’ ” did not alter that conclusion. Additionally, section 11580
states any action against the insurer is subject to the terms and limitations of the
insurance policy, and therefore no such action could lie if the underlying claims were not
potentially covered by the insurance policies.
The trial court went on to explain that the class action claims for wages and
employment benefits were not potentially covered under the terms of any of the insurance
policies, for the following reasons: “Unpaid wages and overtime are intangible,
economic interests.” They are not physical injury to or loss of use of tangible property
within the definition of “ ‘property damage.’ ” They are not “ ‘bodily injury’ ” under the
policy language and under case law. “ ‘CGL policies do not provide coverage for
economic losses that cause emotional distress.’ ” They are not “ ‘personal and
advertising injury’ ” under the policies, which list “ ‘false arrest, malicious prosecution,
wrongful eviction, libel and slander, right of privacy, misappropriation of advertising
idea, or copyright or trade dress infringement in advertising.’ ” Unpaid wages and
overtime are not property damage, bodily injury, or personal and advertising injury
caused by a “ ‘professional incident’ ” under the policies. Real Care did not provide
medical or other professional services; it provided household services. Real Care’s
failure to pay statutory wage and employment benefits to its employees was not caused
by a negligent act or omission in furnishing healthcare services to third parties. The
failure to pay wages and other benefits was not an “ ‘occurrence’ ” under the CGL
policies, which defined “ ‘occurrence’ ” as an accident. (See fn. 6, ante.) The failure to
pay wages and employment benefits was excluded from coverage by the CGL policies’
exclusions for “ ‘contractual liability,’ ” “ ‘employment related practices,’ ” and
“ ‘expected or intended injury.’ ”
12
DISCUSSION
I. Standard of Review
A defendant may move for summary judgment on the ground that the action has
no merit. (Code Civ. Proc., § 437c, subd. (a).) A motion for summary judgment should
be granted if the submitted papers show that “there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ.
Proc., § 437c, subd. (c).) A defendant meets his burden of showing that a cause of action
has no merit if it shows that one or more elements of the cause of action cannot be
established, or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).)
Once the defendant has met that burden, the burden shifts to the plaintiff to show that a
triable issue of material fact exists. (Ibid.)
The burden of persuasion remains with the party moving for summary judgment.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861.) When the defendant
moves for summary judgment, in those circumstances in which the plaintiff would have
the burden of proof by a preponderance of the evidence, the defendant must present
evidence that would preclude a reasonable trier of fact from finding that it was more
likely than not that the material fact was true (id. at p. 851), or the defendant must
establish that an element of the claim cannot be established, by presenting evidence that
the plaintiff does not possess and cannot reasonably obtain, needed evidence. (Id. at
p. 854.) We review the record and the determination of the trial court de novo. (Merrill
v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Kahn v. East Side Union High School Dist.
(2003) 31 Cal.4th 990, 1003; Miller v. Department of Corrections (2005) 36 Cal.4th 446,
460.)
“ ‘First, we identify the issues raised by the pleadings, since it is these allegations
to which the motion must respond; secondly, we determine whether the moving party’s
showing has established facts which negate the opponent’s claims and justify a judgment
in movant’s favor; when a summary judgment motion prima facie justifies a judgment,
13
the third and final step is to determine whether the opposition demonstrates the existence
of a triable, material factual issue.’ ” (Waschek v. Dept. of Motor Vehicles (1997) 59
Cal.App.4th 640, 644.)
II. Plaintiff’s Summary Adjudication Argument
Plaintiff argues the trial court, after erroneously concluding she lacked standing
under section 11580, erroneously moved into summary adjudication of insurance
coverage issues, even though Western did not move for summary adjudication. We
disagree.
A party may move for summary adjudication of a legal issue or a claim for
damages that does not completely dispose of a cause of action, an affirmative defense, or
an issue of duty. (Former Code Civ. Proc., § 437c, subd. (f)(1).) Special procedural
requirements apply to summary adjudication motions. (Ibid.) A party may move for
summary adjudication as an alternative to summary judgment, but the motion must
clearly so state. (Id. at subd. (f)(2).) When a party has moved for summary judgment, a
trial court may not grant summary adjudication unless the party has alternatively moved
for summary adjudication. (UDC-Universal Development v. CH2M Hill, L.P. (2010) 181
Cal.App.4th 10, 25.)
