Milad Iskander v. Liberty Mutual Insurance

• Court: District Court, E.D. California
• Decided: February 17, 2026
• Docket: 2:24-cv-02750
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MILAD ISKANDER, No. 2:24-cv-02750-JAM-SCR 12 Plaintiff, 13 v. ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT IN PART 14 LIBERTY MUTUAL INSURANCE, 15 Defendant. 16 17 This action concerns an insurance coverage dispute between 18 Plaintiff, a homeowner, and Defendant, an insurer, over storm- 19 caused damage to Plaintiff’s home. Defendant has sought summary 20 judgment on all but one of Plaintiff’s claims arising from that 21 dispute and has also sought summary judgment on Plaintiff’s claim 22 for punitive damages. 23 As discussed further below, the Court declines to grant 24 summary judgment on Plaintiff’s bad faith claim. However, the 25 Court grants summary judgment on Plaintiff’s claims for negligent 26 infliction of emotional distress, intentional infliction of 27 emotional distress, elder abuse, loss of use, and punitive 28 damages. 1 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 2 Defendant Liberty Insurance Corporation1 issued a 3 homeowner’s insurance policy number H37-268-053623-60 (the 4 “Policy”) to Plaintiff Milad Iskander for the policy period 5 November 25, 2022, to November 25, 2023. Def.’s Statement of 6 Undisputed Facts (“Def.’s SUF”) ¶ 1, ECF No. 13-3. The Policy 7 provided coverage for Plaintiff’s residence located at 790 S. 8 Regatta Drive, Vallejo, CA 94591 (the “Property”), where 9 Plaintiff resides with his father Ed Iskander.2 Id. ¶ 2. 10 On January 16, 2023, Plaintiff reported that a storm had 11 caused a hole in the roof of the Property which allowed water to 12 enter the home. Id. ¶ 7. Plaintiff also reported that he had 13 retained Trinity Perfect Construction, Inc. to install a tarp on 14 the roof where he believed a hole existed. Id. ¶ 9. On January 15 22, 2023, Defendant retained an independent adjuster to inspect 16 the Property and prepare a repair estimate. Id. ¶ 10. The 17 adjuster was unable to remove the tarp on the roof to inspect the 18 hole. Id. ¶ 11. On January 25, 2025, Plaintiff informed 19 Defendant that his claim was limited to (1) the costs of 20 installing the tarp on the roof; and (2) damage to the ceiling of 21 an upstairs bedroom of the property. Id. ¶ 12. 22 On February 28, 2023, Defendant retained Donan Engineering 23 (“Donan”) to inspect the Property and report on the cause of 24 water damage and cracks in the home. Id. ¶¶ 13–14. Donan 25

26 1 Erroneously sued as “Liberty Mutual Insurance.” 2 There appears to be some confusion in the Parties’ briefings as to whether Milad Iskander or Ed Iskander is the father. However, Milad Iskander filed a 27 Declaration in support of Plaintiff’s Opposition to Partial Summary Judgment which clarifies he is the son. See Iskander Decl. ¶ 2, ECF No. 16-1. Thus, 28 the Court shall refer to Ed Iskander as Plaintiff’s father. 1 concluded that: (1) the roof did not have any storm-created 2 damage or openings, and any damage to the roof was consistent 3 with age-related deterioration; (2) water stains in the interior 4 of the home were caused by flashing deficiencies around the roof 5 vents; (3) there was insufficient drainage around the house 6 allowing excess moisture to accumulate; and (4) cracks in the 7 home were unrelated to wind or other exterior weather events, and 8 were instead due to differential soil settlement and 9 expansion/contraction cycles of building materials caused by 10 changes in temperature and moisture. Id. ¶¶ 15–17; Tyer Decl., 11 Ex. 7 (“Donan Report”) at 76–843, ECF No. 13-2. On March 1, 12 2023, Defendant sent a letter to Plaintiff outlining Donan’s 13 findings and Defendant’s coverage position. Def.’s SUF ¶ 18. 14 Defendant agreed to cover water damage to the bedroom ceiling and 15 the costs of installing the tarp on the roof of the Property. 16 Id. ¶ 20. However, citing Policy exclusions, Defendant declined 17 to pay any additional amounts attributable to wear and tear, 18 marring, deterioration; inherent vice, latent defect, mechanical 19 breakdown; and settling, shrinking, bulging or expansion, 20 including resultant cracking, of pavements, patios, foundations, 21 walls, floors, roofs, or ceiling. Id. ¶¶ 18–19. 22 In response, Plaintiff informed Defendant that he disagreed 23 with the conclusions of the Donan report and would retain his own 24 engineer. Id. ¶ 21. On May 11, 2023, Plaintiff submitted an 25 estimate from Green Group Remodeling (“Green Group”) in the 26 amount of $195,000. Id. ¶ 22. Green Group is not an engineering 27 firm but rather a remodeling company. Id. ¶ 23. This estimate

