Vulk v. State Farm General Ins. CA3

Filed 8/31/21 Vulk v. State Farm General Ins. CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----

MATTHEW VULK, C090073

Plaintiff and Appellant, (Super. Ct. No. SC-CV-CV-
15-1146-21)
v.

STATE FARM GENERAL INSURANCE
COMPANY,

Defendant and Respondent.
___________________________________________
GARY ANDRIGHETTO, C090074

Plaintiff and Appellant, (Super. Ct. No. SC-CV-CV-
15-1146-1)
v.

STATE FARM GENERAL INSURANCE
COMPANY,

Defendant and Respondent.
___________________________________________

1
JAMES DALIN, C090278

Plaintiff and Appellant, (Super. Ct. No. SC-CV-CV-
15-1146-4)
v.

STATE FARM GENERAL INSURANCE
COMPANY,

Defendant and Respondent.
___________________________________________

These consolidated appeals arise from an insurance coverage dispute following a
wildfire that burned in Siskiyou County. In September 2014, the Boles Fire damaged and
destroyed numerous homes in the town of Weed, including the homes owned by plaintiffs
Gary Andrighetto, James Dalin, and Matthew Vulk. Plaintiffs and others filed suit
against their insurance company, defendant State Farm General Insurance Company
(State Farm), alleging various claims, including breach of contract and negligence. At
the center of the parties’ dispute is whether State Farm intentionally or negligently
underinsured plaintiffs’ homes. Plaintiffs argued their homes were insufficiently insured
due to State Farm’s alleged failure to calculate reasonable or adequate policy limits on
their behalf for the full replacement cost of their homes.
After the trial court granted State Farm’s motion for summary judgment against
Andrighetto, Dalin and Vulk stipulated to entry of judgment in favor of State Farm. Each
plaintiff timely appealed, and we consolidated the appeals for argument and disposition.
Thereafter, we requested that the parties discuss in their briefing whether the judgments
in the Dalin and Vulk matters need to be reversed pursuant to Magaña Cathcart
McCarthy v. CB Richard Ellis, Inc. (2009) 174 Cal.App.4th 106 (McCarthy).1

1 Plaintiffs are represented on appeal by the same attorney who represented them in the
trial court. On appeal, counsel states, “This Court is not being asked to decide any

2
 As we shall explain, we will affirm the judgment in the Andrighetto matter and
reverse the stipulated judgments in the Dalin and Vulk matters; we remand the Dalin and
Vulk matters for further proceedings.
BACKGROUND
In view of the procedural posture of these consolidated appeals, we need only
summarize the pertinent facts and procedural history related to the Andrighetto matter. In
the Discussion section of our opinion, we provide additional background information
relevant to the stipulated judgments entered in the Dalin and Vulk matters.
The Property and Insurance Policy
Andrighetto is the owner of the real property located at 444 Shasta Avenue, Weed,
California (the property). State Farm began insuring the property in the early 1960’s
when it was owned by Andrighetto’s parents. In 1970, Andrighetto insured the property
after his father died. The property included a three bedroom, two bathroom house with a
two-car attached garage, together approximately 1,500 square feet, and two storage
structures.
In November 1993, Andrighetto submitted an application for homeowners
insurance to State Farm. Thereafter, State Farm issued homeowners policy No. 55-VA-
2434-8, effective November 30, 1993. The policy insured Andrighetto’s dwelling,
dwelling extensions, and personal property against various risks (including fire) up to
stated policy limits. The coverage limit on his dwelling was initially set at $94,400.
Once a year from 1993 to 2013, State Farm sent Andrighetto an insurance renewal
certificate setting forth his policy limits for the next policy term, which automatically
increased each year to account for inflation. The renewal certificate sent to Andrighetto
in 2013, which covered the period from November 30, 2013, to November 30, 2014,

additional issues arising from the Vulk or Dalin cases. Mr. Vulk and Mr. Dalin are
effectively joining Mr. Andrighetto in asking the Court to review Mr. Andrighetto’s
proper summary judgment proceeding.”

3
advised him that the policy limit for his home was “based on an estimate of the cost to
rebuild [his] home, including an approximate cost for labor and materials in [his] area,
and specific information that [he had] provided about [his] home.” The renewal
certificate informed Andrighetto that higher policy limits were available at higher
premiums, that it was Andrighetto’s responsibility to “choose the coverages and limits
that [met his] needs,” and that State Farm recommended that he purchase a coverage limit
“at least equal to the estimated replacement cost of [his] home.” The renewal certificate
further advised Andrighetto that home replacement cost estimates could be obtained from
various sources, including a building contractor or his insurance agent via a third-party
vendor, and that State Farm “does not guarantee that any estimate will be the actual
future cost to rebuild [his] home.” The renewal certificate encouraged Andrighetto to
“periodically review [his] coverages and limits with [his] agent and to notify [State Farm]
of any changes or additions to [his] home.”
When Andrighetto renewed his policy in 2013, the coverage limit on his dwelling
was $184,900 (Coverage A), plus $18,490 for dwelling extension coverage (Coverage
A).2 The dwelling-related coverage limits also included the following optional
coverages: (1) Option ID, which provided an additional sum, equal to 20 percent of the
policy maximum, for increased dwelling and dwelling extension costs; (2) Option OL,
which provided an additional sum, equal to 10 percent of the policy maximum, for
statutory or building code-compliance costs; and (3) an additional sum, equal to 5 percent
of the policy maximum, for dwelling debris removal costs.

2 On the date of the Boles Fire, September 15, 2014, the dwelling-related coverage limits
were slightly higher, as State Farm prorates inflation increases during the policy year up
to the date of loss. The coverage limit on Andrighetto’s dwelling was $188,598, plus
$18,859.80 for dwelling extension coverage; the optional coverages were also slightly
higher due to the inflation increases.

