Shawver v. State Farm General Ins. Co. CA2/7

Filed 3/19/24 Shawver v. State Farm General Ins. Co. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JANELLE SHAWVER, as B319252
Administrator, etc. et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct.
No. 19STCV40797)
v.

STATE FARM GENERAL
INSURANCE COMPANY,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Daniel S. Murphy, Judge. Affirmed.
Baird Law Firm, William A. Baird; Wood Law Firm and
E. Kirk Wood for Plaintiffs and Appellants.
Pacific Law Partners, Matthew F. Batezel, Jenny J. Chu,
and Anne M. Master for Defendant and Respondent.
 INTRODUCTION

In November 2018 the Woolsey Fire destroyed the property
where Pamela McCarthy and her nephew, Michael J. LaBerge,
(Michael Jr.), lived. McCarthy and Michael Jr. filed this action
against State Farm General Insurance Company for breach of
contract, breach of the implied covenant of good faith and fair
dealing, and elder abuse. McCarthy and Michael Jr. alleged
State Farm did not pay the full amount it owed under a
homeowner’s policy State Farm issued to McCarthy and her
deceased brother (and Michael Jr.’s father), Michael A. LaBerge
(Michael Sr.). The trial court granted State Farm’s motion for
summary judgment, and McCarthy and Michael Jr. appealed.1
We conclude State Farm did not breach the insurance
contract because it paid to the proper insureds all (if not more
than) it was obligated to pay under the coverages for repairs to
the dwelling, damage to personal property, and temporary
additional living expenses. We also conclude State Farm did not
breach the implied covenant of good faith and fair dealing or
commit financial elder abuse. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Woolsey Fire Destroys the Malibu Property
McCarthy and her brother, Michael Sr., each owned a half-
interest in property in Malibu. In February 2016 Michael Sr.

1 McCarthy died while this appeal was pending. We granted
the motion of her daughter and administrator/personal
representative, Janelle Shawver, to substitute into the appeal in
McCarthy’s place. (See Cal. Rules of Court, rule 8.36(a).)

2
transferred his half-interest to the Michael A. LaBerge Trust; he
died eight months later. In December 2017 his daughter and
trustee of the trust, Chandra LaBerge Fortier, distributed the
trust’s assets, including the trust’s half-interest in the Malibu
property, to herself and to her two brothers, Michael Jr. and
Jason LaBerge.
On November 10, 2018 the Woolsey Fire destroyed the
property and the structures on it. At the time, the main house on
the property had four units. Each unit had a living area, kitchen,
and bathroom. McCarthy lived in one of four units. Two of the
other units were occupied by tenants; one unit was vacant. The
property had two additional houses behind the main house.
Michael Jr. lived in one of those houses; tenants lived in the
other. Michael Jr.’s unit was 1,000 square feet and had two
bedrooms and one bathroom.

B. McCarthy Reports the Loss to State Farm; State Farm
Investigates the Claim
State Farm insured the property under a homeowner’s
policy it issued to named insureds McCarthy and Michael Sr.
The policy listed the trust as an additional insured. The policy
also defined “insured” to include the named insureds’ relatives
who were residents of the named insured’s “household.” The
policy provided that, if a named insured died, State Farm would
insure “the legal representative of the deceased,” but “only with
respect to the premises and property of the deceased covered
under this policy at the time of death.” The policy included three
types of coverage: (1) Coverage A, dwelling repairs; (2) Coverage
B, personal property; and (3) Coverage C, additional living
expense.

