Key Decisions

May 2013 – All Articles

(filed under: Key Decisions Archive | May 20, 2013)

A Slow Water Leak Was Not Covered

Brown v. Mid-Century Insurance Company
(Cal. Ct. of App., 2d Dist.), filed April 2, 2013


Leroy and Terrie Brown owned a three-story, split-level home. Around February 18, 2009, the Browns began observing condensation on the windows and on the drywall around the windows. The windowsills had moisture on the walls and mildew on some of the windows and walls. When they cleaned the condensation off the windows, it returned the next day. About a week later, the Browns began noticing mold forming around the inside of their windows and on the walls in the living room and kitchen, “developing everywhere simultaneously.”

The Browns traced the problem to a leak in a hot water line in the slab of their house.

The Browns had a Mid-Century Insurance Company homeowners’ insurance policy. The policy provided first-party property damage coverage for structural damage in the amount of $404,000, with a $1,000 deductible.

The policy stated “[c]overage is dependent upon both the (1) cause of the loss or damage and (2) type of loss or damage.” The policy listed certain types of loss or damage that were not covered, “however caused,” including “loss or damage consisting of, composed of or which is water damage.”

The policy included an “extension of coverage” that provided “limited” water damage coverage “for direct physical loss or damage to covered property from direct contact with water, but only if the water results from…a sudden and accidental discharge, eruption, overflow or release of water…from within any portion of…a plumbing system.”

The policy had certain exclusions to the limited water damage coverage: “A sudden and accidental discharge, eruption, overflow or release of water does not include a constant or repeating gradual, intermittent or slow release of water, or the infiltration or presence of water over a period of time. We do not cover any water, or the presence of water, over a period of time from any constant or repeating gradual, intermittent or slow discharge, seepage, leakage, trickle, collecting infiltration, or overflow of water from any source…whether known or unknown to any insured.”

For mold, the policy stated: “We do not insure loss or damage consisting of, composed of, or which is fungi. Further, we do not insure any remediation.” The policy excluded “loss or damage directly or indirectly caused by, arising out of or resulting from fungi or the discharge, dispersal, migration, release or escape of any fungi…” The policy defined “fungi” as “any part or form of fungus, fungi [or] mold…”

Mid-Century investigated the claim and then declined coverage. Mid-Century’s claim representative explained that the “investigation revealed that the pipe in the wall of the laundry room that runs into your crawl space has been leaking water into your crawl space over a period of time causing condensation and mold growth through out [sic] your home. Unfortunately, this loss is uninsured or excluded from coverage under your policy.” The claim representative determined that “the cause of loss was wear and tear which caused a hole in the pipe, allowing water to leak into the crawl space over a period of time.”

The Browns sued. They alleged that their “home was damaged when a plumbing pipe burst causing Plaintiffs substantial loss.”

Mid-Century moved for summary judgment based on the contention that the damage was caused by a long-term, gradual, incremental discharge or release of water, and not by a sudden and accidental discharge or release of water. And, since the loss was not covered, it could not be liable for “bad faith” for having denied the claim.

The trial court granted Mid-Century’s motion.


The Court of Appeal affirmed. It found that Mid-Century had met its burden in moving for summary judgment and that the Browns failed to show the existence of a triable issue of material fact which would necessitate a trial.

The court rejected the Browns’ argument that their expert created a triable issue of fact by stating in his declaration that “the pipe burst suddenly — in a ‘nano-second,’ spraying water in the crawlspace.”

The court reasoned that this testimony did not change the fact that the release of water, even if it commenced with a nano-second “breach in the wall of the pipe,” had occurred over a period of “a month or two” (according to the Browns) or five months (according to Mid-Century). The court explained: “Even if, as [the Browns’ expert] testified, the pipe ‘failed suddenly,’ the water damage according to [him] resulted from hot water “continu[ing] to spray and stream (not drip) out the holes until the water line was shut off.””

The Mid-Century policy did not cover such a “constant or repeating…intermittent or slow release of water,” whether the release was a drip, spray, or stream. Whether the “water leaked or sprayed or streamed out of the hole(s) in the pipe, the water leaked, sprayed, or streamed out constantly and gradually over time. Such a water discharge does not qualify as ‘sudden’ under the plain meaning of the terms of the Browns’ policy.”

Nor, according to the court, did it qualify as “sudden” under California law. “‘Sudden’ has a temporal element and does not mean a gradual or continuous discharge.”

