Opinion
MANELLA, J.
In the underlying action, appellants Clayton D. (Clayton) and Traute I. (Traute) Paslay (collectively Paslay) asserted claims for breach of insurance contract, bad faith, and elder abuse against respondent State Farm General Insurance Company (State Farm), and requested an award of punitive damages. The trial court granted summary adjudication in State Farm’s favor on each claim and on the request for punitive damages. We conclude there are triable issues of fact regarding the claim for breach of insurance contract, but none regarding the other claims and the request for punitive damages. In the published portion of the opinion, we conclude that the bad faith claim fails under the genuine dispute doctrine, and that the evidence supporting the application of that doctrine precludes the existence of triable issues regarding the elder abuse claim. We therefore reverse the judgment solely with respect to the Paslays’ claim for
breach of insurance contract, affirm the trial court’s remaining rulings, and remand the matter for further proceedings.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The following facts are not in dispute: In December 2010, the Paslays’ house in Pacihc Palisades was insured under a homeowners policy issued by State Farm. On December 17, 2010, during a period of heavy rain, a roof drain failed, causing water to enter the house’s master bedroom through the ceiling, and to damage other parts of the house. The Paslays reported the incident to State Farm, which arranged for them to live in a rented residence while their house was being repaired. At the end of October 2011, the Paslays resumed living in their house. State Farm made payments under the policy exceeding $248,000, including $122,770.98 for repairs to the house, but denied coverage for certain items, including work undertaken in the master bathroom, replacement of drywall ceilings, and installation of a new electrical panel.
In December 2012, the Paslays initiated the underlying action against State Farm. Their second amended complaint (SAC), hied January 15, 2014, contained claims for breach of an insurance contract and bad faith, alleging that State Farm had violated the policy in numerous ways, including refusing to pay for repairs to the master bathroom, refusing to pay for replacement of certain drywall ceilings and the electrical panel, and “[pjrematurely forcing [the Paslays] to move out of temporary rental housing.” The SAC also contained a claim by Traute for elder abuse (Welf. & Inst. Code, §§ 15610.07, 15610.30) predicated on allegations that she was 80 years old when the house suffered water damage. In support of that claim, the SAC asserted that State Farm engaged in abuse by failing to pay policy benehts and forcing Traute to move back into the Paslays’ house while it was still under construction. The complaint sought compensatory and punitive damages.
In November 2014, State Farm sought summary judgment or adjudication regarding the SAC. State Farm requested summary adjudication on the claims for breach of an insurance contract and bad faith, arguing that there were no triable issues whether it had provided all policy benehts due the Paslays. State Farm also argued that the bad faith claim failed under the “ ‘genuine dispute’ ” doctrine for want of triable issues whether it acted unreasonably with respect to the Paslays’ claim. In view of the purported defects in the claims for breach of an insurance contract and bad faith, State Farm contended that summary adjudication was proper with respect to the claim for elder abuse and the Paslays’ request for punitive damages.
In granting summary judgment, the trial court concluded that summary adjudication was proper with respect to each claim in the SAC and the request for punitive damages because there were no triable issues whether State Farm failed to pay benefits owed under the policy and forced the Paslays to move prematurely back to their house. On May 19, 2015, the court entered a judgment in favor of State Farm dismissing the entire action with prejudice. This appeal followed.
DISCUSSION
The Paslays contend the trial court erred in granting summary judgment on the basis of the motions for summary adjudication. For the reasons explained below, we agree that summary adjudication was improper with respect to the SAC’s claim for breach of insurance contract, but not with respect to the other claims and the request for punitive damages.
A.
Standard of Review
“A summary adjudication motion is subject to the same rules and procedures as a summary judgment motion. Both are reviewed de novo. [Citations.]”
(Lunardi
v.
Great-West Life Assurance Co.
(1995) 37 Cal.App.4th 807, 819 [44 Cal.Rptr.2d 56].) ‘“A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail. [Citation.]”
(Molko
v.
Holy Spirit Assn.
(1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493].) In moving for summary judgment, ‘“all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X.”
(Id.
at p. 853, fn. omitted.)
Although we independently assess the grant of summary judgment, our inquiry is subject to two constraints. Under the summary judgment statute, we examine the evidence submitted in connection with the summary judgment motion, with the exception of evidence to which objections have been appropriately sustained.
