Dobro et al v. Allstate Insurance Company et al

MOTION for Summary Judgment or, in the Alternative, Partial Summary Judgment

S.D. Cal.August 15, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 3:16-cv-01197-AJB-BLM SMRH:478849220.1 DEFENDANT ALLSTATE’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations PETER H. KLEE, Cal. Bar No. 111707 NATHAN S. ARRINGTON, Cal. Bar No. 125698 501 West Broadway, 19th Floor San Diego, California 92101-3598 Telephone: 619.338.6500 Facsimile: 619.234.3815 Email: PKlee@sheppardmullin.com NArrington@sheppardmullin.com Attorneys for Defendant ALLSTATE INSURANCE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MAXINE DOBRO and DANIELLE IREDALE, Plaintiffs, v. ALLSTATE INSURANCE COMPANY and DOES 1 through 10, inclusive, Defendants. Case No. 3:16-cv-01197-AJB-BLM The Hon. Anthony J. Battaglia Crtrm 3B DEFENDANT ALLSTATE’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: November 17, 2016 Time: 2:00 p.m. Crtrm: 3B Complaint Filed: March 18, 2016 Trial Date: TBD Case 3:16-cv-01197-AJB-BLM Document 16 Filed 08/15/16 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- Case No. 3:16-cv-01197-AJB-BLM SMRH:478849220.1 DEFENDANT ALLSTATE’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on November 17, 2016, at 2:00 p.m., in Courtroom 3B of this Court, located at 333 West Broadway, San Diego, California 92101, Allstate Insurance Company (“Allstate”") will and hereby does move for an order granting summary judgment as to Plaintiffs Maxine Dobro and Danielle Iredale (collectively, “Plaintiffs”) entire complaint. Allstate’s motion for summary judgment as to the entire complaint is based on Rule 56 of the Federal Rules of Civil Procedure and on the grounds that the undisputed facts establish that all of plaintiffs’ claims lack merit and, therefore, Allstate is entitled to judgment as a matter of law. In the alternative, Allstate will and hereby does move for partial summary judgment on the following grounds: • Plaintiffs’ breach of contract claim has no merit; • Plaintiffs’ bad faith claim fails because there was a genuine dispute; • Plaintiffs’ claim for punitive damages has no merit. This motion will be based upon this Notice of Motion and Motion, the supporting Memorandum of Points and Authorities; the supporting Separate Statement of Undisputed Material Facts; the supporting Declarations of Brett Allen and Nathan Arrington; the Supporting Notice of Lodgment and supporting exhibits, and any additional matter or argument that this Court may consider at the hearing of this motion. Dated: August 15, 2016 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By s/ Nathan S. Arrington NATHAN S. ARRINGTON Attorneys for Defendant Allstate Insurance Company Case 3:16-cv-01197-AJB-BLM Document 16 Filed 08/15/16 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations PETER H. KLEE, Cal. Bar No. 111707 NATHAN S. ARRINGTON, Cal. Bar No. 125698 501 West Broadway, 19th Floor San Diego, California 92101-3598 Telephone: 619.338.6500 Facsimile: 619.234.3815 Email: PKlee@sheppardmullin.com NArrington@sheppardmullin.com Attorneys for Defendant ALLSTATE INSURANCE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MAXINE DOBRO and DANIELLE IREDALE, Plaintiffs, v. ALLSTATE INSURANCE COMPANY and DOES 1 through 10, inclusive, Defendants. Case No. 3:16-cv-01197-AJB-BLM The Hon. Anthony J. Battaglia Crtrm 3B ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: November 17, 2016 Time: 2:00 p.m. Crtrm: 3B Complaint Filed: March 18, 2016 Trial Date: TBD Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 1 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -i- Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT TABLE OF CONTENTS Page I. INTRODUCTION ...................................................................................................... 1 II. FACT SUMMARY .................................................................................................... 1 III. THE ALLSTATE INSURANCE CONTRACT EXCLUDES COVERAGE FOR CONTRACTOR NEGLIGENCE. ..................................................................... 3 IV. THE PLAINTIFFS’ BAD FAITH CLAIMS FAIL BECAUSE THERE WAS A GENUINE DISPUTE REGARDING COVERAGE. ............................................. 4 1. Bad Faith Standards. ............................................................................ 4 a. To Establish Unreasonableness, A Plaintiff Must Establish That the Insurer Acted With a Conscious, Deliberate Act. .......................................................................... 5 b. It Is Not Unreasonable to Withhold Payment Where There Is A Genuine Dispute About Coverage. ......................... 5 c. Reliance on an Expert Establishes the Existence of a Genuine Dispute. ....................................................................... 6 2. There Was a Genuine Dispute. ............................................................. 7 V. DOBRO’S CLAIM FOR PUNITIVE DAMAGES HAS NO MERIT. ..................... 