To show the difference between the Browns’ problem and a covered loss, the court noted: “A dishwater hose breaking in mid-cycle, a water heater giving out and flooding a room, or an overflowing toilet, is a sudden discharge of water.” On the other hand, a “spray/stream/leak of water over several months is not.”

As to the argument that the pipe contained the water one moment, but allowed some out the next, the court said: “Such a calculus, however, does not make a gradual release of water sudden.”

Although the Browns recognized that the policy did not include coverage for mold, they argued that their mold damage was covered “because it resulted from direct contact with the abrupt and sudden discharge of water,” and under the efficient proximate cause doctrine the sudden discharge of water produced the condensation and, eventually, the mold.

The court rejected this argument because the efficient proximate cause doctrine provides when a loss is caused by a combination of a covered and excluded risk, the loss is covered if the covered risk was the efficient proximate cause of the loss. There would be no coverage if…the covered risk was only a remote cause of the loss, or the excluded risk was the efficient proximate, or predominate cause. Since the water that escaped from the pipe was not a covered cause of the loss and there was no other cause, the mold was not covered.


The court’s opinion treats the policy language as covering a suddenly catastrophic discharge of water, but not a prolonged discharge of water that becomes catastrophic when discovered. Particular policy language has to be carefully construed, along with the facts of each claim.


A Vacancy Exclusion Barred Coverage

Travelers Property and Casualty Company of America v. Superior Court
(Cal. Ct. of App., 2d Dist.), filed April 17, 2013


Joy Investment Group obtained a construction loan from East West Bank, and began construction on a multi-unit condominium complex. The bank required Joy to maintain builder’s risk insurance on the property and to identify the bank, and its successors and assigns, as loss payees. Joy did so.

The bank sold the loan to an investor.

Before the complex was completed, Joy fell behind in its loan payments.

The builder’s risk policy lapsed after the assignment to the investor, but before the foreclosure sale. Joy sought a new policy. At this point, Joy represented to the insurance broker that a homeowners association had been created, and that most of the condominium units had been sold. Given those facts, the broker discussed the possibility of replacing the builder’s risk policy with a condominium policy issued to the homeowners association. Joy agreed and obtained a condominium policy for the homeowners association.

In actuality, no certificate of occupancy was ever issued, no units were ever occupied and any sales which may have been pending failed to close.

Shortly after the new policy was issued, the property was damaged by theft and vandalism. Joy filed for bankruptcy and the investor obtained the property through foreclosure. The investor then filed a claim against the insurer for the losses from the theft and vandalism. The insurer denied the claim, on the basis that the condominium policy excluded coverage for such losses if incurred when the property was vacant.

The investor sued the insurer for breach of contract, and sued the insurer and broker for professional negligence. The insurer and broker moved for summary judgment, but the trial court denied the motions.


The Court of Appeal issued a writ of mandate directing the trial court to grant the motions. It ruled that as to the investor’s cause of action for breach of contract against the insurer, the vacancy exclusion was applicable to the claim and plainly barred coverage. As to the investor’s cause of action for professional negligence, the broker owed no duty to the investor to provide any particular type of coverage. The broker only owed a duty to his clients, the developer and the homeowners association.

The court noted that if the developer breached its contract with the bank (and its assignee) by failing to maintain builder’s risk insurance, the remedy of the investor, if any, was against the developer.


Perhaps the most significant aspect of this case is the final holding that when a contracting party is obligated to get insurance but fails to do so, the “uninsured party’s remedy is breach of contract against the party that was supposed to get the coverage — not a claim against a broker or insurer.”


Accidents Happen

Spriesterbach v. Holland
(Cal. Ct. of App., 2d Dist.), filed April 9, 2013


Michael Spriesterbach sued Janice Holland for personal injuries he sustained in an automobile versus bicycle collision. The collision occurred when Spriesterbach, who was riding his bicycle on the sidewalk opposite the direction of travel on the adjacent street, attempted to cross in front of Holland, who was pulling out of a parking lot into the street.

A jury found that Holland was not negligent.

Spriesterbach appealed. He asserted that the trial court made two prejudicial instructional errors. First, the court refused to instruct the jury that if it found that Holland violated Vehicle Code section 21804, it must find she was negligent per se. Second, the court instructed that Spriesterbach was negligent per se because immediately before the accident he had been traveling on the sidewalk against the flow of traffic, in violation of Section 21650.1.


The Court of Appeal affirmed.