(Mamou v. Trendwest Resorts, Inc.
(2008) 165 Cal.App.4th 686, 711 [81 Cal.Rptr.3d 406]; Code Civ. Proc., § 437c, subd. (c).) Here, State Farm raised numerous evidentiary objections to the showing proffered by the Paslays, which the trial court sustained in part and
overruled in part. Because the Paslays do not challenge these rulings on appeal, our review is limited to the evidence considered by the trial court.
Furthermore, our review is governed by a fundamental principle of appellate procedure, namely, that “ ‘[a] judgment or order of the lower court is presumed correct,’ ” and thus, “ ‘error must be affirmatively shown.’ ”
(Denham
v.
Superior Court
(1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193], italics omitted, quoting 3 Witkin, Cal. Procedure (1954) Appeal, § 79, pp. 2238-2239.) Under this principle, the Paslays bear the burden of establishing error on appeal, even though State Farm had the burden of proving its right to summary judgment before the trial court.
(Frank and Freedus v. Allstate Ins. Co.
(1996) 45 Cal.App.4th 461, 474 [52 Cal.Rptr.2d 678].) For this reason, our review is limited to contentions adequately raised in the Paslays’ briefs.
(Christoff v. Union Pacific Railroad Co.
(2005) 134 Cal.App.4th 118, 125-126 [36 Cal.Rptr.3d 6].) Underlying all the claims asserted in the SAC are allegations that State Farm breached the insurance contract with respect to numerous losses related to the December 2010 rainwater leak in the house. Because the Paslays’ briefs discuss only a limited number of alleged losses, we confine our review to those.
B.
Policy Provisions
The Paslays contend there are triable issues whether State Farm paid the policy benefits relating to the repair of the house, focusing primarily on work performed in the master bathroom, abatement of asbestos on the house’s ceilings, and replacement of the electrical panel. In addition, they maintain there are triable issues regarding additional living expenses due under the policy. We begin by describing the policy provisions relevant to those contentions.
In “Section I—Losses Insured,” the policy provides under coverage A that State Farm insures “for accidental direct physical loss” to the pertinent dwelling, except as set forth in “Section I—Losses Not Insured.” An endorsement concerning coverage A further states that State Farm “will pay ... the reasonable and necessary cost to repair or replace with similar construction and for the same use on the premises ... the damaged part of the [covered] property
The policy sets forth two pertinent limitations under coverage A regarding (1) upgrades required by building ordinances or other laws and (2) mold-related costs. The endorsement described above states: “We will not pay increased costs resulting from enforcement of any ordinance or law regulating the construction, repair, or demolition of a building . . . , except as provided under Option OL—Building Ordinance or Law Coverage.” The endorsement
contains Option OL—Building Ordinance or Law Coverage (Option OL), which states that (subject to restrictions not relevant here) when a dwelling is damaged by a “[ljoss [ijnsured,” State Farm “will pay for the increased cost to repair or rebuild the physically damaged portion of the dwelling caused by the enforcement of a building, zoning or land use ordinance or law if
the enforcement is directly caused by the same
|/|a\x
[/]nsurecl
and
the requirement is in effect at the time the
|/|a\T>
[/]nsurecl occurs.”
(Italics omitted.) Option OL further provides that under similar circumstances (that is, those described in the phrases italicized above), State Farm will pay for losses and “legally required” changes to undamaged portions of the dwelling resulting from the enforcement of an ordinance or law.
Also included in the policy is an endorsement relating to “any type or form of fungi, including mold . . . .” The endorsement provides, inter alia, that under Section I—Losses Not Insured, State Farm will not pay more than $5,000 “for all loss by fungus” to a dwelling subject to coverage A “caused by or directly resulting from” a covered “peril,” including “the cost of any testing or monitoring of . . . property to confirm the type, absence, presence or level of fungus.”
In addition to the coverage for damage to the dwelling discussed above, the policy provides for additional living expenses. Under coverage C, the policy states: “When a [l]oss [¡Insured causes the residence premises to become uninhabitable, we will cover the necessary increase in costs you incur to maintain your standard of living up to 24 months. Our payment is limited to incurred costs for the shortest of: (a) the time required to repair or replace the premises; (b) the time required for your household to settle elsewhere; or (c) 24 months.”
