Zevallos v. Cal. Fair Plan Assn.

Filed 10/27/06 Zevallos v. Cal. Fair Plan Assn. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles W. McCoy, Judge. Reversed in part, affirmed in part and remanded.

Zelig & Associates and Steven L. Zelig for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Raul L. Martinez, Elise D. Klein and Raquel Vidal for Defendant and Respondent.

INTRODUCTION

Plaintiff and appellant Lilliana Zevallos (plaintiff) appeals a summary judgment in favor of defendant and respondent California Fair Plan Association (CFPA), an insurer, which provided earthquake insurance. Plaintiff’s home allegedly suffered damage from the January 17, 2004 Northridge earthquake (the earthquake). Plaintiff sued CFPA to obtain proceeds for the damage allegedly resulting from the earthquake.

The trial court ruled that the doctrine of judicial admission barred plaintiff from presenting evidence to raise a triable issue of material fact that she was the named insured on the CFPA policy at issue. The trial court concluded that because plaintiff could not raise a triable issue of material fact that she was the named insured, plaintiff did not have standing to seek recovery under the policy. The trial court also ruled that plaintiff was not a third party beneficiary of the insurance policy.

Alternatively, the trial court granted CFPA’s motion for summary adjudication as to all of plaintiff’s non-contract based causes of action pursuant to Code of Civil Procedure section 340.9,^[1] quoted below, which revived certain “insurance claim for damages” (§ 340.9, subd (a)), arising from the earthquake, which were otherwise barred by applicable statutes of limitation.

We reverse in part, affirm in part and remand the case to the trial court. We reverse the grant of summary judgment in favor of CFPA. We conclude that the doctrine of judicial admission did not apply to bar plaintiff from presenting evidence that she was the named insured. In addition, plaintiff presented sufficient evidence to raise a triable issue of material fact that she was the named insured on the CFPA policy at issue.

In addition, we reject CFPA’s alternative theory for granting summary judgment, which was presented to, but not adopted by, the trial court. On this record, plaintiff has raised a triable issue of material fact as to whether her alteration of two receipts constituted fraudulent conduct under the policy.

We affirm the order summarily adjudicating in favor of CFPA plaintiff’s non-contract based causes of action. Pursuant to 20th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247 (20th Century), section 340.9 revived only plaintiff’s causes of action for breach of contract and breach of the covenant of good faith and fair dealing, which were otherwise barred by applicable statutes of limitation. With regard to plaintiff’s bad faith claim (i.e., breach of the covenant of good faith and fair dealing), CFPA failed to carry its burden of production to make a prima facie showing that CFPA’s conduct in paying plaintiff’s original claim in 1995 was the result of a “genuine dispute.” (See Chateau Chamberay Homeowners Assn. v. Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 335 (Chateau Chamberay).) Thus, on remand, plaintiff may litigate the causes of action for breach of contract and breach of the covenant of good faith and fair dealing.

To the extent that any of plaintiff’s other causes of action, such as fraud and negligent misrepresentation, are barred by applicable statutes of limitation, those causes of action were not and are not revived by section 340.9.

FACTUAL AND PROCEDURAL BACKGROUND

By way of introduction, this case presents the issue of whether plaintiff is barred by the doctrine of judicial admission from presenting evidence to raise a triable issue of material fact that she was the named insured on the CFPA policy at issue on the date of the earthquake.

It is undisputed that the insurance policy at issue identified the named insured as “Elsa Zevallos.” It is also undisputed that plaintiff’s driver’s license, set to expire on January 6, 2008, showed her name to be “Elsa Lilliana Zevallos.” In addition, it is undisputed that plaintiff’s mother’s driver’s license, with an expiration date of March 4, 2005, showed her name to be “Elsa Clara Zevallos.” Finally, it is undisputed that plaintiff filed this lawsuit under the name “Lilliana Zevallos.”

Based upon plaintiff’s use of the name “Lilliana Zevallos” in the complaint, coupled with her deposition testimony, presented below, the trial court ruled that plaintiff was barred by the doctrine of judicial admission from raising a triable issue of material fact that she (plaintiff) was the named insured identified as “Elsa Zevallos” in the insurance policy at issue. With these facts in mind, we set forth, in chronological order, the events leading to the grant of summary judgment in favor of CFPA.

1. Plaintiff’s Real Property

In 1986, plaintiff purchased real property located on Mulholland Drive in Los Angeles County, California (the property). She purchased the property as a single woman.

At some point, in 1993, she quitclaimed the property to her mother. Then, in 1993, plaintiff’s mother quitclaimed any interest in the property back to plaintiff. The quitclaim deed identified plaintiff’s mother as “Elsa Zevallos” and it identified plaintiff as “Lilliana Zevallos, a single woman.”^[2] The quitclaim deed appears to show that Elsa Zevallos signed it on July 30, 1993. The deed was notarized on September 13, 1993, and recorded on September 21, 1993. At the time of the earthquake, plaintiff owned the property in question.

