Filed 4/7/22 Moss v. 21st Century Ins. Co. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Affirmed.

Neco Moss, in pro. per., for Plaintiff and Appellant.

Haight Brown & Bonesteel, Valerie A. Moore and Arezoo Jamshidi for Defendant and Respondent.

This appeal presents the question whether the trial judge properly entered summary judgment for respondent 21st Century Insurance Company (21st Century) on appellant Neco Moss’s cause of action for fraud.

This appeal arises from an automobile accident involving Moss, Juan Manuel Orozco, Robert Henry Hartman, and two other motorists. The accident occurred on May 15, 2013, on the eastbound 210 freeway in Fontana. Orozco crossed a double yellow line to enter the carpool lane at a relatively low speed in the path of Hartman’s truck. Hartman struck Orozco’s vehicle, Orozco hit Moss’s vehicle, Moss hit a fourth vehicle, and the fourth vehicle hit a fifth. Moss sued Hartman and Orozco and a jury found Hartman was not negligent and found Orozco had been negligent but awarded no damages. Moss appealed that verdict in a companion case, and we affirmed the judgment.

Moss joined 21st Century to the lawsuit against the drivers. 21st Century was ultimately severed, and after considerable wrangling, the case against 21st Century was reduced to a single cause of action for fraud. Moss alleges 21st Century falsely represented to him that they would hire counsel for him to sue the other drivers. The trial judge ruled undisputed evidence established Moss could not show the elements of reliance, reasonable reliance, causation, or damages required for a fraud cause of action, and entered summary judgment for 21st Century.

Moss, who represents himself on appeal as he did in the trial court, appeals the summary judgment order. As he did in his appeal from the judgment in favor of the drivers, Moss spends considerable time arguing the drivers and other insurance companies should not have been allowed to defend themselves because the trial court entered default judgments against them earlier in the case for failing to answer earlier versions of the complaint in a timely fashion. However, as we explained in our disposition of that companion appeal, the trial court set aside those defaults and the trial court reasonably refused to reinstate them.^[1] Our reasoning is the same here, so we don’t take the time to address the arguments again in this appeal.

On the summary judgment ruling, we conclude the trial judge was correct that Moss had not presented evidence sufficient to go to trial on the fraud claim and therefore affirm the judgment for 21st Century.

I

FACTS

1. The Accident & Insurance Coverage

According to Moss’s complaint, he was rear-ended in a multiple vehicle accident on May 15, 2013. He was not at fault for the accident, during which he drove a car registered to Rhiianon Scott, who was insured by 21st Century under a personal automobile policy.

Moss reported a claim to 21st Century, which settled with Scott for property damage and sought reimbursement via subrogation against the other drivers’ insurers in arbitration. 21st Century also paid medical payments benefits to Moss and paid for Moss’s rental car.

2. Commencement of Litigation and Claims

Moss filed this separate lawsuit against two of the other drivers, Hartman and Orozco, their insurers, the Ford Motor Company, and the City of Fontana. He also included allegations about an unrelated incident, alleging he had been injured by an unknown and uninsured motorist while at a gas station on August 3, 2012.

Moss submitted the complaint to 21st Century, which advised him the vehicle owner’s policy did not have uninsured motorist coverage, and that any claim for such benefits was denied.

Moss then complained when 21st Century didn’t provide him counsel in court for his suit against the other drivers. 21st Century advised Moss it had no obligation to hire counsel for him because he was the plaintiff, and liability insurance promises to defend lawsuits, not prosecute them.

Moss then amended his complaint to add 21st Century as a defendant. The operative pleading at summary judgment was Moss’s fifth amended complaint, filed September 21, 2017.^[2]

Over the years of this litigation, Moss named several insurance companies as parties, including the insurers of the other drivers, but after considerable motions practice, 21st Century, which insured the car Moss drove, was the last remaining insurance company named in his fifth amended complaint.^[3]

Moss alleged three causes of action against 21st Century. He alleged fraud and breach of contract based on the denial of his uninsured motorist claims. On January 22, 2018, the trial judge sustained 21st Century’s demurrer, without leave to amend, as to those two causes of action, on the ground the 21st Century policy, which Moss had pled and attached to prior pleadings, did not include uninsured motorist coverage.