C.
Underlying Proceedings
We next examine the parties’ showings, with special attention to the evidence bearing on the issues raised on appeal.
1.
State Farm’s Evidence
In seeking summary adjudication on the Paslays’ claims, State Farm submitted evidence supporting the following version of the underlying events: On December 17, 2010, when rainwater leaked through the ceiling of the house’s master bedroom, Traute contacted Clayton, who was then in Texas. After reporting the loss to State Farm and arranging for temporary repairs, Clayton told State Farm that his general contractor would prepare a damage estimate. State Farm assigned a field adjuster to the claim and hired Andrew Gillespie, a general contractor, to assist with its investigation.
On January 11, 2011, the house was inspected by State Farm representatives and Clayton, together with Gillespie and the Paslays’ general contractor, Charlie MacDonald. State Farm gave the Paslays a $25,000 check as an advance regarding the loss. Gillespie and MacDonald estimated that the period potentially required for repairs would be six months, and discussed issues relating to asbestos abatement.
After the inspection, State Farm transferred the Paslays’ claim to a team managed by Donna Blazewich that processes long-term catastrophic claims. Blazewich assigned the claim to Radi Stewart, who conferred with Clayton regarding a six-month lease for a residence Clayton had found. To secure the lease, Stewart approved an $85,000 advance and engaged Klein & Company (Klein), a housing vendor. By January 17, 2011, Klein had arranged for a six-month lease beginning on January 20, at $9,000 per month, plus an $18,000 deposit. Klein issued an invoice for $73,657.50, which State Farm paid.
On January 21, 2011, while inspecting the house, Stewart saw that some wallpaper had separated from a master bathroom wall. During the inspection,
Clayton voiced concerns regarding the possibility of mold developing in the master bathroom; in addition, he stated that MacDonald wished to remove drywall ceilings throughout the house in order to abate asbestos. Stewart advised Clayton that the homeowners policy contained a $5,000 coverage limit concerning mold, including the costs of drywall removal for mold, testing, and remediation. In a letter to the Paslays dated January 31, 2011, Stewart noted Clayton’s “feel[ing] there may be a potential for mold,” and set forth the policy provisions regarding the $5,000 mold coverage limit. Stewart also stated: “[W]e are currently in the process of awaiting the estimate from your contractor regarding the asbestos abatement for the ceiling damaged as a result of the water loss.”
On February 9 and 10, 2011, an asbestos abatement subcontractor hired by MacDonald removed drywall ceilings throughout the house. Prior to that work, the Paslays submitted no estimate or proposal regarding asbestos abatement to State Farm for its review and approval. Upon discovering the removal, Stewart advised Clayton that State Farm would review the Paslays’ estimated asbestos abatement costs with Gillespie to determine whether they were reasonable.
In early March 2011, Gillespie learned that the only “upgrade” work to the house then required by the Los Angeles Department of Building and Safety was the installation of hard-wired smoke detectors. Shortly afterward, he estimated that the water damage repairs would cost $83,306.76, and that installation of smoke detectors would involve an additional expenditure of $4,200. Gillespie’s estimate included $6,815.40 to repair peeling wallpaper in the master bathroom, which was the only damage he had seen there.
In February and March 2011, the Paslays submitted a $262,234.70 repair estimate. Clayton, who had worked as an insurance adjuster but was not a licensed general contractor, was responsible for determining the proposed scope of repairs.
State Farm paid the Paslays $71,352.89 as an undisputed portion of the claim.
In mid-March 2011, the Paslays applied for—and later obtained—a building permit containing the following work description, “Completely remodel (E[xistingj) master bath.” Later, in April 2011, Clayton, Blazewich, and Stewart re-inspected the house, accompanied by MacDonald and Gillespie. The master bathroom had been reduced to its studs, and the shower entry reframed.
Following the inspection, Gillespie advised Stewart that demolition of the master bathroom was not needed to repair water damage, and that the installation of smoke detectors did not require a new electrical power box, as the Paslays had proposed. He also told Stewart that removal of the house’s drywall ceilings had been unnecessary because scraping the ceilings would have been a less costly method of abating asbestos.
