Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV024744
BLEASE, Acting P. J.
This is an appeal of a judgment of dismissal after the trial court granted the motion for summary judgment of defendant USAA Casualty Insurance Company against its former insured, Derek Zabaldo. Zabaldo was involved in an automobile accident after his automobile insurer, USAA, cancelled his policy for nonpayment. Zabaldo did not dispute that his premiums were unpaid at the time of the accident or that he was aware that his policy would be cancelled. However, he claimed USAA did not send him a notice of cancellation 10 days prior to cancelling his policy, as required by the policy and by Insurance Code section 662.
The sole issue on summary judgment was whether a triable issue of fact existed as to the proper mailing of the notice of cancellation. We shall conclude that the judgment should be affirmed because Zabaldo’s evidence that he did not receive the notice of cancellation did not warrant a reasonable inference that the notice was not mailed under the circumstances presented here, and no reasonable juror could have concluded that Zabaldo had met his burden of showing the notice was never sent. We shall affirm the judgment of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
USAA issued Zabaldo an automobile insurance policy for the period January 1, 2004, through July 1, 2004. The policy provided that USAA could cancel the policy for nonpayment of premium by mailing notice to Zabaldo at the address shown on the policy 10 days prior to cancellation.
Zabaldo had arranged for his automobile insurance premium to be automatically deducted from his Bank of America checking account. When USAA attempted to withdraw Zabaldo’s April 2, 2004, payment, it was unable to do so because Zabaldo had insufficient funds in his account, and USAA notified Zabaldo of this in a letter dated April 11, 2004. Prior to the May automatic withdrawal, Zabaldo called Bank of America and told it to stop the automatic payment to USAA. The amount owed to USAA at that point was for the April and May insurance payments plus late fees. On May 6, 2004, USAA sent Zabaldo a letter stating his May 3 automatic payment request had been returned with a notation, “Payment Stopped.”
On May 5, 2004, USAA generated a Notice of Cancellation for Nonpayment of Premium, which stated that Zabaldo’s automobile insurance policy would be cancelled effective May 24, 2004, unless payment was received before that date. In addition to the documentary evidence in Zabaldo’s file, USAA presented evidence from several employees regarding the documentary evidence and USAA’s standard business practices.
USAA’s customer accounting system sends notices of cancellation to its document management department for printing and inserting into mailing envelopes. Two copies of the notice of cancellation are printed: one original and one file copy. The original is inserted into a mailing envelope with a clear window through which the name and address of the addressee is displayed. USAA puts the proper postage and postmark via metered mail on the envelopes and delivers them to the post office.
In conjunction with the envelopes containing the notices of cancellation, USAA delivers to the post office a document called a certificate of mailing which contains a list of all notices of cancellation printed and given to the post office for mailing. The post office stamps the certificates of mailing with a date stamp to show the date the post office mails the notices of cancellation. A USAA employee goes through the returned certificates of mailing and confirms that each file copy of each notice of cancellation is listed on the certificate of mailing. The USAA employee then stamps the file copy notice of cancellation with his or her name and the date of the U.S. Postal Service postmark.
USAA presented the following documents from Zabaldo’s file: (1) a file copy Notice of Cancellation for Nonpayment of Premium dated May 5, 2004, addressed to Zabaldo at the address listed on his policy, and containing the name stamp of the employee who mailed the original notice on May 6 and confirmed the receipt of the U.S. Postal Service certificate of mailing; (2) the certificate of mailing showing Zabaldo’s name and address, date stamped by the post office on May 6, 2004; and (3) a sample envelope stating, “Urgent: Notice of Cancellation Enclosed.”
USAA also adduced the testimony of two employees who had received and documented telephone calls from Zabaldo. The first call was received on May 13. Zabaldo called with questions concerning his notice of cancellation, specifically, how he could pay. The employee accessed her computerized information, which indicated a notice of cancellation had been sent. If the notice of cancellation had been returned by the post office, this information would have been displayed on Zabaldo’s account information. It was apparent to the USAA employee from her conversation with Zabaldo that he had received the notice of cancellation prior to the telephone call.
Zabaldo called USAA the second time on May 20, 2004, and spoke with Kara Fuller. Fuller was required to document all calls received. Zabaldo called concerning a notice of cancellation. Zabaldo told Fuller he could not send in his payment until after the cancellation date of May 24, 2004. Fuller advised him his policy would not be in effect after May 24 until payment was received by USAA. She advised him of the automatic payment plan, which allowed automatic deduction from a checking account. Fuller also generated a letter to Zabaldo, known as a Customer Accounting Nonpayment Cancellation Followup letter. She generated the letter by selecting various numbers that corresponded to a standard form paragraph. For Zabaldo’s letter, she selected numbers 15 and 21.
Fuller was actually employed by Sitel. Sitel contracted with USAA to provide employees to handle customer service calls from USAA insureds.
Number 15 corresponded to a paragraph that confirmed the amount to avoid cancellation. Number 21 corresponded to a paragraph stating that the post office had returned the notice of cancellation to USAA and that USAA was enclosing a copy of the notice. The letter was automatically generated, and Fuller did not see the letter in final form. Fuller stated that if the notice of cancellation had been returned, this information would have appeared in Zabaldo’s electronic file. Furthermore, it was clear to her that Zabaldo had received the notice of cancellation because he was calling to ask how he could avoid cancellation. Because there was no indication of a returned notice in Zabaldo’s records, and because Fuller made no reference to a returned notice in the electronic document she added to the record, Fuller concluded she had included paragraph 21 by mistake.