As a result, the only issue at the summary judgment stage was whether the evidence was sufficient to go forward to trial on Moss’s final cause of action against 21st Century—whether they had committed fraud by telling Moss they would hire an attorney to sue the other drivers on his behalf. Moss hasn’t appealed the judgment of dismissal after the order sustaining the demurrer to the uninsured motorist claims, so summary judgment on the fraud claim is the only issue on appeal.

3. Summary Judgment

On August 20, 2019, 21st Century filed a motion for summary judgment on the remaining fraud claim. They supported their motion with a separate statement of undisputed facts and declarations by claims representatives Kathryn McGann and Shane Grimley, which attached exhibits from 21st Century’s business records. McGann laid foundation for, authenticated, and attached a copy of the 21st Century policy, signed by Scott, the vehicle owner and insured.

McGann and Grimley declared that in late 2014, 21st Century received copies of lawsuits Moss had filed against the other drivers, their insurers, and other parties, and represented there was no indication Moss had been sued by any of these parties. Grimley said he tried to contact Moss several times to ask why 21st Century had been served with the complaint. He said they finally spoke on January 23, 2015, and Moss complained that 21st Century hadn’t provided him counsel for his lawsuit. Grimley said he advised Moss the insurer does not hire counsel for their insured to pursue claims against others. Moss said he had been told he was at fault, and Grimley told him it was 21st Century’s position that he was not at fault, but that might have been a position asserted by one of the other party’s insurers. Grimley explained that 21st Century had pursued subrogation against the other drivers’ insurers to recover the payment it had made for property damages and the arbitrators had found the other drivers were at fault. Grimley said Moss called 21st Century again on January 26, 2015 and reported he had gone to a court hearing in his lawsuit and complained no one from 21st Century had showed up to represent him. In December 2015, Moss added 21st Century as a defendant.

Moss opposed the summary judgment motion and submitted a declaration in opposition. Moss contested whether 21st Century told him they wouldn’t provide a lawyer to represent him in prosecuting his lawsuit against third parties. He said, “After [his] 2013 claim was filed [he] was told he did not have to retain a lawyer because they would hire one for him.” According to his separate declaration, this representation occurred when he filed a claim for coverage. Moss conceded he had thereafter been found not at fault for the accident. As for his subsequent contact with 21st Century, he said, “There was only one phone call [he] placed in January 2015 after a court appearance [he] had which was on January 22, 2015 called to 21st Century Insurance Company [on] January 23, 2015,” when he “asked why counsel did not show up as they promised they would.” He concedes an agent for 21st Century told him on this call that he had been found in a prior arbitration not to be at fault in the accident—that the other drivers had been found to be 100 percent liable.

21st Century supported summary judgment based on Moss’s failure to establish that he had detrimentally relied on the representation, reasonably relied on it, or that the promise caused harm to Moss. They argued he couldn’t show he relied to his detriment because he actually prosecuted the case on his own and had a full jury trial. They argued he couldn’t show reasonable reliance because the insurance contract specifies that 21st Century would “defend, through attorneys selected by us, any suit claiming damages for bodily injury and/or property damage if covered by your policy, even if the allegations of the lawsuit are groundless, false or fraudulent.” Such clauses do not promise to prosecute claims against third parties on behalf of the insured because they promise only to “defend” the insured. Finally, they argued Moss could not show any promise had caused him damages or that he suffered harm, because he in fact sued Hartman and Orozco on his own and the jury returned a verdict finding Orozco liable, but that Moss had suffered no damages.

On November 7, 2019, the trial judge held a hearing and heard argument from Moss and 21st Century. The judge granted the motion and later issued a written ruling. “Defendant 21st Century Insurance Company’s motion for summary judgment is granted. Moving party meets its initial burden on the issues of detrimental reliance, causation, and damages, and Plaintiff fails to submit evidence raising any disputed issues of material fact in response. Plaintiff did not detrimentally rely on 21st Century’s representation it would provide him an attorney to prosecute an action against third party drivers, because Plaintiff prosecuted such an action in a self-represented capacity. Further the jury determined Plaintiff suffered no damages.”

On December 6, 2019, the trial judge entered judgment in favor of 21st Century. Moss filed a timely notice of appeal identifying the subject of the appeal as “[j]udgment after an order granting a summary judgment motion.”

II

ANALYSIS

The issue on appeal is whether the trial judge erred by granting summary judgment in favor of 21st Century on Moss’s one remaining claim for fraud. The gravamen of the complaint is that 21st Century told Moss he had no need to retain a lawyer because the insurer would handle his defense, but they then refused to provide a lawyer to represent him when he sued other drivers and failed to recover damages.