4
 In addition to the annual renewal certificate, every two years, including in October
2012, State Farm sent Andrighetto the California Residential Property Insurance
disclosure form mandated by Insurance Code section 10102. This form listed and
defined various types of insurance coverage, including: (1) “replacement cost coverage,”
which “only pays for replacement costs up to the limits specified in [the] policy”; (2)
“extended replacement cost coverage,” which “provides additional coverage above the
dwelling limits up to a stated percentage or specific dollar amount”; and (3) “guaranteed
replacement cost coverage,” which “covers the full cost to repair or replace the damaged
or destroyed dwelling . . . regardless of the dwelling limits shown on the policy
declarations page.” (See Ins. Code, § 10102, subd. (a).)
The disclosure form sent to Andrighetto in October 2012 advised him that he had
purchased extended replacement cost coverage for his dwelling and building code
upgrade coverage, and that guaranteed replacement cost coverage, which he did not
purchase, was the broadest level of coverage.3 The form additionally advised
Andrighetto that his policy’s declarations page identified the specific coverage limits he
purchased, and explained that it was important for him to consider whether the limits
were sufficient to meet his needs and that he should contact his insurance agent or
insurance company if he had any questions about the coverage he purchased or if he
wanted to discuss his coverage options. The form specifically warned Andrighetto about
being “underinsured” (i.e., insuring his home for less than its replacement cost), which
“may result in [his] having to pay thousands of dollars out of [his] own pocket to rebuild
[his] home if it is completely destroyed.” The form advised Andrighetto that the
coverage limit on his dwelling should be high enough to allow him to rebuild his home in

3 “In 1997, State Farm eliminated the guaranteed replacement cost coverage in its
homeowner policies.” (Everett v. State Farm General Ins. Co. (2008) 162 Cal.App.4th
649, 652 (Everett).)

5
the event it is completely destroyed, and encouraged him to obtain a current estimate of
the cost to rebuild his home from his insurance agent or insurance company, or to obtain
an independent appraisal from a local contractor, architect, or real estate appraiser, and to
contact his agent or insurance company immediately if he believed his coverage limits
might be inadequate. The form explained that a current estimate of the cost to replace his
home could “help protect [him] against being underinsured,” and that if he obtained such
an estimate and wanted to change his coverage limits, he should contact his insurance
company. Thus, State Farm notified Andrighetto that he did not have guaranteed
replacement cost coverage for his home; rather, he was insured for replacement only to
the extent of the coverage limits set forth on his policy’s declarations page.
Every five years, including in August 2009 and August 2014, State Farm sent
Andrighetto a letter providing him “information about an important aspect of . . .
homeowners coverage – estimating the cost to replace [his] home at today’s
reconstruction prices.” The letter identified several ways to obtain such an estimate,
including using a recent replacement cost appraisal, a recent building contractor’s
estimate, or working with his insurance agent using Xactware software. State Farm
specifically advised Andrighetto that it does not guarantee that any replacement cost
estimate will be the actual future cost to rebuild his home and recommended that
Andrighetto purchase insurance coverage in an amount at least equal to the estimated cost
to replace his home. In doing so, State Farm informed Andrighetto that while he
estimated the cost to replace his home when he originally purchased his homeowners
policy (i.e., in 1993), it recommended that he review his policy each year to ensure he
had sufficient insurance coverage. State Farm emphasized that such a review was
particularly important if Andrighetto felt that home improvements, rising construction
costs, or other economic factors made his original estimate outdated.

6
 Andrighetto’s Deposition
Andrighetto was deposed in June 2017. During his deposition, Andrighetto stated
that he could not recall receiving any document from State Farm summarizing the
coverage limits of his homeowners policy, but acknowledged that even if he had received
any such documents, he “probably wouldn’t have looked at [them] anyhow,” as he
usually threw away anything that was not a billing invoice. Andrighetto explained that
he never read his policy and was unaware of its coverage limits, except for the dwelling
“base amount” of $188,000. Andrighetto added that, prior to the Boles Fire, he never had
any concerns or questions about his policy, never asked his insurance agent about
coverage or coverage limits, and did not inform State Farm about any improvements to
the property.
Andrighetto stated that he told his insurance agent, Laura Winkelman, that he
wanted the “best policy” for his home. When asked, he said that this conversation most
likely occurred when Winkelman took over his account; although Andrighetto did not
recall when that happened, it is undisputed that Winkelman became Andrighetto’s
insurance agent in 2007. He indicated that Winkelman had been with State Farm a long
time, and that his conversation with her occurred a long time ago, maybe 15 to 20 years
ago. He claimed that he told Winkelman he wanted the “best policy” for his house
because it was his biggest investment. In response, she told him the coverage limits of
his policy and said that it provided “full coverage.”
Andrighetto explained that he trusted his insurance agents to procure “the right
amount” of insurance and assumed his agents knew what they were doing and would
“give [him] the right policy for [his] house.” He assumed that Winkelman would
automatically increase his coverage limits as necessary to ensure the sufficiency of his
coverage and would continue to do so over time. However, he acknowledged that he
never confirmed that Winkelman was making such increases and she never told him that
he “would have enough insurance no matter what.” When asked, Andrighetto said that

7
he saw his policy’s declarations page for the first time on the day after the Boles Fire. He
explained that he met with Winkelman and she told him the coverage limits of his policy
and that his policy would cover his “loss for everything.” When Andrighetto was
specifically asked whether he gave as much detail about every conversation he had with
Winkelman, he said: “The only conversation I had with her was basically right after the
fire.”
The Boles Fire, Andrighetto’s Insurance Claim, and Reconstruction
On September 15, 2014, the Boles Fire completely destroyed Andrighetto’s home.
He reported the loss to Winkelman the following day and she assured him that he had a
“full coverage policy,” which would cover his “loss for everything,” including “the house
and all the contents and stuff.”
State Farm investigated Andrighetto’s insurance claim and paid him the coverage
limits for the dwelling-related damage in the aggregate amount of $285,725.37. State
Farm also paid Andrighetto the coverage limit for personal property loss, $143,949.00,
and additional living expense reimbursements in the amount of $37,221.30. In total,
Andrighetto received $466,896.27 from State Farm to pay for his losses caused by the
Boles Fire.
In June 2015, Andrighetto entered into a contract with AWM Construction, Inc.
(AWM) to rebuild his home and install certain hardscaping. Construction was completed
in December 2015. According to Andrighetto, his new home is a near duplicate of his
old home, with slight layout and finishing differences. Andrighetto paid AWM
$236,173.26 for its work. In total, Andrighetto estimated that he spent approximately
$260,000 to $270,000 to replace his home and other structures on the property.
A contractor hired by Andrighetto’s public adjuster estimated that the actual cost
to replace Andrighetto’s home would have been $365,450.26. As such, Andrighetto
claims that his insurance policy did not provide full coverage, since he was “forced to
build a substantially cheaper replacement house.”