2. The CFPA Insurance Policy

CFPA issued an insurance policy for the property for a one-year period from September 5, 1993 to September 5, 1994. The policy showed that the named insured was “Elsa Zevallos, An Unmarried Woman.”^[3] The policy identified the mortgagee as Bank of America.

The policy provided coverage in the following amounts: (1) $454,000 for the dwelling (Coverage A); (2) $32,000 for other structures (Coverage B);^[4] and $227,000 for personal property (Coverage C).

3. The Northridge Earthquake

The Northridge earthquake occurred on January 17, 1994.

4. Endorsement No. 1 to the CFPA Policy

On March 12, 1994, CFPA issued endorsement No. 1 to the policy. At the top portion of the endorsement, it is written: “Change name of insured and replace 1st mortgagee.” The endorsement then identified the name of the insured as “Lilliana Zevallos, [A] Single Woman.”^[5] It identified the mortgagee as World Savings & Loan.

At her deposition, plaintiff testified that she re-financed the debt on the property after the earthquake. According to plaintiff’s deposition testimony, the original mortgagee was Bank of America. After the earthquake, she refinanced the debt with World Savings.

5. Plaintiff Reports Loss

On September 28, 1994, plaintiff, under the name “Lilliana Elsa Zevallos,” reported to CFPA that the property was damaged in the earthquake. CFPA assigned an adjuster, S.W. Eller, to inspect the Property.

In March 1995, CFPA paid plaintiff the sum of $73,240.18 for loss to the building and $10,000 on the contents claim. It appears that plaintiff’s total claim was in the amount of $134,530.17. It also appears that plaintiff’s claim was reduced by two deductibles, one in the amount of $45,400 and the second in the amount of $4,540.

6. California Legislature Enacts Code of Civil Procedure Section 340.9

In response to problems arising from the earthquake, the California Legislature enacted section 340.9. Section 340.9 provided that, subject to certain exceptions, insurance claims for damages arising from the earthquake which were barred as of January 1, 2001 by a statute of limitations, were revived if filed within one year of the effective date of the statute.^[6]

7. Plaintiff Revives Claim on Property

On December 7, 2001, plaintiff’s adjuster, Kapilow & Son, asked CFPA to reopen the claim. One week later, CFPA instructed S.W. Eller to reopen the claim.

8. Plaintiff Files Suit

On December 31, 2001, under the name “Lilliana Zevallos,” plaintiff filed an unverified complaint against CFPA, alleging seven causes of action: constructive fraud, violation of Unfair Practices Act, breach of the covenant of good faith and fair dealing, breach of insurance contract, fraud, negligent misrepresentation, and intentional infliction of emotional distress. Plaintiff sought punitive damages for CFPA’s alleged bad faith.^[7]

Plaintiff alleged that CFPA provided her with earthquake insurance for the alleged damage to her property. Plaintiff alleged that CFPA failed to disclose or concealed material facts regarding the extent of damage to the property resulting from the earthquake. Plaintiff further alleged that CFPA breached the insurance contract by failing to pay the amounts due and owing under the policy in relation to damage caused by the earthquake. Plaintiff also alleged that CFPA misapplied appropriate deductibles, and assessed two deductibles against plaintiff, when it should have only charged one deductible against plaintiff.

9. Adjuster Conducts Inspection and Requests Plaintiff’s Documentation On January 2, 2002, the adjuster, S.W. Eller, advised plaintiff that the claim had been reopened. The adjuster scheduled an inspection of the property.

On May 1, 2002, the S.W. Eller inspector, Donald Duzey, inspected the property with Chris Tremaine, a representative of plaintiff’s adjuster. Tremaine advised Duzey that he would prepare a statement of loss and provide the necessary invoices and estimates.

On March 31, 2003, Duzey received plaintiff’s invoices and estimates. The documentation included an order form from EZ Glass Co., dated May 12, 1994 in the amount of $1,459; and a receipt numbered 4753, dated May 19, 1994 for “outside labor” in the amount of $4,700.

During his inspection, Duzey noted that in relation to the original claim CFPA paid plaintiff the sum of $459 in relation to the EZ Glass Co. order form. Duzey also observed that CFPA paid plaintiff the sum of $700 for outside labor tile repairs.

10. Plaintiff’s Statement of Loss

Tremaine provided to CFPA a 41-page statement of loss on October 8, 2003. In the statement of loss, Tremaine itemized a number of expenses allegedly related to repairing the damage caused by the earthquake.

On page 31 of the statement of loss, Tremaine listed the item “Glass broke due to seismic activity -- replacement cost per invoice from EZ Glass Co. dated 5/12/94” in the amount of $1,459. It does not appear in the October 8, 2003 statement of loss that Tremaine included any amounts related to the $700 for outside labor tile repairs. Likewise, there is no indication that Tremaine included the $4,700 amount for “outside labor.”^[8]

11. Plaintiff’s Deposition

The first session of plaintiff’s deposition was conducted on October 8, 2003. At the outset of the deposition, plaintiff stated and spelled her name as “Lilliana Zevallos.” Counsel for CFPA then asked: “Have you used any other names than Lilliana Zevallos in the past?” Plaintiff responded: “I was married. Costa, but I never changed my driver’s license or anything. . . . My Maiden name remained my maiden name.”

