Rosenberg-Wohl v. State Farm Fire & Cas. Co.
| Docket Number | A163848 |
| Decision Date | 11 July 2023 |
| Parties | KATHERINE ROSENBERG-WOHL, Plaintiff and Appellant, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
1
KATHERINE ROSENBERG-WOHL, Plaintiff and Appellant,
v.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant and Respondent.
A163848
California Court of Appeals, First District, Second Division
July 11, 2023
San Francisco County Superior Court; Ct. No. CGC-20-587264, Trial Judge: Honorable Anne-Christine Massullo;
Attorney for Plaintiff and Hershenson Rosenberg-Wohl, Appellant, Katherine David Rosenberg-Wohl; Rosenberg-Wohl:
Attorney for Defendant and DTO Law, Lauren Hudecki, Respondent, State Farm Fire Megan O'Neill. and Casualty Company:
Richman, J.
Plaintiff/appellant Katherine Rosenberg-Wohl (plaintiff) had a homeowners insurance policy with defendant/respondent State Farm Fire and Casualty Company (State Farm), providing coverage on her home in San Francisco; the policy has a limitation provision that requires lawsuits to be "started within one year after the date of loss or damage." In late 2018 or early 2019, plaintiff noticed that on two occasions an elderly neighbor stumbled and fell as she descended plaintiff's outside staircase, and learned that the pitch of the stairs had changed and that to make the stairs safe the staircase needed to be replaced. In late April 2019, plaintiff authorized the work and contacted State Farm, and on August 9, she submitted a claim for the money she had spent. On August 26, State Farm denied the claim. Sometime later, plaintiff's husband, attorney David Rosenberg-Wohl, reached out to State Farm "to see if anything could be done," and in August 2020 a
State Farm adjuster said it had reopened the claim. And a few days later denied it.
In October 2020, represented by her husband, plaintiff filed two lawsuits against State Farm in San Francisco Superior Court. One alleged two causes of action, for breach of the policy and for bad faith. That lawsuit was removed to federal court, and was resolved against plaintiff on a motion to dismiss based on the one-year limitation provision. It is currently on appeal in the Ninth Circuit.
The other action, the one before us, purports to allege a claim for violation of California's unfair competition law. This case was also resolved against plaintiff, also based on the limitation provision-here, when the trial court sustained a demurrer to the second amended complaint without leave to amend. Plaintiff appeals, asserting two arguments: (1) the one-year limitation provision does not apply to her unfair competition claim, and (2) even if it does, State Farm waived the limitation provision. We affirm.
BACKGROUND
The General Setting[1]
Plaintiff owns a home in San Francisco, insured under a policy with State Farm. The policy contains a provision entitled "Suit Against Us" that states: "No action shall be brought unless there has been compliance with the policy provisions. The action must be started within one year after the date of loss or damage."
In late 2018 or early 2019, plaintiff noticed that an elderly visitor had twice stumbled and fell when descending the exterior staircase of plaintiff's home and, upon investigating, learned that the pitch of the staircase had changed, and the entire staircase needed to be replaced. Plaintiff authorized the work and notified State Farm of it on April 23, 2019. Over three months later, on August 9, she submitted a claim to State Farm for her construction expenses, which by then were approximately $52,600, with another $16,800 in anticipated expenses for additional work.[2]
By letter dated August 26-plaintiff alleges, without any investigation-State Farm denied the claim. While the letter itself is not in the record, plaintiff alleges that the letter stated that there was "no evidence of a covered cause or loss nor any covered accidental direct physical loss to the front exterior stairway," which letter went on to note that the policy "excludes coverage for this type of damage. . ." identifying five items as "this type of damage":
(1) "wear, tear, marring, scratching, deterioration, inherent vice, latent defect or mechanical breakdown";
(2) "corrosion, electrolysis or rust"; (3) "wet or dry rot";
(4) "settling, cracking, shrinking, bulging, or expansion of pavements, patios, foundation, walls, floors, roofs or ceilings";
(5) "fungus."
The letter also specifically referenced "the suit limitation period" as a "policy defense." And, plaintiff alleges, State Farm had "no basis for its
decision," as it had not inspected the stairs, asked her or her husband questions, interviewed the elderly neighbor, or contacted any of the contractors involved.