8
 The Lawsuit
In September 2015, Andrighetto and others filed suit against State Farm.4 A
second amended complaint was filed in February 2017; it asserted claims for breach of
contract, breach of the implied covenant of good faith and fair dealing, negligence, and
unfair trade practices in violation of the Unfair Competition Law (UCL). As relevant
here, the breach of contract claim is predicated on State Farm’s conduct in intentionally
or negligently underinsuring Andrighetto’s home by failing to provide “the amount of
insurance coverage necessary to protect [him] in the event of a loss.” The breach of the
implied covenant of good faith and fair dealing claim is based on State Farm’s conduct in
handling his insurance claim, including misrepresenting pertinent facts related to
coverage and intentionally underinsuring his home. The negligence claim alleged that
State Farm breached its duty to use reasonable care in estimating the replacement cost of
his home for the purpose of setting coverage limits, thereby resulting in unreasonably low
coverage limits. The claim further alleged that State Farm negligently misrepresented the
actual replacement cost of his home by providing him with replacement cost estimates
that were “unreasonably low.” Andrighetto asserted that he reasonably relied on the
replacement cost estimates provided by State Farm and reasonably believed that his home
was insured for the full replacement cost. Finally, the UCL claim is predicated on State
Farm’s allegedly unlawful, unfair, or fraudulent business practice of underinsuring their
customers’ homes by underestimating the replacement cost of the homes, while failing to

4 The original complaint and first amended complaint named three State Farm insurance
agents as defendants, including Winkelman. Pursuant to a stipulation, these individual
defendants were dismissed from the action in October 2016. As part of the stipulation,
the parties agreed that the named insurance agents “were acting within the course and
scope of their agency relationship with State Farm, with respect to the facts alleged in the
[operative pleading].”

9
disclose all relevant information and misleading customers to believe their homes were
insured up to the full replacement cost.
Motion for Summary Judgment/Adjudication
In October 2018, State Farm filed a motion for summary judgment or in the
alternative summary adjudication of issues against Andrighetto. In support of its motion,
State Farm argued that the breach of contract and breach of the implied covenant of good
faith and fair dealing claims failed as a matter of law because State Farm paid
Andrighetto all benefits due under his policy and did not act unreasonably with respect to
the handling of his insurance claim. State Farm additionally argued that Andrighetto’s
negligence claim failed as a matter of law because State Farm did not breach any duty of
care owed to him and/or he did not suffer any damages from any alleged breach. Finally,
State Farm argued that Andrighetto’s UCL claim failed as a matter of law because he
could not demonstrate the existence of any unlawful, unfair, or fraudulent conduct and/or
that he suffered damage from any such conduct.
Andrighetto opposed State Farm’s motion. In connection with the summary
judgment proceedings, the parties stipulated that Andrighetto was paid the coverage
limits set forth in his homeowners policy “as written,” and that his insurance claim “was
adjusted in a reasonable manner and consistent with State Farm’s obligations under the
covenant of good faith and fair dealing.”5
After a hearing, the trial court granted State Farm’s motion for summary
judgment. The court sustained various objections State Farm made to the evidence
submitted by Andrighetto in opposition to the motion. Andrighetto has not challenged
any of the trial court’s evidentiary rulings and therefore has waived any evidentiary issue

5 Andrighetto stated in deposition that he never saw anything in writing from State Farm
denying coverage for any aspect of his insurance claim.

10
on appeal. (See Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.) Andrighetto
timely appealed.
DISCUSSION
I
Motion for Summary Judgment
A. Standard of Review
On appeal from the grant of a motion for summary judgment, “ ‘ “ ‘[w]e review
the trial court’s decision de novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and sustained.’ ” [Citation.]
We liberally construe the evidence in support of the party opposing summary judgment
and resolve doubts concerning the evidence in favor of that party.’ ” (Wilson v. 21st
Century Ins. Co. (2007) 42 Cal.4th 713, 717.) “ ‘A trial court properly grants a motion
for summary judgment only if no issues of triable fact appear and the moving party is
entitled to judgment as a matter of law. [Citations.] The moving party bears the burden
of showing the court that the plaintiff “has not established, and cannot reasonably expect
to establish,” ’ the elements of his or her cause of action.” (Id. at p. 720.)
Because the trial court’s judgment is presumed to be correct, plaintiffs (as the
appellants) have the burden of affirmatively establishing reversible error. (Jameson v.
Desta (2018) 5 Cal.5th 594, 608-609; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 535.)
For this reason, our review is limited to issues that have been adequately raised and
supported in the appellant’s brief. (Dinslage v. City and County of San Francisco (2016)
5 Cal.App.5th 368, 379.) Because “we review ‘the ruling, not the rationale,’ ” on this
appeal from summary judgment, we may affirm on any basis supported by the record and
the law. (Skillin v. Rady Children’s Hospital & Health Center (2017) 18 Cal.App.5th 35,
43.)