8 VI. CONCLUSION ........................................................................................................ 10 Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 2 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ii- Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT TABLE OF AUTHORITIES Page(s) Cases Adams v. Allstate Ins. Co. 187 F. Supp. 2d 1207 (C.D. Cal. 2002) ......................................................................... 7 Adams v. Allstate Ins. Co. 187 F. Supp. 2d 1219 (C.D. Cal. 2002) ......................................................................... 7 Anderson v. Liberty Lobby Inc. 411 U.S. 242 (1986) ..................................................................................................... 10 In re Angelia P. 28 Cal. 3d 908 (1981)................................................................................................... 10 Beck v. State Farm Mut. Auto. Ins. Co. 54 Cal. App. 3d 347 (1976) ............................................................................................ 9 Board of Trustees of Univ. of Illinois v. Insurance Corp. of Ireland 969 F. 2d 329 (7th Cir. 1992) ....................................................................................... 10 California Shoppers, Inc. v. Royal Globe Ins. Co.. 175 Cal.App.3d 1 (1985) ................................................................................................ 5 Cardiner v. Provident Life and Accident Ins. Co. 158 F. Supp. 2d 1088 (C.D. Cal. 2001) ......................................................................... 7 Chateau Chamberay Homeowners Ass’n v. Associated Int’l Ins. Co. 90 Cal. App. 4th 335 (2001) .................................................................................. 4, 6, 7 Cruz v. HomeBase 83 Cal. App. 4th 160 (2000) ........................................................................................ 11 Dalrymple v. United Services Auto. Assn. 40 Cal.App.4th 497 (1995) ............................................................................................ 6 Feldman v. Allstate Ins. Co. 322 F.3d 660 (9th Cir. 2003) ...................................................................................... 6, 7 Fraley v. Allstate Ins. Co.. 81 Cal.App.4th 1282 (2000) .................................................................................. 5, 7, 8 Guebara v. Allstate Ins. Co. 237 F.3d 987 (9th Cir. 2001) .................................................................................. 5, 6, 7 Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 3 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iii- Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Lange v. Penn Mut. Life Ins. Co. 843 F. 2d 1175 (9th Cir. 1988) ....................................................................................... 9 Maynard v. State Farm Mut. Auto. Ins. Co. 499 F. Supp. 2d 1154 (C.D. Cal. 2007) ......................................................................... 5 Morris v. Paul Revere Life Ins. Co. 109 Cal.App.4th 966 (2003) ...................................................................................... 6, 7 O’Hara v. Western Seven 75 Cal. App. 3d 798 (1977) .......................................................................................... 10 Opsal v. United Services Auto. Assn. 2 Cal.App.4th 1197 (1991) ............................................................................................ 6 Pacific Group v. First State Ins. Co. 841 F. Supp. 922 (N.D. Cal. 1993), rev’d on other grounds, 70 F. 3d 524 (9th Cir. 1995) ....................................................................................................................... 9 Rappaport-Scott v. Interinsurance Exchange of Auto. Club 146 Cal.App.4th 831 (2007) .................................................................................. 4, 5, 6 Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. 78 Cal. App. 4th 847 (2000) .......................................................................................... 9 State Farm Fire & Casualty Co. v. Superior Court 45 Cal.App.4th 1093 (1996) .......................................................................................... 5 Stewart v. Truck Ins. Exchange 17 Cal. App. 4th 468 (1993) .................................................................................... 9, 10 Tomaselli v. Transamerica Ins. Co. 25 Cal. App. 4th 1269 (1994) ...................................................................................... 10 White v. Ultramar, Inc. 21 Cal. 4th 563 (1999) ................................................................................................. 11 Statutes Cal. Civ. Code § 3294.......................................................................................................... 9 Cal. Civ. Code § 3294(c)(1) .............................................................................................. 10 Cal. Civ. Code § 3294(c)(2) ................................................................................................ 