On May 9, 2011, State Farm informed the Paslays that it disputed coverage for the demolition and reconstruction of the master bathroom, the proposed new electrical panel, and the replacement of undamaged ceiling drywall. State Farm agreed to pay for certain other repairs. Gillespie increased his estimate by approximately $10,000 to reflect the approved repairs, and State Farm paid the Paslays an additional $10,062.90 for those items.
In late June 2011, the Paslays submitted a $349,589.27 repair estimate and some invoices. Based on the invoices, State Farm paid the Paslays an additional $4,414.55 for certain emergency work they had undertaken to protect the house. Later, State Farm also paid the Paslays’ claims for damage to personal property ($15,232.52, less $2,848.49 in depreciation), and moving expenses related to their rental housing ($9,535.51).
In July 2011, the Paslays’ initial six-month lease for their rental residence expired. Thereafter, State Farm authorized payment of their rent on a monthly basis.
On September 29, 2011, in a letter to the Paslays, State Farm set forth its coverage positions relating to the disputed scope-of-repair issues. Accompanying the letter was an additional $14,565.19 payment for other repairs that State Farm had determined were subject to coverage, and a $5,000 payment under the mold coverage provisions of the policy.
Although State Farm authorized payment of the Paslays’ rent through November 2011, the landlord rented the residence to a different tenant, effective October 31, 2011. At the end of October 2011, the Paslays moved back into their house. Traute testified that when they did so, the kitchen was effectively functional, a bedroom and bathroom were available for use, and the house had water, gas, and electricity. When asked whether the house was then livable, she stated, “ ‘Oh, you can live in it, yeah.’ ”
In November 2011, State Farm paid the Paslays $1,250 for the cleaning of the house’s air ducts. Later, in May 2012, State Farm made a final $540 payment for the installation of an emergency gas shut-off valve, bringing its
total payments under the policy to more than $248,000, including $122,770.98 for repairs to the house based on Gillespie’s final estimate.
2.
The Paslays’ Evidence
In opposing the motion for summary adjudication or judgment, the Paslays maintained there were triable issues regarding numerous aspects of State Farm’s conduct with respect to their claim. Our focus is on the admissible evidence they offered in an effort to raise triable issues relevant to their contentions on appeal. That showing relied primarily on declarations and deposition testimony from Clayton and MacDonald.
Regarding the work undertaken in the master bathroom, Clayton stated that based on his experience as an insurance adjuster, he was concerned that rainwater had infiltrated the master bathroom. On January 21, 2011, during an inspection of the house, he raised that possibility with Stewart in view of the peeling wallpaper in the master bathroom. Clayton’s declaration stated: “I never made a claim for mold in any part of the house, I just expressed my concern that if water had intruded into the walls of the master bathroom, the potential for the development of mold existed.” When Stewart described the $5,000 limit for mold coverage in the policy, Clayton repeated his concern, and explained that he was making no claim for mold.
According to Clayton and MacDonald, in mid-February 2011, they examined the master bathroom for hidden water damage, shortly before the Paslays were to leave for a trip overseas. After removing portions of the bathroom’s wall, they discovered substantial water damage. In exploring the extent of the damage, they removed cabinets, fixtures, and other parts of the bathroom. Clayton phoned Stewart, discovered that he was unavailable, and left a message requesting an immediate investigation of the water damage. Two days later, Stewart arrived at the house. By then, the wet debris had been removed from the master bathroom and discarded. According to Clayton, at some point, pictures of the wet debris were sent to Stewart. MacDonald stated that the work he performed in the bathroom “was done to repair the damage done by the water intrusion,” and Clayton stated that “[t]he cost of repairing the bathroom was in excess of $35,000.”
Regarding the removal of the asbestos-covered drywall ceilings, MacDonald stated that during State Farm’s initial inspection, he and Clayton pointed out water intrusion throughout the house, including the dining room, living room, office, and front bedroom, as well as around the fireplace. Clayton and
MacDonald further stated that because there was no attic access to the ceilings in many parts of the house, the only feasible way to determine the extent of the water intrusion was to remove portions of the drywall ceilings. Furthermore, it was not possible to repair the existing ceiling damage or examine for hidden damage by removing and patching areas of the existing ½-inch drywall ceiling without producing unsightly results, as the applicable building code required the use of Ys-inch drywall. In view of these considerations, Clayton and MacDonald concluded that, in order to abate the asbestos on the damaged ceilings, it was necessary to remove and replace the ceilings in their entirety, rather than scrape off the asbestos.