Western did not move for summary adjudication, nor did it need to do so. It
eliminated, one by one, each possible basis for the lawsuit against it in its motion for
summary judgment.
Portugal claims the trial court unfairly treated Western’s summary judgment
motion as a summary adjudication motion on a list of coverage issues. She claims
“unfairness . . . is manifest in this case,” because Western asserted “ ‘eight or nine
different independent grounds for summary judgment, all of which were absolutely
conclusive on the matter’ ” according to Western, yet Western “never made a separate
noticed motion for summary adjudication.”
14
Plaintiff apparently misunderstands summary adjudication. Had the trial court
determined that some of Western’s points had merit but others did not, it would have
been improper for the court to enter an order granting summary adjudication as to the
former points. However, the trial court’s determination that all of Western’s points had
merit justified entry of summary judgment. There was no need for, and no ruling on,
summary adjudication.
III. Evidentiary Rulings
Near the end of her opening brief on appeal, Portugal challenges the trial court’s
evidentiary rulings. Resolution of these evidentiary claims is required before we address
the contentions about triable issues.
A. Exclusion of Evidence
1. Exclusion of the Danehy Declaration
Portugal argues the trial court erroneously excluded the declaration of Danehy on
various grounds: hearsay, lack of personal knowledge, lack of foundation, lack of
qualification as an insurance expert, irrelevance, and causing confusion of issues and
undue prejudice. Portugal claims Danehy’s declaration established triable issues as to
how “ ‘home health care’ ” and “ ‘personal attendant’ ” professional services furnished
by Real Care were interpreted and that this issue existed in connection with Real Care’s
business operations. However, Danehy’s declaration merely expressed a tentative
opinion that a factual dispute existed as to whether the claims involved home health care
services or other professional services. His opinion was of no assistance to the court and
was irrelevant, and we therefore need not address the other grounds for exclusion.12
12 While this appeal was pending, Portugal sent us a letter noting the publication of Cash
v. Winn (2012) 205 Cal.App.4th 1285. The court in Cash held a home care employee
was a personal attendant and thus exempt from statutory overtime requirements because
her health care tasks were an incidental or minor part of her job. (Id. at pp. 1299-1300.)
The Cash court further held the trial court erred in instructing the jury that the personal
15
2. Exclusion of the Peterson Declaration
Portugal argues the trial court had erroneously stricken the entire Peterson
declaration. Portugal asserts, “The only basis identified by the trial court, that Peterson’s
declaration contains argument, is an insufficient basis to strike the entire declaration.
[Citation.] Based on the Court’s final order ruling on objections, portions of the Peterson
declaration offering testimony fatal to Western World’s claim that it did not owe a
potential for coverage and acted reasonably, was admitted into evidence. [Citations.]
This evidence demonstrated that there were material factual disputes that Western World
acted in bad faith and did not properly consider or investigate potential coverage for the
underlying class action lawsuit against its insured after Western World when the
complaint was tendered.”
If Portugal means “portions” of the declaration were not argument and therefore
should have been admitted, she has not specified what portions to which she refers. Nor
does she offer any legal authority. We accordingly disregard this contention as
inadequately briefed. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672, fn. 3
[reviewing court may disregard contentions unsupported by factual and/or legal
analysis].)
In any event, Peterson’s declaration did not show a potential for coverage but
merely complained about how Western handled the tender of defense, arguing Western
acted in bad faith and failed adequately to investigate and evaluate the claims. As we
explain post, there was no potential coverage here, and therefore it does not matter how
Western handled the claim.
Accordingly, we reject Portugal’s challenges to the trial court’s exclusion of
evidence.
attendant exemption was inapplicable when employees regularly performed any health
care services. (Id. at p. 1304.) Cash does not help Portugal.
16
B. Admission of Hazard’s Declaration
Portugal contends the trial court improperly admitted evidence offered by
Western. She filed objections to Richard Hazard’s declaration and its Exhibit G
(Western’s first declination letter) on grounds including lack of authentication or personal
knowledge regarding the letter or the claims handling on the file. On appeal, Portugal’s
argument consists only of the following: “The Hazard declaration did not properly
authenticate or explain the creation or maintenance of the draft letter or how it was
handled, if at all, as a business record and the trial court erred in admitting Mr. Hazard’s
testimony and this document into evidence.” Portugal cites no legal authority whatsoever
on this point, and we therefore disregard the contention. (Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784-785.)