Counsel for CFPA then inquired who was present in the home at the time of the earthquake. Plaintiff identified her two-year-old son and her mother. As to her mother, plaintiff testified: “My mother, Elsa Zevallos, E-L-S-A. She was visiting, spending the night.”

As to obtaining earthquake insurance, plaintiff testified that she obtained a CFPA policy “from the very beginning.” As for the policy in place in 1994, plaintiff testified that she did not recall the exact amounts, but that “I had the insurance company give me the best coverage, I guess, that they offer.” Plaintiff further testified that she obtained the policy through a broker, Eichberg & Associates. Plaintiff further testified that Mr. Eichberg had passed away.^[9]

During plaintiff’s deposition, counsel for CFPA also inquired about the discrepancies between the EZ Glass Co. receipts and the “outside labor” receipts. At the October 8, 2003 deposition session, plaintiff acknowledged the different amounts, but could not explain the discrepancies. Plaintiff also testified that she did not personally change the amounts. Plaintiff testified that she provided CFPA with a handwritten list of the costs of the earthquake repairs. The list, provided to plaintiff at the deposition, showed she paid EZ Glass the amount of $459 and $700 for the outside labor.

During the January 8, 2004 session of plaintiff’s deposition, plaintiff testified further about the EZ Glass and outside labor receipts. Plaintiff testified that she altered the receipts to reflect cash payments that she allegedly made to the respective vendors. Plaintiff testified that after consulting her notes and speaking with her mother, she recalled that she paid $1,000 cash to someone from EZ Glass for additional glass work. She also testified that the word “difference” written on the EZ Glass receipt reflected that she paid the additional cash amount. She added the number “1” to the receipt to reflect the cash payment.^[10]

Plaintiff also testified about the outside labor receipt. She stated it was for tile work. She added the number “4” to the total amount of $700 to reflect cash payments of $4,000 to the same vendor. Plaintiff explained that the term “cash” and the number “1158” written on the receipt showed that she paid $700 with check No. 1158 and that she paid $4,000 in cash in three installments.^[11]

At the February 23, 2004 session of plaintiff’s deposition, she testified further about these receipts. She produced the originals of the EZ Glass receipt and the “outside labor” receipts. She also produced check No. 1176, made out to herself in the amount of $1,000, to show that she made a cash payment to EZ Glass.

12. CFPA Suspends Plaintiff’s Reopened Claim

CFPA concluded that plaintiff was not the named insured on the date of loss. CFPA suspended adjustment of plaintiff’s claim.

13. CFPA Files Motion for Summary Judgment

On April 23, 2004, CFPA filed a motion for summary judgment, or, alternatively, summary adjudication. CFPA asserted that plaintiff did not have standing to bring this action because she was not the named insured. CFPA asserted that plaintiff’s mother was the named insured. CFPA also asserted that because plaintiff allegedly falsified the EZ Glass and outside labor receipts in connection with her claim, the insurance policy was void by its terms. CFPA further alleged that section 340.9 barred all of plaintiff’s causes of action other than breach of contract.

14. Plaintiff’s Opposition

Plaintiff provided a number of declarations with her opposition to the motion for summary judgment. In her declaration, plaintiff stated that she was the named insured on the policy and that her full name was “Elsa Lilliana Zevallos.” As noted above, plaintiff provided a copy of her driver’s license, which showed her name to be “Elsa Lilliana Zevallos.”

Plaintiff’s mother declared that her full name was “Elsa Clara Zevallos.” Like plaintiff, she provided a copy of her drivers’ license, which showed her name to be “Elsa Clara Zevallos.”

In addition, plaintiff declared that she learned that the amount originally paid by CFPA to settle the claim was grossly inadequate. She further declared that at no time did CFPA advise her that her property damage from the earthquake was in excess of the $500,000. Plaintiff also declared that CFPA failed to properly inform her that it was entitled to only one deductible under the policy.

As to the altered receipts, plaintiff declared: “17. In 1994/1995, I forwarded two receipts to CFPA reflecting expenses I incurred to repair earthquake damage. Much later, I personally altered the receipts for my own internal accounting purposes. So there is no lack of clarity, the receipts provided to CFPA during the adjustment of the claim in 1994/1995 were accurate. 18. After this claim was revived on my behalf by the public adjuster who I had engaged, I was asked by Chris Tremaine to search my records for documents I had relating to the earthquake[] repairs I had done and/or the adjustment of the loss by CFPA. I provided him with reasonably available documents, including the two receipts which had been altered after CFPA had closed its claim without notifying me of my rights as more fully set forth above. When I provided Mr. Tremaine with the two receipts in question, quite candidly, after all the years that had passed . . . I simply forgot about the alteration that I had done for my own internal purposes. . . . Without condition or limitation, I hereby declare that my submission of the subject documents was made to Chris Tremaine and his submission, in turn, to CFPA was not with an intent to misrepresent, to deprive CFPA of funds, or otherwise take advantage of CFPA in any[] way, shape or form.” (Original underlying omitted.)