One day before Fuller’s conversation with Zabaldo, a collector for USAA telephoned Zabaldo. She documented her conversation on USAA’s electronic form. She informed him of the minimum amount to rescind the notice of cancellation and advised him that any payment must be postmarked before May 24 to avoid cancellation of the policy. Zabaldo said he would be unable to pay until May 28. The employee advised Zabaldo to contact a billing service specialist because she had no authority to change the payment date.
Zabaldo was involved in a motor vehicle accident on May 26, 2004, two days after his policy was cancelled. Zabaldo rear-ended the car in front of him on the freeway, causing a chain reaction that eventually involved six vehicles, including Zabaldo’s. He brought this action for declaratory relief when USAA refused coverage. Zabaldo alleged the insurance policy was not properly cancelled because he never received a notice of cancellation.
USAA moved for summary judgment on the ground there was no triable issue of material fact that the insurance policy was not in effect on the date of the accident. The trial court granted the motion, stating: “I know the Court isn’t supposed to weigh the evidence except that the Court, if there’s sufficient evidence to show that an affidavit in opposition is a sham, the Court can ignore the affidavit in opposition. And I think it’s overwhelming, the evidence presented by the defendant that not only did the notice of cancellation go out, but they recorded several phone calls to this gentleman talking about the cancellation trying to make -- trying to get him to make a payment of $500 or $600 to reinstate the policy. And so I more or less considered his evidence in opposition a sham.”
DISCUSSION
A trial court must grant a motion for summary judgment if all the papers submitted show there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The court must consider all evidence submitted, “and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Ibid., italics added.)
The party moving for summary judgment, in this case USAA, bears the burden of persuading the trial court that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A moving defendant meets its burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2).) Once this has been done, the burden shifts to the plaintiff to show a triable issue of material fact exists. (Id. § 437c, subd. (p)(2).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850, fn. omitted.) Even though the trial court may not weigh the evidence as though it were sitting as a trier of fact, it must determine what the evidence could show to a reasonable trier of fact. (Id. at p. 856.) Therefore, the trial court may grant the summary judgment motion in favor of a defendant if it determines that no reasonable juror could find that the plaintiff has met his burden of persuasion. (Id. at pp. 856-857.)
Both the insurance policy and Insurance Code section 662 provide that USAA may cancel the policy for nonpayment by mailing notice to the insured at least 10 days in advance. The policy further provides that proof of mailing of notice is sufficient proof of notice. Thus, the mailing of the notice, not the receipt thereof, is the determining factor in effectively cancelling the policy. (Jensen v. Traders & General Ins. Co. (1959) 52 Cal.2d 786, 791-792.)
Zabaldo’s argument can be summarized as follows: by denying that he received the notice of cancellation, he has created a triable issue of fact as to whether the notice of cancellation was mailed, and if the notice of cancellation was not mailed, the policy was never cancelled. He claims the trial court was required to consider his evidence to which no objection was made, and was not entitled on a motion for summary judgment to simply disregard his evidence as not credible.
We disagree with Zabaldo’s claim that his evidence of non-receipt of the notice of termination raised a triable issue of fact as to the mailing of the notice in this case. Zabaldo relies on Jensen v. Trader & General Ins. Co. (1956) 141 Cal.App.2d 162, 164, in which the court held that evidence of non-receipt of a notice of cancellation warranted the reasonable inference that the notice was never mailed. However, in that case, the non-receipt was accompanied by other circumstances, i.e., the insured sought no new insurance and continued to make monthly premium payments, and the father of the insured, the insured being a minor, would not have allowed the minor to drive without insurance. (Ibid.)
In this case, none of the surrounding circumstances warrant the inference the notice was not mailed. Zabaldo had three telephone conversations with USAA representatives after the date he would have received the notice of cancellation. All three representatives declared it was apparent from the substance of their conversation that Zabaldo had received the notice of cancellation. Zabaldo’s and his wife’s mere claims they did not receive the notice of cancellation does not alone warrant an inference the notice was not mailed. (Adams v. Explorer Ins. Company (2003) 107 Cal.App.4th 438, 448.)
Nor is there merit to the claim that the letter generated by Fuller indicating a notice of cancellation had been returned by the post office raised a triable issue of fact as to the mailing of the notice. Aside from the fact that Fuller adequately explained that the paragraph was included in the letter by mistake, such evidence assumes the notice was mailed, and is material only to the receipt of the notice, not to its mailing.
We also reject Zabaldo’s argument that USAA’s evidence of its usual business practice was insufficient to show proper mailing of the particular notice of cancellation in question. A declaration that an act occurred based upon the witness’ knowledge that performance of the act is in accordance with the party’s usual business practice is treated as though the performance of the act were within the personal knowledge of the witness. (Kiernan v. Union Bank (1976) 55 Cal.App.3d 111, 116.)
Zabaldo also implies that USAA’s evidence of mailing was insufficient because it did not use an official postal form, but used it own certificate of mailing. Insurance Code section 662 requires only that notice of cancellation be mailed 10 days prior to the effective date of cancellation. No official postal form is required.
We conclude Zabaldo’s evidence did not warrant a reasonable inference the notice was not mailed, and no reasonable juror could have concluded on such evidence that Zabaldo had met his burden of showing the notice was not mailed.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., CANTIL-SAKAUYE, J.