11
 B. Negligence Claim
Andrighetto contends the trial court erred in granting summary judgment on his
negligence claim. He argues that a triable issue of material fact exists as to whether State
Farm had a special duty of care to provide him insurance coverage that equaled the cost
to replace his home. We disagree.
1. Applicable Legal Principles
To establish negligence, a plaintiff must prove that: (1) the defendant had a legal
duty of care towards the plaintiff; (2) the defendant breached that duty; (3) the plaintiff
suffered injury as a proximate result of the breach; and (4) damage to the plaintiff.
(Wallman v. Suddock (2011) 200 Cal.App.4th 1288, 1308 (Wallman).) “Whether a duty
of care exists is a question of law for the court.” (Id. at p. 1309.)
“[A]s a general proposition, an insurance agent does not have a duty to volunteer
to an insured that the latter should procure additional or different insurance coverage.”
(Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 927 (Fitzpatrick ); see also Roberts v.
Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1403-1404.) “[I]n the ordinary
case, ‘the onus is . . . squarely on the insured to inform the agent of the insurance he
requires.’ ” (Wallman, supra, 200 Cal.App.4th at p. 1309; see Everett, supra, 162
Cal.App.4th at p. 660 [an insurer does not have a general duty to set policy limits for
insureds, including policy limits that equal the cost to replace an insured’s home; rather,
“[i]t is up to the insured to determine whether he or she has sufficient coverage for his or
her needs”].)
The general no-duty rule changes only when one of the following three things
occurs: (1) the agent misrepresents the nature, extent or scope of the coverage being
offered or provided; (2) there is a request or inquiry by the insured for a particular type
or extent of coverage; or (3) the agent assumes an additional duty by either express
agreement or by holding themself out as having expertise in a given field of insurance
being sought by the insured. (Roberts v. Assurance Co. of America, supra, 163

12
Cal.App.4th at pp. 1403-1404.) To trigger a special duty of care under the first scenario,
there must be an affirmative misrepresentation. (Sheahan v. State Farm Gen. Ins. Co.
(2020) 442 F.Supp.3d 1178, 1187.) To trigger a special duty of care under the second
scenario, an insured’s request for a particular type or extent of coverage must be
sufficiently “targeted” or “specific” before an insurance agent will be held to have
undertaken an obligation to procure the coverage. (Fitzpatrick, supra, 57 Cal.App.4th at
pp. 928-929.)
2. Analysis
As we shall explain, we conclude that Andrighetto was precluded from opposing
summary judgment on the theory that State Farm owed him a special duty of care to
procure additional insurance coverage; specifically, coverage that equaled the cost to
replace his home. Even were we to overlook this deficiency, Andrighetto’s negligence
claim fails as a matter of law.
It is well-settled that the pleadings set the boundaries of the issues to be resolved
at summary judgment. (Conroy v. Regents of University of California (2009) 45 Cal.4th
1244, 1254 (Conroy ); Oakland Raiders v. National Football League (2005) 131
Cal.App.4th 621, 648.) “Thus, a ‘defendant moving for summary judgment need address
only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded
issues in his or her opposing papers.’ [Citation.] ‘To create a triable issue of material
fact, the opposition evidence must be directed to issues raised by the pleadings.
[Citation.] If the opposing party’s evidence would show some factual assertion, legal
theory, defense or claim not yet pleaded, that party should seek leave to amend the
pleadings before the hearing on the summary judgment motion. [Citations.]’ [Citation.]
‘[T]he pleadings “delimit the scope of the issues” to be determined and “[t]he complaint
measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s
cause of action.” [Citation.] [Plaintiff’s] separate statement of material facts is not a
substitute for an amendment of the complaint.’ ” (Laabs v. City of Victorville (2008) 163

13
Cal.App.4th 1242, 1253; see Jacobs v. Coldwell Banker Residential Brokerage Co.
(2017) 14 Cal.App.5th 438, 444 (Jacobs) [since the pleadings define the scope of
summary judgment, “ ‘[a] party may not oppose a summary judgment motion based on a
claim, theory, or defense that is not alleged in the pleadings,’ and ‘[e]vidence offered on
an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the
pleadings’ ”].) Similarly, “ ‘ “[d]eclarations in opposition to a motion for summary
judgment ‘are no substitute for amended pleadings.’ ” ’ ” (Conroy, supra, 45 Cal.4th at
p. 1254.)
As relevant here, the operative complaint alleges that State Farm negligently
underinsured Andrighetto’s property by “not providing the amount of insurance coverage
necessary to protect [him] in the event of a loss.” According to Andrighetto, State Farm
negligently set the coverage limits of his policy unreasonably low, thereby underinsuring
his property. These allegations implicate the line of cases resolved under the general rule
that insurers and their agents have no duty to ensure that a policy will cover the full
amount of any insured loss. (See, e.g., Fitzpatrick, supra, 57 Cal.App.4th at pp. 921-923
[discussing cases].) The complaint does not allege a separate claim for negligent
misrepresentation, which is a different tort with different elements than the tort of
negligence. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 227-228.)
In his opposition to State Farm’s motion for summary judgment, Andrighetto
recharacterized his negligence claim. He argued, as he maintains on appeal, that his
negligence claim involved the “failure to deliver the agreed-upon coverage,” and that
Winkelman’s description of his policy as providing “full coverage” constituted a
misrepresentation that would mislead an ordinary consumer to believe his policy had
sufficient limits to replace his home. In recharacterizing his negligence claim,
Andrighetto has implicated the line of cases involving a special duty of care, which
concerns exceptions to the general no-duty rule. (Fitzpatrick, supra, 57 Cal.App.4th at
pp. 923-927 [discussing cases].)