28 3 Citations to exhibits to the Tyer Declaration refer to the ECF pagination. 1 included replacement of the roof, replacement of the siding on 2 the home, demolition and remodel of the bathroom, upgrades to 3 plumbing and electrical work in the home, replacement of tile in 4 the bathroom, and replacement of all appliances. Id. ¶ 24. On 5 May 11, 2023, Defendant wrote to Plaintiff to inform him that the 6 estimate submitted by Green Group was rejected because it 7 included several items outside the scope of damage to the 8 Property caused by the storm. Id. ¶ 27. Indeed, Green Group’s 9 representative confirmed that the estimate included work 10 unrelated to any claimed wind or rain damage. Id. ¶ 26. 11 On June 12, 2023, Plaintiff submitted a report from Win 12 Structural Consulting Group, Inc. (“Win”). Id. ¶ 28. The 13 report, which was prepared by an engineer, related to the soil 14 and foundation of the Property. Id. ¶¶ 29–30. The report stated 15 that the soil on the house site was of poor drainage, and that 16 cracking in the drywall and plaster of the home was the result of 17 settling and recompacting of the soil surrounding the Property 18 during multiple extended rain events between December 2022 and 19 March 2023. Tyer Decl., Ex. 13 (“Win Report”) at 116–22, ECF No. 20 13-2. The report also found that the roof was in good condition. 21 Id. at 122. Defendant wrote to Plaintiff on June 15, 2023, 22 informing him that, in its opinion, the Win report confirmed that 23 the cracking in the drywall and plaster of the home was the 24 result of settling and recompacting of the soil surrounding the 25 Property after it was saturated with rain, which was consistent 26 with the findings of Defendant’s engineer, Donan, and consistent 27 with Defendant’s determination that policy exclusions applied. 28 Id. ¶¶ 31–33. Thus, Defendant maintained its earlier coverage 1 determination. Id. ¶ 33. 2 Plaintiff continued to contact Defendant during the next 3 year to inquire about the status of his claim, with Defendant 4 reiterating in every communication that it stood by its earlier 5 coverage determination. Id. ¶¶ 34–35. On July 22, 2024, 6 Plaintiff submitted a report from engineer Steven Viani, who 7 opined that while the roof of the Property was generally in good 8 condition, the eaves of the house showed that water had 9 penetrated and affected the wood there, and water damage 10 throughout the house, including the living room, upstairs 11 bathroom, and garage, could have been caused by storm water 12 penetrating the roof, i.e., “wind-driven rain from the wind 13 velocity and from the mass of the water driven by the force of 14 the rain.” Id. ¶¶ 36–37; Tyer Decl., Ex. 16 (“Viani Report”) at 15 133–35, ECF No. 13-2. Viani also stated that the soil around the 16 house was not expansive and would not contribute to any cracking 17 or movement of the house. Viani Report at 135. Two days after 18 receiving the Viani Report, Defendant wrote to Plaintiff that it 19 had considered the reports from Plaintiff’s two engineers and had 20 completed its evaluation absent new information. Def.’s SUF 21 ¶ 38. 22 Plaintiff filed suit in state court on August 22, 2024, 23 asserting causes of action for (1) breach of insurance contract; 24 (2) breach of the implied covenant of good faith and fair 25 dealing; (3) negligent infliction of emotional distress (“NIED”); 26 (4) intentional infliction of emotional distress (“IIED”); 27 (5) elder abuse; and (6) “loss of use.” ECF No. 1. Plaintiff 28 seeks damages including “[c]osts for the direct repair of the 1 house,” “[c]ompensation for loss of use of the house,” 2 “[c]ompensation for the infliction of emotional distress, both 3 intentional and negligent,” “[c]ompensation for the abuse of an 4 elder,” “[c]ompensation for the loss of time and energy,” 5 attorneys’ fees, and punitive damages. Id. 6 Defendant removed this action on October 4, 2024, under 7 diversity jurisdiction. Id. Defendant filed the pending Motion 8 for Partial Summary Judgment (ECF No. 13) on November 7, 2025, 9 seeking judgment in its favor on Plaintiff’s Second through Sixth 10 Causes of Action as well as Plaintiff’s prayer for punitive 11 damages. Plaintiff filed an untimely Opposition (ECF No. 16) on 12 December 23, 2025, and Defendant filed a Reply (ECF No. 18). The 13 matter was submitted without oral argument pursuant to Local Rule 14 230(g). ECF No. 17. 