Regarding the replacement of the electrical panel, MacDonald stated: “During the repair work at the house, it was necessary for me to access the electrical panel ... to turn the electricity off and on. When my electrical contractor and I examined the electrical panel, we were concerned that it was hazardous. I had calculations made of the electrical load which the box needed to serve in the house. Those calculations showed that the box was overloaded beyond its 100 amp[] capacity. Further, the electrical panel appeared to be the original electrical panel installed when the house was built. Because of the amount of work being done in the house, the building code required that hazardous conditions in the house be corrected. [¶] . . . I discussed the issue . . . with [Clayton] and it was agreed the electrical panel should be replaced with a 200 amp[] box to abate the hazard.”
Regarding the provision of additional living expenses, Clayton stated: “In October[] 2011, we received a telephone call from the landlord’s real estate agent informing us that other agents wanted to show the [rented] house. We could not understand what was happening as our house was still under construction, the master bedroom and master bathroom not having been completed. There was no sink, toilet, shower or bathtub in the master bathroom. There were no carpets or floorings in the family room, office or guest bedroom either. [¶] . . . When the landlord’s real estate agent was showing the house, we were informed that the house was available for rent as of November 1, 2011. This was the hrst we heard that our lease was being terminated. [¶] . . . In mid October[] 2011, we received a letter from [Klein], State Farm’s agent, advising us we had to vacate the house by the end of October. . . . Accordingly, we were forced to move back into our house before construction was completed.”
D.
Analysis
We conclude the trial court erred in granting summary adjudication with respect to the Paslays’ claim for breach of insurance contract, but not with respect to their bad faith and elder abuse claims and request for punitive
damages. As explained in the unpublished portion of the opinion,
post,
the Paslays’ evidentiary showing raised triable issues regarding two matters relevant to the breach of insurance contract claim, namely, the work undertaken in the master bathroom and the replacement of the drywall ceilings. Nonetheless, those triable issues did not preclude summary adjudication regarding the bad faith and elder abuse claims and the request for punitive damages (see pt. D.2. of the Discussion,
post).
1.
Breach of Insurance Contract
2. Remaining Claims
In granting summary judgment in favor of State Farm, the trial court concluded that the Paslays’ claims failed for want of a triable issue regarding unpaid policy benefits, but identified an alternative basis for granting summary adjudication on the Paslays’ claims for bad faith, elder abuse, and punitive damages. The court stated that had it been required to address those claims, it would have granted summary adjudication on each in light of the “genuine dispute” doctrine. As explained below, we agree with that determination.
a.
Bad Faith
To establish bad faith, the Paslays must demonstrate misconduct by State Farm more egregious than an incorrect denial of policy benefits. “The law implies in every contract, including insurance policies, a covenant of good faith and fair dealing.”
(Wilson
v.
21st Century Ins. Co.
(2007) 42 Cal.4th 713, 720 [68 Cal.Rptr. 746, 171 P.3d 1082]
(Wilson).)
The obligation imposed on the insurer under the covenant “ ‘is not the requirement mandated by the terms of the policy itself .... It is the obligation . . . under which the insurer must act fairly and in good faith in discharging its contractual responsibilities.’ ”
(California Shoppers, Inc. v. Royal Globe Ins. Co.
(1985) 175 Cal.App.3d 1, 54 [221 Cal.Rptr. 171], italics omitted, quoting
Gruenberg v. Aetna Ins. Co.
(1973) 9 Cal.3d 566, 573-574 [108 Cal.Rptr. 480, 510 P.2d 1032].) In the context of a bad faith claim, “an insurer’s denial of or delay in paying benefits gives rise to tort damages only if the insured shows the denial or delay was unreasonable.”
(Wilson, supra,
42 Cal.4th at p. 723.)
Under this standard, “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[,] even though it might be liable for breach of contract.”
