Garske v. California Automoble Insurance Company CA4/1

Filed 10/24/23 Garske v. California Automoble Insurance Company CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DONALD GARSKE et al., D080685

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2020-
00031278-CU-BC-CTL)
CALIFORNIA AUTOMOBILE
INSURANCE COMPANY,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County,
James A. Mangione, Judge. Affirmed.
D’Egidio & Pedroza, Arthur D’Egidio and Irving Pedroza for Plaintiffs
and Appellants.
Wesierski & Zurek, Christopher P. Wesierski, Claudia Mourad and
Mary H. Kim for Defendants and Respondents.

INTRODUCTION
A lithium battery caught fire in Donald and Kelly Garske’s garage,
resulting in the garage’s destruction and smoke damage to the Garskes’
residence. Their insurer, California Automobile Insurance Company (CAIC),
paid a total of $305,651.58 for dwelling repairs, loss of personal property, and
eight months of temporary housing as a result of the fire.
More than five months after the Garskes received a permit to begin
dwelling repairs, and after both sides had agreed to the scope of those
repairs, the Garskes fired their public adjuster and switched contractors.
Repairs had not yet begun. In the next couple months, the Garskes sent
CAIC a new, increased estimate for dwelling repairs and a revised inventory
with hundreds of new items of personal property claimed to be damaged in
the fire. The Garskes also requested an extension of their temporary
housing. CAIC refused to make any additional payments to the Garskes on
their claim.
The Garskes sued CAIC for breach of contract and breach of the
implied covenant of good faith and fair dealing. The trial court granted
summary judgment for CAIC on both counts. It found CAIC had met its
initial burden of producing evidence to make a prima facie showing that its
investigation and claim payments satisfied the terms of the insurance policy.
After sustaining objections to much of the evidence submitted by the
Garskes, the court ruled the Garskes failed to meet their shifted burden of
producing admissible evidence to create a triable issue of material fact. On
appeal, the Garskes assert the court erred by failing to rule on their
objections to CAIC’s evidence while simultaneously finding inadmissible the
testimony of their expert witness and Donald Garske. They contend the
court’s evidentiary rulings “in essence doomed” their claims. We affirm.

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 FACTUAL AND PROCEDURAL BACKGROUND
I.

Insurance Coverage for the Fire Claim1
A. The Fire
On July 12, 2018, a fire broke out in the garage of the Garskes’ home in
San Diego. The fire caused flame damage to the garage and smoke (but not
flame) damage to the attached home. The Garskes believed a lithium battery
charging on a desk in the garage caused the fire. The property was insured
by CAIC under a policy covering direct physical loss.
The Garskes reported the property damage to CAIC the next day, July
13, 2018. CAIC claims adjuster Jack Gove contacted the Garskes the same
day. The Garskes promptly hired Advantage Edge to represent them, with
Michael Carter and Ann Haratyk acting as their public adjusters. CAIC
hired Koning & Associates to represent it.
B. Dwelling Repairs
Lucy Fracchiolla of Koning & Associates conducted a first inspection of
the insured property on July 17, 2018. She found flame damage in the
garage but not inside the Garskes’ home. On September 6, the permit for
repairs to the Garskes’ home was approved.
On October 16, 2018, Koning & Associates provided Gove an estimate
of $90,950.97 (actual cash value) for repairs. Gove sent a letter to Advantage

1 Because this is an appeal from a grant of summary judgment in favor of
CAIC, we examine the evidence de novo and “our account of the facts is
presented in the light most favorable to the nonmoving party below, in this
case [the Garskes], and assumes that, for purposes of our analysis, [the
Garskes’] version of all disputed facts is the correct one.” (Birchstein v. New
United Motor Manufacturing, Inc. (2001) 92 Cal.App.4th 994, 999, italics
added.)

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Edge the next day enclosing a check for the repair estimate, less the $1,000
policy deductible. He also enclosed a check for the estimated cost of
demolition and fire restoration. Gove’s letter stated that a contractor, James
Gardner of A Premier Restoration, had estimated repairs would take four
months.
Advantage Edge informed Gove on November 13, 2018 that the
Garskes had not yet begun repairs because they disputed the scope of Koning
& Associates’ estimate. Despite repeated communications from Gove and
Koning & Associates, Advantage Edge did not provide a counter-estimate
until December 12. That counter-estimate, from contractor Team 1
Restoration, included $184,895.68 for dwelling repairs.
Advantage Edge informed Gove on January 14, 2019 that repairs still
had not started because of the dispute over their scope. On January 22,
CAIC paid the Garskes a portion of the difference in the estimates. Gove and
representatives from Advantage Edge, Team 1 Restoration, Koning &
Associates, and A Premier Restoration then had a conference call on
February 5. All parties on that call agreed on a revised scope for dwelling
repairs. The representative from Advantage Edge stated that repairs would
begin consistent with the revised scope.
The next day, Koning & Associates provided Gove a revised estimate of
$118,088.01 (actual cash value) for dwelling repairs. One week later, CAIC
issued a supplemental payment to the Garskes to cover the full amount of the
revised estimate (less the deductible). Representatives from both contractors
on the February 5 conference call—Team 1 Restoration and A Premier
Restoration—informed Gove they could complete the revised scope of
dwelling repairs for the approved estimate amount.

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 By February 28, 2019, Donald Garske had refused to sign a release
from his contractor, Team 1 Restoration, to begin repairs. Garske wanted
additional items included in the estimate, such as placing the HVAC system
in the attic, adding a tankless water heater, and upgrading the electrical
panel. In response, Marshall Benson from Team 1 Restoration emailed
Garske to cancel the reconstruction contract, stating “I believe that we are
not the right company for you on this project.”
On March 7, 2019, Donald Garske informed Gove that Team 1
Restoration was no longer the Garskes’ contractor. Garske also told Gove
that the Garskes had fired Advantage Edge. On March 27, Gove declined
Garske’s request for a re-inspection to discuss “ ‘differences’ ” in the dwelling
repair estimate.
The Garskes hired RestoraCore Restoration (RestoraCore) to be their
new contractor. By April 13, 2019, RestoraCore had prepared an estimate of
$199,003.15 for dwelling repairs, which the Garskes provided to Gove. Gove
had Gardner of A Premier Restoration review RestoraCore’s estimate.
Gardner determined the RestoraCore estimate did not include any “necessary
repairs” missing from A Premier Restoration’s February 6 revised estimate.
In an April 30 letter to the Garskes, Gove acknowledged receipt of the
RestoraCore estimate but stated that CAIC refused to issue any further
payment for dwelling repairs.
C. Personal Property
On September 11, 12, and 14, 2018, Donald Garske, Carter of
Advantage Edge, Gardner of A Premier Restoration, and Fracchiolla of
Koning & Associates conducted an inventory of the Garskes’ personal
property damaged by the fire. Fracchiolla prepared a list of 481 “total loss”
items based on the three-day inventory. On October 30, CAIC paid the