Vehicle Code section 21804, governs a driver’s duty of care when turning from private property onto a public street. It provides:

(a) The driver of any vehicle about to enter or cross a highway from any public or private property, or from an alley, shall yield the right-of-way to all traffic, as defined in Section 620, approaching on the highway close enough to constitute an immediate hazard, and shall continue to yield the right-of-way to that traffic until he or she can proceed with reasonable safety.

(b) A driver having yielded as prescribed in subdivision (a) may proceed to enter or cross the highway, and the drivers of all other vehicles approaching on the highway shall yield the right-of-way to the vehicle entering or crossing the intersection.

As to Holland’s alleged negligence, the court noted that a mistake of judgment is not necessarily negligence, as mistakes are made even in the exercise of ordinary care. A driver violates Section 21804 only if he or she fails to act as a reasonably prudent and cautious person. Whether mistakes of judgment constitute negligence is a question of fact for a jury.

The court held that the jury necessarily found that Holland did not fail to use reasonable care to prevent harm to herself or others, that she did not do something that a reasonably careful person would not do in the same situation or that she failed to do something that a reasonably careful person would do in the same situation. Thus, Spriesterbach’s requested instruction was irrelevant.

As to the instruction that Spriesterbach was negligent because immediately before the accident he had been traveling on the sidewalk against the flow of traffic, the court concluded that the instruction was erroneous. The Vehicle Code did not require Spriesterbach to ride in the same direction as the vehicular traffic. His failure to do so was not negligent per se. However, even though the instruction was erroneous, it was not prejudicial because the jury never reached the issue of Spriesterbach’s negligence. Therefore, the error did not require reversal.


This case is interesting in holding that mistakes in judgment that lead to accidents are not necessarily “negligent.”


Listing Brokers Could Be Liable For Defects

Hall v. Aurora Loan Services, LLC
(Cal. Ct. of App., 1st Dist.), filed April 26, 2013


Aurora Loan Services foreclosed on a house. The house had a “bonus room” in the attic, and a folding ladder gave access to this room.

Aurora listed the house for sale with Rockcliff Realty. Jon Wood and Holly Sibley were the listing agents.

A licensed contractor inspected the house and prepared a report titled “Estimate for Repairs.” Wood, Sibley, and a bank loan officer received copies of the report.

The report listed more than 50 items needing repair under a heading entitled “Health and Safety Required Repairs-Group 1.” This list combined cosmetic or minor items with health and safety items. One of the listed items was “Stair-Remove and replace attic stair.” Other than the report, the listing agents received no information or complaints about a potential defect in the stairway ladder.

Pinda Hall showed the house to some of her clients. When she went to show them the “bonus room,” she warned them to be careful of the ladder because she was concerned about it. When she climbed it, a hinge broke and she fell and sustained injuries.

Hall sued Aurora and the listing agents for negligence and premises liability. Her husband sued for loss of consortium.

The trial court granted summary judgment in favor of the listing agents. It then granted summary judgment in favor of Aurora.


The Court of Appeal reversed. It ruled there were triable issues of material facts as to whether the various defendants had actual or constructive knowledge of the concealed dangerous condition of the ladder and satisfied their duty to notify Hall of it.

Under Civil Code section 1714, all people, including property owners, are required to use ordinary care to prevent injury to others. To establish liability on a negligence theory against an owner for injuries caused by a dangerous condition of the property, a plaintiff must prove duty, breach, causation, and damages.

Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing its liability.

Under the law of agency, real estate agents owe a duty of care to all persons, including third persons, within the area of foreseeable risk. Having affirmatively undertaken to show the house to a buyer or renter in the regular course of their business with the purpose of earning a commission, real estate agents are under a duty of care to warn someone looking at the property of a concealed danger in the premises of which they were aware and from which an injury might be reasonably foreseen.

A real estate agent has a duty to notify visitors of marketed property of concealed dangerous conditions of which the agent has actual or constructive knowledge. The agent’s actual or constructive knowledge of a dangerous condition is imputed to his or her principal, the property owner, who shares with the agent liability for damages proximately caused by a breach of this duty.

The court noted that Hall did not, and could not, claim to have been unaware of the stairway ladder or the general risks associated with using one, as it was obvious that access to the attic room was by means of the stairway ladder. The question, therefore, was not whether Aurora and the listing agents had reason to know that the stairway ladder was dangerous simply because it was a ladder. Instead, the question was whether evidence was presented upon which a jury could conclude that Aurora and the listing agents had reason to know that the stairway ladder was potentially dangerous because it was in disrepair.

The court found that because of the contractor’s report, a jury could.