(Chateau Chamberay Homeowners Assn. v. Associated Internat. Ins. Co.
(2001) 90 Cal.App.4th 335, 347 [108 Cal.Rptr.2d 776]
(Chateau Chamberay Homeowners Assn.).)
That is because “whe[n] 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.”
(Ibid.,
italics omitted.) An insurer may thus obtain summary adjudication of a bad faith cause of action “by establishing that its denial of coverage, even if ultimately erroneous and a breach of contract, was due to a genuine dispute with its insured.”
(Bosetti v. United States Life Ins. Co. in City of New York
(2009) 175 Cal.App.4th 1208, 1237 [96 Cal.Rptr.3d 744]
(Bosetti).)
The genuine dispute doctrine “does not relieve an insurer of its obligation to thoroughly and fairly investigate, process and evaluate the insured’s claim. A genuine dispute exists only where the insurer’s position is maintained in good faith and on reasonable grounds.”
(Wilson, supra,
42 Cal.4th at p. 723, italics omitted.) Those grounds include reasonable reliance on experts hired to estimate repair benefits owed under the policy.
(Chateau Chamberay Homeowners Assn., supra,
90 Cal.App.4th at p. 348;
Fraley v. Allstate Ins. Co.
(2000) 81 Cal.App.4th 1282, 1292-1293 [97 Cal.Rptr.2d 386]
(Fraley).)
The reasonableness of the insurer’s decision is assessed by reference to an objective standard
(Bosetti, supra,
175 Cal.App.4th at pp. 1238-1240; see
Brehm v. 21st Century Ins. Co.
(2008) 166 Cal.App.4th 1225, 1238-1240 [83 Cal.Rptr.3d 410].) The application of the genuine dispute doctrine “becomes a question of law where the evidence is undisputed and only one reasonable inference can be drawn from the evidence.”
(Chateau Chamberay Homeowners Assn., supra,
90 Cal.App.4th at p. 346.)
We conclude that the Paslays’ bad faith claim fails under the genuine dispute doctrine. The only triable issues relating to unpaid policy benefits concern the work in the master bathroom and the replacement of drywall ceilings. Regarding those benefits, the record discloses only a genuine dispute regarding the extent of the damage and required repairs. “Where the parties rely on expert opinions, even a substantial disparity in estimates for the scope and cost of repairs does not, by itself, suggest the insurer acted in bad faith.”
(Fraley, supra,
81 Cal.App.4th at p. 1293.) The evidence shows only that Gillespie, State Farm’s expert, promptly examined the master bathroom and drywall ceilings, assessed the extent and type of damage, and estimated the costs of the appropriate repairs.
The Paslays contend there are triable issues whether State Farm adequately investigated the damage in the master bathroom and to the ceilings. We disagree. Generally, the reasonableness of an insurer’s conduct “must be evaluated in light of the totality of the circumstances surrounding its actions.” (Wilson,
supra,
42 Cal.4th at p. 723.) Thus, the adequacy of the insurer’s claims handling is properly assessed in light of conduct limiting the insurer’s investigation by parties with an interest in policy benefits. In
Blake v. Aetna Life Ins. Co.
(1979) 99 Cal.App.3d 901, 905-906 [160 Cal.Rptr. 528], the plaintiff’s husband was insured under a life insurance policy that provided $10,000 to the plaintiff as beneficiary upon “due proof’ of accidental death. After the husband died from a lethal dose of a prescription drug, the insurer assigned an investigator, who unsuccessfully attempted to obtain information from the plaintiff regarding the husband’s state of mind before his death and the source of the fatal drugs.
(Id.
at pp. 911-912.) When the insurer made no payment of the accidental death benefits after 16 months of investigation, the plaintiff asserted claims for breach of insurance contract and bad faith against the insurer.
(Id.
at pp. 916-917.) The appellate court reversed judgment on the bad faith claim, concluding that trial evidence showed the insurer had done all it reasonably could to determine the cause of death, in view of the plaintiff’s failure to supply critical information.
(Id.
at pp. 920-921.)