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Garskes the agreed amounts for the total loss items, less earlier cash
advances.
More than five months later, following the Garskes’ termination of
their relationship with Advantage Edge, a representative of Advantage Edge
sent Gove an additional total loss inventory prepared by the Garskes. On
March 13, 2019, Donald Garske informed Gove the total loss inventory
provided by Advantage Edge was incomplete and stated the Garskes would
“be doing an independent thorough inventory of our total loss and will
forward that to [Gove].” Garske requested a “comprehensive total loss
inventory” from Advantage Edge on March 25 and May 1, 2019. Advantage
Edge never provided the requested inventory.
The Garskes later sent Gove a new total loss inventory that contained
an additional 283 items beyond those in the inventory prepared by
Fracchiolla. Some of the additions to the list were items the Garskes alleged
were in the vehicle that had burned in the garage. The photographs of the
interior of the burned vehicle do not show any of those items. Other
additions to the list included items in the garage the Garskes alleged had
been reduced to char or melted plastic and various items in the home.
Regarding the items in the home, CAIC had already paid for cleaning of the
home contents with smoke damage. As noted previously, the inside of the
home did not suffer any flame damage. CAIC refused to pay for any of the
additional items identified by the Garskes.
D. Additional Living Expenses
CAIC paid for temporary housing for the Garskes following the fire.
Based on A Premier Restoration’s estimate that repairs would take four
months, Gove informed the Garskes on October 17, 2018, that CAIC would
cover the Garskes’ additional living expenses, including temporary housing,

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“through the week of January 19, 2018 [sic].” CAIC later agreed to extend
the Garskes’ temporary housing to April 19, 2019, but refused to grant any
further extensions. CAIC also paid for the Garskes’ food expenses when they
were in a hotel between July 13 and August 15, 2018.
E. Total Payments
On April 23, 2019, Gove sent a letter closing the Garskes’ claim. In
total, CAIC had paid the Garskes $305,651.58: $154,103.17 for demolition,

fire restoration, and dwelling repairs;2 $95,535.80 for personal property
transport, storage, cleaning, and replacement; and $56,012.61 for temporary
housing and additional food expenses.
II.
Motion for Summary Judgment
After CAIC refused the Garskes’ request to reopen their claim, they
filed suit in September 2020. Their complaint asserted two causes of action:
breach of contract and breach of the covenant of good faith and fair dealing.
The Garskes alleged CAIC had breached the insurance policy “by failing to
conduct a full and complete investigation into the facts, law, and
circumstances of [the Garskes’] claim and by unreasonably and improperly
underpaying the coverage and benefits due to [the Garskes].” The Garskes
alleged CAIC had breached the insurance policy’s implied covenant of good

2 Of the $154,103.17 combined for demolition, fire restoration, and
dwelling repairs, $117,088.01 appears to have been for dwelling repairs. The
parties’ statement of undisputed facts lists three respective dwelling
payments to the Garskes of $89,950.97, $12,427.67, and $14,709.37. These
payments total to $117,088.01, which corresponds to the February 6 estimate
of $126,363.26, less depreciation of $8,275.25 (as the Garskes’ policy only
provided actual cash value coverage) and the $1,000 deductible. The total of
$118,088.01 at the end of Undisputed Material Fact No. 22 appears to
incorrectly fail to account for the deductible.

7
faith and fair dealing for similar reasons. They alleged CAIC “made certain
investigations specifically intended to deny the [Garskes’] claim as a means
to deter the [Garskes] from filing a lawsuit against [CAIC].”
CAIC moved for summary judgment on both causes of action. Along
with its separate statement of undisputed facts, CAIC submitted declarations
from Gove, Fracchiolla, Gardner, and Benson in support of their motion, as
well as a nearly 500-page compendium of evidence. The Garskes objected to
portions of the Gove, Fracchiolla, and Gardner declarations.
The Garskes’ opposition to CAIC’s motion included supporting
declarations from Donald Garske, Sean Scott of RestoraCore, and their
attorney, Irving Pedroza. CAIC filed objections to almost the entirety of the
Scott and Pedroza declarations, as well as portions of Donald Garske’s
declaration.
The trial court did not rule on the Garskes’ objections to CAIC’s
declarations. It sustained CAIC’s objections to the Scott and Pedroza
declarations “in their entirety.” It sustained 17 of the 21 objections to the
Donald Garske declaration and overruled the remaining four.
The trial court found CAIC had met its initial burden of producing
evidence to make a prima facie showing that its investigation and claim
payments satisfied the terms of the insurance policy. Because of its
evidentiary rulings, the court then found the Garskes had produced “[n]o
admissible evidence” to show the existence of a triable issue of material fact
on their breach of contract cause of action. Consequently, the court also
found their second cause of action for breach of the covenant of good faith and
fair dealing failed as a matter of law. The court entered judgment in favor of
CAIC on both of the Garskes’ causes of action.

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 DISCUSSION
I.
The Parties’ Evidentiary Objections
The Garskes challenge the trial court’s evidentiary rulings. They
contend the court should have addressed and granted “the bulk of the[ir]
evidentiary objections.” As for CAIC’s objections to their opposition evidence,
the Garskes contend the court erred by sustaining objections to the

declarations of Scott and Donald Garske.3
A. Standard of Review
The parties agree we consider unaddressed evidentiary objections de
novo. Such objections are presumed overruled but preserved for appellate
review. (Code Civ. Proc., § 437c, subd. (q); Reid v. Google, Inc. (2010) 50
Cal.4th 512, 534 (Reid).) The objecting party has the burden of renewing any
relevant objections “with relevant authority and legal analysis.” (Taylor v.
Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 980.)
“[B]ecause there was no exercise of trial court discretion” on the renewed
objections, we consider them de novo. (Reid, at p. 535.)
In contrast, we review the trial court’s affirmative rulings on
evidentiary objections for abuse of discretion. (Mackey v. Trustees of
California State University (2019) 31 Cal.App.5th 640, 657 (Mackey)
[explaining the “ ‘weight of authority’ ” supports an abuse of discretion
standard].) An abuse of discretion occurs if a ruling was “ ‘so irrational or
arbitrary that no reasonable person could agree with it.’ ” (Sargon
Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,