Portugal also contends Western refused to produce its underwriting or claims files.
She cites to Western’s discovery response asserting attorney-client privilege and work-
product privilege. She fails to cite to any discovery motion to compel production or any
court order ordering production.
Portugal fails to show erroneous admission of evidence.
IV. Standing
Portugal argues the trial court erroneously determined that because this case did
not involve bodily injury, wrongful death, or property damage, Portugal and the class
lacked standing under section 11580. Portugal argues the statute’s limitations do not
matter, because she had independent standing under the insurance policies, which
contained language broader than the statute. Western’s policies said, “ ‘a person . . . may
sue us to recover . . . on a final judgment against an insured obtained after an actual trial
. . . .’ ” Portugal argues all she needed for standing was a judgment obtained after a trial,
and the default judgment obtained after the default prove-up hearing satisfied this
requirement.
17
However, “standing” is a misnomer, which was improperly used by Western and
adopted by the trial court. An injured third party is generally prohibited from suing a
tortfeasor’s insurer for failing to defend or indemnify the insured against the claim, but
exceptions exist where the third party plaintiff has a judgment against the insured, where
the insured has assigned its rights under the policy to the third party, or where the insurer
sues the third party in a declaratory relief action. (Otay Land Co. v. Royal Indemnity Co.
(2008) 169 Cal.App.4th 556, 560-561.)
Portugal has a judgment against the insured and therefore has standing to sue the
insurer under section 11580. But she cannot prevail in her lawsuit against the insurer if
the underlying judgment is not based on bodily injury, death, or property damage.
Western’s cited authority does not say that a person lacks standing under section 11580 if
the underlying judgment is not based on bodily injury, death, or property damage.
(Xebec Development Partners, Ltd. v. National Union Fire Insurance Co. (1993) 12
Cal.App.4th 501, 526-527 (Xebec), overruled on other grounds in Essex Ins. Co. v. Five
Star Dye House, Inc. (2006) 38 Cal.4th 1252, 1265). In Xebec, under a subheading titled,
“Standing,” the appellate court said the plaintiff claimed standing as an assignee of the
insured; the insurer did not question that status; and the Xebec court said the assignment
appeared to have been entirely orthodox. (Xebec, at pp. 526-527.) The Xebec court went
on to say that the plaintiff suggested shortly before trial that it could also sue under
section 11580, but the trial court apparently never ruled on a motion to amend the
complaint. (Xebec, at p. 527.) The court said, “In any event [the plaintiff] could not
properly have proceeded under subdivision (b)(2) [of section 11580], because [its]
underlying action against [the insureds] patently was not ‘based upon bodily injury,
death, or property damage’ within the meaning of the section.” (Ibid.) Thus, Xebec did
not say the plaintiff lacked standing to sue under section 11580, but rather that the
plaintiff could not prevail under section 11580.
18
Here, the underlying judgment gave Portugal standing to file the lawsuit under
section 11580, but the absence of any bodily injury, death, or property damage as the
basis for the underlying judgment -- as we discuss post -- prevents her from prevailing.
That the trial court adopted the wrong word (“standing”) does not affect our resolution of
this appeal, because we review the trial court’s ruling, not its reasoning, and we may
affirm the judgment for reasons different from the trial court’s reasons. (Troche v. Daley
(1990) 217 Cal.App.3d 403, 407-408.)
V. Summary Judgment
Plaintiff argues triable issues of material fact exist, precluding summary judgment.
We disagree.
Where an insurer tortiously refuses to defend and as a consequence the insured
suffers a default judgment, the insurer is liable on the judgment against the insured.
(Amato v. Mercury Casualty Co. (1997) 53 Cal.App.4th 825, 833 (Amato).) A liability
insurer’s duty to defend an insured in a lawsuit filed by a third party is broader than the
insurer’s duty to indemnify; it therefore may owe a duty to defend its insureds even when
a trier of fact might ultimately determine that the policy does not entitle them to
indemnity for the claims against them. (Montrose Chemical Corp. v. Superior Court
(1993) 6 Cal.4th 287, 300 (Montrose Chemical); Gonzalez v. Fire Ins. Exchange (2015)
234 Cal.App.4th 1220, 1229 (Gonzalez).) Whether the insurer owes a duty to defend
turns not on whether the insured proves to be actually entitled to be indemnified for the
underlying claim, but only on those facts known by the insurer at the inception of a third
party lawsuit, along with facts extrinsic to the complaint that may also reveal a possibility
that the claim may be covered by the policy. (Montrose Chemical, at p. 295; Gonzalez, at
p. 1229.)