15. CFPA’s Reply in Support of Motion for Summary Judgment

In its reply brief, CFPA argued that plaintiff was estopped by the doctrine of judicial admission from asserting her name was anything other than “Lilliana Zevallos.” CFPA explained that because plaintiff identified herself in the complaint and in deposition as “Lilliana Zevallos,” she made an admission of material fact in her pleading, which was a conclusive concession of the truth of the matter and could not be contradicted by her.^[12]

16. The Trial Court Ruling

The trial court granted CFPA’s motion for summary judgment. In its corresponding statement of decision, the trial court explained that plaintiff was barred by the doctrine of judicial admission^[13] from presenting evidence “that she was the named insured -- i.e., ‘Elsa Zevallos’ -- at the time of the earthquake, as Plaintiff, throughout the litigation (including in her complaint), has repeatedly referred to herself as ‘Lilliana Zevallos.’ “ The trial court concluded that because plaintiff was not the named insured and was not a third party beneficiary, she did not have standing to sue under the policy.

Alternatively, the trial court granted CFPA’s motion for summary adjudication of the non-contract causes of action. The trial court ruled that because section 340.9 did not revive plaintiff’s non-contract claims, those claims were time barred.

The trial court entered judgment in favor of CFPA. The trial court denied plaintiff’s motion for new trial. Plaintiff timely filed a notice of appeal.

CONTENTIONS

Plaintiff contends the trial court erred by concluding that the doctrine of judicial admission applied to bar her from presenting evidence to show (and raise a triable issue of material fact) that she was the “Elsa Zevallos” identified as the named insured on the CFPA policy at issue.^[14] Plaintiff also asserts that contrary to the trial court’s alternative ruling on the motion for summary adjudication, all of her causes of action were revived by section 340.9.

CFPA disputes plaintiff’s assertions. In addition, CFPA asserts, as it did before the trial court, that plaintiff’s alteration of the EZ Glass and “outside labor” receipts rendered the policy void. CFPA also claims that it is entitled to summary adjudication of plaintiff’s bad faith claim pursuant to the “genuine dispute” doctrine.

STANDARD OF REVIEW

This court reviews de novo a trial court’s order granting a motion for summary judgment. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 698-699.) A defendant moving for summary judgment must show that either one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.)

DISCUSSION

1. The Trial Court Abused Its Discretion by Applying the Doctrine of Judicial

Admission to Bar Plaintiff from Presenting Evidence to Raise a Triable Issue of Material Fact as to Whether She Was the Named Insured on the Earthquake Policy at Issue

Plaintiff contends that the trial court erred by applying the doctrine of judicial admission to preclude plaintiff from presenting evidence to raise a triable issue of material fact that she was the named insured on the CFPA earthquake policy at the time of the earthquake. We agree.

CFPA correctly explains that in order to have standing to sue on an insurance policy, a plaintiff must be the named insured (with an insurable interest in the property) or a third party beneficiary on the policy.^[15] (See Ziello v. Superior Court (1995) 36 Cal.App.4th 321; Jones v. Aetna Casualty & Surety Co. (1994) 26 Cal.App.4th 1717, 1722-1724.)

CFPA identifies two types of judicial admissions: (1) those appearing in a party’s pleading; and (2) those arising during the discovery process. CFPA asserts plaintiff made both types of judicial admissions conceding that she was “Lilliana Zevallos” and not “Elsa Zevallos,” the later of which was on the CFPA insurance policy as the named insured.

Below, we set forth the case law articulating the doctrine of judicial admissions in the pleading and discovery contexts, as well as judicial admissions arising from a party’s trial testimony.

In Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, the court found that a party had conceded the existence of a written contract in an answer to a cross-complaint, and that this constituted a judicial admission. The court set forth the general principles of the doctrine of a judicial admission in a pleading: “The admission of fact in a pleading is a ‘judicial admission.’ Witkin describes the effect of such an admission: ‘An admission in the pleadings is not treated procedurally as evidence; i.e., the pleading need not (and should not) be offered in evidence, but may be commented on in argument and relied on as part of the case. And it is fundamentally different from evidence: It is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues. Under the doctrine of “conclusiveness of pleadings,” a pleader is bound by well pleaded material allegations or by failure to deny well pleaded material allegations. [Citations.]’ (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 413, pp. 510-511.)” (103 Cal.App.4th at p. 1271, italics in original.)

In Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, the court examined the conclusiveness of the doctrine of judicial admission in the context of a party’s depositions responses. The court explained: “For summary judgment purposes, deposition answers are simply evidence. Subject to the self-impeachment limitations of D’Amico [v. Board of Medical Examiners (1974) 11 Cal.3d 1], they are considered and weighed in conjunction with other evidence. They do not constitute incontrovertible judicial admissions as do, for example, concessions in a pleading [citations] or answers to requests for admissions, which are specially designed to pare down disputed issues in a lawsuit.” (128 Cal.App.4th at p. 1522.)