3 The Garskes do not challenge the trial court’s order sustaining CAIC’s
objections to Pedroza’s declaration.

9
773 (Sargon).) “The party challenging an evidentiary ruling bears the burden
of establishing the court exceeded the bounds of reason. [Citation.]
Nevertheless, evidentiary questions at summary judgment ‘ “are subject to
the overarching principle that the proponent’s submissions are scrutinized
strictly, while the opponent’s are viewed liberally.” ’ ” (Mackey, at p. 657.)
B. The Garskes’ Objections to CAIC’s Evidence
As we have noted, the trial court did not address the Garskes’
objections to portions of the Gove, Fracchiolla, and Gardner declarations
submitted by CAIC. We consider de novo the objections the Garskes have
renewed on appeal. (Reid, supra, 50 Cal.4th at p. 535.)
1. Objections to the Declaration of Jack Gove
Gove handled the Garskes’ claim from open to close as an adjuster for
CAIC. Gove’s 48-paragraph declaration discussed the history of the Garskes’
claim. The Garskes objected to portions of paragraphs 23 and 37–39. We
sustain the objection to paragraph 23 but overrule the objections to
paragraphs 37–39.
a. Objection No. 1 (Paragraph 23)
The portion of paragraph 23 challenged by the Garskes described what
Benson told Gove about conversations between Team 1 Restoration and
Donald Garske:
“Mr. Benson stated that Donald Garske was told by Team 1
Restoration to sign a release from Team 1 Restoration,
pack salvageable items and dispose of total loss items, but
he refused. Mr. Benson stated that Mr. Garske wanted
additional work (‘upgrades’) to be done. Mr. Benson
informed me that he told Mr. Garske that he would
complete upgrades, but that Mr. Garske would need to pay
for them. Mr. Benson told me Mr. Garske became upset
with Mr. Benson and demanded that they reconfigure his
kitchen within the cost of what was applied in the
insurance scope. Mr. Benson stated that Mr. Garske told

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 him that Mr. Garske would be putting a list together of
other ‘stuff’ he wanted completed with no additional charge.
Mr. Benson advised me that he sent Mr. Garske a ‘drop
email’ as he realized he would not be a ‘good fit’ for the
insured and their repairs.”
The Garskes objected to this portion of paragraph 23 on the grounds it lacked
relevance, personal knowledge, and foundation, as well as being speculative,
argumentative, and inadmissible hearsay. Because we agree with the
Garskes that this paragraph contains inadmissible hearsay (Evid. Code,
§ 1200, subds. (a) & (b) [“ ‘[h]earsay evidence’ ” is an out-of-court statement
offered to prove the truth of the matter stated and is generally not
admissible]), we need not address the other grounds asserted.
The challenged portion of paragraph 23 contains multiple layers of
hearsay. CAIC, however, contends it does not offer the conversation, in
which Benson tells Gove why Benson has cancelled Team 1 Restoration’s
dwelling repair contract with the Garskes, for the truth of the statements,
but rather to show what Benson told Gove to establish “his state of mind.”
(Italics added.) Although it is unclear from CAIC’s briefing whether “his”
refers to Benson or Gove, or how the state of mind of either person is
relevant, CAIC’s use of the testimony is not limited to showing state of mind.
Its motion for summary judgment declares “Team 1 Restoration
canceled its contract to repair the dwelling, because Mr. Garske asked for
upgrades for no additional cost.” (Italics omitted.) The motion cites
Undisputed Material Fact No. 27 (UMF 27) for the fact that Donald Garske
requested “ ‘upgrades.’ ” UMF 27, in turn, only cites paragraph 23 of Gove’s
declaration for support. CAIC identifies no other portion of the record to
support its contention. Even Benson’s declaration does not mention
“upgrades.” Thus, CAIC’s motion for summary judgment relies on the truth
of at least one of the statements in paragraph 23. As CAIC has identified no

11
exception allowing such hearsay evidence, we sustain the Garskes’ objection
to paragraph 23 of Gove’s declaration and do not consider it.
However, the facts established by much of the inadmissible testimony
in paragraph 23 are properly set forth elsewhere in the record. For example,
the Garskes did not object to Benson’s declaration. And even though
Benson’s declaration does not mention “upgrades,” it does state Benson
canceled the repair contract because “Mr. Garske informed me that he
wanted additional work to be done for no additional charge.” Benson’s
declaration also described and attached the February 28, 2019 “ ‘drop email’ ”
from Benson to Donald Garske. Additionally, in their separate statement of
undisputed facts, the Garskes did not dispute that Donald Garske refused to
sign a release from Team 1 Restoration. The Garskes also admitted they
“informed” Team 1 Restoration of additional items they “wished to have
included in the estimate.” Finally, the unobjected-to portion of paragraph 23
stated that Benson and Gove had a telephone conversation on March 1, 2019,
the day after Benson’s “ ‘drop email’ ” to Donald Garske. The Garskes did not
dispute the March 1 conversation occurred. Thus, the sustained objection to
the challenged portion of paragraph 23 has little (if any) effect on the factual
record.
b. Objection Nos. 2–4 (Paragraphs 37–39)
Paragraphs 37–39 of Gove’s declaration discussed the revised personal
property inventory provided by the Garskes. The challenged portion of
paragraph 37 described what Fracchiolla told Gove about the revised
inventory:
“However, Ms. Fracchiolla confirmed to me that she did not see
any of the additional items in the garage, and that there was no
flame damage inside the house that would have caused there to
be total loss items from inside the house (excluding garage). Also,
some of the items added to the inventory included items claimed

12
 to have been in the SUV that was in the garage, but the
photographs of the interior of the SUV did not show any of the
claimed items.”
The Garskes objected to this testimony as not relevant, speculative,
argumentative, and lacking foundation, as well as because Gove allegedly
lacked personal knowledge and was not qualified as an expert witness.
On appeal, the Garskes do not renew any of these objections. Because
they have not reasserted those objections on appeal, they have been forfeited.
(See Flake v. Neumiller & Beardslee (2017) 9 Cal.App.5th 223, 229, fn. 4
(Flake) [declining to consider objections that were “not separately headed or
briefed on appeal”]; Sherman v. Hennessy Industries, Inc. (2015) 237
Cal.App.4th 1133, 1139, fn. 1 (Sherman) [“As no objection has been
reasserted on appeal, all have been forfeited.”].)
At most, the Garskes contend in their opening brief on appeal that
Gove’s declaration included expert testimony “when he opines about the
scope of repair and the time required to repair the damage to the [Garskes’
property].” But paragraph 37 did not contain any testimony about repairs to

the damaged property.4 It only addressed the revised total loss inventory
submitted by the Garskes. We question whether the Garskes have
sufficiently renewed their objection to Gove’s declaration on the grounds he
was not a qualified expert, but even if they had, we would overrule it. The
objected-to portion of paragraph 37 just relayed what Fracchiolla told Gove
(the Garskes did not object on hearsay grounds); it did not offer any expert
opinions from Gove.

4 The Garskes did not object to any testimony from Gove about dwelling
repairs in the trial court. Such objections cannot be raised for the first time
on appeal. (Code Civ. Proc., § 437c, subd. (b)(5).)