The insurer’s coverage obligation begins whenever the insurer becomes aware of
facts giving rise to the potential for coverage, and continues until it has been established
that there is no potential for coverage. (Montrose Chemical, supra, 6 Cal.4th at p. 295.)
19
A liability insurer’s duty to defend arises when a suit against its insured seeks
damages that are potentially within the policy’s coverage. (Gonzalez, supra, 234
Cal.App.4th at p. 1229; La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co.
(1994) 9 Cal.4th 27, 43 (La Jolla).) If the claim against an insured cannot, by any
conceivable theory, raise an issue that would bring it within the policy’s coverage, the
insurer has no duty to defend its insured. (Gonzalez, at p. 1230; La Jolla, at p. 43.) The
duty to defend “does not depend on the labels given to the causes of action in the
[underlying claims against the insured]; instead it rests on whether the alleged facts or
known extrinsic facts reveal a possibility that the claim may be covered by the policy.”
(Atlantic Mutual Ins. Co. v. J. Lamb, Inc. (2002) 100 Cal.App.4th 1017, 1034.)
“In order to prevail on an insurer’s motion for summary judgment based on the
absence of a duty to defend, ‘the insured need only show that the underlying claim may
fall within policy coverage; the insurer must prove it cannot.’ [Citation.] Once the
possibility of coverage arises, ‘[a]ny doubt as to whether the facts establish [or defeat] the
existence of the defense duty must be resolved in the insured’s favor.’ ” (Travelers
Property Casualty Company of America v. Charlotte Russe Holding, Inc. (2012) 207
Cal.App.4th 969, 977, fn. omitted [summary judgment based on absence of duty to
defend was improper where there was potential coverage for product disparagement in
underlying claim], disapproved as stated in Harford Casualty Ins. Co. v. Swift
Distribution, Inc. (2014) 59 Cal.4th 277, 295.) While a complaint is to be liberally
construed in favor of potential coverage, the insurer has no duty to defend where the
potential for liability is “ ‘ “ ‘tenuous and farfetched.’ ” ’ ” (Gonzalez, supra, 234
Cal.App.4th at p. 1230.)
Even where the defendant has moved for summary judgment, the insured has the
burden of proving her claim falls within the scope of the policy’s basic coverage.
(Gonzalez, supra, 234 Cal.App.4th at p. 1230.) In contrast, when an insurer seeks
20
summary judgment on the ground that the claim is excluded, the insurer has the burden to
conclusively show the claim falls within an exclusion. (Id. at pp. 1230, 1237, 1245.)
As indicated, section 11580, subdivision (b)(2), requires insurance policies to
contain a provision “that whenever judgment is secured against the insured . . . in an
[ ]
action based upon bodily injury, death, 13 or property damage, then an action may be
brought against the insurer on the policy and subject to its terms and limitations, by such
judgment creditor to recover on the judgment.” (See fn. 10, ante.) Additionally, Portugal
contends there was potential coverage on the policies independent of section 11580,
subdivision (b)(2).
Here, Western’s motion established that: (1) the underlying action was for
intangible economic loss and was not based on bodily injury or property damage, because
the claims did not meet the CGL insurance policy definitions for “ ‘bodily injury,’ ”
“ ‘property damage,’ ” or “ ‘personal and advertising injury’ ”; (2) even if the claims had
met those definitions, they were not caused by any “ ‘occurrence,’ ” i.e., an “accident,” as
required for coverage; (3) even if caused by an occurrence, they were excluded from
coverage by the policy exclusions for employer liability and/or contractual liability; (4)
the claims did not meet the professional liability policy definitions for bodily injury,
property damage, or personal injury caused by a professional incident; and (5) even if
they met the professional liability policy definitions, coverage was excluded for injury to
the insured’s employee arising out of and in the course of the employment or performing
duties related to the conduct of the insured’s business.
Injury to intangible economic interests does not amount to injury to tangible
property and therefore does not constitute property damage for insurance coverage.
(Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 17 [the focus of coverage for
13 Portugal does not contend “death” was a triable issue. We therefore omit further
reference to death.
21
property damage is the property itself, not intangible economic losses or nonperformance
of contractual obligations, and policy covering physical injury to tangible property
precluded coverage for intangible economic losses]; Low v. Golden Eagle Ins. Co. (2002)
99 Cal.App.4th 109, 113-114 [liability insurer whose policy covered bodily injury and
property damage had no duty to defend consumer class-action complaint seeking
recovery of economic losses from manufacturer of diet products]; Hurley Construction
Co. v. State Farm Fire & Casualty Co. (1992) 10 Cal.App.4th 533, 539 [fraud by a
contractor overcharging to repair properties was economic loss, not tangible property
damage]; Chatton v. National Union Fire Ins. Co. (1992) 10 Cal.App.4th 846, 857-860
[investment losses do not constitute physical injury to tangible property]; Devin v. United
Services Auto Assn. (1992) 6 Cal.App.4th 1149, 1158-1159 [financial loss in decreased
property value resulting from intentional and negligent misrepresentations in sale of
property was not injury to tangible property under general liability policy]; Warner v.
Fire Ins. Exchange (1991) 230 Cal.App.3d 1029, 1034 [damage to economic interests
caused by misrepresentation in sale of real property was not tangible property damage];
Allstate Ins. Co. v. Interbank Financial Services (1989) 215 Cal.App.3d 825, 830
[business liability policy covering property damage did not cover economic loss in tax
shelter investment resulting from poor professional advice]; Giddings v. Industrial
Indemnity Co. (1980) 112 Cal.App.3d 213, 219 [strictly economic losses, such as loss of
goodwill, investment, or anticipated benefit of a bargain, do not constitute damage or
injury to tangible property].)
Portugal argues that her underlying complaint did specifically allege she and her
class “ ‘suffered property damage and/or financial loss . . . .’ ” However, her use of
ellipses in her brief hides the rest of the sentence; the complaint alleged Portugal and her
class “suffered property damage and/or financial loss in the form of unpaid overtime and
other wages and benefits.” (Italics added.) Unpaid overtime, wages, and benefits are not
property damage. Portugal also quotes her allegation that she suffered “ ‘actual financial
22
loss and damage to her property rights . . . .’ ” This conclusory allegation does not even
remotely suggest damage to tangible property.
Despite the fact that none of the alleged claims were covered by the insurance
policies, Portugal relies on the words “withheld tangible property” which her lawyer
craftily inserted into the judgment. This language does not help Portugal. In a default
case where there is no answer, the trial court cannot enter a judgment against a defaulting
defendant “which awards greater relief than that sought in the plaintiff’s complaint.” (In
re Marriage of Lippel (1990) 51 Cal.3d 1160, 1167, citing Code Civ. Proc., § 58014)
This rule applies if no answer was filed or if, as here, the defendant filed an answer but
the court ordered the answer stricken. (Accord, Matera v. McLeod (2006) 145
Cal.App.4th 44, 60; Electronic Funds Solutions, LLS v. Murphy (2005) 134 Cal.App.4th
1161, 1173-1177.)
On appeal, Portugal says the withheld tangible property was that she had to use
gasoline in her car to run errands for her clients. This claim is not discernible from the
complaint. Portugal cites a declaration from Real Care CEO Ken Wang, which he filed
in the underlying lawsuit in opposition to class certification, and which Portugal attached
to her opposition to Western’s summary judgment motion. Wang attested Real Care
provided clients with “personal in-home care to provide assistance bathing, dressing and
grooming, incontinence care, preparation of meals, light housekeeping and laundry,
medication monitoring, [and] transportation to shopping and medical appointments . . . .”
Customers could hire these “personal attendant[s]” directly, with Real Care serving as a
personnel agency, or they could contract with Real Care in which case the “personal
14 Civil Code section 580 provides: “The relief granted to the plaintiff, if there is no
answer, cannot exceed that demanded in the complaint, in the statement required by
Section 425.11 [statement of damages in personal injury or wrongful death complaint], or
in the statement provided for by Section 425.115 [preservation of right to seek punitive
damages] . . . .”
23
attendant” would be on Real Care’s payroll. This declaration does not help Portugal.