15 II. LEGAL STANDARD 16 Summary judgment may be granted when the evidence shows that 17 there is no genuine issue as to any material fact and the moving 18 party is entitled to a judgment as a matter of law. Fed. R. Civ. 19 P. 56(c). The principal purpose of summary judgment is to 20 dispose of factually unsupported claims or defenses. Celotex 21 Corp. v. Catrett, 477 U.S. 317, 325 (1986). Thus, the “threshold 22 inquiry” is whether there are any factual issues that could 23 reasonably be resolved in favor of either party, or conversely, 24 whether the facts are so one-sided that one party must prevail as 25 a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 26 250–52 (1986). “Only disputes over facts that might affect the 27 outcome of the suit under the governing law will properly 28 preclude the entry of summary judgment.” Id. at 248. 1 Under this standard, the moving party must inform the court 2 of the basis for the motion and identify the portion of the 3 record which it believes demonstrates the absence of a genuine 4 issue of material fact. Celotex, 477 U.S. at 323. If the moving 5 party meets its initial burden, the burden then shifts to the 6 opposing party, which must establish that there is a genuine 7 issue of material fact. Matsushita Elec. Indus. Co. v. Zenith 8 Radio Corp., 475 U.S. 574, 585 (1986). To succeed and avoid 9 summary judgment, the opposing party “must do more than simply 10 show that there is some metaphysical doubt as to the material 11 facts.” Id. at 586. The opposing party must produce enough 12 evidence such that the specific facts set forth by the nonmoving 13 party, coupled with the undisputed facts, are sufficient for a 14 reasonable jury to return a verdict in their favor. T.W. Elec. 15 Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 16 (9th Cir. 1987). In other words, for the moving party to 17 succeed, the court must conclude that no rational trier of fact 18 could find for the opposing party. Matsushita, 475 U.S. at 587. 19 However, so as not to usurp the role of the jury, “[c]redibility 20 determinations, the weighing of the evidence, and the drawing of 21 legitimate inferences from the facts are jury functions,” and so 22 the court draws all reasonable inferences and views all evidence 23 in the light most favorable to the opposing party. Anderson, 477 24 U.S. at 255; Matsushita, 475 U.S. at 587–88. 25 III. OPINION 26 A. Plaintiff’s Untimely Opposition 27 As a threshold matter, Defendant contends that the Court 28 should disregard Plaintiff’s Opposition in its entirety and grant 1 Defendant’s Motion because Plaintiff’s Opposition, which was due 2 November 21, 2025, was filed four weeks late. Reply PSJ at 2–3, 3 ECF No. 18. 4 Defendant is correct that Plaintiff’s Opposition was 5 untimely. Defendant filed its Motion for Partial Summary 6 Judgment on November 7, 2025. Under Local Rule 230, Plaintiff’s 7 Opposition was due two weeks later, by November 21, 2025. E.D. 8 Cal. L.R. 230(c). However, Plaintiff did not file his Opposition 9 until December 23, 2025, a month later. Further, Plaintiff 10 failed to justify or otherwise explain this delay. See generally 11 Opp’n PSJ, ECF No. 16. Given these facts, the Court would be 12 well within its rights to construe Plaintiff’s untimely 13 Opposition as a non-opposition. See E.D. Cal. L.R. 230(c) (“A 14 failure to file a timely opposition may also be construed by the 15 Court as a non-opposition to the motion.”). 16 The Court will not do so here. However, Plaintiff’s counsel 17 is ordered to pay sanctions in the amount of $250 for failing to 18 comply with the deadlines set forth in the Local Rules. The 19 Court will address the merits of the Parties’ arguments below. 20 B. There is a Dispute of Fact as to Whether Defendant 21 Breached its Duty of Good Faith and Fair Dealing 22 Plaintiff alleges that Defendant, as Plaintiff’s insurer, 23 owed Plaintiff an implied duty of good faith and fair dealing, a 24 duty which Defendant breached by “unreasonably denying and 25 delaying payment of Plaintiff’s valid insurance claim, failing to 26 properly investigate the claim, and compelling Plaintiff to 27 initiate [this] litigation[.]” Compl. ¶¶ 16–17, ECF No. 1-2. 28 Defendant argues that this claim fails as a matter of law because 1 the purported withholding of Policy benefits, whether correct or 2 incorrect, was not unreasonable given that there was a genuine 3 dispute as to Defendant’s liability under the Policy. Mot. 4 Partial Summ. J. (“PSJ”) at 8, ECF No. 13. 