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 The Garskes objected to the entirety of paragraphs 38 and 39. In
paragraph 38, Gove stated that he reviewed photographs of the Garskes’
vehicle and did not see the items the Garskes added to the revised total loss
inventory inside the vehicle. The Garskes’ briefing on appeal does not
mention or discuss any of their original objections to this paragraph:
irrelevance, lack of personal knowledge, lack of foundation, speculation, and
argumentative. The objections have been forfeited. (Flake, supra, 9
Cal.App.5th at p. 229, fn. 4; Sherman, supra, 237 Cal.App.4th at p. 1139,
fn. 1.)
The Garskes originally raised the same objections to paragraph 39, in
which Gove states the Garskes did not support their claim for the new total
loss items added to the revised inventory. As with the objections to
paragraph 38, none of the objections to paragraph 39 have been renewed on

appeal and are therefore forfeited.5 (Flake, supra, 9 Cal.App.5th at p. 229,
fn. 4; Sherman, supra, 237 Cal.App.4th at p. 1139, fn. 1.)
2. Objections to the Declaration of Lucy Fracchiolla
Fracchiolla’s 18-paragraph declaration described her involvement with
the Garskes’ claim as an insurance adjuster for Koning & Associates, which
was hired to represent CAIC. In the trial court, the Garskes objected to

portions of paragraphs 4 and 15–17 of her declaration,6 all on the same five

5 The Garskes’ opening brief on appeal newly objects to exhibits
referenced in Gove’s declaration. The Garskes have waived their objections
to the exhibits by failing to raise them in the trial court. (Code Civ. Proc.,
§ 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing shall be
deemed waived.”].)

6 The Garskes’ objections incorrectly identified the challenged
paragraphs as 5, 7, and 8. The quoted testimony they challenged actually
appeared in paragraphs 4 and 15–17 of the Fracchiolla declaration.

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grounds: relevance, lack of personal knowledge, lack of foundation,
speculation, and hearsay. Because they renew none of those objections on
appeal, they are forfeited. (Flake, supra, 9 Cal.App.5th at p. 229, fn. 4;
Sherman, supra, 237 Cal.App.4th at p. 1139, fn. 1.)
Instead, the Garskes contend Fracchiolla offered improper expert
opinions unaccompanied by “any documents or information in support of her
purported expertise in general construction, mitigation, and contents
handling matters.” But the Garskes did not raise this objection in the trial
court. It is waived and cannot be raised for the first time on appeal. (Code
Civ. Proc., § 437c, subd. (b)(5).)
3. Objections to the Declaration of James Gardner
Gardner, as the owner of A Premier Restoration, assisted Koning &
Associates with the Garskes’ claim. His 19-paragraph declaration discussed
his involvement with the claim, including his inspection of the property,
preparation of estimates for dwelling repairs, and participation in the three-
day personal property inventory. The Garskes objected to portions of
paragraphs 13 and 14 on the grounds the testimony was not relevant, was
speculative, and lacked personal knowledge and foundation. They have
forfeited their relevance and speculation objections by not renewing them on
appeal. (Flake, supra, 9 Cal.App.5th at p. 229, fn. 4; Sherman, supra, 237
Cal.App.4th at p. 1139, fn. 1.)
The Garskes’ briefing on appeal raises two issues with Gardner’s
declaration: (1) it “is replete with inadmissible hearsay statements,” and
(2) “Gardner fails to append his CV to his declaration in order to lay a
foundation for the opinions in his declaration.” The Garskes waived their
hearsay objection by not raising it in the trial court. (Code Civ. Proc., § 437c,
subd. (b)(5).) As for the Garskes’ other objection, Gardner’s failure to attach

15
his CV did not prevent him from providing proper foundation for his
testimony.
At the beginning of his declaration, Gardner testified he had
“approximately 30 years of experience in the insurance property claims
industry.” He identified his past roles in the industry. He described the
work done by his company, A Premier Restoration. Gardner stated he had
“prepared thousands of construction estimates.” He also listed his various
certifications.
The two paragraphs challenged by the Garskes relate to the three-day
personal property inventory in which Gardner participated. The preceding
paragraphs of his declaration described the inventory. Then, in challenged
paragraph 13, Gardner testified that “[b]ased on my experience, knowledge,
education, and training”: (1) “I saw that everyone was working together
during the three-day inventory for the common goal of documenting the total
loss items,” and (2) “the three-day time period was adequate time to complete
the inventory.” The Garskes do not explain how appending a CV would have
fixed any asserted foundational issues with this testimony. Both statements
depend on Gardner’s personal knowledge and observations during the
inventory, rather than his past experience, notwithstanding the “[b]ased on
my experience” preamble.
In the challenged portion of paragraph 14, Gardner stated, “Based upon
my participation in the inspections of the subject dwelling, there was no
flame damage inside of the home (just in the garage).” Like the testimony in
paragraph 13, the testimony in paragraph 14 is based on Gardner’s personal
knowledge. He stated in unobjected-to paragraph 5 that he personally
inspected the property in July 2018. To the extent Gardner’s past experience
aided his inspection of the property and helped him draw conclusions from it,

16
the description of his qualifications at the beginning of the declaration
provided sufficient foundation. The provision of a CV was unnecessary. We
therefore overrule the Garskes’ objections to paragraphs 13 and 14 of
Gardner’s declaration.
C. Defendant’s Objections to Plaintiffs’ Evidence
The trial court granted most of CAIC’s objections to the declarations
submitted by the Garskes in support of their opposition to the summary
judgment motion. Those sustained objections excluded essentially the
entirety of Scott’s declaration and all or part of 12 of the 32 paragraphs of
Donald Garske’s declaration. Although the Garskes admit in their briefing
on appeal that “the declarations drawn in support of the opposition to the
summary judgment motion were and are inartful,” they contend the trial
court erred in its evidentiary rulings. Reviewing the court’s rulings for abuse
of discretion (Mackey, supra, 31 Cal.App.5th at p. 657), we disagree the court
erred.
1. Objections to the Declaration of Sean Scott
Scott is an employee of RestoraCore, which was hired by the Garskes
after Team 1 Restoration ended their involvement with the Garskes’ claim.
Scott served as the Garskes’ “expert on the issue of scope of repair and cost of
repair and restoration.” His 8-paragraph declaration discussed the
supplemental dwelling repairs estimate he prepared for the Garskes.
CAIC objected to paragraphs 2–8 of Scott’s declaration. It argued the
declaration “lays no foundation whatsoever” for Scott’s expert opinions.
(Boldface omitted.) CAIC pointed out the absence of any of Scott’s
“education, knowledge, background, training, job position, qualifications
and/or experience.” The trial court sustained all of CAIC’s objections.