“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; see also Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment “bears 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [cleaned up]; see also Code Civ. Proc., § 437c, subd. (o)(2).) The defendant “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, at p. 850.) Once a defendant meets their initial burden, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of material fact. (Ibid.) “The plaintiff or cross-complainant shall not rely upon the 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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

21st Century challenged Moss’s fraud claim on the ground he could not establish essential elements of the claim. (See Code Civ. Proc., § 437c, subds. (o)(1), (p)(2).) The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

21st Century supported their motion with the declarations of two claims adjusters and the policy itself. One adjuster generally denied they agreed to provide an attorney to represent Moss in prosecuting a lawsuit against other drivers. The other adjuster said he explained to Moss in detail that 21st Century had taken the position Moss was not liable in the accident in prior arbitration, obtained a finding to that effect, and was unaware of anyone claiming Moss was at fault. He also said he told Moss 21st Century’s promise was to defend Moss against liability, not to prosecute claims against third parties on his behalf. The insurance policy says the same thing—that 21st Century promised to provide an attorney to defend Moss, as an insured, against claims that he was liable for any damages that occurred in the accident.

The policy and these declarations therefore negated the misrepresentation and justifiable reliance elements essential to Moss’s fraud claim and shifted the burden to Moss to set forth the specific facts showing that a triable issue of material fact exists as to those elements. (Merrill v. Navegar, Inc., supra, 26 Cal.4th at pp. 476-477.)

To raise a triable issue of fact, Moss submitted his own declaration and argued a trier of fact could conclude 21st Century had promised to provide him with counsel in prosecuting a lawsuit against the other motorists. (See Code Civ. Proc., § 437c, subd. (p)(2).) In his declaration, Moss said he contacted 21st Century when he first filed the claim for coverage. He said at that time 21st Century assured him, “he did not have to retain a lawyer because they would hire one for him.” However, that representation is not inconsistent with 21st Century’s claim, and does not fill the gap of providing evidence that they promised to provide Moss with an attorney to prosecute claims against third parties to recover damages after successfully defending him against liability.

21st Century explained the initial discussion took place in the context of describing its duty to defend Moss against claims that he was liable, and Moss conceded he had thereafter been found not at fault for the accident in arbitration. Moreover, as discussed in the companion case, and as was known to the trial judge at the time of the motion for summary judgment, the motorists Moss sued did not assert that he was liable, but instead asserted claims against each other. Moss provided no reason to think 21st Century’s representation that it would defend him against liability could reasonably be interpreted as a promise to hire a lawyer for him if he decided to bring a separate lawsuit seeking to recover damages against third parties. Indeed, he could not do so because the policy language is clear on this point, and “[a] reasonable person will read the coverage provisions of an insurance policy . . . [and] the insured is ‘bound by clear and conspicuous provisions in the policy.’” (Malcom v. Farmers New World Life Ins. Co. (1992) 4 Cal.App.4th 296, 304, fn.6; see also Barney v. Aetna Casualty & Surety Co. (1986) 185 Cal.App.3d 966, 975 [“Aetna had no duty under the policy to file a cross-complaint on Barney’s behalf, for nothing in the policy provisions imposes upon the insurer the duty to prosecute claims of the insured against third parties”].)

We therefore conclude the trial judge correctly granted summary judgment in 21st Century’s favor. Moss did not present a triable issue of material fact that 21st Century misrepresented its duties or that he justifiably relied on its misrepresentations. He did present evidence that he misunderstood 21st Century’s duties under the policy, but that is no basis for a fraud claim.

III

DISPOSITION

We affirm the judgment. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

McKINSTER

Acting P. J.

CODRINGTON

J.

[1] We grant 21st Century’s request for judicial notice of the trial judge’s ruling on Moss’s motion to enter default on Hartman and Orozco and their request for judicial notice in support of their motion for summary judgment in the trial court. All are court documents in the trial court record.

[2] We grant 21st Century’s request that we take judicial notice of the fifth amended complaint and other documents (all court records) which the trial judge noticed because the clerk’s transcript mistakenly omits pages from the documents the trial judge noticed.

[3] Moss repeatedly tried to join the retired former president of 21st Century, William Mellick, as well as the adjuster who handled Moss’s claim, Kathryn McGann. However, the trial judge rejected Moss’s final attempt to join them, and Moss hasn’t appealed that ruling.