14
 Since the operative complaint, construed broadly, does not allege any facts related
to a special duty of care theory of negligence liability, this theory cannot serve as a basis
to reverse the trial court’s grant of summary judgment. (Conroy, supra, 45 Cal.4th at p.
1254; see Comunidad en Accion v. Los Angeles City Council (2013) 219 Cal.App.4th
1116, 1125 [“ ‘ “[a] party cannot successfully resist summary judgment on a theory not
pleaded” ’ ”].) If, after State Farm moved for summary judgment, Andrighetto believed
he had evidence to support such a theory, it was incumbent upon him to seek to amend
the complaint at or prior to the hearing on the motion for summary judgment. (Laabs v.
City of Victorville, supra, 163 Cal.App.4th at pp. 1257-1258.) He failed to do so. Thus,
he cannot obtain reversal of the trial court’s summary judgment ruling on the basis that
there was a triable issue of material fact as to whether State Farm had a special duty of
care to provide him insurance coverage that equaled the cost to replace his home. As the
Laabs court noted, “To allow an issue that has not been pled to be raised in opposition to
a motion for summary judgment in the absence of an amended pleading, allows nothing
more than a moving target.” (Id. at p. 1258, fn. 7; see Millard v. Biosources, Inc. (2007)
156 Cal.App.4th 1338, 1353 [plaintiff whose complaint alleged negligence but not a
theory of negligence per se and who did not seek to amend complaint to include such
allegations cannot defeat summary judgment by raising a theory of negligence per se].)
Further, contrary to Andrighetto’s contention, the evidence before the trial court,
liberally construed in his favor, does not show the existence of a triable issue of material
fact on the special duty of care theory. As we have set forth in detail ante, Andrighetto
did not direct the trial court to any evidence showing that he specifically requested
Winkelman procure full replacement cost coverage for his home prior to the Boles Fire.
Nor did he cite any evidence showing that he ever asked her whether his insurance
coverage was adequate to replace his home in the event of a total loss. Indeed,
Andrighetto stated in his deposition that he never made a specific inquiry as to the type or
extent of coverage provided by his homeowners policy. He explained that, prior to the

15
Boles Fire, he never read his policy, never had any concerns or questions about it, never
contacted or met with his insurance agent to discuss coverage limits, and never requested
a specific type of coverage or that his coverage limits be changed Further, he did not
claim that he ever asked Winkelman or arranged for a current estimate of the cost to
rebuild his home under current construction prices (even though this was also one of the
recommendations in the bi-annual disclosure form designed to protect against insureds
being underinsured).
In his declaration filed in support of his opposition to State Farm’s motion for
summary judgment, Andrighetto stated: “When Laura Winkelman took over my account,
I asked her to make sure I had the best policy, and she told me I had full coverage on my
house.” He added that he “trusted and relied on my State Farm agent, and I thought that
full coverage meant that I would have enough coverage to rebuild my home.”
At the hearing on State Farm’s motion, Andrighetto pointed out for the first time
that there was a portion of his deposition testimony in which he stated that he had a
conversation with Winkelman “a long time ago,” “[m]aybe when she got there” (i.e.,
began working for State Farm), wherein he told her that he wanted “the best policy.” In
response, Winkelman told him the coverage limits of his policy and said that it was a
“full coverage” policy. He argued that this evidence, in addition to his declaration,
precluded summary judgment in favor of State Farm on his negligence claim. The trial
court disagreed, stating that Andrighetto had failed to articulate a reason why he did not
clearly state in his deposition, which occurred a year-and-a-half before the execution of
his declaration, that his conversation with Winkelman about full coverage occurred prior
to the Boles Fire. In granting State Farm’s motion, the court found that Andrighetto had
failed to present evidence showing that Winkelman told him he had a full coverage policy
prior to the Boles Fire, or that she made such a comment in response to his request for the
best policy at any time.

16
 On this record, we see no error in the trial court’s decision to grant summary
judgment in favor of State Farm. As an initial matter, we cannot fault the trial court for
treating Andrighetto’s self-serving, conclusory declaration with skepticism, absent a
credible explanation for why he did not clearly state during his deposition that
Winkelman told him prior to the Boles Fire that he had “full coverage” for his home in
response to his request for the “best policy.” (See Whitmire v. Ingersoll-Rand Co. (2010)
184 Cal.App.4th 1078, 1087 [trial court may disregard declaration submitted in
opposition to a motion for summary judgment motion that clearly contradicts the
declarant’s earlier deposition testimony].) Andrighetto’s statements in his deposition did
not clearly indicate that the alleged conversation occurred prior to the Boles Fire. When
asked, he stated that he did not know when the conversation occurred. He said that the
conversation “probably” occurred when Winkelman “first took over,” and that it occurred
“a long time ago”; “Maybe when she got there. I don’t remember.” However, when he
was later specifically asked whether he gave as much detail about every conversation he
had with Winkelman, he said, “The only conversation I had with her was basically right
after the fire.”
As we have explained, State Farm was not required to refute liability on a theory
of liability raised by Andrighetto for the first time in his opposition to the motion for
summary judgment, and the trial court did not need to address the theory in ruling on the
motion. But even if we were to consider the merits of the newly raised theory and
liberally construe the record as containing evidence that Winkelman told Andrighetto that
he had “full coverage” for his home prior to the Boles Fire in response to his request for
the “best policy,” we would conclude that the evidence was insufficient to establish a
triable issue of fact as to whether Winkelman assumed a special duty of care to ensure
Andrighetto had full replacement cost coverage for his home under a misrepresentation of
coverage theory or a failure to procure the agreed-upon coverage theory.

17
 The summary judgment record reflects that Andrighetto never specifically
requested that Winkelman procure full replacement cost coverage or 100 percent
replacement cost coverage for his home. Rather, Andrighetto made a vague and
conclusory request for the “best policy” and never specifically asked Winkelman whether
the coverage limits of his policy were adequate to rebuild his home in the event of a total
loss. Further, Andrighetto neither asked Winkelman nor arranged for a third party to
provide a current estimate to rebuild his home at current construction prices, and
Winkelman never specifically told Andrighetto that he had full replacement cost
coverage or 100 percent replacement cost coverage for his home. Nor did Winkelman
ever tell Andrighetto that the coverage limits of his policy were adequate to rebuild his
home in the event of a total loss. A non-specific request for the “best policy” and a
general assurance of “full coverage” is not the same as a specific request for and
assurance of 100 percent replacement cost coverage. (See Fitzpatrick, supra, 57
Cal.App.4th at pp. 921-930 [finding no special duty to procure additional insurance
where agent did business with insureds for 20 years, knew “generally” that the insureds
wanted “the upper limits of coverage” and told the insureds “several times” that coverage
was “adequate”; agent gave no specific advice as to adequacy of coverage and insureds
made no specific inquiry about the coverage they wanted]; see also Wallman, supra, 200
Cal.App.4th at pp. 1310-311 [finding no special duty to procure additional insurance
where insureds’ statements to their insurance agent about the kind of coverage they
wanted were “extremely general in nature,” including a vague request for insurance that
would protect them in the event of “ ‘any possible lawsuit that could happen in the
future’ ”]; Ahern v. Dillenback (1991) 1 Cal.App.4th 36, 40 [finding no special duty to
procure additional insurance where insured asked for “full coverage or the ‘best coverage
that exists’ ” and “the best policy there is,” and was assured of “full insurance coverage”;
insureds did not specifically request the particular coverage they claimed should have
been procured and insurance agent did not represent they had such coverage ]; cf.