9 Cal. Civ. Code § 3294(c)(3) ................................................................................................ 9 Cal. Civil Code § 3294(b)…………………………………………………………………11 Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 4 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT I. INTRODUCTION Plaintiffs Maxine Dobro and her daughter, Danielle Iredale (collectively “Dobro”), hired a contractor who failed to properly install roofing on their house. Now Dobro wants Allstate to pay for the damage caused by her contractor’s negligence. The Allstate insurance contract excludes coverage for the negligence of a contractor. Consequently, Dobro’s complaint has no merit. In addition, Allstate retained an expert roofing contractor to determine the cause of the water damage. The expert determined that the cause of the loss was the contractor’s negligence. Because Allstate relied on an expert, as a matter of law, the Plaintiffs’ Bad Faith Claim has no merit. Further, Dobro does not have any evidence – let alone clear and convincing evidence – to support a punitive damages claim. The Court should grant Allstate’s motion for summary judgment. II. FACT SUMMARY Maxine Dobro owns the house located at 431 Belvedere Street in La Jolla. At the time of the November 3, 2015 storm, Dobro’s daughter, Danielle Iredale, also resided at 431 Belvedere Street. Sometime before November 3, 2015, Dobro hired a contractor to replace the roofing materials on her leaking roof. The contractor started work and was close to completion on or about November 3, 2015. On November 3, 2015, a rain storm occurred in San Diego.1 The same day, Dobro called Allstate and reported a rain water claim to Allstate.2 She told Allstate that the water was coming into her home from the roof.3 1 Complaint at ¶ 7. 2 Complaint at ¶ 8. Brett Allen (“Allen”) Declaration at ¶ 5. 3 Id. Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 5 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT On November 6, 2015, Allstate’s adjuster inspected Dobro’s house with Plaintiffs’ public adjuster.4 Allstate then retained Roofing and Waterproofing Forensics, an expert roofing contractor, to inspect the Dobro residence and determine the cause of the leak.5 The expert roofing contractor determined that the water leak was caused by the contractor’s failure to properly install the roof.6 Allstate sent a copy of the report to Dobro’s public adjuster.7 Based on the expert’s report, Allstate denied the claim on the grounds that the contractor negligently installed the roof.8 After Allstate denied the claim, Dobro’s attorney, Kenneth Greenfield, sent a letter to Allstate asking it to reconsider Dobro’s claim.9 In his letter, Mr. Greenfield represented that there was no tarp on the roof at the time of the rain storm.10 So, Allstate contacted the contractor to ask him whether he had installed a tarp on the roof.11 The contractor told Allstate that he had installed a tarp on the roof.12 In addition, in her EUO13, Maxine Dobro admitted that her contractor told her that he had “secured your roof.”14 She also said that if the contractor she hired said that he had installed a tarp, then she could not dispute that.15 4 Id. at ¶6. 5 Id. at ¶7. 6 Id. at ¶8; Exhibit 1 to Notice of Lodgment. 7 Id. at ¶8. 8 Id. at ¶9; Exhibit 2. 9 Id. at ¶10; Exhibit 3. 10 Id. at ¶10. 11 Id. at ¶11. 12 Id.; Exhibit 4. 13 Examination Under Oath. 14 Maxine Dobro EUO (Exhibit 6) at 27:24 – 28:8. 15 Id. at 28:9-11. Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 6 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT III. THE ALLSTATE INSURANCE CONTRACT EXCLUDES COVERAGE FOR CONTRACTOR NEGLIGENCE. The Allstate insurance contract contains the following exclusion: Losses We Do Not Cover . . . We do not cover loss to the property . . . consisting of or caused by: . . . 22. Planning, Construction, or Maintenance, meaning faulty, inadequate or defective: a) planning, zoning, development, surveying, siting; b) design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; c) materials used in repair, construction, renovation or remodeling; or d) maintenance; of property whether on or off the residence premises by any person or organization.16 According to the expert report prepared by Roofing and Waterproofing Forensics Report, the contractor’s installation was “Noncompliant with Material Manufacturer’s Published Technical Guidelines and Requirements.”17 In addition, the contractor • failed to ensure proper roof slope,18 • failed to stagger end laps a minimum of three feet,19 • failed to install base flashing membrane,20 • failed to install side laps with the flow of water,21 and 16 Allstate Policy #027420035 issued to Maxine Dobro (Exhibit 5) at Bates # page P00036. 17 Roofing & Waterproofing Forensics Report (Exhibit 1) at Bates #000306, ¶2. 18 Id. at Bates #000307, ¶2(b). 19 Id. at Bates #000309, ¶2(g). 20 Id. at Bates #000310, ¶2(i). 21 Id. at Bates #000310, ¶2(j). Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 7 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT • failed to ensure that there were no voids or wrinkles at laps which would create an avenue for water migration22 among several other deficiencies. In ther report, Roofing and Waterproofing Forensics determined that the cause of water intrusion was “the result of an incomplete roofing system in concert with the aforementioned installation deficiencies . . . .”23 IV. THE PLAINTIFFS’ BAD FAITH CLAIMS FAIL BECAUSE THERE WAS A GENUINE DISPUTE REGARDING COVERAGE. 1. Bad Faith Standards. The implied covenant requires insurers to be reasonable, not flawless. Chateau Chamberay Homeowners Ass'n v. Associated Int'l Ins. Co., 90 Cal. App. 4th 335, 346, (2001) (“[T]he ultimate test of [bad faith] liability in the first party cases is whether the refusal to pay policy benefits [or the alleged delay in paying] was unreasonable.”) (quoting Opsal v. United Services Auto. Assn., 2 Cal.App.4th 1197, 1205 (1991)). Therefore, to establish a breach of the implied covenant, a plaintiff must show that the insurer withheld benefits unreasonably and without proper cause. Rappaport-Scott v. Interinsurance Exchange of Auto. Club, 146 Cal.App.4th 831, 837 (2007) (“[L]iability in tort arises only if the conduct was unreasonable, that is, without proper cause.”); Fraley v. Allstate Ins. Co.. 81 Cal.App.4th 1282, 1292 (2000) (“Where benefits are withheld for proper cause, there is no breach of the implied covenant.”) (quoting Love v. Fire Ins. Exch., 221 Cal. App. 3d 1136, 1151 (1990)); Maynard v. State Farm Mut. Auto. Ins. Co., 499 F. Supp. 2d 1154, 1160 (C.D. Cal. 2007) (“[L]iability in tort arises only if the conduct was unreasonable, that is, without proper cause.”); Guebara v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001) (“In order to establish a breach of the implied covenant of good faith and fair dealing under California law, a plaintiff must show: (1) benefits due under the policy were withheld; and (2) the reason for withholding benefits was unreasonable or without proper cause.”). 22 Id. at Bates #000310, ¶2(k). 23 Id. at Bates #000310, ¶2(i). Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 8 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT a. To Establish Unreasonableness, A Plaintiff Must Establish That the Insurer Acted With a Conscious, Deliberate Act. To establish unreasonableness, it is not enough to show that a withholding of benefits occurred as the result of a mistake. Maynard v. State Farm Mut. Auto. Ins. Co., 499 F. Supp. 2d 1154, 1160 (C.D. Cal. 2007) (“Mistakenly withholding policy benefits, if reasonable or legitimately disputed, does not give rise to liability.”); California Shoppers, Inc. v. Royal Globe Ins. Co.. 175 Cal.App.3d 1, 55 (1985) (“[B]ad faith implies unfair dealing rather than mistaken judgment.”). The insurer’s conduct must demonstrate “a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act.” State Farm Fire & Casualty Co. v. Superior Court, 45 Cal.App.4th 1093, 1105 (1996) (internal citation omitted). b. It Is Not Unreasonable to Withhold Payment Where There Is A Genuine Dispute About Coverage. As a matter of law, withholding insurance benefits is not unreasonable where a genuine dispute exists regarding coverage. Rappaport-Scott, 146 Cal.App.4th at 837; Fraley, 81 Cal.App.4th at 1292; Maynard, 499 F.Supp.2d at 1160; Guebara, 237 F.3d at 992. A genuine dispute can exist as to either legal questions or factual questions. Chateau Chamberay, 90 Cal.App.4th at 348; Guebara, 237 F.3d at 993-94; Feldman v. Allstate Ins. Co., 322 F.3d 660, 669 (9th Cir. 2003). “[W]here there is a genuine issue as to the insurer’s liability under the policy for the claim asserted by the insured, there can be no bad faith liability imposed on the insurer for advancing its side of that dispute.” Chateau Chamberay, 90 Cal.App.4th at 347. An insurer “is entitled to be an advocate for its own interests.” Morris v. Paul Revere Life Ins. Co., 109 Cal.App.4th 966, 976 (2003), see also Dalrymple v. United Services Auto. Assn., 40 Cal.App.4th 497 (1995). Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 9 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT This means that if an insurer delays paying, or even denies a claim it should have paid, the insurer cannot be liable for bad faith so long as a genuine dispute existed about coverage: It is now settled law in California that an insurer denying or delaying the payment of policy benefits due to the existence of a genuine dispute with its insured as to the existence of coverage liability or the amount of the insured’s coverage claim is not liable in bad faith. Chateau Chamberay, 90 Cal.App.4th at 347; see Morris, 109 Cal.App.4th at 977; Opsal v. United Services Auto. Assn. 2 Cal.App.4th 1197 (1991). A genuine dispute simply means that reasonable minds could differ about the value of the claim. Rappaport-Scott, 146 Cal.App.4th at 839; see also Chateau Chamberay, 90 Cal.App.4th at 350-51 (finding a genuine dispute where, “[a]s the subsequent arbitration results