5 The Court denies summary judgment on this claim. Under 6 California law, all insurance contracts contain an implied 7 covenant of good faith and fair dealing. Wilson v. 21st Cent. 8 Ins. Co., 42 Cal. 4th 713, 720 (2007). A cause of action for 9 breach of the implied covenant of good faith and fair dealing in 10 the insurance context requires evidence that (1) benefits due 11 under an insurance policy were wrongfully withheld, and (2) the 12 reason for withholding the benefits was “unreasonable” or 13 “without proper cause.” Pyramid Techs., Inc. v. Hartford Cas. 14 Ins. Co., 752 F.3d 807, 823 (9th Cir. 2014). In short, the 15 “ultimate test of bad faith liability in the first party cases is 16 whether the refusal to pay policy benefits . . . was 17 unreasonable,” and not as a result of mere negligence or bad 18 judgment. Chateau Chamberay Homeowners Ass’n v. Associated Int’l 19 Ins. Co., 90 Cal. App. 4th 335, 346 (2001). 20 An insurer acts unreasonably when it fails to properly 21 investigate the policyholder’s claim. See, e.g., Century Sur. 22 Co. v. Saidian, No. 12-cv-7428 SS, 2016 WL 6440140, at *18 (C.D. 23 Cal. Mar. 16, 2016). “[W]hether an insurer breached its duty to 24 investigate [is] a question of fact to be determined by the 25 particular circumstances of each case.” Paulfrey v. Blue Chip 26 Stamps, 150 Cal. App. 3d 187, 196 (1983). Additionally, an 27 insurer acts unreasonably when its investigation of the insured’s 28 claim is biased. Allstate Ins. Co. v. Madan, 889 F. Supp. 374, 1 381 (C.D. Cal. 1995) (“[A]n insurer breaches the implied covenant 2 of good faith by conducting a biased investigation.”) (citation 3 omitted). 4 An insurer also acts unreasonably when it ignores evidence 5 that supports the policyholder’s claim. Id. (“An insurer is 6 liable for bad faith if it disregards evidence supporting 7 coverage.”); see also Tetravue Inc. v. St. Paul Fire & Marine 8 Ins. Co., No. 14-cv-2021 W BLM, 2018 WL 1172852, at *5 (S.D. Cal. 9 Mar. 6, 2018) (“[B]ad faith may lie where a claim is denied on a 10 basis unfounded in the facts known to the insurer, or 11 contradicted by those facts or where the insurer ignores evidence 12 that supports the insured’s claim, and just focuses on facts that 13 justify denial.” (citation and internal quotation marks 14 omitted)). 15 Here, the Court finds there is a genuine issue of material 16 fact as to whether Defendant adequately considered Plaintiff’s 17 evidence supporting his claim. The bulk of the record indicates 18 that Defendant handled Plaintiff’s claim in good faith. Notably, 19 Defendant: (1) had an adjuster “inspect[] the property within a 20 week of being notified of the claimed loss;” (2) “retained an 21 engineer to inspect the property and opine on the cause of any 22 damage when Plaintiff expanded the scope of the claim;” (3) and 23 “applied the opinions of that expert to the terms of the policy 24 and concluded that exclusions applied.” Reply PSJ at 3. 25 Plaintiff has pointed to no evidence that Defendant’s adjuster or 26 engineer were biased, or that their investigations were obviously 27 deficient in any way. Thus, Defendant was not unreasonable in 28 rejecting Plaintiff’s initial request for coverage based on those 1 opinions. 2 Defendant also argues that it fully “reviewed reports by 3 Plaintiff’s purported experts and concluded that those reports 4 were consistent with the opinions of its retained expert” before 5 ultimately denying Plaintiff’s request to reconsider its coverage 6 position. Id. Here, the Court disagrees in part. Plaintiff 7 submitted two reports in support of his claim for coverage: the 8 Win report and the Viani report. When Plaintiff submitted the 9 Win report, Defendant replied in detail explaining it had 10 reviewed the report and found the conclusions therein to be 11 consistent with those of its own engineer. See Taylor Decl., Ex. 12 14, ECF No. 13-2 (responding to Win report). Thus, Defendant 13 provided a reasoned basis for rejecting Plaintiff’s request to 14 reconsider its coverage determination. 