18
Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1114 [order sustaining
demurrer reversed where insured alleged he had specifically requested “100 percent
coverage for the cost of repairing or replacing improvements to the property, including
any increase for inflation” and the insurance agent had “personally inspected the property
to determine the amount of coverage needed” and then “orally represented that the policy
provided ‘100 coverage for costs of repairs and/or replacement of the improvements to
the property including any and all increases in costs of repair or rebuilding in the event of
a loss’ ”]; Free v. Republic Ins. Co. (1992) 8 Cal.App.4th 1726, 1728-1731 [order
sustaining demurrer reversed where insured repeatedly asked and was repeatedly assured
by his insurer that the coverage limits of his policy were adequate to rebuild his home].)6
C. UCL Claim
Andrighetto contends the trial court erred in granting summary judgment on his
UCL claim. We disagree.
1. Additional Background
In support of his UCL claim, Andrighetto alleged that State Farm “repeatedly and
systematically underinsured their customers . . . as part of an unlawful, unfair or
fraudulent business act or practice designed to sell insurance policies at a lower premium,
thus making [State Farm] more competitive in the marketplace.” According to
Andrighetto, State Farm’s “unlawful, unfair or fraudulent business acts or practices were
carried out by the use of software and a system of agent and employee training that
caused [State Farm] and [its agents/brokers] to underestimate the replacement costs of

6 We reject Andrighetto’s attempt to establish a triable issue of fact on the duty of care
issue by relying on opinions from an expert. The existence and the scope of a duty of
care in a given factual situation are issues of law for the court. (Ann M. v. Pacific Plaza
Shopping Center (1993) 6 Cal.4th 666, 674, disapproved on another ground as stated in
Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527.)

19
insured [property] consistently, while failing to disclose all relevant information to [their]
. . . customers.”
In its motion for summary judgment, State Farm argued, among other things, that
Andrighetto’s UCL claim failed as a matter of law because he could not demonstrate the
existence of any unlawful, unfair, or fraudulent conduct. In response, Andrighetto stated
that his UCL claim sought “to prevent State Farm from engaging in the unlawful, unfair,
and fraudulent practice of selling supposedly ‘replacement cost’ insurance with
unreasonably low policy limits,” that is, “policies that only provide a fraction of the
coverage needed to replace a house, while calling [the policies] a replacement cost
policy.” Andrighetto asserted that the unfair and fraudulent conduct at issue in this case
is the “unreasonably low replacement cost number” (i.e., estimate) State Farm provides
its insureds in the annual renewal certificates, which are misleading to the extent they are
an incomplete estimate as to the actual cost to rebuild a home and cannot meaningfully be
compared with a competitor’s estimate that takes into account each component necessary
to rebuild a home. Andrighetto further indicated that State Farm’s conduct violated
Insurance Code section 790.3 because such estimates mislead consumers.
The trial court ruled that summary judgment on this claim was warranted because
Andrighetto failed to raise a triable issue of material fact as to whether State Farm
engaged in conduct that was unlawful, unfair, or fraudulent.
2. Analysis
“Unfair competition” includes “any unlawful, unfair or fraudulent business act or
practice.” (Bus. & Prof. Code, § 17200.) On appeal, Andrighetto reiterates that his UCL
claim seeks to protect the public by enjoining State Farm from selling homeowners
insurance policies that “only provide a fraction of the coverage needed to replace a house
while calling it a replacement cost policy.” As he did in the trial court, Andrighetto
points to a regulation adopted by the California Insurance Commissioner (Cal. Code
Regs., tit. 10, § 2695.183 [titled “Standards for Estimates of Replacement Value”])

20
(hereafter “replacement cost regulation”) to show that State Farm engages in an unlawful,
unfair, and fraudulent business practice of misleading insurers by providing replacement
cost estimates for homes that were unreasonably low and failed to accurately reflect the
actual cost to rebuild the homes in violation of the regulation and Insurance Code section
790.3.
The Unfair Insurance Practices Act (UIPA) (Ins. Code, § 790 et seq.) authorizes
the Insurance Commissioner to investigate those engaged in the insurance business to
determine “whether insurance companies are or have been engaged ‘in any . . . deceptive
act or practice prohibited by Section 790.03.’ ” (Association of California Ins.
Companies v. Jones (2017) 2 Cal.5th 376, 387 (ACIC).) “The Legislature directed the
. . . Commissioner to “promulgate reasonable rules and regulations . . . as are necessary to
administer” the UIPA. (Id. at p. 382.)
In December 2010, the Office of Administrative Law approved regulations
(including the replacement cost regulation) proposed by the Commissioner, which
became effective on June 27, 2011, to address concerns regarding the persistent problem
of underinsurance in the context of rebuilding homes damaged or destroyed by wildfires.
(ACIC, supra, 2 Cal.5th at pp. 382-384.) The purpose of promulgating the replacement
cost regulation (Cal. Code Regs., tit. 10, § 2695.183) was to standardize “the components
of a replacement cost estimate ‘to create a more consistent, comprehensive and accurate
replacement cost calculation’ and clarified that estimates ‘not comporting with the
applicable provision of the regulation will constitute making a statement with respect to
the business of insurance which is misleading and which by the exercise of reasonable
care should be known to be misleading’ ” within the meaning of Insurance Code section
790.03. (ACIC, at pp. 383-384.) The replacement cost regulation “does not require an
insurer to set or recommend a policy limit or to provide an estimate of the cost to rebuild
or replace a home. [Citation]. But if the insurer does choose to opine on replacement
costs, the [r]egulation specifies how that estimate is to be calculated and communicated.