3
 On November 14, 2018 McCarthy reported the loss to
State Farm. State Farm issued an advance in the amount of
$10,000 payable to McCarthy and “Michael LaBerge,” the two
named insureds. State Farm assigned the claim to its employee,
Marc Forsyth. On November 16, 2018 Forsyth spoke with
McCarthy. McCarthy said her niece, Fortier, would be the
contact person for the claim, and McCarthy gave Forsyth her
phone number. The following week, Forsyth met with Fortier
and spoke with McCarthy and Michael Jr. Forsyth gave Fortier a
designee letter for the named insureds to sign.2 Forsyth
explained that the contents coverage, Coverage B, only covered
items of personal property owned by the insureds. Forsyth on
behalf of State Farm paid a second advance of $20,000 to
McCarthy and “Michael LaBerge.” Forsyth began working with
Fortier to find temporary housing for McCarthy and Michael Jr.3
On November 22, 2018 Forsyth sent McCarthy and
“Michael LaBerge” a letter explaining what the policy covered
and its coverage limits. Forsyth wrote: “We encourage you to

2 Initially Forsyth believed that, if the named insureds
wanted Fortier to handle the claim for them, State Farm needed
the named insureds to designate Fortier as their representative.
But later, after Fortier showed Forsyth documents stating she
was the trustee (in Forsyth’s words, the “power of attorney”) of
the trust, which had an insured interest, State Farm
management told Forsyth that, because Fortier represented the
trust, State Farm did not need the signed designee letter.

3 Forsyth assumed the Michael LaBerge who lived on the
property was the same Michael LaBerge who was a named
insured. At some point Forsyth learned from Fortier that the
named insured was Fortier’s father and that he had died.

4
obtain your own repair estimates from contractors.” Forsyth’s
letter enclosed personal property inventory forms, explained how
to complete them, and stated: “You must provide us with all
bills, receipts and related documents that substantiate your
inventory.”
On November 26, 2018 State Farm’s adjuster, James
Ulibarri, met with Fortier to inspect the property. Fortier helped
Ulibarri “get a footprint layout of the home.” On November 29,
2018 Forsyth left a message for Fortier stating State Farm had
approved additional living expenses for two separate locations for
McCarthy and Michael Jr. On December 3, 2018 Forsyth spoke
with McCarthy, who was staying in a hotel. Forsyth told
McCarthy that he would send an advance on the personal
property benefits coverage. On December 6, 2018 Michael Jr.
called and told Forsyth that he was not aware State Farm had
made the second advance and that he had found a place to live.
Forsyth asked Michael Jr. if everyone could meet “together so we
could get all the information out and correct to everyone.”
Michael Jr. agreed.
On December 8, 2018 Forsyth spoke with McCarthy. He
asked that she, Michael Jr., and Fortier attend the upcoming
meeting “so we can have all the questions answered and everyone
hears the same answers.” McCarthy agreed. On December 12,
2018 Forsyth met with McCarthy and Michael Jr.; Fortier did not
attend. Forsyth gave them an advance in the amount of $413,758
(50 percent of the Coverage A limit) and an additional personal
property advance of $156,191 (which, combined with the previous
$30,000, was 30 percent of the Coverage B limit). Forsyth asked
McCarthy and Michael Jr. to give him receipts for any additional
fuel, food, or temporary housing expenses.

5
 C. Conflict Among the Family Members Interferes with
the Claim Process
Later that day Fortier called Forsyth and told him that
State Farm should have included the trust in the personal
property advance because the trust had an interest in the
structure and the contents. Forsyth stopped payment on the
$156,191 check he had given McCarthy and Michael Jr. and
issued a new check payable to McCarthy, “Michael LaBerge,” and
the trust, which he gave Fortier the next day. Fortier told
Forsyth the family “may not rebuild” the structures on the
property. Forsyth told McCarthy that additional living expense
payments would end when the claim was complete, which he
expected would be around March 1, 2019, but that the date might
change if the family rebuilt. Forsyth advised McCarthy to
“speak to [Michael Jr. and Fortier] on the future.” McCarthy told
Forsyth that Fortier would not return her calls.
On December 17, 2018 Forsyth spoke with McCarthy,
Michael Jr., and Fortier. Forsyth told them that he had received
conflicting information about whether they planned to rebuild
and that they needed to work together to resolve the dispute.
Forsyth said that he had received a receipt for temporary housing
for McCarthy but that he needed a copy of Michael Jr.’s lease.
Forsyth also said State Farm had agreed to pay additional living
expenses through March 2019.
On February 8, 2019 Forsyth delivered the final
Coverage A payment for dwelling repairs in the amount of
$489,978.27, which, when combined with the $413,758 advance,
represented State Farm’s estimate of the cost to rebuild. The
next day, Forsyth met with McCarthy. He told McCarthy that
State Farm had paid Coverage A benefits to rebuild the dwelling,