15 By contrast, when Plaintiff submitted the Viani report, 16 Defendant again declined to reconsider its coverage determination 17 two days later but stated only that it had “reviewed your 18 engineer reports (2)” and “st[ood] behind our stance and the 19 outcome.” See Taylor Decl., Ex. 17, ECF No. 13-2 (responding to 20 Viani report). The Viani report, however, called into question 21 the Donan report’s conclusion that soil around the house was the 22 cause of cracking in the house. Compare Viani Report at 135 23 (“The soil in the area of the house is not expansive and would 24 not produce any cracking or movement of the house.”), with Donan 25 Report at 83 (“[T]he cracks in the house are due to differential 26 [soil] settlement and differential expansion/contraction cycling 27 of building materials.”). Further, unlike the Donan report, 28 which found that any damage to the roof was consistent with age- 1 related deterioration and that water damage in the home was due 2 to flashing deficiencies in the roof vents, the Viani report also 3 indicated that storm-driven water may have affected the roof and 4 caused water intrusion in the home. Compare Viani Report at 135 5 (noting that the “wood on the eaves shows some water has 6 penetrated the end of the eaves and affected the wood,” and 7 concluding that “water intrusion could have been caused by wind- 8 driven rain from the wind velocity and from the mass of the water 9 driven by the force of the rain”), with Donan Report at 83 10 (finding the “roof does not have any storm-created openings,” 11 “granule loss on the shingles is consistent with age-related 12 deterioration of the shingles,” and “water stains indicate 13 flashing deficiencies around the roof vents”). Ultimately, 14 Viani’s and Donan’s reports may be reconcilable. However, the 15 Court finds Defendant’s lack of substantive response to the Viani 16 report coupled with its speedy refusal to reconsider its coverage 17 position sufficient to create a question of fact as to whether 18 Defendant ignored evidence favorable to Plaintiff in conducting 19 its investigation. 20 Defendant argues that it is shielded from liability here 21 under the genuine dispute doctrine. Ordinarily, that doctrine 22 provides that an insurer cannot be found liable for bad faith for 23 a coverage determination so long as it can show that its denial 24 of coverage or delay in payment was the result of a genuine 25 dispute between the insurer and insured as to coverage or the 26 amount of loss. Chateau Chamberay Homeowners Ass’n, 90 Cal. App. 27 4th at 347. However, the genuine dispute doctrine does not 28 constitute a blanket liability shield against claims of bad 1 faith. As the California Supreme Court has cautioned, “[t]he 2 genuine dispute rule does not relieve an insurer from its 3 obligation to thoroughly and fairly investigate, process and 4 evaluate the insured’s claim,” as a “genuine dispute exists only 5 where the insurer’s position is maintained in good faith and on 6 reasonable grounds.” Wilson, 42 Cal. 4th at 723. Notably, an 7 insurer is not permitted to ignore relevant evidence regarding 8 additional coverage or benefits due without adequately 9 investigating them. See Zubillaga v. Allstate Indem. Co., 12 10 Cal. App. 5th 1017, 1027 (2017). 11 “Nor does the rule alter the standards for deciding and 12 reviewing motions for summary judgment.” Wilson, 42 Cal. 4th 13 724. Rather,

14 The genuine issue rule in the context of bad faith claims allows a [trial] court to grant 15 summary judgment when it is undisputed or indisputable that the basis for the 16 insurer’s denial of benefits was reasonable— for example, where even under the 17 plaintiff’s version of the facts there is a genuine issue as to the insurer’s liability 18 under California law . . . [o]n the other hand, an insurer is not entitled to judgment 19 as a matter of law where, viewing the facts in the light most favorable to the 20 plaintiff, a jury could conclude that the insurer acted unreasonably. 21 22 Amadeo v. Principal Mut. Life Ins. Co., 290 F.3d 1152, 1161–62 23 (9th Cir. 2002) (citations omitted). 24 Here, given that there is a genuine issue of material fact 25 as to whether Defendant may have inadequately considered the 26 Viani report, the Court declines to grant summary judgment on 27 Plaintiff’s bad faith claim. 28 /// 1 C. Plaintiff’s Claim for NIED Fails as a Matter of Law 2 Plaintiff alleges that “Defendant’s negligent handling of 3 Plaintiff’s insurance claim caused Plaintiff severe emotional 4 distress.” Compl. ¶ 20. Defendant argues that this claim fails 5 as a matter of law because California law is clear that the 6 relationship between an insured and insurer is contractual, not 7 based on tort duties, such that negligence is not among the 8 theories of recovery available against insurers. PSJ at 11–13. 9 The Court agrees and Defendant’s motion for summary judgment 10 on this claim is granted. There is conflicting authority as to 11 whether a plaintiff may bring a NIED claim against an insurer. 