The opinion carefully defined the knowledge that was required to impose liability. The defendant had to have knowledge of a special danger posed by this particular ladder, as opposed to merely knowing that certain risks are attached to the use of any ladder.


Extortion Is Not Privileged

Mendoza v. Hazmeh
(Cal. Ct. of App., 2d Dist.), filed April 22, 2013


Attorney Reed Hazmeh represented a client in a dispute between Miguel Mendoza. The dispute concerned Mendoza’s employment as the manager of a print and copy business.

Hazmeh sent Mendoza a letter that said: “We are in the process of uncovering the substantial fraud, conversion and breaches of contract that your client has committed on my client. . . . To date we have uncovered damages exceeding $75,000, not including interest applied thereto, punitive damages and attorneys’ fees. If your client does not agree to cooperate with our investigation and provide us with a repayment of such damages caused, we will be forced to proceed with filing a legal action against him, as well as reporting him to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, the Better Business Bureau, as well as to customers and vendors with whom he may be perpetrating the same fraud upon [sic].”

Based on this letter, Mendoza sued Hazmeh. Mendoza brought causes of action against Hazmeh for civil extortion, intentional infliction of emotional distress and unfair business practices. Mendoza alleged: “Hazmeh’s threat to report Mendoza to the California Attorney General, the Los Angeles District Attorney, and the Internal Revenue Service constitute[s] the crime of extortion under California law.”

Hazmeh filed a special motion to strike under Code of Civil Procedure section 425.16, sometimes referred to as an anti-SLAPP motion. He asserted his letter was privileged and could not be the basis for a lawsuit such as Mendoza’s.

The trial court denied the motion.


The Court of Appeal affirmed.

Under Section 425.16, a party may move to dismiss certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity. However, under Flatley v. Mauro, 39 Cal.4th 299 (2006), communications, even in the context of pre-litigation communications, which constitute criminal extortion as a matter of law are not covered by the anti-SLAPP statute.

The threat to report a crime may constitute extortion even if the victim did, in fact, commit a crime. The threat to report a crime may in and of itself be legal. But when the threat to report a crime is coupled with a demand for money, the threat becomes illegal, regardless of whether the victim, in fact, owed the money demanded. The law does not contemplate the use of criminal process as a means of collecting a debt.

Regardless of whether Mendoza committed any crime or wrongdoing or owed Chow money, Hazmeh’s threat to report criminal conduct to enforcement agencies and to Mendoza’s customers and vendors, coupled with a demand for money, constitutes “criminal extortion as a matter of law,” as articulated in Flatley, and the anti-SLAPP statute did not protect Hazmeh.


This case follows the logic of prior case law in holding that a threat to report alleged criminal wrongdoing, as a means of forcing payment, will not be protected as a litigation-related communication.


Other Cases Of Interest


Primary Policy Limits Do Not Stack

Kaiser Cement and Gypsum Corporation v. Insurance Company of the State of Pennsylvania
(Cal. Ct. of App., 2d Dist.), filed April 8, 2013

Truck Insurance Exchange provided liability insurance to Kaiser Cement and Gypsum Corporation over a period of years. Other insurers also provided liability coverage at different points in time. Insurance Company of the State of Pennsylvania (ISOP) provided liability coverage on an excess basis at certain times.

Kaiser was the subject of many claims by individuals claiming to have been injured by asbestos containing materials made by Kaiser.

In London Market Insurers v. Superior Court, 146 Cal.App.4th 648 (2007), the court considered whether thousands of asbestos bodily injury claims brought against Kaiser Cement constituted a single annual “occurrence” or multiple “occurrence” within the meaning of Truck’s policies. It ruled each claim was a separate “occurrence” such that Truck was obligated to pay up to its policy limits on each one.

The decision left open the question of payment when the amount of a claim exceeded the limits on the Truck policy.

In Montrose Chemical Corp. v. Admiral Ins. Co., 10 Cal.4th 645 (1995), the California Supreme Court adopted a “‘continuous injury’ trigger of coverage” approach to continuing injury claims. Under that approach, bodily injuries and property damage that occur in several insurance policy periods were potentially covered by all policies in effect during those periods.

Montrose did not apportion liability among insurers in continuing injury cases when a claim exceeded the policy limits.

Based on that open question, Kaiser and Truck took the position that ISOP, which issued a first-level excess policy to Kaiser in 1974, was responsible to pay claims over $500,000. ISOP disagreed It took the position that primary insurance limits must be “stacked,” such that all available primary insurance policies — that is, all Truck policies issued to Kaiser between 1964 and 1983, as well as primary policies issued to Kaiser by three other carriers between 1947 and 1987 — had to be exhausted before any excess insurer had to indemnify Kaiser for asbestos bodily injury claims.