At some unspecified point, plaintiff's husband reached out to State Farm insurance agent Doug Lehr "to see what, if anything could be done," and the agent said he would see what he could do. On August 10, 2020, State Farm adjuster Rita Lee left a voice-mail message stating that State Farm had "reopened" the claim, and that she was making herself available to address and possibly resolve any coverage questions plaintiff had before she might want to "move forward with the next step."
On August 24, Mr. Rosenberg-Wohl spoke with Lee. Among other things Lee said that it if the claimed loss were "to be covered," something "sudden" had to have happened. And what plaintiff claimed coverage for, Lee said, was just "preventative."
Immediately following that conversation, Lee denied what plaintiff calls the "newly adjusted claim," which plaintiff alleges reiterated this: "Based on the investigation findings, there was no evidence of a covered cause for accidental direct physical damage to the property," confirming what "[Lee] stated on the phone: [t]he policy does not provide coverage for preventative nor safety measures to the property. Maintenance would be the responsibility of the property owner to properly maintain the property to keep it safe."
Weeks later, plaintiff filed her lawsuits.
The Proceedings Below
On October 22, 2010-some 18 months after she had replaced the staircase, 14 months after State Farm had denied her claim the first time, and nearly six months after the one-year limitation period of the policy had
expired-plaintiff filed two lawsuits in San Francisco County Superior Court: (1) action No. 587262 and (2) action No. 587264.
Action No. 587262 alleged two claims, for breach of the policy and violation of the covenant of good faith and fair dealing. That case was removed to federal court, where it was dismissed by the District Court on a motion to dismiss. It is currently on appeal: N.D. Cal 2022, 2022 WL 901545, appeal pending.
Action No. 587264, this case, initially alleged causes of action for declaratory relief and violation of the Unfair Competition Law (UCL). The action was designated as a "class action," filed by plaintiff "on behalf of herself and those similarly situated." The case was designated complex and assigned for all purposes to the Honorable Anne-Christine Massullo.
A few months later, apparently before State Farm filed a responsive pleading, plaintiff filed an amended complaint. The amended complaint was titled as one "stating claim for unfair competition and need for public injunctive relief."
State Farm filed a demurrer to the amended complaint on two bases: (1) there was another action pending, and (2) the complaint failed to state a claim under the UCL because the action was "time-barred" and State Farm "has not acted unfairly." State Farm also filed a motion to strike.
At the hearing on the demurrer, Judge Massullo questioned Mr. Rosenberg-Wohl about whether this action was requesting "specific injunctive relief." The is what followed:
"MR. ROSENBERG-WOHL: Correct.
"THE COURT: And the plaintiff is saying, 'Court, you should tell State Farm, "This is the way that you must handle claims. You must do A, B, C, and D when you are denying a claim" '-or' "investigating and then denying
a claim. There should be specific" '-' "there's a specific process and specific language that you can use."' That's the public relief that's being sought here; correct?
"MR. ROSENBERG-WOHL: Correct. But there are many ways-there are many ways to accomplish that result. It doesn't have to be in a detailed order and specific stuff. It's a standard, a simple standard, that they can follow.... [¶] I mean, you could imagine-for example, if at the end of the litigation, the argument is, 'State Farm, you have an obligation to objectively consider all claims presented,' their business practice would change fundamentally, and you've just said one sentence."[3]
On April 20, 2021, Judge Massullo filed an order on the demurrer and the motion to strike, holding that the one-year limitation provision applied to plaintiff's claim, and sustaining the demurrer with leave to amend to add additional facts supporting waiver. She also ruled that the issue of whether State Farm acted unfairly (that is, whether the replacement staircase is or is not covered under the policy) could not be decided on demurrer. And finally, as to the motion to strike the requests for and references to "public injunctive relief," she granted it with leave to amend.
On May 21, plaintiff filed a second amended complaint (SAC), adding, apparently without leave of court, a claim for false advertising, a complaint labeled "Second Amended Complaint Stating a Claim for False Advertising, Unfair Competition, and Need for Public Injunctive Relief." The SAC is 18 pages long, comprised of 64 paragraphs, and begins with its preliminary
allegations as to the parties and the policy. There follows a capitalized, boldface heading that "Plaintiff's Experience With How State Farm Adjudicates One Particular Insurance Policy, Her Homeowners Policy," after which the complaint alleges in detail, for some 36 paragraphs, the facts set forth above. The paragraphs allege among other things that "State Farm summarily denied" plaintiff's claim; that State Farm "did not explain its analysis or...
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