Here, the Paslays curtailed State Farm’s ability to investigate the damage in the master bathroom and to the ceilings, notwithstanding the policy
provisions regarding their “[d]uties [a]fter [l]oss,” which included an obligation to “exhibit” the damaged property “as often as [State Farm] . . . require[d].” Viewed in the light most favorable to the Paslays, the record shows that in January 2011, during inspections of the house, the parties discussed asbestos abatement to the damaged ceilings, and Clayton “expressed [his] concern that if water had intruded into the walls of the master bathroom, the potential for the development of mold existed.” In a letter dated January 31, 2011, Stewart noted Clayton’s “feel[ing] there may be a potential for mold,” set forth the $5,000 mold coverage limit, and stated: “[W]e are currently in the process of awaiting the estimate from your contractor regarding the asbestos abatement for the ceiling damaged as a result of the water loss.”
In mid-February 2011, before submitting any estimate regarding asbestos abatement, the Paslays removed the ceilings. At approximately the same time, Clayton and MacDonald examined the master bathroom for hidden water damage, and removed cabinets, fixtures, and other parts of the bathroom. Clayton phoned Stewart, learned that he was unavailable, and requested an immediate investigation of the newly discovered damage. By the time Stewart arrived at the house two days later, the debris from the master bathroom had been discarded. At some point, Stewart was sent photographs displaying piles of debris. Stewart subsequently informed the Paslays that the demolition of the bathroom “down to the framing” prior to any agreement on the scope of work was prejudicial to State Farm.
On this record, there are no triable issues regarding the adequacy of State Farm’s investigation, as the Paslays removed the damaged property before State Farm had an opportunity to conduct a full assessment of the Paslays’ proposals and contentions. The record shows only that State Farm did what it could to assess the claimed losses before denying them. In our view, even if those denials were mistaken, nothing suggests that State Farm acted in bad faith. Summary adjudication was therefore proper on the bad faith claim.
b.
Elder Abuse
We next examine Traute’s claim for elder abuse. Under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.), an elder is “any person residing in this state, 65 years or older.” (Welf. & Inst. Code, § 15610.27.)
Section 15610.30 broadly defines financial abuse of an elder as occurring when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder” for “a wrongful use or with intent to defraud, or both,” as well as “by undue influence . . . ,”
(§ 15610.30, subd. (a)(1), (3).)
As there is no dispute that Traute was 80 years old when the rainwater leak damaged the house, the focus of our inquiry is on whether there are triable issues regarding the existence of financial abuse.
In view of our discussion regarding the Paslays’ breach of insurance contract and bad faith claims in the unpublished portion of the opinion and D.2.a. of the Discussion,
ante,
we see no evidence that State Farm retained policy benefits owed to Traute with an intent to defraud or by undue influence. The key question thus concerns the existence of triable issues regarding “a wrongful use” of policy benefits. For the reasons discussed below, we conclude the evidence below raised no such issues.
Subdivision (b) of section 15610.30 provides a person or entity is “deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains possession of property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder . . . adult.” The provision further specifies that a person or entity “takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement . . . .” (§ 15610.30, subd. (c).) Thus, a party may engage in elder abuse by misappropriating funds to which an elder is entitled under a contract. (See
Wood v. Jamison
(2008) 167 Cal.App.4th 156, 164-165 [83 Cal.Rptr.3d 877] [elder’s attorney engaged in financial abuse by improperly accepting as fee certain funds to which elder was entitled through loan];
Bonfigli
v.
Strachan
(2011) 192 Cal.App.4th 1302, 1307, 1315-1316 [122 Cal.Rptr.3d 447] [plaintiffs stated elder abuse claim based on defendant’s exercise of contract-based power of attorney and failure to pay funds admittedly owed under contract].)
Traute’s elder abuse claim presents a question of statutory interpretation regarding the term “wrongful use.” As explained above, there are triable issues whether State Farm breached the insurance contract, but none whether State Farm acted in bad faith, in view of the genuine dispute doctrine. The issue thus presented is whether a merely incorrect denial of policy funds under the circumstances shown here may constitute a “wrongful use” of those funds, for purposes of an elder abuse claim.
We begin by observing that to establish a “wrongful use” of property to which an elder has a contract right, the elder must demonstrate a breach of the contract, or other improper conduct. In
Stebley
v.