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 On appeal, the Garskes acknowledge Scott’s declaration was “inartfully
drafted.” But they contend his declaration contained the necessary elements
for an expert declaration. They assert “a simple reading of the contents of
the declaration should convey to the reader that . . . Scott has specialized
knowledge beyond that of a lay person.” (Italics added.) We disagree the
Scott declaration has proper foundation for his expert opinions and conclude
the trial court did not abuse its discretion by sustaining CAIC’s objections to
paragraphs 2–8.
In those paragraphs, Scott described the repair items included in the
RestoraCore estimate beyond those in the estimates prepared by Gardner.
Scott testified those supplemental repair items had been “omitted or
overlooked” but were “necessary to restore the home to it’s [sic] pre-loss
condition.” He testified the “omissions” included labor and materials
“required for proper smoke remediation,[ ]supervision,[ ]testing for volatile
organic compounds (VOC’s [sic])[,] heavy metals, dioxins, or other combustion
byproducts, building code upgrades, and a host of other items.” Scott testified
“the Matterport scan survey,” “the permitted repair plans,” and “additional
evidence” corroborated the supplemental repair items. He described those
items as either being “concealed behind the drywall” (and subsequently
revealed by removal of the drywall), or “clearly visible” and yet not included
in Gardner’s estimates. Scott testified that, even months after he had
prepared the RestoraCore estimate, he informed Donald of other “required
code upgrades from the City . . . that needed to be addressed” as
supplemental repairs. Scott also testified that CAIC’s denial of additional
coverage “put a substantial hardship on [the Garskes] as they were forced to
live in a home which was uninhabitable and was potentially hazardous to

18
their health as the result of the combustion byproducts and VOC’s [sic]
released in and around the home from the fire.”
Scott’s declaration failed to provide foundation necessary to qualify him
as an expert to render the opinions stated in paragraphs 2–8. “A person is
qualified to testify as an expert if he has special knowledge, skill, experience,
training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates.” (Evid. Code, § 720, subd. (a).) The Evidence
Code requires “such special knowledge, skill, experience, training, or
education” to “be shown before the witness may testify as an expert.” (Ibid.;
see also Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779 (Fernandez)
[holding that an expert declaration is admissible to oppose summary
judgment if the testimony therein would be admissible at trial under Evid.
Code, § 720].) Scott’s declaration only stated he is “an employee of
RestoraCore.” It did not identify his exact role or position at RestoraCore,
nor did it show what knowledge, skill, experience, or training he had that
made him an expert on the “scope of repair and cost of repair and
restoration.”
The Garskes’ argument that the contents of Scott’s opinions implied
that he had specialized knowledge is unpersuasive. If that was sufficient,
virtually any declaration expressing expert opinions would be admissible,
regardless of whether the declarant actually qualifies as an expert. It would
render Evidence Code section 720, subdivision (a), meaningless. Moreover,
the contents of Scott’s declaration undercut the Garskes’ position that he
qualified as an expert. In paragraph 7, Scott testified: “Had I been given an
opportunity or notice of an opportunity to hire the necessary experts to
evaluate the loss, or discuss the items in the supplement, I would have done
so.”

19
 The Garskes cite Sargon as authority for permitting Scott’s expert
testimony. But the trial court’s exclusion of Scott’s testimony does not
conflict with the mandates in Sargon. Sargon requires courts to “exclude
‘clearly invalid and unreliable’ expert opinion,” while not “weigh[ing] an
opinion’s probative value or substitut[ing] its own opinion for the expert’s
opinion.” (Sargon, supra, 55 Cal.4th at p. 772.) In other words, courts may
“not resolve scientific controversies.” (Ibid.) Nothing of the sort occurred
here. The trial court merely enforced the requirement that expert opinion
have proper foundation, including that the purported expert have special
knowledge, skill, experience, training, or education. (See Evid. Code, § 720,
subd. (a).) This serves to exclude unreliable “expert” opinions (i.e., those not
drawn from a specialized background). It does not amount to weighing the
opinions’ probative value or resolving scientific controversies. The court
served the “gatekeeping role” Sargon requires. (Sargon, at p. 772.)
We conclude the trial court did not abuse its discretion in sustaining
CAIC’s objections to the Scott declaration.
2. Objections to the Declaration of Donald Garske
Donald Garske submitted a 32-paragraph declaration regarding the
history of the Garskes’ claim. CAIC raised 21 objections to Garske’s
declaration, covering a variety of bases. The trial court sustained 17 of the 21
objections, excluding testimony from 12 paragraphs of the declaration.
On appeal, the Garskes contend the trial court’s rulings on CAIC’s
objections were inconsistent. The Garskes point to the court’s overruling of
objection No. 1, including CAIC’s allegation that Garske lacked personal
knowledge, as inconsistent with the court sustaining other objections that
also included a lack of personal knowledge allegation. But Garske having
personal knowledge for part of his testimony does not mean he had personal

20
knowledge for all of his testimony. In any event, CAIC identified multiple
bases for each of its objections, not just lack of personal knowledge. As the
Garskes acknowledge, the court did not identify the basis or bases on which it
sustained the different objections. Lack of personal knowledge is not even
one of the bases for certain of the sustained objections (i.e., objection Nos. 7
and 18).
The Garskes also appear to confuse the objection numbers with the
numbering of the paragraphs to which they apply. They state the court
overruled an objection to paragraph 1, in which Garske stated “I have
personal knowledge of the matters declared herein.” They rely on this to
argue granting any objections based on lack of personal knowledge would be
inconsistent. But CAIC never objected to paragraph 1. Instead, the court
overruled objection No. 1, which applied to paragraph 6, the first paragraph
containing testimony challenged by CAIC. The Garskes’ confusion is also
apparent when they state multiple times that the court sustained CAIC’s
objections “to paragraphs 2-10, 12, 14-18 and 20-21.” Those are the numbers
of the objections sustained by the court, not the paragraphs to which they
apply. The court’s sustained objections actually apply to paragraphs 8–9, 16–

18, 21, 26, and 28–327 of Garske’s declaration. Thus, the inconsistency
alleged by the Garskes appears to be a product of confusing paragraph
numbers with objection numbers, rather than any abuse of discretion by the
court.

7 Garske’s declaration has two paragraphs numbered “31.” As a result,
CAIC’s objection No. 21 refers to the second of those paragraphs as “32,”
noting that it was “incorrectly misnumbered.” We follow the same approach
to avoid confusion. Any reference herein to paragraph 32 of Garske’s
declaration means the second paragraph numbered “31.”

21
 The Garskes further contend the court “did not heed or apply the oft
quoted rule of law . . . that the Court construes the moving party’s evidence
strictly, and the non-moving party’s evidence liberally.” But aside from their
mistaken complaint about the court inconsistently addressing the lack of
personal knowledge objection, the Garskes do not identify where specifically
the court erred in not construing their evidence liberally. They bear the
burden of establishing that the court abused its discretion in sustaining
evidentiary objections. (Mackey, supra, 31 Cal.App.5th at p. 657.) Moreover,
the requirement of liberal construction “ ‘does not mean that courts may relax
the rules of evidence in determining the admissibility of an opposing
declaration.’ ” (Fernandez, supra, 31 Cal.App.5th at p. 779.) Our review of
the sustained objections reveals no abuse of discretion.
a. Objections to Testimony About Personal Property
(Paragraphs 8, 9, and 26)
The challenged portions of paragraphs 8, 9, and 26 of Garske’s
declaration relate to the inventory of total loss items. In paragraph 8, CAIC
objected to Garske’s statement that the resulting list from the three-day
inventory “was not a complete list.” In paragraph 9, which CAIC objected to
in its entirety, Garske stated, “I provided Mr. Gove a revised inventory list
which included items that were in the garage and in the vehicle above and
beyond what was visible at the time of the initial inspection as many items
only myself and Mrs. Garske would have had knowledge of and were reduced
to ash, or melted chunks of plastic.” In paragraph 26, CAIC objected to
Garske’s statement that his attorney had “requested the complete inventory
list from Advantage Edge” but had not received it.
The Garskes contend Donald Garske had “direct and personal
knowledge” about the loss of personal property addressed by these
paragraphs. However, CAIC’s objections were not confined to lack of