demonstrated, [the insured] was able to justify only 45 percent of its original claim”). In deciding whether there was a genuine dispute, “the court does not decide which party is ‘right’ as to the disputed matter, but only that a reasonable and legitimate dispute actually existed.” Chateau Chamberay, 90 Cal.App.4th at 347. Where, as here, there is no disagreement regarding what information confronted the insurer, the existence of a “genuine dispute” is a question of law that can and should be decided by summary judgment. See, e.g., Chateau Chamberay, 90 Cal.App.4th at 347 (affirming summary judgment); Feldman, 322 F.3d at 669-70 (“a court can conclude as a matter of law that an insurer's denial of a claim is not unreasonable, even if the court concludes the claim is payable under the policy”); Guebara, 237 F.3d at 994 (“Under California law, a bad faith claim can be dismissed on summary judgment if the defendant can show that there was a genuine dispute as to coverage.”); Fraley, 81 Cal.App.4th at 1292. c. Reliance on an Expert Establishes the Existence of a Genuine Dispute. The classic way of establishing the existence of a genuine dispute is to show that the insurer relied on an expert’s opinion in evaluating the claim. “ Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 10 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT The ‘genuine dispute’ doctrine may be applied where the insurer denies a claim based on the opinions of experts. Guebara, 237 F. 3d at 993 (quoting Fraley, 81 Cal. App. 4th at 1292). See also Adams v. Allstate Ins. Co., 187 F. Supp. 2d 1207, 1211, 1215 (C.D. Cal. 2002); Cardiner v. Provident Life and Accident Ins. Co., 158 F. Supp. 2d 1088, 1102 (C.D. Cal. 2001). Indeed, courts routinely grant summary judgment where the insurer establishes that it relied on reasoned expert opinion. See e.g., Fraley, 81 Cal. App. 4th at 1293; Adams, 187 F. Supp. 2d at 1215; Adams v. Allstate Ins. Co., 187 F. Supp. 2d 1219, 1228 (C.D. Cal. 2002); Badell, 159 F. Supp. 2d at 1193-94; Cardiner, 158 F. Supp. 2d at 1102, 1106. Reliance on the opinion of an expert precludes bad faith liability (i) even where the insured offers contrary expert opinions, and (ii) even if the trier of fact resolves the conflicting expert opinions in favor of the insured. It is irrelevant whether the expert’s opinion was ultimately found to be correct or not. Morris v. Paul Revere Life Ins. Co., 109 Cal. App. 4th 966, 977 (2003) (summary judgment affirmed for insurer where insurer relied upon its expert’s opinions, even when the insured was awarded $600,000 at an arbitration); Fraley v. Allstate Ins. Co., 81 Cal. App. 4th 1282, 1287, 1293 (2000) (even when insurer lost the underlying arbitration with an arbitration award that exceeded the insurer’s original estimate by over $200,000, genuine dispute doctrine barred bad faith claim because insurer relied on a reasoned expert opinion). 2. There Was a Genuine Dispute. In this case, Allstate retained an expert who concluded that the water intrusion was caused by the contractor’s negligence.24 Allstate’s reliance on the expert roofing contractor constitutes a genuine dispute. Although he did not provide any percipient evidence, Plaintiffs’ Attorney contended that the contractor failed to install a tarp. 25 However, the contractor told Allstate that he 24 Id. at Bates #000310, ¶2(i). 25 Id. at ¶10; Exhibit 3. Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 11 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT did install a tarp.26 In addition, in her EUO, Dobro testified that (1) her contractor told her that he had secured the roof27 and (2) she could not dispute that the contractor had installed a tarp.28 This also constitutes a genuine dispute. Because there was a genuine dispute, as a matter of law, Dobro’s bad faith claim has no merit. V. DOBRO’S CLAIM FOR PUNITIVE DAMAGES HAS NO MERIT. Regardless of how the Court rules on any other cause of action, it should grant partial summary judgment for Allstate on Dobro’s claim for punitive damages because they have no evidence to support this claim. First, “the evidence required to support an award of punitive damages for breach of the implied covenant of good faith and fair dealing is ‘of a different dimension’ from that needed to support a finding of bad faith.” Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc., 78 Cal. App. 4th 847, 909-10 (2000). Evidence of bad faith – without more – does not support a claim for punitive damages. Beck v. State Farm Mut. Auto. Ins. Co., 54 Cal. App. 3d 347 (1976); Stewart v. Truck Ins. Exchange, 17 Cal. App. 4th 468, 483 (1993). Federal courts routinely eliminate punitive damages claims, even where there is evidence of bad faith. See, e.g., Lange v. Penn Mut. Life Ins. Co., 843 F. 2d 1175, 1182-83 (9th Cir. 1988) (upholding finding of bad faith but reversing award of punitive damages because “the evidence is insufficient as a matter of law to support an award of punitive damages”); Pacific Group v. First State Ins. Co., 841 F. Supp. 922, 939- 40 (N.D. Cal. 1993), rev’d on other grounds, 70 F. 3d 524 (9th Cir. 1995) (finding that even though there was evidence that the insurer acted unreasonably, there was no evidence to support a punitive damages award). 