The Scalf court further explained that “the cases are clear that summary judgment should not be granted on the basis of ‘tacit admissions or fragmentary and equivocal concessions.’ “ (Scalf v. D. B. Log Homes, Inc., supra, 128 Cal.App.4th at p. 1523.) The court continued: “While the D’Amico rule permits a trial court to disregard declarations by a party which contradict his or her own discovery responses (absent a reasonable explanation for the discrepancy), it does not countenance ignoring other credible evidence that contradicts or explains that party’s answers or otherwise demonstrates there are genuine issues of factual dispute.” (Id. at pp. 1524-1525, italics omitted; see also Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1224, fn. 2 [“ ‘ “[S]ummary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.” ‘ “].)

In the context of trial testimony, the court in Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, explained “[a] judicial admission is a party’s unequivocal concession of the truth of a matter, and removes the matter as an issue in the case.” (Id. at p. 48.) In Gelfo, the Court of Appeal held that the trial court did not err by finding that the plaintiff, by his trial testimony, had made the judicial admission that he was not disabled because of a back injury. (Ibid.)

In the cases cited by CFPA in support of the proposition that plaintiff judicially admitted or conceded that she was “Lilliana Zevallos,” the parties there made unequivocal and unambiguous concessions. (See D’Amico v. Board of Medical Examiners, supra, 11 Cal.3d 1 [attorney general made unambiguous admission that osteopathy is a complete school of medicine]; St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248 [unambiguous concession in first and second amended cross-complaints that parties entered into a specific indemnity agreement]; Uhrich v. State Farm Fire & Casualty Co. (2003) 109 Cal.App.4th 598 [party and party’s attorney made unambiguous concessions in declarations and written briefs (some filed in a separate case) that a third party acted with intent to cause injury, which precluded a finding of insurance coverage]; Valerio v. Andrew Youngquist Construction, supra, 103 Cal.App.4th 1264 [unambiguous concession in answer that the parties had a written contract]; Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609 [at deposition, party unambiguously conceded that parking brake was accessible, which concession controlled over contradictory declaration]; Thompson v. Williams (1989) 211 Cal.App.3d 566 [party unambiguously conceded at deposition that settlement offer was in full satisfaction of dispute].)

What we take from the foregoing authorities is that whether in the context of pleading or discovery responses such as deposition testimony, in order for the doctrine of judicial admission to apply and preclude a party from offering contradictory evidence on the issue allegedly judicially admitted, the pleading or discovery response purportedly constituting a judicial admission must be unambiguous and unequivocal, not a tacit admission or fragmentary and equivocal concession.

In this case, plaintiff did not make any such unequivocal or unambiguous concessions in either the complaint or her deposition testimony. There is no indication in the complaint (filed in 2001) that plaintiff was conceding that in 1993, when the policy at issue was written, that her complete and full name to the exclusion of any other names, middle or first, was “Lilliana Zevallos.” Plaintiff’s name was simply listed along with 23 other plaintiffs. Of the 24 plaintiffs identified, only one shows a middle name. This seriatim listing of party plaintiffs does not constitute a binding judicial admission that plaintiff did not have the name “Elsa” as a first name. Plaintiff simply made no affirmative representation that the name “Elsa” was not part of her name.

Similarly, plaintiff’s deposition responses do not rise to the level of a judicial admission. The record shows that as a matter of routine introduction, plaintiff was asked to state and spell her name for the record. She did so. At that point in the deposition, she was not making an affirmative unequivocal representation that “Lilliana Zevallos” was her full, complete and only name.

In addition, when asked whether she had any other names, it is apparent that plaintiff understood the question to mean last names, as in a married name. She responded that she kept her maiden name. Importantly, she added that her name was as it had always appeared on her driver’s license, which as noted above, was “Elsa Lilliana Zevallos.” Plaintiff therefore advised counsel for CFPA at her deposition that Elsa was part of her name. Thus, plaintiff’s deposition testimony does not rise to the level of a judicial admission that her full, complete and only name was “Lilliana Zevallos.”

Another case cited by CFPA, Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64 (Scheiding), further supports the conclusion that plaintiff’s deposition testimony did not constitute a judicial admission barring plaintiff from presenting evidence on the issue of her name. In Scheiding, the court rejected application of the doctrine of judicial admission to bar a party from offering additional evidence. There, a plaintiff sued for asbestos-related injuries. One of the defendants, Dinwiddie Construction, attended the five-day deposition of the plaintiff. In addition, the plaintiff’s verified interrogatory responses named 45 employers and hundreds of job sites, where from 1948 to 1990, the plaintiff might have been exposed to asbestos. (Id. at p. 67.)

Dinwiddie filed a motion for summary judgment asserting that because the plaintiff failed to mention it in the discovery process, it was not liable for the injuries. The court noted, however, that neither Dinwiddie, nor any other party, asked the plaintiff to identify a job site where Dinwiddie might have been present. (Scheiding, supra, 69 Cal.App.4th at p. 68.) Dinwiddie did not serve any discovery requests upon the plaintiff.