22
personal knowledge. Their objections to these paragraphs included lack of
foundation and improper expert opinion, among others. The Garskes do not
address why CAIC’s other objections do not apply to Donald Garske’s
testimony.
Even if we would rule differently on CAIC’s evidentiary objections if
they were considered de novo, that does not govern our evaluation of the trial
court’s rulings. Instead, a ruling on an evidentiary objection must be “ ‘so
irrational or arbitrary that no reasonable person could agree with it’ ” to
require reversal under the abuse of discretion standard. (Sargon, supra, 55
Cal.4th at p. 773.) Mere disagreement is not enough. (See ibid.) The
Garskes also bear the burden of showing the court abused its discretion.
(Mackey, supra, 31 Cal.App.5th at p. 657.) Their conclusory statement
regarding just one of the objections raised by CAIC is not sufficient to satisfy
that burden.
The trial court could reasonably conclude Donald Garske’s testimony in
paragraphs 8 and 9 constituted improper expert opinion in declaring the
extent of loss for certain personal property items. The court also could
reasonably conclude Garske’s testimony in paragraph 9 that the newly added
items were “above and beyond what was visible at the time of the initial
inspection” (at which Garske was present) lacked foundation. As for
paragraph 26, Garske testified regarding what his attorney requested and
received from Advantage Edge without explaining how he had obtained such
knowledge. The court could reasonably conclude this testimony lacked
foundation and personal knowledge, as CAIC objected. In sum, the Garskes
have failed to demonstrate the court abused its discretion in sustaining
CAIC’s objections to paragraphs 8, 9, and 26 of Donald Garske’s declaration.

23
 Even if we were to reverse the trial court’s rulings on the objections to
these paragraphs, it would not change the outcome of this appeal. As we
explain later, the Garskes’ insurance policy required documentation for the
items included in the personal property loss inventory. Donald Garske did
not offer any testimony regarding the required documentation, instead
contending the newly added items were known only to himself and his wife
and “were reduced to ash, or melted chunks of plastic.” Donald Garske’s
testimony cannot create a triable issue of material fact regarding the Garskes
meeting the documentation requirement for the items they added to the
personal property inventory.
b. Objections to Testimony About Dwelling Repairs
(Paragraphs 16–18 and 21)
In paragraphs 16–18 and 21, Donald Garske testified regarding the
scope of dwelling repairs. He testified in paragraph 16 that the request to
change the home’s electrical panel was “so that it would be brought to code,”
“not for additional work or for upgrades for a nicer home.” He similarly
testified in paragraph 21 that the supplemental repair items included in the
RestoraCore estimate were “for upgrades per city ordinance,” as well as
repairs overlooked in prior inspections and repairs “concealed behind the
drywall.” He testified that CAIC’s estimate “would only cover the costs for a
barely habitable home.” In paragraphs 17 and 18, Garske discussed Benson’s
cancellation of his company’s reconstruction contract with the Garskes,
including Garske’s belief Benson “would not be making any profit on” the
reconstruction contract.
The Garskes contend Donald Garske’s testimony in these paragraphs
was “based on personal knowledge.” But they do not address any of the other
objections raised by CAIC. Most notably, CAIC objected that these
paragraphs contained improper expert opinion. The Garskes acknowledge in

24
their reply brief that Donald Garske “[a]s a non-contractor . . . would not
have understood the many facets of property repair and restoration.” Yet the
testimony in these paragraphs covers property repair and restoration. The
trial court could reasonably conclude paragraphs 16–18 and 21 of Donald
Garske’s declaration contained expert testimony he was not qualified to
provide. It therefore did not abuse its discretion in sustaining CAIC’s
objections to these paragraphs.
c. Objections to Testimony About Additional Living Expenses
(Paragraphs 28–32)
Paragraphs 28–32 of Donald Garske’s declaration contain testimony
related to the Garskes’ additional living expenses as a result of the fire. The
Garskes contend this testimony is based on Donald Garske’s personal
knowledge, but, again, they fail to address any of the other objections raised
by CAIC. We conclude the trial court did not abuse its discretion in
sustaining CAIC’s objections.
In paragraph 28, Donald Garske testified that Gove told Kelly Garske
“she could ‘live under a bridge for all I care’ ” when additional living expenses
were discussed. CAIC objected to this testimony as containing double
hearsay and lacking foundation and personal knowledge. As the testimony at
least contains hearsay regarding what Gove said and also does not have an
accompanying explanation regarding how Donald Garske knew what was
said, the court did not abuse its discretion in excluding this testimony.
Paragraph 29 included testimony regarding the effect the damage to
the Garskes’ home had on their neighbors’ property. This testimony has no
apparent relevance to this case, and CAIC objected on that basis. Neither
Donald Garske’s declaration, nor the Garskes’ briefing on appeal explain its
relevance. The court did not abuse its discretion in excluding this testimony.

25
 In paragraph 30, Donald Garske testified the Garskes “were forced to
move back into an uninhabitable home” when CAIC stopped paying for
temporary housing. CAIC objected to this testimony as improper expert
opinion. Given Donald Garske’s description of the home as “uninhabitable,”
the court did not abuse its discretion in sustaining CAIC’s objection.
In paragraph 31, Donald Garske testified that CAIC’s refusal to make
further payments caused the Garskes “substantial financial hardship.” He
does not explain what he means by “substantial financial hardship.” Nor
does he offer any explanation as to why the absence of further payments from
CAIC caused such hardship. The court did not abuse its discretion in
sustaining CAIC’s objection to this testimony, which CAIC contended was
conclusory and lacked foundation.
In paragraph 32, Donald Garske testified his daughter “was forced to
live in Colombia with family members while we made the home habitable.”
He also testified the home “[t]o date . . . has not been returned to its pre-loss
condition.” CAIC objected to both statements as conclusory, lacking
foundation, and improper expert opinion. Garske offered no explanation as to
why his daughter was “forced to” live in Colombia. He also provided no basis
for concluding the home had not returned to the “pre-loss condition,” much
less explained his understanding of that term. The court did not abuse its
discretion in excluding the testimony in paragraph 32.
II.
The Garskes Fail to Present a Triable Issue of Material Fact on Their Claim
for Breach of Contract
The Garskes contend the trial court granted summary judgment for
CAIC “not on the merits of [CAIC’s] motion, but on the basis of disallowing
all the evidence submitted by [the Garskes] in opposition to the motion.” The

26
court did not disallow “all” of the Garskes’ evidence, as they claim, but did
sustain objections to almost the entirety of the testimony of Scott, the
Garskes’ expert. The Garskes acknowledge this “in essence doomed [their]
ability to overcome [CAIC’s] motion.” The court also sustained objections to
significant portions of Donald Garske’s declaration. As we have explained,
the court did not abuse its discretion in sustaining CAIC’s objections.
The Garskes separately contend the court erred in finding CAIC met its
burden of production for summary judgment on the Garskes’ cause of action
for breach of contract. We have already overruled all but one of the Garskes’
objections to CAIC’s evidence. Based on the non-excluded evidence, we
conclude the trial court did not err in granting summary judgment for CAIC
that its investigation and claim payments satisfied the terms of the insurance
policy.
A. The Law of Summary Judgment and Standard of Review
Summary judgment is appropriate when the moving party establishes
there is no triable issue of material fact and the moving party is entitled to
judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 850.) A defendant moving for summary judgment has the initial
burden of presenting evidence sufficient to establish the plaintiff either
cannot prove at least one element of, or that there is a complete defense to,
each cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant
does so, the burden shifts to the plaintiff to present evidence demonstrating
there is a triable issue of material fact. (Ibid.) A triable issue of material fact
exists if the evidence would allow a reasonable trier of fact to make a factual
finding that is necessary under the pleadings in favor of the plaintiff.
(Aguilar, at pp. 843, 850.)