Portugal cites no authority whatsoever for her assertion that employees’ use of personal
vehicles in the course of their work constitutes a withholding of tangible property by the
employer.
Moreover, a judgment in the underlying action should never have been entered
that included a claim for “withheld tangible property” that was never alleged in the
complaint. “It is imperative in a default case that the trial court take the time to analyze
the complaint at issue and ensure that the judgment sought is not in excess of or
inconsistent with it. It is not in plaintiffs’ interest to be conservative in their demands,
and without any opposing party to point out the excesses, it is the duty of the court to act
as gatekeeper, ensuring that only the appropriate claims get through. That role requires
the court to analyze the complaint for itself--with guidance from counsel if necessary--
ascertaining what relief is sought as against each defaulting party . . . .” (Heidary v.
Yadollahi (2002) 99 Cal.App.4th 857, 868.) The record does not show what evidence
Portugal presented at the default hearing to justify the $23 million default judgment.
Portugal says Western could not justify summary judgment without producing this
evidence. However, the evidence at the default hearing should not have included
damages for “withheld tangible property” not alleged in the complaint, because “[t]he
court cannot allow a plaintiff to prove different claims or different damages at a default
hearing than those pled in the complaint.” (Id. at p. 868.)
Despite these rules, Portugal’s counsel did get the court to sign the underlying
judgment with the improper reference to “withheld tangible property.” Portugal contends
the “finding” that she was “damaged because tangible property was withheld from her,
became a binding finding of fact on Western.” This language, according to Portugal,
supports her claim of “property damage” under the professional liability policy and
requires reversal of the summary judgment.
24
We reject Portugal’s assertion that this improper reference is binding and compels
reversal of the summary judgment. Without explanation, Portugal cites Amato, supra, 53
Cal.App.4th at page 837, in support of this contention. We see nothing on the page cited
in Amato by Portugal to support the contention that the trial court was bound by the
“withheld tangible property” language except perhaps the following quote: “ ‘[I]t is
stated to be the general rule that “an insurer who has had an opportunity to defend is
bound by the judgment against its insured as to all issues which were litigated in the
action against the insured.” ’ ” (Ibid., italics added.) But since the “withheld tangible
property” language was not in the complaint, it can hardly be said that theory was
litigated.
Even assuming for the sake of argument that the underlying complaint could
somehow be read to involve “withheld tangible property,” there would still be no
coverage, because the policies covered loss of use of tangible property only if caused by
an “ ‘[o]ccurrence,’ ” which was defined as an “accident.” “ ‘When one expects or
intends an injury to occur, there is no “accident.” ’ ” (Gonzalez, supra, 234 Cal.App.4th
at p. 1234, quoting Interinsurance Exchange v. Flores (1996) 45 Cal.App.4th 661,
669.)15 Moreover, the policies excluded damage/injury arising from contractual liability
or employment.
Even the professional liability policies excluded (1) bodily injury, property
damage, or personal injury for which the insured was obligated to pay damages by reason
of the assumption of liability in a contract or agreement, and (2) bodily injury or personal
injury to an employee of the insured arising out of and in the course of the employment.
15 Intentional acts are not accidents unless some additional, unexpected, independent and
unforeseen happening occurs that produces damage (Gonzalez, supra, 234 Cal.App.4th at
p. 1233, citing Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 598), and
Portugal has not shown any evidence of such a happening.
25
Therefore, even assuming for the sake of argument that Real Care’s services constituted
healthcare services and home health care services, making them subject to the
professional liability policies which defined “[p]rofessional incident” as any negligent act
or omission in the furnishing of healthcare services or other professional services
described in a Schedule which included “home health care services,” and even assuming
Real Care’s alleged failure to pay their employees could somehow constitute negligence,
all of the claims by Portugal and the class were excluded from coverage under the
professional liability policies’ exclusions for contractual liability and employer’s liability.
We conclude Portugal fails to demonstrate that any of her causes of action may fall
within the scope of the policy. (See Gonzalez, supra, 223 Cal.App.4th at p. 1236.)
Moreover, beyond the evidence establishing that Portugal’s claims are not covered,
Western has conclusively established that all of the claims are excluded.
DISPOSITION
The judgment is affirmed. Western shall recover its costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1), (2).)
MURRAY , J.
We concur:
NICHOLSON , Acting P. J.
BUTZ , J.
26