Zelman v. Colonial Penn Ins. Co.
Filed 6/1/06 Zelman v. Colonial Penn Ins. Co. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
| JOE ZELMAN et al., Plaintiffs and Appellants, v. COLONIAL PENN INSURANCE COMPANY, Defendant and Respondent. | B180152 (Los Angeles County Super. Ct. No. BC263952) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles W. McCoy, Judge. Reversed with directions.
Law Offices of Steven L. Zelig and Steven L. Zelig for Plaintiffs and Appellants.
Demler, Armstrong & Rowland, Michael E. Wade and Cynthia A. Palin for Defendant and Respondent.
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Joe and Helen Zelman (the Zelmans) appeal from the summary judgment entered in favor of Colonial Penn Insurance Company (Colonial Penn) on their complaint arising from Colonial Penn's alleged failure properly to investigate, adjust and pay their insurance claim for damage to their residence from the 1994 Northridge earthquake.[1]
The Zelmans challenge the judgment on two procedural grounds: (1) the trial court erred in granting summary adjudication of issues as to five of their seven causes of action, because Colonial Penn's initial summary judgment motion did not seek summary adjudication of any issues; and (2) noncompliance with the prerequisites of section 1008 of the Code of Civil Code of Procedure[2] deprived the trial court of authority to reconsider Colonial Penn's renewed motion for summary judgment, which alternatively sought summary adjudication of issues.
They challenge the judgment on the substantive grounds that: (1) Colonial Penn failed to support its summary judgment motion with any admissible evidence; and (2) triable issues of material fact exist regarding whether Colonial Penn failed to pay fully what was owed to the Zelmans under the insurance policy, it substantially delayed making payments, and its handling of the claim did not meet industry standards.
By letter, we invited the parties to address whether summary judgment must be reversed and the matter remanded with directions to the trial court to vacate its order granting summary adjudication of issues and enter an order denying summary judgment for the reasons that: (1) Colonial Penn's failure to answer the complaint barred its ability to present evidence to challenge any elements of the causes of action pleaded; and (2) its failure to raise the affirmative defenses of the applicable statutes of limitation by way of its answer foreclosed summary judgment or summary adjudication based on these defenses. We have received their responses. Colonial Penn argues the Zelmans waived Colonial Penn's failure to file an answer or plead the applicable statutes of limitations as defenses.
Based on our review of the record and applicable law, we conclude summary adjudication of issues and summary judgment were erroneously granted in favor of Colonial Penn. There was no cognizable controversy properly before the trial court to adjudicate. â€