27
 On appeal from a summary judgment, “we examine the record de novo,
liberally construing the evidence in support of the party opposing summary
judgment and resolving doubts concerning the evidence in favor of that
party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)
However, “ ‘[a]s with an appeal from any judgment, it is the appellant’s
responsibility to affirmatively demonstrate error.’ ” (Claudio v. Regents of the
University of California (2005) 134 Cal.App.4th 224, 230.)
B. Dwelling Repairs
The Garskes first dispute whether CAIC’s payments for dwelling
repairs were adequate under the insurance policy. The Garskes’ insurance
policy with CAIC covered physical loss to the “dwelling” on the Garskes’
property, along with “structures attached to the dwelling.” The policy uses
“[a]ctual cash value” to determine any payments required for physical loss. It
defines “[a]ctual cash value” for a partial loss as “the amount it would cost
the insured to repair, rebuild, or replace the thing lost or injured less a fair
and reasonable deduction for physical depreciation.”
CAIC’s motion for summary judgment contended the $117,088.01 CAIC
paid the Garskes for dwelling repairs satisfied CAIC’s obligations under the
insurance policy. In support of its contention, CAIC submitted the Gove,
Gardner, and Benson declarations. Gove testified regarding the amounts
paid to the Garskes for dwelling repairs. He testified that the $117,088.01
paid for dwelling repairs (see fn. 2, ante) reflected an estimate of $126,363.26,
less amounts for depreciation (under the “actual cash value” provision) and
the Garskes’ $1,000 deductible. He further testified that an agreed scope of
dwelling repairs resulted from the February 5, 2019 conference call attended
by Gove, Gardner, Benson, Haratyk, and Fracchiolla. Both Benson and

28
Haratyk had been retained by and represented the Garskes as of the time of
that call.
Gardner testified that on February 6 he prepared the revised estimate
for $126,363.26 of dwelling repairs based on the agreed scope during the
February 5 conference call. He further testified that his company, A Premier
Restoration, “was ready, willing, and able to complete the repairs pursuant to
the scope of work” agreed upon during the February 5 call and reflected in his
revised estimate. Benson testified that, as the contractor hired by the
Garskes, he participated in the February 5 call and received the revised
estimate prepared by Gardner. Benson informed Gove that his company,
Team 1 Restoration, agreed with the revised estimate and could perform the
work for the estimated price. The Garskes did not submit objections to any of
this testimony from Gove, Gardner, and Benson.
Based on the above evidence, we conclude, as the trial court did, that
CAIC met its initial burden of production to show the Garskes’ claim for
breach of contract could not be established. On appeal, the Garskes allege
two primary issues with CAIC’s evidence regarding dwelling repairs. Neither
is persuasive.
First, the Garskes contend the Gardner declaration contains only
conclusory statements regarding the scope of repairs. But the Garskes failed
to raise these evidentiary objections with the trial court. As a result, they are
now waived. (See Code Civ. Proc., § 437c, subd. (b)(5).)
Second, the Garskes contend Gove violated California Code of
Regulations, title 10, section 2695.9, subdivision (d), by rejecting the later
RestoraCore repair estimate commissioned by the Garskes. That regulation
requires an insurer to take one of three actions if an insured “contends, based
upon a written estimate . . . that necessary repairs will exceed the written

29
estimate prepared by or for the insurer.” (Cal. Code Regs., tit. 10, § 2695.9,
subd. (d), italics added.) The insurer may (1) pay the difference between its
estimate and the insured’s higher estimate; (2) provide the insured with the
name of an individual or entity that will make the repairs for the insurer’s
estimate, provided that those repairs “cause the damaged property to be
restored to no less than its condition prior to the loss”; or (3) “reasonably
adjust” the insured’s higher estimate. (Ibid.)
CAIC asserts the Garskes raise this argument for the first time on
appeal. The Garskes do not dispute that assertion. They have therefore
waived this argument. (Premier Medical Management Systems, Inc. v.
California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [“ ‘ “ ‘issues
raised for the first time on appeal which were not litigated in the trial court
are waived’ ” ’ ”].) But even if the Garskes had raised it in the trial court, we
would conclude CAIC satisfied its regulatory obligations. Gove testified he
sent the RestoraCore estimate to Gardner for review. After completing his
review, Gardner informed Gove the RestoraCore estimate did not include any
“necessary repairs” missing from his February 6 revised estimate. Pursuant
to the second option of the applicable regulation, Gove informed the Garskes
that both A Premier Restoration and Team 1 Restoration could complete the
previously agreed repairs for the estimated amount. Contrary to the
Garskes’ claim, Gove’s actions complied with the applicable regulatory
requirements.
Like the trial court, we conclude CAIC met its burden of production to
show the Garskes’ claim for breach of contract failed regarding the alleged
insufficiency of payments for dwelling repairs. This shifts the burden to the
Garskes to show the existence of a triable issue of material fact. The trial

30
court found that the Garskes had not presented any admissible evidence to
create a factual dispute. We agree.
In arguing for the existence of a triable issue of material fact, the
Garskes rely almost solely on the declarations of their purported expert,
Scott, and Donald Garske. However, as we have explained, the trial court did
not abuse its discretion in sustaining CAIC’s objections to the relevant
portions of those declarations. Those declarations do not contain admissible
evidence showing that the February 5 agreed scope of repairs “failed to take
into consideration several code upgrades that were required,” as the Garskes
contend. Indeed, the Garskes have presented no admissible evidence
showing that the RestoraCore estimate contained any “necessary” repairs
missing from Gardner’s February 6 estimate. They have nothing to rebut
Gardner’s testimony to the contrary.
The Garskes contend Benson’s cancelation of Team 1 Restoration’s
reconstruction contract with the Garskes resulted from the February 6
estimate being insufficient to complete the necessary repairs. But Benson’s
declaration contradicts the Garskes’ unsupported allegation. Benson
testified, “I did not think Team 1 [Restoration] was the right fit for the
project since Mr. Garske informed me that he wanted additional work to be
done for no additional charge.” Benson’s testimony comported with the
cancelation email he sent to the Garskes, which he attached as an exhibit to
his declaration. The Garskes argue Benson’s statement in the email that the
insurance settlement was “ ‘bare bones’ ” indicates its insufficiency.
However, nothing in the email indicates Benson understood “ ‘bare bones’ ” to
mean anything other than that the settlement was the minimum amount
necessary to repair the Garskes’ dwelling to its pre-loss state, consistent with
the insurance policy.