The trial court granted summary judgment in favor of Dinwiddie. The Court of Appeal reversed. The court refused to apply the doctrine of judicial admission. The court explained: “Here, Dinwiddie conducted no discovery. In his deposition plaintiff was not asked a single question concerning Dinwiddie. Therefore even if the duty to fully answer was owed by plaintiff to other parties, there is nothing in this record to suggest his answers were complete as to Dinwiddie. To put it another way, the duty to answer completely only extended so far as the reasonable ambit of the questions which were asked. The plaintiff had no duty to volunteer information that was not requested.”

The Scheiding court concluded: “We conclude it would be unreasonable to infer from this record that plaintiffs can produce no other evidence to link Dinwiddie to [the plaintiff’s] illness.” (Scheiding, supra, 69 Cal.App.4th at p. 81.)

The reasoning of the Scheiding case applies here. At her deposition, the context in which plaintiff provided deposition testimony regarding her name and her mother’s name is important. When plaintiff stated that her mother’s name was “Elsa Zevallos,” this testimony arose from questions as to who was present in the house at the time of the earthquake. Counsel for CFPA was not exploring or asking plaintiff to state her or her mother’s full and complete names for the record. Plaintiff’s testimony that her mother’s name was “Elsa Zevallos” did not amount to an unambiguous concession that “Elsa Zevallos” was her mother’s only name. Nor did it constitute an unequivocal concession that “Elsa” was not part of plaintiff’s name. There is nothing in plaintiff’s testimony to suggest that plaintiff’s answers were complete as to what her name was or her mother’s name was. In the record presented to this court, counsel for CFPA did not ask plaintiff whether she was the named insured on the policy. CFPA counsel did not explore with plaintiff the apparent discrepancy between plaintiff’s use of the name “Lilliana Zevallos” in the complaint, and the name “Elsa Zevallos” appearing as the named insured on the policy at issue.

On this record, we do not consider plaintiff’s use of the name “Lilliana Zevallos” in the complaint or at deposition as a judicial admission or binding concession that “Elsa” was not part of her name.

In addition, plaintiff presented sufficient evidence to raise a triable issue of material fact that she was the named insured on the CFPA policy at issue at the time of the earthquake. In her declaration, she stated she was the named insured. Her driver’s license shows her name to be “Elsa Lilliana Zevallos.”

Moreover, the quitclaim deed from plaintiff’s mother to plaintiff appears to show that plaintiff’s mother signed the deed on July 30, 1993. It was notarized on September 13, 1993, and recorded on September 21, 1993. The quitclaim deed therefore raised a triable issue of material fact that plaintiff was the owner of the property at the time the CFPA insurance policy was issued on September 3, 1993 for the time period from September 5, 1993 to September 5, 1994. This timing suggests that plaintiff, not her mother, obtained the CFPA earthquake policy after her mother quitclaimed the property back to plaintiff.

2. Plaintiff Raised a Triable Issue of Material Fact Whether the Alteration

of the Two Receipts Was a Fraud on the CFPA Policy

As it did before the trial court, CFPA asserts on appeal that plaintiff’s alteration of the EZ Glass and “outside labor” receipts constituted a fraud or false statement and therefore the entire policy was void according to its own terms. We conclude that whether plaintiff raised a triable issue of material fact as to whether the alteration of the receipts constituted an intentional misrepresentation, fraudulent conduct or a false statement.

As explained by CFPA, section 3 of the policy provided: “Concealment or Fraud. The entire policy will be void if, whether before or after a loss, you have: (a) intentionally concealed or misrepresented any material fact or circumstance; (b) engaged in fraudulent conduct; or (c) made false statements; relating to this insurance.”^[16]

Plaintiff voluntarily provided the altered and original receipts to CFPA. During her first deposition session, plaintiff denied altering the receipts. During her second and third depositions sessions, plaintiff testified that upon review of her records, she did alter the receipts in order to account for cash payments to the contractors involved in the original repair of the house.

In her declaration in support of her opposition to the motion for summary judgment, plaintiff reiterated that she altered the receipts for her own internal accounting purposes, that she provided both the altered and unaltered receipts to CFPA, and that she was not attempting to misrepresent the claim or to deprive CFPA of any funds.

On this record, whether plaintiff had an intent to defraud or make a false statement is a triable issue of material fact. (Cummings v. Fire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1417.) In this regard, the Cummings case is distinguishable because there the plaintiff admitted to intentionally lying to the adjuster. (Id. at pp. 1417-1418.)

3. The Trial Court Did Not Err by Summarily Adjudicating in Favor of

CFPA All of Plaintiff’s Causes of Action Other Than Breach of Contract and Bad Faith

In 20th Century, supra, 90 Cal.App.4th 1247, this court held that the causes of action revived by section 340.9 were breach of insurance contract and claims for bad faith. (20th Century, at p. 1279 [“Thus, the express language of the statute applies not only to contract damage claims, but also to tort claims for insurer bad faith (i.e., a breach of the implied covenant of good faith and fair dealing).”].)