12 Compare Williams v. Integon Nat’l Ins. Corp., 191 F. Supp. 3d 13 1126, 1133 (S.D. Cal. 2016) (“[C]ourts have permitted [NIED] 14 claims against an insurer based on alleged mishandling of an 15 insured’s claim for policy benefits.” (collecting cases)), with 16 Bates v. Hartford Life and Acc. Ins. Co., 765 F. Supp. 2d 1218, 17 1219-22 (C.D. Cal. 2011) (holding plaintiffs could not assert a 18 NIED claim against the insurer because “[p]laintiffs confuse an 19 independent claim for [NIED] and the possibility of damages for 20 emotion[al] distress that may be recovered incidental to a bad 21 faith action. Plaintiffs may claim only the lat[t]er.”). 22 However, the Court need not resolve that issue here, as Plaintiff 23 concedes he does not wish to bring a NIED claim. Opp’n PSJ at 7. 24 Rather, Plaintiff clarifies that he is seeking emotional distress 25 damages in relation to his bad faith claim. Id. Defendant does 26 not contest that emotional distress damages are potentially 27 recoverable for an insurer’s bad faith. See PSJ at 12; Reply PSJ 28 at 5. 1 Thus, the Court grants summary judgment on Plaintiff’s NIED 2 claim but Plaintiff may still seek emotional distress damages on 3 his bad faith claim. 4 D. Plaintiff’s Claim for IIED Fails as a Matter of Law 5 Plaintiff alleges that Defendant intentionally caused him 6 emotional distress by “unreasonably denying and delaying [his] 7 insurance claim.” Compl. ¶¶ 23–24. Defendant argues that this 8 claim fails as a matter of law because “Plaintiff does not plead 9 facts showing (1) extreme and outrageous conduct with intent to 10 cause emotional distress, or (2) severe or extreme emotional 11 distress.” PSJ at 13–16. 12 The Court agrees and grants summary judgment on this claim. 13 For IIED, a plaintiff must allege: (1) outrageous conduct by the 14 defendant; (2) the defendant intended to cause or recklessly 15 disregarded the probability of causing emotional distress; 16 (3) the plaintiff suffered severe or extreme emotional distress; 17 and (4) the defendant’s outrageous conduct actually and 18 proximately caused the emotional distress. Ross v. Creel 19 Printing & Publ’g Co., 100 Cal. App. 4th 736, 744-45 (2002). To 20 support a claim for IIED, the plaintiff must allege the conduct 21 exceeded all bounds usually tolerated by a decent society and was 22 especially calculated to cause mental distress of a very serious 23 kind. Christensen v. Superior Ct., 54 Cal. 3d 868, 904-05 24 (1991). In the insurance context, mere “delay or denial of 25 insurance claims is not sufficiently outrageous to state a cause 26 of action for [IIED].” Coleman v. Republic Indem. Ins. Co., 132 27 Cal. App. 4th 403, 417 (2005). Behavior may be considered 28 outrageous if a defendant: (1) abuses a relationship or position 1 which gives him power to damage the plaintiff’s interest; 2 (2) knows the plaintiff is susceptible to injuries through mental 3 distress; or (3) acts intentionally or unreasonably with the 4 recognition that the acts are likely to result in illness through 5 mental distress. Hailey v. Cal. Physicians’ Serv., 158 Cal. App. 6 4th 452, 474 (2007). 7 Here, Plaintiff has failed to plead or produce any evidence 8 Defendant engaged in extreme or outrageous conduct in denying 9 Plaintiff’s insurance claim. At most, as held in Section III.B 10 supra, Plaintiff has shown that Defendant’s denial of insurance 11 benefits may have been unreasonable. However, “[i]n the 12 insurance context, the insurer’s bad faith is not the kind of 13 conduct that satisfies a claim for [IIED].” Allstate Ins. Co. v. 14 Madan, 889 F. Supp. 374, 383 (C.D. Cal. 1995). An insurer’s 15 “refusal to properly investigate, process and communicate with 16 plaintiff concerning his claim,” even if intentional and willful, 17 is not “deemed ‘outrageous’ within th[e] definition” required for 18 an IIED claim. Ricard v. Pac. lndemn., 132 Cal. App. 3d 886, 19 890, 895 (1982); accord Beckham v. Safeco Ins. Co. of Am., 691 F. 20 2d 898, 904 (9th Cir. 1982) (an insurer’s refusal to settle a 21 claim, whether in good faith or acting “wantonly and 22 maliciously,” “is not the kind of outrageous conduct necessary to 23 support an action for [IIED]”). The conduct alleged here does 24 not extend beyond bad faith. Accordingly, it is not outrageous 25 as a matter of law and Defendant’s motion for summary judgment on 26 Plaintiff’s IIED claim is granted. 27 /// 28 /// 1 E. Plaintiff’s Claim for Elder Abuse Fails as a Matter of 2 Law 3 Plaintiff alleges that “Defendant’s conduct in unreasonably 4 denying and delaying Plaintiff’s insurance claim caused financial 5 and emotional harm to Ed Iskander, an elderly individual,” 6 constituting elder abuse. Compl. ¶¶ 28–28. Defendant argues 7 that Plaintiff’s claim fails as a matter of law because Plaintiff 8 has failed to demonstrate Ed Iskander is an elder. PSJ at 16. 