31
 The Garskes have failed to present a triable issue of material fact that
CAIC breached the insurance policy by paying an insufficient amount for
dwelling repairs.
C. Personal Property
The Garskes next allege CAIC breached the insurance policy by not
paying for all of the total loss personal property items identified by the
Garskes. The insurance policy provided coverage “for direct physical loss” to
personal property caused by fire or smoke. It required the insured to (1)
“[p]repare an inventory of damaged personal property showing the quantity,
description, ‘actual cash value’ and amount of loss”; and (2) “[a]ttach
all . . . documents that justify the figures in the inventory.”
CAIC’s motion for summary judgment contended CAIC’s payments for
the total loss items identified during the three-day inventory, as well as for
cleaning of smoke-damaged items within the home, satisfied its obligations
under the insurance policy. In support of its contention, CAIC submitted the
Gove, Gardner, and Fracchiolla declarations. Gove testified regarding the
payments made for replacement and cleaning of damaged personal property.
Gardner and Fracchiolla testified regarding what occurred during the three-
day inventory of total loss items in September 2018, in which Donald Garske
and a representative from his public adjuster participated. Fracchiolla
testified that the total loss inventory was “comprehensive.” We have
overruled the Garskes’ objections to Gardner’s and Fracchiolla’s testimony
about the inventory.
Fracchiolla testified that in 2019 she received and reviewed a revised
total loss inventory list prepared by the Garskes that included 283 new items.
The new total loss items were alleged to have been in the garage, in a vehicle
within the garage, and within various rooms in the house. Fracchiolla

32
testified she did not see any of the new total loss items from the garage
during the three-day inventory. Nor did they appear in any of the
photographs from the inventory, or have any physical substantiation. As for
the new total loss items allegedly in the vehicle, both Fracchiolla and Gove
testified they did not appear in photographs of the vehicle’s interior. Nor did
Fracchiolla see them during the three-day inventory. Finally, for the new
total loss items within the house, Fracchiolla testified that her inspection
revealed no flame damage to those areas of the house. She testified that
those items could have been cleaned to the extent they were smoke damaged
and thus were not a total loss. We have overruled the Garskes’ objections to
Fracchiolla’s testimony on this issue.
Based on the evidence submitted by CAIC, we agree with the trial court
that CAIC met its burden of production for summary judgment regarding the
Garskes’ personal property. CAIC’s evidence showed that the new total loss
items claimed by the Garskes lacked substantiation. This shifts the burden
to the Garskes to establish a triable issue of material fact.
The Garskes attempt to rely on the declaration of Donald Garske to
show the existence of a disputed factual issue. But, as we have explained, the
court did not abuse its discretion in sustaining CAIC’s objections to Donald
Garske’s testimony on this issue. Moreover, Donald Garske’s testimony did
not offer any substantiation for the new total loss items. With or without his
testimony, the Garskes have no evidence to oppose the substantial evidence
presented by CAIC. As a result, the Garskes have not presented a triable
issue of material fact on their claim that CAIC breached the insurance policy
by underpaying the Garskes’ personal property losses.

33
D. Additional Living Expenses
The Garskes’ final argument that CAIC breached the insurance policy
focuses on CAIC’s allegedly insufficient payment for the Garskes’ additional
living expenses. The insurance policy covered “any necessary increase in
living expenses” when a loss made the insured residence “not fit to live in.” It
provided that “[p]ayment will be for the shortest time required to repair or
replace the damage.”
CAIC’s motion for summary judgment contended CAIC’s payments for
eight months of temporary housing for the Garskes satisfied its obligations
under the insurance policy. In support of its contention, CAIC submitted the
Gove and Gardner declarations. Gardner testified that a repair permit
issued September 6, 2018 would have allowed the beginning of dwelling
repairs. Gove testified that he made the first payment for dwelling repairs on
October 17, 2018, followed by smaller supplemental payments in January
and February 2019. On the same day as the first dwelling repair payment,
Gove informed the Garskes’ public adjuster that Gardner had estimated
repairs would take four months total, and less than that for the main
residence. Gove testified he did not receive a counter-estimate for dwelling
repairs from the Garskes’ public adjuster until mid-December 2018.
Dwelling repairs had not started by February 5, 2019, at which time the
parties agreed on a scope for those repairs. Gove subsequently learned that
the Garskes had changed contractors. Gove extended the Garskes’ temporary
housing through April 19, 2019 but refused to extend it any further because
of alleged delays by the Garskes and their hired representatives. He testified
that the temporary housing covered eight months in total at a cost to CAIC of
$53,829.07.

34
 We agree with the trial court that CAIC produced sufficient evidence to
show it had not breached its contractual requirement to cover the Garskes’
“necessary increase in living expenses.” This again shifts the burden to the
Garskes to show the existence of a triable issue of material fact. The Garskes
again rely on testimony of Donald Garske to show a disputed factual issue.
However, his declaration did not dispute the timeline laid out in the Gove
declaration. He acknowledged having a permit for dwelling repairs in
September 2018 and receiving the first payment from CAIC for dwelling
repairs in October 2018. Donald Garske acknowledged the Garskes’ public
adjuster “was unresponsive to communications . . . from CAIC and ourselves,
causing unnecessary delays.” In total, the non-excluded portions of Donald
Garske’s declaration do not present a triable issue of material fact regarding
whether the eight months of temporary housing was sufficient to complete
the dwelling repairs.
Because the Garskes have failed to present a triable issue of material
fact on any of the alleged breaches of contract by CAIC, we affirm the trial
court’s grant of summary judgment in favor of CAIC on that cause of action.
III.
In the Absence of a Viable Claim for Breach of Contract, the Garskes’
Remaining Claim for Breach of the Implied Covenant of Good Faith and Fair
Dealing Cannot Stand
The Garskes have not shown that CAIC breached its obligations under
the insurance policy. The factual record indicates that CAIC thoroughly
investigated the Garskes’ claim and promptly made payments pursuant to
the policy. Under these circumstances, we cannot conclude that CAIC
breached the implied covenant of good faith and fair dealing. (See Sawyer v.
Bank of America (1978) 83 Cal.App.3d 135, 139 [“the tort of breaching an

35
implied covenant of good faith and fair dealing consists in bad faith action,
extraneous to the contract, with the motive intentionally to frustrate the
obligee’s enjoyment of contract rights”].) We affirm the trial court’s grant of
summary judgment to CAIC on the Garskes’ second cause of action.
DISPOSITION
The judgment is affirmed. CAIC is entitled to its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)

DO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

KELETY, J.

36