Litton Loan Servicing, LLP
(2011) 202 Cal.App.4th 522 [134 Cal.Rptr.3d 604], the trial court sustained a demurrer without leave to amend to the plaintiffs’ complaint, which asserted a claim for wrongful foreclosure and a claim for elder abuse based on the foreclosure.
(Id.
at pp. 524-525.) After affirming the ruling with respect to the wrongful foreclosure claim, the appellate court held that the elder abuse claim also failed, concluding that a lender does not engage in financial abuse of an elder by properly exercising its rights under a contract, even though that conduct is financially disadvantageous to an elder.
(Id.
at pp. 527-528.)
Subdivision (b) of section 15610.30 imposes an additional requirement beyond the existence of improper conduct, namely, that “the person or entity
knew or should have known
that this conduct is likely to be harmful to the elder . . . adult.” (Italics added.) In statutes and other legal contexts, the italicized phrase ordinarily conveys a requirement for actual or constructive knowledge. (See, e.g.,
Castillo v. Toll Bros., Inc.
(2011) 197 Cal.App.4th 1172, 1196 [130 Cal.Rptr.3d 150] [Lab. Code, § 2810, subd. (a), which bars a person from entering into enumerated contracts when the person “ ‘knows or should know’ ” that specified contract condition is absent, imposes requirement for actual or constructive knowledge].) Generally, constructive knowledge, “means knowledge ‘that one using reasonable care or diligence should have, and therefore is attributed by law to a given person’ [citation] [, and] encompasses a variety of mental states, ranging from one who is deliberately indifferent in the face of an unjustifiably high risk of harm [citation] to one who merely should know of a dangerous condition [citation].)”
(John B. v. Superior Court
(2006) 38 Cal.4th 1177, 1190-1191 [45 Cal.Rptr.3d 316, 137 P.3d 153], quoting Black’s Law Dict. (7th ed. 1999) p. 876.) The existence of constructive knowledge is assessed by reference to an objective
“reasonable person” measure, “since there is no other way to measure it.”
(New v. Consolidated Rock Products Co.
(1985) 171 Cal.App.3d 681, 690 [217 Cal.Rptr. 522].)
Here, our focus is on the deprivation of property due an elder under a contract. In that context, the italicized phrase imposes a requirement in addition to the mere breach of the contract term relating to the property, as the existence of such a breach ordinarily does not hinge on the state of mind or objective reasonableness of the breaching party’s conduct. (See
Carma Developers (Cal.), Inc. v. Marathon Development California, Inc.
(1992) 2 Cal.4th 342, 373 [6 Cal.Rptr.2d 467, 826 P.2d 710].) In view of the italicized phrase, we conclude that under subdivision (b) of section 15610.30, wrongful conduct occurs only when the party who violates the contract actually knows that it is engaging in a harmful breach, or reasonably should be aware of the harmful breach.
The evidence before the court did not raise a triable issue whether those circumstances obtain here. As explained above, notwithstanding the existence of triable issues regarding policy benefits due the Paslays, there is no evidence that State Farm acted in subjective bad faith or unreasonably in denying additional benefits. Traute’s elder abuse claim thus fails in light of the evidence supporting the application of the genuine dispute doctrine to the Paslays’ bad faith claim.
Negrete
v.
Fidelity & Guaranty Life Ins. Co.
(C.D.Cal. 2006) 444 F.Supp.2d 998, upon which Traute relies, is distinguishable. There, the plaintiff asserted several class claims against an insurer, including claims for breach of fiduciary duty and elder abuse, alleging that the insurer employed deceptive practices in selling annuities to senior citizens.
(Id.
at pp. 999-1000.) The federal court concluded that the fraud allegations were sufficient to state an
elder abuse claim.
{Id.
at pp. 1001-1003.) In contrast, Traute raised no triable issues regarding the existence of bad faith or unreasonable conduct by State Farm. Accordingly, summary adjudication was properly granted with respect to Traute’s elder abuse claim.
c.
Punitive Damages
DISPOSITION
The judgment is reversed with respect to the claim in the SAC for breach of insurance contract, and affirmed with respect to the remaining claims and request for punitive damages. The matter is remanded for further proceedings in accordance with this opinion. The parties are to bear their own costs on appeal.
Epstein, P. J., and Collins, J., concurred.