26 Id.; Exhibit 4. 27 Maxine Dobro EUO (Exhibit 6) at 27:24 – 28:8. 28 Id. at 28:9-11. Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 12 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT To recover punitive damages, the Eastmans must provide clear and convincing evidence of fraud, oppression or malice. Cal. Civ. Code § 3294. • “Fraud” is “an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Cal. Civ. Code § 3294(c)(3). • “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of the person’s rights.” Cal. Civ. Code § 3294(c)(2). “Despicable conduct” is conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Stewart v. Truck Ins. Exch, 17 Cal. App. 4th 468, 483 n. 29 (1993). • “Malice” means either (1) “conduct which is intended by the defendant to cause injury to the plaintiff” or (2) “despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” Cal. Civ. Code § 3294(c)(1). “Evil motive is the central element of the malice which justifies an exemplary award.” O’Hara v. Western Seven, 75 Cal. App. 3d 798, 806 (1977). Second, on summary judgment, the court must test a punitive damages claim under the heightened “clear and convincing evidence” standard. Anderson v. Liberty Lobby Inc., 411 U.S. 242, 254 (1986) (“in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden”); Board of Trustees of Univ. of Illinois v. Insurance Corp. of Ireland, 969 F. 2d 329, 332 (7th Cir. 1992) (applying “clear and convincing” standard on motion for summary judgment). Thus, to survive summary judgment, the Eastmans must present evidence for punitive damages that is strong enough to command “the unhesitating assent of every reasonable mind.” In re Angelia P., 28 Cal. 3d 908, 919 (1981). Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 13 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10 Case No. 3:16-cv-01197-AJB-BLM SMRH:478840391.1 ALLSTATE’S POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Third, the evidence must not be merely consistent with malice or oppression. “Some evidence should be required that is inconsistent with the hypothesis that the tortious conduct was the result of a mistake of law or fact, honest error of judgment, over- zealousness, mere negligence or other such noniniquitous human failing.” Tomaselli v. Transamerica Ins. Co., 25 Cal. App. 4th 1269, 1287-88 and n.14 (1994). Fourth, any plaintiff seeking punitive damages against a corporation must show that the act constituting malice, oppression or fraud was committed or ratified by an “officer, director, or managing agent.” Cal. Civil Code § 3294(b); Cruz v. HomeBase, 83 Cal. App. 4th 160, 163 (2000); White v. Ultramar, Inc., 21 Cal. 4th 563, 572-77 (1999). Here, there is no evidence – much less clear and convincing evidence – of malice, fraud or oppression. And even if there were such conduct, it was not engaged in or ratified by a corporate managing agent. Therefore, at a minimum, the Court should grant partial summary judgment on the Eastmans’ punitive damages claim. VI. CONCLUSION For the foregoing reasons, the Court should grant Allstate’s motion for summary judgment. In the alternative, the Court should grant summary judgment on Dobro’s bad faith claim and her punitive damages claim. Dated: August 15, 2016 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By s/ Nathan S. Arrington NATHAN S. ARRINGTON Attorneys for Defendant Allstate Insurance Company Case 3:16-cv-01197-AJB-BLM Document 16-1 Filed 08/15/16 Page 14 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:478849385.1 SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations PETER H. KLEE, Cal. Bar No. 111707 NATHAN S. ARRINGTON, Cal. Bar No. 125698 501 West Broadway, 19th Floor San Diego, California 92101-3598 Telephone: 619.338.6500 Facsimile: 619.234.3815 Email: PKlee@sheppardmullin.com NArrington@sheppardmullin.com Attorneys for Defendant ALLSTATE INSURANCE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MAXINE DOBRO and DANIELLE IREDALE, Plaintiffs, v. ALLSTATE INSURANCE COMPANY and DOES 1 through 10, inclusive, Defendants. Case No. 3:16-cv-01197-AJB-BLM The Hon. Anthony J. Battaglia Crtrm 3B SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: November 17, 2016 Time: 2:00 p.m. Crtrm: 3B Complaint Filed: March 18, 2016 Trial Date: TBD Case 3:16-cv-01197-AJB-BLM Document 16-2 Filed 08/15/16 Page 1 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- SMRH:478849385.1 SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT UNDISPUTED FACTS AND EVIDENCE IN SUPPORT OF DEFENDANT ALLSTATE’S MOTION FOR SUMMARY JUDGMENT Undisputed Facts Supporting Evidence 1. The Allstate insurance contract issued to Dobro contains the following exclusion: Losses We Do Not Cover . . . We do not cover loss to the property . . . consisting of or caused by: . . . 