The court concluded that the policies Truck issued to Kaiser cannot be stacked and that as a result ISOP and other excess insurers covered sums in excess of the primary limits.


Relief From Default Was Unavailable

Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC
(Cal. Ct. of App., 2d Dist.), filed April 10, 2013

Even Zohar Construction & Remodeling sued Bellaire Townhouses, LLC and Samuel N. Fersht in a dispute regarding development and construction of a condominium project. After the trial court denied Bellaire and Fershts’ motion to compel arbitration, they failed to file a responsive pleading to the complaint. Based on this, the trial court entered their default.

Bellaire and Fersht moved for relief under Code of Civil Procedure section 473(b). That section requires the court to grant relief from a default if the moving party’s request is supported by “an attorney’s sworn affidavit attesting to his . . . mistake, inadvertence, surprise, or neglect . . . unless the court finds that the default . . . was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

The trial court denied the motion, finding the attorney affidavit “not credible” and “too general.”

Bellaire and Fersht filed a second motion for relief with a more detailed declaration. The trial court granted this motion.

Even Zohar Construction appealed.

The Court of Appeal reversed and reinstated the default.

The purpose of the mandatory relief provision is to alleviate the hardship on parties who lose their day in court due solely to an inexcusable failure to act on the part of their attorneys. But if the default occurred as a result of “an ‘intentional strategic decision’” by counsel, relief is not available. In order to obtain relief, the moving party must submit an affidavit from the attorney containing a straightforward admission of fault.

Code of Civil Procedure section 1008 deals with motions for reconsideration. The court found that the second motion was barred by Section 1008.

The court ruled that Bellaire and Fersht did not satisfactorily explain their failure to present the evidence proffered in their attorney’s second affidavit of fault in their first motion. It also declined to follow Standard Microsystems Corp. v. Winbond Electronics Corp., 179 Cal.App.4th 868 (2008).

In Standard Microsystems, the court concluded that Section 1008’s requirements do not apply to a renewed motion for mandatory relief from default based on an affidavit of attorney fault.

The decision ignored Section 1008’s clear and unambiguous language that this section applied to all renewal motions and undermined the Legislature’s goal to limit repetitive motions based upon facts that, with the exercise of due diligence, could have been presented at the first hearing. The court declined to follow.


A Neighbor Adversely Possessed Property

Hagman v. Meher Mount Corporation
(Cal. Ct. of App., 2d Dist.), filed April 3, 2013

Larry Hagman or his trust owned a 30-acre parcel of land in Ojai, California. In 1987, one of the fences marking the boundary of his property was built in the wrong place. Since then, Hagman had been occupying and improving about a half-acre portion of the 173-acre parcel owned by his adjoining neighbor, the Meher Mount Corporation. Meher Mount was a religious group that was exempt from property tax.

Hagman sued Meher Mount to quiet title to the property he had been occupying, based on adverse possession.

The trial court granted a summary judgment in favor of Hagman.

The Court of Appeal affirmed.

The court noted that the unusual twist is that the neighboring land on which the adverse possession took place belongs to a nonprofit religious organization. However, the Court held that a nonprofit religious organization’s status as a “public benefit corporation” does not make it a “public entity” immune from adverse possession under Civil Code section 1007. The Court also held that a nonprofit religious organization’s “welfare exemption” from property taxes meant that no such taxes were “levied and assessed” on the property during the years it qualified for the exemption. The adverse possessor is excused from the usual requirement that he pay taxes on the disputed land for five years.


Having HIV Is A Disability

Maureen K. v. Tuschka
(Cal. Ct. of App., 2d Dist.), filed April 17, 2013


Maureen K. had an umbilical hernia that needed to be repaired. Dr. Theodore Tuschka was her anesthesiologist. Minutes before surgery, Dr. Tuschka stopped the procedure because he discovered Maureen K. was HIV-positive and he was fearful that he could be exposed to and contract HIV.

Maureen K. sued for unlawful discrimination based on her contention that because she was HIV-positive, she was disabled.

The trial court submitted the question of whether Maureen K. was disabled to the jury. It found she was not disabled and that there had been no discrimination based on disability.

The Court of Appeal reversed. It held the trial court prejudicially erred by submitting the issue of whether Maureen K. was disabled to the jury. The Court ruled a person with HIV is disabled as a matter of law.