9 Defendant also argues that Plaintiff has failed to adequately 10 allege, and cannot prove, Defendant’s “wrongful use,” “intent to 11 defraud,” “undue influence,” or Defendant’s knowledge that its 12 conduct was “likely to be harmful to the elder” as required to 13 support a financial elder abuse claim. Id. at 17–19. 14 The Court grants summary judgment on this claim. The Elder 15 Abuse Act, codified in California Welfare and Institutions Code 16 sections 15600 et seq., is intended “to protect a particularly 17 vulnerable portion of the population from gross mistreatment in 18 the form of abuse and custodial neglect.” Delaney v. Baker, 20 19 Cal. 4th 23, 33 (1999). Pursuant to the Elder Abuse Act, 20 financial abuse of an elder occurs when a person or entity takes 21 or retains real or personal property for “wrongful use” or with 22 “intent to defraud” or by “undue influence,” and “knew or should 23 have known that . . .” its conduct was “. . . likely to be 24 harmful to the elder . . . .” Cal. Welfare & Inst. Code 25 § 15610.30(a)–(b). An “elder” is defined as “any person residing 26 in this state, 65 years of age or older.” Id. § 15610.27. 27 Here, Plaintiff fails to make the threshold showing that his 28 father Ed Iskander is an elder under the law. Plaintiff argues 1 in opposition to summary judgment that the “Verified Complaint 2 specifically alleges Ed Iskander is an elder . . . .” Opp’n PSJ 3 at 8. Specifically, Plaintiff alleges that “Ed Iskander [is] an 4 elderly individual, as defined under California Welfare and 5 Institutions Code Section 15610.27.” Compl. ¶ 27. This 6 conclusory allegation is insufficient to defeat summary judgment. 7 See Hernandez v. Spacelabs Medical Inc., 343 F.3d 1107, 1112 (9th 8 Cir. 2003) (noting that a party “cannot defeat summary judgment 9 with allegations in the complaint, or with unsupported conjecture 10 or conclusory statements”). 11 As Plaintiff has failed to prove his father is over 65 years 12 old, the Court grants summary judgment on Plaintiff’s elder abuse 13 claim. 14 F. Plaintiff Concedes Summary Judgment on his “Loss of 15 Use” Claim 16 Plaintiff alleges that Defendant’s “wrongful denial and 17 delay of Plaintiff’s insurance claim” resulted in Plaintiff’s 18 loss of use of the Property. Compl. ¶¶ 31–33. Defendant argues 19 this claim fails as a matter of law because it is not a 20 standalone cause of action, but rather a remedy for Plaintiff’s 21 breach of contract action. PSJ at 19–20. 22 Plaintiff admits that “loss of use” is not a standalone 23 claim, although he argues that he “may still recover loss-of-use 24 damages as part of his breach of contract and bad-faith claims.” 25 Opp’n PSJ at 8. Given Plaintiff’s concession, the Court grants 26 summary judgment in Defendant’s favor on this claim. 27 /// 28 /// 1 G. Plaintiff’s Prayer for Punitive Damages Fails as a 2 Matter of Law 3 Finally, Defendant argues that it is entitled to summary 4 judgment on Plaintiff’s request for punitive damages because 5 Plaintiff’s claims for bad faith and elder abuse fail as a matter 6 of law, and because Plaintiff has failed to provide “clear and 7 convincing evidence” of fraud, oppression, or malice as required 8 to recover punitive damages under California Civil Code section 9 3294. PSJ at 20–21. 10 The Court will grant summary judgment on Plaintiff’s 11 punitive damages claim. As held in Section III.B supra, 12 Plaintiff’s bad faith claim does not fail as a matter of law. 13 However, “[i]n order to establish that an insurer’s conduct has 14 gone sufficiently beyond mere bad faith to warrant a punitive 15 award, it must be shown by clear and convincing evidence that the 16 insurer has acted maliciously, oppressively or fraudulently.” 17 Mock v. Mich. Millers Mutual Ins. Co., 4 Cal. App. 4th 306, 328 18 (1992). Here, Plaintiff argues that a jury could reasonably find 19 malice because (1) Defendant ignored engineering evidence; 20 (2) refused to conduct a fair investigation; (3) subjected 21 Plaintiff to continued property deterioration; and 22 (4) demonstrated conscious disregard for Plaintiff’s rights. 23 Opp’n PSJ at 8–9. 