22. Planning, Construction, or Maintenance, meaning faulty, inadequate or defective: a) planning, zoning, development, surveying, siting; b) design, specifications, workmanship, repair, construction, renovation, remodeling, grading, compaction; c) materials used in repair, construction, renovation or remodeling; or d) maintenance; of property whether on or off the residence premises by any person or organization. 1. Allstate Policy #027420035 issued to Maxine Dobro (Exhibit 5 to Notice of Lodgment) at Bates # P00036. 2. The rain water damage to Dobro’s house was caused by the fact that the contractor’s installation was “Noncompliant with Material Manufacturer’s Published Technical Guidelines and Requirements.” 2. Roofing & Waterproofing Forensics Report (Exhibit 1 to Notice of Lodgment) at Bates #000306, ¶2. 3. The rain water damage to Dobro’s house was caused by the fact that the contractor (a) failed to ensure proper roof slope, (b) failed to stagger end laps a minimum of 3. Roofing & Waterproofing Forensics Report (Exhibit 1 to Notice of Lodgment) at Case 3:16-cv-01197-AJB-BLM Document 16-2 Filed 08/15/16 Page 2 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- SMRH:478849385.1 SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT Undisputed Facts Supporting Evidence three feet, (c) failed to install base flashing membrane, (d) failed to install side laps with the flow of water, and (e) failed to ensure that there were no voids or wrinkles at laps which would create an avenue for water migration. Bates #000307, ¶2(b); Bates #000309, ¶2(g); Bates #000310, ¶2(i); Bates #000310, ¶2(j); Bates #000310, ¶2(k); Bates #000310, ¶2(i). 4. Allstate retained an expert roofing contractor who concluded that the water intrusion to the Dobro house was caused by the contractor’s negligence. 4. Brett Allen (“Allen”) Declaration at ¶ 7, 8; Roofing & Waterproofing Forensics Report (Exhibit 1 to Notice of Lodgment). 5. Based on the expert’s report, Allstate denied the claim on the grounds that the contractor negligently installed the roof. 5. Allen Declaration at ¶ 8; November 21, 2015 Allstate letter to Maxine Dobro signed by Brett Allen (Exhibit 2 to Notice of Lodgment). 6. In his February 2, 2016 letter, Kenneth Greenfield’s letter to Allstate, Dobro’s attorneys represented that there was no tarp on the roof at the time of the storm. 6. February 2, 2016 Kenneth Greenfield’s letter to Allstate (Exhibit 3 to Notice of Lodgment. 7. The contractor told Allstate that he had installed a tarp on the roof. 7. Allen Declaration at ¶ 11; Exhibit 4 to Notice of Lodgment. Case 3:16-cv-01197-AJB-BLM Document 16-2 Filed 08/15/16 Page 3 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- SMRH:478849385.1 SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT Undisputed Facts Supporting Evidence 8. In her Examination Under Oath, Maxine Dobro admitted that her contractor told her that he had “secured your roof.” 8. Maxine Dobro EUO (Exhibit 6 to Notice of Lodgment) at 27:24 – 28:8. 9. In her Examination Under Oath, Maxine Dobro admitted that if the contractor she hired said that he had installed a tarp, then she could not dispute that. 9. Maxine Dobro EUO (Exhibit 6 to Notice of Lodgment) at 28:9-11. UNDISPUTED FACTS AND EVIDENCE IN SUPPORT OF DEFENDANT ALLSTATE’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFFS’ FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT Undisputed Facts Supporting Evidence 10. Allstate incorporates by reference Undisputed Facts 1-3. 10. Allstate incorporates by reference the evidence that supports Undisputed Facts 1-3. UNDISPUTED FACTS AND EVIDENCE IN SUPPORT OF DEFENDANT ALLSTATE’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFFS’ SECOND CAUSE OF ACTION FOR BREACH OF THE COVENANT OF GOOD FAITH AND FAIR DEALING Undisputed Facts Supporting Evidence 11. Allstate incorporates by reference Undisputed Facts 1-9. 11. Allstate incorporates by reference the evidence that supports Undisputed Facts 1-9. Case 3:16-cv-01197-AJB-BLM Document 16-2 Filed 08/15/16 Page 4 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- SMRH:478849385.1 SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT UNDISPUTED FACTS AND EVIDENCE IN SUPPORT OF DEFENDANT ALLSTATE’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO PLAINTIFFS’ PUNITIVE DAMAGES CLAIM Undisputed Facts Supporting Evidence 12. Allstate incorporates by reference Undisputed Facts 1-9. 