Thee Sombrero, Inc. v. Scottsdale Ins. Co.

239 Cal. Rptr. 3d 416, 28 Cal. App. 5th 729
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 25, 2018
DocketE067505
StatusPublished
Cited by9 cases

This text of 239 Cal. Rptr. 3d 416 (Thee Sombrero, Inc. v. Scottsdale Ins. Co.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thee Sombrero, Inc. v. Scottsdale Ins. Co., 239 Cal. Rptr. 3d 416, 28 Cal. App. 5th 729 (Cal. Ct. App. 2018).

Opinion

RAMIREZ, P. J.

*731Thee Sombrero, Inc. (Sombrero) owns a commercial property in Colton. Pursuant to a conditional use permit (CUP), Sombrero's *732lessees operated the property as a nightclub called El Sombrero. Crime Enforcement Services (CES) provided security guard services at the nightclub. In 2007, after a fatal shooting at the nightclub, the CUP was revoked and replaced with a modified CUP, which provided that the property could be operated only as a banquet hall.

In a previous action, Sombrero sued CES, alleging that CES's negligence caused the shooting, which in turn caused the revocation of the CUP, which in turn caused a diminution in value of the property. It won a default judgment against CES.

Sombrero then filed this direct action ( Ins. Code, § 11580, subd. (b)(2) ) against Scottsdale Insurance Company (Scottsdale), CES's liability insurer. The trial court granted summary judgment in favor of Scottsdale, ruling that Sombrero's claim against CES was for an economic loss, rather than for "property damage" as defined in and covered under the policy.

We will hold that Sombrero's loss of the ability to use the property as a nightclub constituted property damage, which was defined in the policy as including a loss of use of tangible property.

I

FACTUAL BACKGROUND

The following facts are taken from the evidence admitted in support of and in opposition to the motion for summary judgment, and also from those allegations *419of the complaint that Scottsdale did not controvert.

Sombrero owned a piece of commercial property in Colton. A conditional use permit (CUP) had been issued authorizing the use of the property as a nightclub. One of the conditions of the CUP was that the city had to approve the floor plan for the property, and thereafter, the floor plan could not be modified without city approval.

In 2007, Sombrero leased the property to new tenants who operated it as a nightclub called El Sombrero. In connection with the new tenancy, the city inspected the property; it approved a floor plan, and it found that the property was in compliance with the floor plan. As part of the floor plan, the club had a single entrance door, equipped with a metal detector.

*733CES provided security guard services at El Sombrero. It had a corporate general liability policy issued by Scottsdale. The policy covered CES's liability for "property damage" caused by an "occurrence." "Property damage" was defined as either (a) "[p]hysical injury to tangible property, including all resulting loss of use of that property," or (b) "[l]oss of use of tangible property that is not physically injured." "Occurrence," for present purposes, was defined as "an accident."

On June 4, 2007, one patron of El Sombrero shot and killed another. After the shooting, Sombrero learned that CES had converted a storage area into a "VIP entrance" to the club. The VIP entrance had no metal detector. The owner of CES admitted that the gun used in the shooting got into the club through the VIP entrance.

As a result of the shooting, Colton revoked the CUP. Sombrero managed to negotiate a modified CUP, which allowed it to operate the property as a banquet hall rather than as a nightclub.

On May 26, 2009, Sombrero sued CES for breach of contract and for negligence. The complaint alleged that CES failed to frisk the shooter and that this failure caused the revocation of the CUP. The revocation of the CUP, in turn, "lower[ed] the resale and rental value of the Property" and caused "lost income." As damages, the complaint sought "the reduction in fair market value of the Property" as well as "lost income."

On May 24, 2012, Sombrero obtained a default judgment against CES for $923,078. Henry Aguila, the president of Sombrero, submitted a declaration in support of the default judgment in which he stated:

"The property went from being valued at $2,769,231 ... with its large occupancy and nightclub entitlement, to being valued at $1,846,153 after the modified conditional use permit allowing for private banquet use ...."

"The difference in value is $923,078."

"[Sombrero] is seeking negligence damages against [CES] ... in the amount of $923,078, which represents the loss in value due to the modification of the conditional use permit."

*734II

PROCEDURAL BACKGROUND

On February 20, 2015, Sombrero filed this action against Scottsdale,1 alleging one *420cause of action for breach of the insurance policy.

On May 10, 2016, Scottsdale filed a motion for summary judgment. It argued that the loss of the CUP was not a loss of use of tangible property but merely the loss of an intangible right to use property in a certain way. It also argued that property damage does not include economic loss.

In its opposition, Sombrero argued, among other things, that it lost the use of tangible property due to the revocation of the CUP. It also argued that, when an economic loss results from the loss of use of tangible property, it is covered as property damage.

On October 11, 2016, after hearing argument, the trial court granted the motion. It explained: "The underlying judgment against [CES] was set in the amount of $923,078 based on lost value after the permit was revoked. [Citation.] This amount is what Sombrero is seeking to recover from Scottsdale in this case [citation] and is described by Sombrero as economic loss [citation]. Lost value is economic loss, but economic loss is not lost use of tangible property [citation]. Accordingly, the coverage in Scottsdale's policy for property damage does not extend to Sombrero's economic losses caused by Scottsdale's insureds." (Capitalization altered, punctuation added.)

On November 7, 2016, the trial court entered judgment accordingly.

III

THE LOSS OF THE ABILITY TO USE THE PROPERTY AS A NIGHTCLUB CONSTITUTED COVERED PROPERTY DAMAGE

Sombrero contends that "[t]he loss of use of the [p]roperty by the revocation of the CUP[ ] constitutes ... 'loss of use of tangible property that is not physically injured.' "

A "[d]efendant[ ] [is] entitled to summary judgment only if 'all the papers submitted show that there is no triable issue as to any material fact and that *735the moving party is entitled to a judgment as a matter of law.' [Citation.] To determine whether triable issues of fact do exist, we independently review the record that was before the trial court when it ruled on defendant['s] motion. [Citations.] In so doing, we view the evidence in the light most favorable to plaintiff[ ] as the losing part[y], resolving evidentiary doubts and ambiguities in [its] favor. [Citation.]" ( Martinez v. Combs (2010) 49 Cal.4th 35

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Bluebook (online)
239 Cal. Rptr. 3d 416, 28 Cal. App. 5th 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thee-sombrero-inc-v-scottsdale-ins-co-calctapp5d-2018.