21
In particular, it bars the insurer from communicating a replacement cost estimate in
connection with an application for or renewal of a homeowners’ insurance policy ‘unless
the requirements and standards set forth in [the regulation] are met.’ ” (Id. at pp. 384,
385, fn. 1 [setting forth requirements and standards].)
We conclude Andrighetto’s UCL claim fails as a matter of law to the extent it is
predicated on acts prohibited by the UIPA. Our Supreme Court has held that “[p]rivate
UIPA actions are absolutely barred; a litigant may not rely on the proscriptions of section
790.03 as the basis for a UCL claim.” (Zhang v. Superior Court (2013) 57 Cal.4th 364,
384 [insurers may be liable under the UCL for conduct that violates other laws in
addition to the UIPA, but violations of the UIPA alone may not form the basis of a UCL
claim].) Zhang makes clear that “a plaintiff may not use the UCL to ‘plead around’ an
absolute bar to relief.” (Zhang, at p. 369.) Andrighetto has failed to show that there is a
triable issue of material fact as to whether State Farm violated any other law in addition
to the UIPA or otherwise engaged in unfair or fraudulent conduct within the meaning of
the UCL. As a consequence, he has failed to show that the trial court improperly granted
summary judgment on his UCL claim.7

D. Breach of Contract and Breach of the Implied Covenant of Good Faith and
Fair Dealing Claims
As noted ante, the parties entered into a stipulation in connection with the
summary judgment proceedings. As relevant here, the parties stipulated that “there are
no unpaid coverage amounts due to . . . Andrighetto under [his homeowners] [p]olicy as
written, and that [Andrighetto’s insurance] [c]laim was adjusted in a reasonable manner
and consistent with State Farm’s obligations under the covenant of good faith and fair

7 Given our conclusions, we need not and do not decide whether the estimate provided
by State Farm in the annual renewal certificates constitutes a “replacement cost estimate”
within the meaning of the UIPA, as Andrighetto contends.

22
dealing.” The parties also stipulated that, in light of these stipulations, “the only
allegations remaining as to Andrighetto’s breach of contract and bad faith causes of
action are that: State Farm had a duty under the contract to use a reasonably complete
replacement cost estimate that complied with 10 Cal. Code of Reg. section 2695.183 [i.e.,
the replacement cost regulation] and other California law when renewing [his] [p]olicy.”
On appeal, Andrighetto has not pointed to any express term of his homeowners
policy that State Farm breached. Instead, as he did in the trial court, he insists that he has
a viable implied contract claim based on the same facts supporting his negligence claim.
He argues that State Farm and its agent, “having undertaken to provide a ‘full coverage’
homeowner policy, . . . owed [him] a contractual duty to perform reasonably and
adequately.” He adds that “when [he] requested the ‘best policy’ and State Farm’s agent
told [him] his replacement cost policy provided ‘full coverage,’ that created a duty to
provide coverage that was within a reasonable margin of error of the actual replacement
cost of [his] house. That duty can be enforced by a lawsuit either in contract or in tort.”
As for his claim for breach of the implied covenant of good faith and fair dealing,
Andrighetto argues, as he did below, that State Farm failed to advise him that its agents
do not provide a reasonably accurate estimate of the cost to replace his home.
We conclude Andrighetto’s appellate arguments are barred by the parties’
stipulation. Parties may, as here, agree by stipulation to limit the issues presented to the
trial court and the court will respect such stipulation. (Title Ins. Co. v. State Bd. of
Equalization (1992) 4 Cal.4th 715, 733.) The plain terms of the parties’ stipulation make
clear that Andrighetto’s arguments are outside the scope of issues the parties agreed
would be presented to the trial court. Therefore, he cannot obtain a reversal of the trial
court’s summary judgment ruling based on these contentions.
In any event, Andrighetto has not shown error. The operative complaint alleges
breach of an express contract, not an implied contract. Therefore, Andrighetto cannot
obtain reversal of the trial court’s summary judgment ruling on such a theory. (Jacobs,

23
supra, 14 Cal.App.5th 438, 444; Comunidad en Accion v. Los Angeles City Council,
supra, 219 Cal.App.4th at p. 1125.) Moreover, Andrighetto has failed to show the
existence of a valid implied contract for full replacement cost coverage8 or that the trial
court otherwise erred in granting summary judgment on his claims for breach of contract
and breach of the implied covenant of good faith and fair dealing. Indeed, as we have
noted, the parties stipulated that Andrighetto was paid all benefits due under the terms of
the insurance policy, and that his insurance claim was handled in a manner consistent
with State Farm’s obligations under the covenant of good faith and fair dealing. (See
Everett, supra, 162 Cal.App.4th at pp. 660, 663 [granting summary adjudication on
breach of contract and breach of the implied covenant of good faith and fair dealing
claims where insurer paid all benefits to which insured was entitled to receive]; Behnke v.
State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1468 [concluding that insured
had no viable claim for breach of contract because insurer paid all policy benefits insured
was entitled to]; Mosley v. Pacific Specialty Ins. Company (2020) 49 Cal.App.5th 417,
435 [“ ‘[T]here are at least two separate requirements to establish breach of the implied
covenant: (1) benefits due under the policy must have been withheld; and (2) the reason
for withholding benefits must have been unreasonable or without proper cause’ ”].)9

8 Where a written contractual term exists, “the law does not recognize implied contract
terms that are at variance with the terms of the contract as expressly agreed . . . .”
(Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 412, italics omitted.) “ ‘[I]t is well
settled that an action based on an implied-in-fact or quasi-contract cannot lie where there
exists between the parties a valid express contract covering the same subject matter.’ ”
(Grebow v. Mercury Ins. Co. (2015) 241 Cal.App.4th 564, 580.)
9 In view of our conclusions, we need not and do not address any other issue raised by
the parties related to the merits of the trial court’s summary judgment ruling.