24 The Court disagrees. “Malice” is “conduct which is intended 25 by the defendant to cause injury to the plaintiff or despicable 26 conduct which is carried on by the defendant with a willful and 27 conscious disregard of the rights or safety of others.” Cal. 28 Civ. Code § 3294(c)(1). Where the finding of bad faith is close, 1 the “sufficiency of the evidence of bad faith . . . inevitably 2 provide[s] a tenuous basis for supporting an award of punitive 3 damages, since both the bad faith and punitive damage findings 4 rest on inferences to be drawn from the same evidence.” Shade 5 Foods, Inc. v. Innovative Products Sales & Marketing, Inc., 78 6 Cal. App. 4th 847, 893 (2000). However, an insurer’s mere 7 careless evaluation of a claim and persistent refusal to 8 reconsider its denial of coverage although its factual errors 9 were called to its attention does not support an award of 10 punitive damages because such conduct falls well short of 11 establishing by clear and convincing evidence the sort of 12 contemptible conduct that could be described as “despicable.” 13 See Amor Ministries v. Century Sur. Co., No. 3:13–cv–01441–GPC– 14 BGS, 2016 WL 1388077, at *9 (S.D. Cal. Apr. 7, 2016); see also 15 Food Pro Intern., Inc. v. Farmers Ins. Exchange, 169 Cal. App. 16 4th 976, 994 (2008); Tomaselli v. Transamerica Ins., Co., 25 Cal. 17 App. 4th 1269, 1286–87 (1994). “Despicable conduct” is conduct 18 that is so vile, base, contemptible, miserable, wretched, or 19 loathsome that it would be looked down upon and despised by 20 ordinary, decent people. Mock, 4 Cal. App. 4th at 331. In 21 addition, the clear and convincing standard requires evidence 22 that is “so clear as to leave no substantial doubt,” and is 23 “sufficiently strong to command the unhesitating assent of every 24 reasonable mind.” Amerigraphics Inc. v. Mercury Cas. Co., 182 25 Cal. App. 4th 1538, 1558 (2010). 26 Here, although the evidence in the record minimally supports 27 Plaintiff’s bad faith claim, “it is an entirely different issue 28 of whether this evidence supports, by clear and convincing 1 evidence, a finding of malice or oppression.” Shade Foods, Inc., 2 78 Cal. App. 4th at 910. Shade Foods, Inc. underscores the high 3 bar for the sufficiency of the evidence to support malice or 4 oppression in contrast to bad faith. In that case, the court 5 found insufficient the insurer’s initial inflexible position on 6 complex coverage issues and failure to communicate with the 7 insured and conduct a minimal investigation. Id. at 892. 8 Notably, the insurer failed to conduct any meaningful 9 investigation into the insured’s claim, and “greatly 10 overestimated its defenses,” concluding there was no potential 11 for coverage. Id. In addition, the insurer refused to consider 12 any of the additional arguments made by the insured. Id. The 13 court upheld the jury’s bad faith award, finding that the 14 defendant’s conduct may have been unreasonable, but dismissed the 15 punitive damage award, explaining that the question of bad faith 16 was so close that the jury could not “reasonably find that it 17 constituted clear and convincing evidence of ‘despicable conduct 18 that subjects a person to cruel and unjust hardship in conscious 19 disregard of that person’s rights’ or ‘despicable conduct which 20 is carried on by the defendant with a willful and conscious 21 disregard of the rights or safety of others.’” Id. at 888, 893. 22 As in Shade Foods, Inc., the Court finds that the instant 23 case presents only a “marginally sufficient case of bad faith.” 24 Id. at 909. While Defendant may have acted unreasonably in 25 failing to conduct any further investigation into Plaintiff’s 26 claim following the submission of the Viani report, this conduct 27 falls short of establishing by clear and convincing evidence the 28 sort of contemptible conduct that could be described as mR IIE I IE IE RO EI OI II ED

1 “despicable.” See, e.g., Food Pro Intern., 169 Cal. App. 4th at 2 994 (where an insurer’s denial of coverage is the result of a 3 “mistake of law or fact, honest error of judgment, 4 overzealousness, mere negligence” an award of punitive damages is 5 inappropriate as a matter of law). 6 Thus, the Court grants summary judgment on Plaintiff’s claim 7 for punitive damages. 8 Iv. ORDER 9 For the reasons above, Defendant’s Motion for Partial 10 Summary Judgment (ECF No. 13) is GRANTED in part. The Court 11 grants judgment in Defendant’s favor on Plaintiff’s: 12 1. Third Cause of Action for Negligent Infliction of 13 | Emotional Distress; 14 2. Fourth Cause of Action for Intentional Infliction of 15 | Emotional Distress; 16 3. Fifth Cause of Action for Elder Abuse; 17 4. Sixth Cause of Action for Loss of Use; and 18 5. Claim for punitive damages. 19 Plaintiff’s counsel shall pay $250 to the Clerk of the Court 20 by February 24, 2026. 21 IT IS SO ORDERED. 22 Dated: February 17, 2026 23 Se Z J (Paras HN A. MENDEZ. 24 SENIOR UNITED STATES DISTRICT JUDGE 25 26 27 28 22