Like the fraud claim presented in 20th Century, plaintiff’s causes of action for constructive fraud, violation of unfair practices act, fraud, negligent misrepresentation, and intentional infliction of emotional distress appear to be based upon alleged acts of deceit and deception that in the words of the 20th Century court, “go well beyond simple nonperformance.” (20th Century, supra, 90 Cal.App.4th at p. 1281.) Thus, those causes of action do not constitute an “insurance claim for damages.” (§ 340.9, subd. (a).) Pursuant to 20th Century, to the extent those causes of action are barred by an applicable statute of limitation, they were not revived by section 340.9.

In conclusion, plaintiff may litigate the breach of contract cause of action. We address below whether plaintiff can proceed on the bad faith claim.

4. CFPA Is Not Entitled to Summary Adjudication of Plaintiff’s

Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing

CFPA asserts that pursuant to the genuine dispute doctrine, it is entitled to summary adjudication of plaintiff’s cause of action for breach of the covenant of good faith and fair dealing, commonly known as the cause of action for bad faith. We disagree.

Pursuant to the genuine dispute doctrine, an erroneous refusal to indemnify an insured does not necessarily constitute a breach of the covenant of good faith and fair dealing. (Chateau Chamberay, supra, 90 Cal.App.4th 335.)

In Chateau Chamberay, the court explained that “in the context of the insurance contract, it has been held that the insurer’s responsibility to act fairly and in good faith with respect to the handling of the insured’s claim ‘ “is not the requirement mandated by the terms of the policy itself -- to defend, settle, or pay. It is the obligation . . . under which the insurer must act fairly and in good faith in discharging its contractual responsibilities.” ‘ “ (Chateau Chamberay, supra, 90 Cal.App.4th at p. 346.) The court further explained: “ ‘ “[T]he ultimate test of [bad faith] liability in the first party cases is whether the refusal to pay policy benefits . . . was unreasonable.” ‘ “ (Id. at p. 346, italics omitted.) The court also explained that this issue can be resolved on a motion for summary judgment. (Id. at p. 347.) The court noted, for example, that if an insurer denied a claim based upon the opinion of experts, there may be a genuine dispute entitling the insurer to summary adjudication of the claim for bad faith. (Ibid.)

In addition, as explained in the Chateau Chamberay case, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact. The moving defendant also bears a burden of production to make a prima facie showing that there is a complete defense to the plaintiff’s cause of action or that there is an absence of an essential element in the plaintiff’s case. (Chateau Chamberay, supra, 90 Cal.App.4th at pp. 344-345.) In Chateau Chamberay, the court concluded that the insurer made a prima facie showing of a genuine dispute and that the homeowner’s association failed to raise a triable issue of material fact to show that the insurer acted in bad faith. (Id. at pp. 349-350.)

In this case, by her complaint, plaintiff claims CFPA engaged in bad faith (and did not act fairly or in good faith in discharging its contractual responsibilities in 1995) by allegedly substantially underpaying the claim in March 1995, as well as CFPA’s alleged conduct in crediting itself two deductibles instead of one. Plaintiff’s claim for bad faith does not appear to be premised upon CFPA’s conclusion that plaintiff was not the named insured or that plaintiff engaged in fraud by altering the two receipts.

Based upon the record before us, it appears that plaintiff relied upon the adjuster CFPA assigned to the claim in 1994/1995. In other words, plaintiff did not hire her own adjuster with respect to the first 1994/1995 claim. For the second claim, initiated in December 2001, plaintiff hired her own adjuster, Kapilow & Son. Plaintiff’s adjuster calculated the damage resulting from the earthquake to be in excess of $500,000.

In its motion for summary judgment (and on appeal) CFPA asserts that there was a genuine dispute as to the 1994/1995 claim and that it acted reasonably, based upon: (1) the issue of whether plaintiff was the named insured on the applicable policy; (2) plaintiff’s alleged conduct in altering the receipts; and (3) because plaintiff did not present competent admissible evidence that CFPA charged two deductibles instead of one. In other words, for these foregoing reasons, CFPA asserts that its refusal to pay additional policy benefits in 1994/1995 was reasonable.

Having reviewed CFPA’s motion for summary judgment and supporting documentation, we conclude that CFPA has failed to carry its burden of production to make a prima facie showing that its payment of the 1994/1995 claim was reasonable. Unlike the factually detailed evidence presented in the Chateau Chamberay case, in this case, CFPA has made no showing that the amount paid to settle the 1994/1995 claim was reasonable in light of the later calculations by plaintiff’s adjuster, Kapilow & Son, that the earthquake damage was in excess of $500,000. In other words, CFPA did not make a prima facie showing that it acted fairly and in good faith in discharging its contractual responsibilities in 1995.

In addition, CFPA has made no showing that the issue of whether plaintiff was the named insured or whether plaintiff committed a fraud by altering the receipts were relevant to, or part of, the 1994/1995 claim, or the determination of the amount of the claim.