24
 II
Stipulated Judgments
After the trial court granted State Farm’s motion for summary judgment against
Andrighetto, Dalin and Vulk decided not to oppose the separate pending motions for
summary judgment filed by State Farm. Instead, in light of the overlapping legal issues
and factual similarities between their claims and Andrighetto’s claims, they stipulated to
entry of judgment in favor of State Farm. In doing so, Dalin and Vulk conceded that the
facts of their cases were “sufficiently similar” to the facts of Andrighetto’s case such that
they could not prevail on any of their claims based on the trial court’s legal conclusions
in granting summary judgment against Andrighetto. The stipulations executed by Dalin
and Vulk explained that they stipulated to entry of judgment in favor of State Farm in the
interest of judicial economy to facilitate and participate in an appeal of the issues decided
in the Andrighetto case (not to settle their cases), that they intended for Andrighetto’s
case to serve as the lead case on appeal to test the trial court’s summary judgment ruling,
and that they intended the stipulated judgment to be subject to the same outcome as
Andrighetto’s case. Thus, if Andrighetto did not prevail on appeal, the judgments entered
against them would become final to the same extent as the judgment against Andrighetto.
Dalin and Vulk timely appealed from the stipulated judgments, and we
consolidated these appeals with Andrighetto’s appeal for argument and disposition. We
now conclude under McCarthy, supra, 174 Cal.App.4th 106, that the stipulated
judgments must be reversed.
In McCarthy, the appellate court reversed a stipulated judgment based on an
agreement that the trial court would have granted summary judgment in favor of
defendant based on the trial court’s ruling on certain “threshold” legal issues in favor of
defendant. (McCarthy, supra, 174 Cal.App.4th at pp. 110, 116.) In doing so, the court
recognized that parties may stipulate to a judgment in order to secure appellate review of
a dispositive adverse legal ruling, but concluded that such a practice is prohibited where

25
the parties fail to comply with the mandatory requirements of a motion for summary
judgment, including the filing of a motion and separate statements of undisputed facts.
(Id. at pp. 110, 116-117) The court reasoned that the failure to comply with the summary
judgment procedural requirements results in an inadequate record for appellate review,
including whether there are any triable issues of material fact. (Id. at pp. 117-118.)
Dalin and Vulk argue that reversal of the stipulated judgments is not required
under McCarthy because they are asking us to review “a proper summary judgment
proceeding”; namely, the summary judgment motion granted against Andrighetto. In
support of their position, Dalin and Vulk state: “This Court is not being asked to decide
any additional issues arising from the Vulk or Dalin cases. Mr. Vulk and Mr. Dalin are
effectively joining Mr. Andrighetto in asking the Court to review Mr. Andrighetto’s
proper summary judgment proceeding.” State Farm, for its part, argues that reversal is
not required under McCarthy because, unlike the parties in McCarthy, it complied with
all the procedural requirements in moving for summary judgment. In making this
argument, State Farm invokes the line of cases which recognize that, although a party is
generally precluded from appealing a consent or stipulated judgment, an exception exists
where consent was merely given to facilitate an appeal of a dispositive ruling. In each
case, the stipulated judgment followed the filing of a motion for summary judgment.
(See, e.g., Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 393-394, 400-403 [after
defendant filed motions for summary judgment, the parties agreed the court could grant
summary judgment based on statute of limitations defense to obtain appellate review
where facts were undisputed]; Building Industry Assn. v. City of Camarillo (1986) 41
Cal.3d 810, 816 [stipulated judgment was not bared by the rule against appeal from
consent judgments because “partial summary judgment” in favor of defendant was
effectively dispositive of the action]; Aloha Pacific, Inc. v. California Ins. Guarantee
Assn. (2000) 79 Cal.App.4th 297, 306 [plaintiff’s motion for summary judgment denied

26
and parties stipulated to judgment for defendant; appeal proper because consent given to
facilitate an appeal].)
Here, as in McCarthy, the process followed by the parties in the trial court does
not lend itself to an adequate record to review the summary judgment motions filed
against Dalin and Vulk. While State Farm filed a separate motion against each of these
plaintiffs, which was accompanied by a separate statement of undisputed facts, neither
Dalin nor Vulk filed a response to the motion or the separate statement of undisputed
facts. Further, neither plaintiff stipulated to the accuracy of the facts recited in State
Farm’s separate statement of undisputed facts. Instead, the parties stipulated that the
facts of the Dalin and Vulk cases are sufficiently similar to the facts of Andrighetto’s
case, such that neither Dalin nor Vulk could “prevail on any of [their] claims based on the
adverse determination of critical issues of law in the Court’s summary judgment ruling in
[the] Andrighetto [case].”
The line of cases invoked by State Farm are inapposite to this case. The stipulated
judgments in the Dalin and Vulk cases were not entered following a dispositive adverse
ruling on a properly litigated motion for summary judgment involving Dalin or Vulk.
And the record does not reflect that the Dalin and Vulk appeals merely raise issues of law
(decided adversely to them by the trial court in ruling on the motion for summary
judgment filed against Andrighetto), to be decided based on a set of undisputed facts.
Accordingly, we cannot affirm the stipulated judgments on the basis that the trial court
would have granted summary judgment against Dalin and Vulk given its legal rulings in
the Andrighetto matter. Applying McCarthy to the situation we face here, we must
reverse the two judgments and remand for further proceedings. (See McCarthy, supra,
174 Cal.App.4th at p. 123.)

27
 DISPOSITION
The judgment in the Andrighetto matter is affirmed.
The judgments in the Dalin and Vulk matters are reversed; both matters are
remanded for further proceedings.
State Farm is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

/s/
Duarte, J.

We concur:

/s/
Mauro, Acting P. J.

/s/
Krause, J.

28