12. Allstate incorporates by reference the evidence that supports Undisputed Facts 1-9. Dated: August 15, 2016 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By s/ Nathan S. Arrington NATHAN S. ARRINGTON Attorneys for Defendant ALLSTATE INSURANCE COMPANY Case 3:16-cv-01197-AJB-BLM Document 16-2 Filed 08/15/16 Page 5 of 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- SMRH:478837339.1 DECLARATION OF BRETT ALLEN IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations PETER H. KLEE, Cal. Bar No. 111707 NATHAN S. ARRINGTON, Cal. Bar No. 125698 501 West Broadway, 19th Floor San Diego, California 92101-3598 Telephone: 619.338.6500 Facsimile: 619.234.3815 Email: PKlee@sheppardmullin.com NArrington@sheppardmullin.com Attorneys for Defendant ALLSTATE INSURANCE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MAXINE DOBRO and DANIELLE IREDALE, Plaintiffs, v. ALLSTATE INSURANCE COMPANY and DOES 1 through 10, inclusive, Defendants. Case No. 3:16-cv-01197-AJB-BLM The Hon. Anthony J. Battaglia Courtroom 3B DECLARATION OF BRETT ALLEN IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: November 17, 2016 Time: 2:00 p.m. Crtrm: 3B Complaint Filed: March 18, 2016 Trial Date: TBD I, Brett Allen, declare: 1. I am employed by Allstate Insurance Company as an outside adjuster. I have been employed by Allstate for more than 8 years. Except as the context otherwise indicates, I have personal, first-hand knowledge of the following facts. 2. In my capacity as an outside adjuster, I am personally familiar with the manner in which Allstate’s files and records regarding claims are maintained. It is Allstate’s practice and procedure to maintain records and to record acts and events Case 3:16-cv-01197-AJB-BLM Document 16-3 Filed 08/15/16 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- SMRH:478837339.1 DECLARATION OF BRETT ALLEN IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT concerning Allstate’s adjustment and investigation of claims at or about the time such records are received and events or acts occur. Allstate relies on these records in connection with its investigation and adjustment of claims submitted by its insureds. 3. I personally reviewed Ms. Dobro’s claim file. I also personally participated in the investigation and adjustment of Ms. Dobro’s claim. 4. On November 3, 2015, a rain storm occurred in San Diego. 5. On November 3, 2015, Ms. Dobro called Allstate and reported a rain water claim to Allstate. She said that water was coming into her home from the roof. 6. On November 6, 2016, I inspected Dobro’s house. Ms. Dobro and her public adjuster were also present. 7. The following day, November 7, 2016, I contacted Roofing and Waterproofing Forensics, an expert roofing contractor, and retained them on behalf of Allstate. I asked Roofing and Waterproofing Forensics to inspect the Dobro residence and determine the cause of the water leak. 8. After they inspected Dobro’s house, Roofing and Waterproofing Forensics determined that the water leak was caused by the contractor’s failure to properly install the roof. Allstate sent a copy of the report to Dobro’s public adjuster. A true and correct copy of the Report is attached to the Notice of Lodgment as Exhibit 1. 9. In reliance on the expert’s report, Allstate denied the claim on the grounds that the contractor negligently installed the roof. Attached as Exhibit 2 to the Notice of Lodgment is a true and correct copy of my November 21, 2015 letter to Ms. Dobro. 10. On or about February 2, 2016, Ms. Dobro’s attorney, Kenneth Greenfield, sent a letter asking Allstate to reconsider Ms. Dobro’s water claim. A true and correct copy of Mr. Greenfield’s February 2, 2016 letter is attached as Exhibit 3. In his letter, Mr. Greenfield represented that the contractor did not install a tarp on the roof at the time of the rain storm. 11. Allstate retained an investigator to contact the contractor that Ms. Dobro had hired. The contractor told Allstate’s investigator that he had installed a tarp on the roof. A Case 3:16-cv-01197-AJB-BLM Document 16-3 Filed 08/15/16 Page 2 of 3 Case 3:16-cv-01197-AJB-BLM Document 16-3 Filed 08/15/16 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- SMRH:478849345.1 DECLARATION OF NATHAN S. ARRINGTON IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT/PARTIAL SUMMARY JUDGMENT SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations PETER H. KLEE, Cal. Bar No. 111707 NATHAN S. ARRINGTON, Cal. Bar No. 125698 501 West Broadway, 19th Floor San Diego, California 92101-3598 Telephone: 619.338.6500 Facsimile: 619.234.3815 Email: PKlee@sheppardmullin.com NArrington@sheppardmullin.com Attorneys for Defendant ALLSTATE INSURANCE COMPANY UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA MAXINE DOBRO and DANIELLE IREDALE, Plaintiffs, v. ALLSTATE INSURANCE COMPANY and DOES 1 through 10, inclusive, Defendants. Case No. 3:16-cv-01197-AJB-BLM The Hon. Anthony J. Battaglia Courtroom 3B DECLARATION OF NATHAN S. ARRINGTON IN SUPPORT OF ALLSTATE’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT Date: November 17, 2016 Time: 2:00 p.m. Crtrm: 3B Complaint Filed: March 18, 2016 Trial Date: TBD I, Nathan S. Arrington, declare: 1. I am an attorney admitted to practice in California and the United States District Court for the Southern District of California. I am a partner with the law firm of Sheppard Mullin Richter & Hampton LLP, attorneys for defendant Allstate Insurance Company in this action. I have personal, firsthand knowledge of the following facts. Case 3:16-cv-01197-AJB-BLM Document 16-4 Filed 08/15/16 Page 1 of 2 Case 3:16-cv-01197-AJB-BLM Document 16-4 Filed 08/15/16 Page 2 of 2