In conclusion, pursuant to section 340.9 and 20th Century, supra, 90 Cal.App.4th 1247, plaintiff may pursue remedies, including punitive damages, for breach of insurance contract and breach of the covenant of good faith and fair dealing. (See also 21st Century Ins. Co. v. Superior Court (2005) 127 Cal.App.4th 1351.)

DISPOSITION

The trial court judgment is reversed in part and affirmed in part. The matter is remanded to the trial court for proceedings consistent with this opinion. Plaintiff is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] Unless otherwise indicated, all unspecified statutory references are to the Code of Civil Procedure.

^[2] It is undisputed that at this time, plaintiff was still married and was not, in fact, a single woman. Plaintiff filed a petition for dissolution of marriage on April 6, 1994. In the petition, plaintiff stated that she and her former husband separated on December 20, 1993.

^[3] At this point in time, it is undisputed that plaintiff was still married.

^[4] As to the coverage for other structures, the policy provided: “You may use up to 10% of the Coverage A limit of liability for loss by a Peril Insured Against to other structures described in Coverage B.”

^[5] At this point in time, it is undisputed that plaintiff was still married.

^[6] Specifically, section 340.9 provides: “(a) Notwithstanding any other provision of law or contract, any insurance claim for damages arising out of the Northridge earthquake of 1994 which is barred as of the effective date of this section solely because the applicable statute of limitations has or had expired is hereby revived and a cause of action thereon may be commenced provided that the action is commenced within one year of the effective date of this section. This subdivision shall only apply to cases in which an insured contacted an insurer or an insurer's representative prior to January 1, 2000, regarding potential Northridge earthquake damage. (b) Any action pursuant to this section commenced prior to, or within one year from, the effective date of this section shall not be barred based upon this limitations period. (c) Nothing in this section shall be construed to alter the applicable limitations period of an action that is not time barred as of the effective date of this section. (d) This section shall not apply to either of the following: (1) Any claim that has been litigated to finality in any court of competent jurisdiction prior to the effective date of this section. (2) Any written compromised settlement agreement which has been made between an insurer and its insured where the insured was represented by counsel admitted to the practice of law in California at the time of the settlement, and who signed the agreement.”

^[7] The complaint shows that there were 24 named plaintiffs, each alleging a claim for insurance proceeds from CFPA for alleged injuries to real property following the Northridge earthquake.

^[8] In supplemental briefing on the issue of whether Tremaine included the $1,459 and $4,700 amounts in the October 8, 2003 statement of loss, CFPA does not assert that Tremaine included the $4,700 amount in the written statement. At his deposition, however, Tremaine testified that he provided the $4,700 receipt to CFPA inspector, Duzey, as part of the claim.

^[9] The CFPA policy at issue in the name of “Elsa Zevallos” is typed and appears to have been filled out by either CFPA or Eichberg & Associates. There is no indication on the policy that plaintiff signed it or otherwise was the person who typed the name “Elsa Zevallos” on the face page of the policy.

^[10] Plaintiff testified: “I told you that time that the reason why you had a check number and it said ‘cash’ is because most likely either I paid with a check and cash or many of the contractors at that time that I was hiring, not the large companies, but many of the contractors, they want nothing to do with my check, with my personal check, or they wanted to do the job for a little less money and get paid cash. And that’s the reason why that document is changed.”

^[11] About the tile work and the additional $4,000 payment, plaintiff testified that she originally contracted with two tile workers. Because one of them did not show up, the other tile worker received more work, and she paid him the additional amount in cash.

^[12] CFPA also requested judicial notice of three documents filed in superior court in other unrelated matters. On April 6, 1994, plaintiff filed a petition for dissolution of marriage. In the petition, plaintiff identified herself as “Lilliana Costa aka Lilliana Zevallos.” On page 2 of the petition, plaintiff requested restoration of her former name, identified as “Lilliana Zevallos.” On May 14, 1996, plaintiff, identifying herself as “Lilliana Zevallos,” filed a complaint for allegedly defective work in relation to the repairs following the earthquake. On November 13, 1997, identifying herself as “Lilliana Zevallos,” plaintiff filed a complaint alleging medical malpractice. There is no indication that the trial court ruled on the request for judicial notice.

^[13] The trial court in its statement of decision referred to this doctrine as judicial estoppel.

^[14] Because we agree with plaintiff’s contention that the trial court erred by applying the doctrine of judicial admission to preclude plaintiff from presenting evidence to raise a triable issue of material fact that she was the “Elsa Zevallos” identified on the CFPA policy as the named insured, we do not reach the related issue of whether CFPA should be estopped from making this argument based upon its conduct in paying the original claim to plaintiff in 1995.

^[15] Plaintiff did not assert before the trial court and does not assert on appeal that she was a third party beneficiary of the policy at issue. We therefore have no occasion to address this issue.

^[16] CFPA also cites to Insurance Code section 2071, which provides in pertinent part: “(a) The following is adopted as the standard form of fire insurance policy for this state: . . . This entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.”