6
a 30 percent advance on Coverage B, and six months’ additional
living expense under Coverage C. Forsyth told McCarthy, “we
have contents to work” (i.e., the family needed to submit
documentation of lost personal property for Coverage B benefits).
He also said State Farm would “need to see progression on the
restoration of a home on the property to continue [additional
living expense] payments.” Forsyth also gave Michael Jr. a check
for six months’ rent.

D. Unable To Obtain Documentation from the Insureds,
State Farm Stops Making Payments
By March 2019 State Farm still had not received a personal
property inventory. On March 18, 2019 Fortier told Forsyth she
was still working on the inventory. Forsyth wrote a claim file
note stating the insureds had not signed an attestation regarding
the value of their personal property because “they couldn’t agree
to meet or sign the paperwork. Family issues prior to loss had
made it impossible to work collectively on claim.” On March 26,
2019 Forsyth wrote that, due to the family rift, the family
members were not speaking to each other, refused to meet with
him together, and only returned his calls or contacted him when
they needed assistance. Although Forsyth had met with each
family member “on several occasions to discuss contents lists and
the documentation for their personal property and the contents
that were on the property,” Forsyth “could not get an attestation
signed” or completed contents lists.
In March 2019 State Farm reassigned the claim to
independent adjuster Stephanie Long. Like Forsyth, Long
received conflicting information from the family, with Fortier
telling Long that the family planned to sell the property and

7
McCarthy and Michael Jr. saying that they planned to rebuild.
Long asked Fortier to meet with the other members of the family
to resolve the dispute.
In May 2019 Long told Fortier that State Farm had
approved additional living expenses for McCarthy for six more
months, which “would allow a reasonable time of 1 year to
relocate.” Long also told Fortier that McCarthy needed to submit
documentation showing she was actively looking for permanent
housing. Also in May 2019 a State Farm employee reviewed the
claim file and discovered the property was listed for sale,
indicating the family did not intend to rebuild. The reviewer also
stated that State Farm had to provide additional living expense
for only one residence, not two, and that Michael Jr., who was not
a named insured, was not entitled to additional living expense
beyond what State Farm had previously promised. In June 2019
Long told Michael Jr. that State Farm would not pay for his rent
beyond June 2019. State Farm later agreed to pay Michael Jr.’s
rent for the remainder of his one-year lease (through
December 2019).
On June 12, 2019 Long sent a letter to McCarthy and
Fortier as trustee stating State Farm was “prepared to advance
you up to 75 % of the amount of the personal property limits” on
the policy without “an inventory or documentation of your loss at
this time.” Long enclosed an attestation form for McCarthy and
Fortier to sign stating the personal property destroyed in the fire
was worth at least $465,477.75. An attorney for McCarthy
returned the form with references to the trust crossed out. State
Farm rejected the altered form.
State Farm continued to ask McCarthy and Fortier (on
behalf of the trust) to sign the attestation letter, but McCarthy

8
refused. State Farm told McCarthy and Fortier that
Michael Jr.’s additional living expense benefits would end in
December 2019 and that McCarthy could continue to receive
additional living expense benefits for the time it took to relocate
or rebuild. State Farm asked for documentation showing either
“ongoing progress towards the rebuild of the home” or a signed
contract with a realtor and dates for completed home tours. On
December 3, 2019 State Farm sent letters to counsel for
McCarthy and Michael Jr. and to counsel for Fortier and her
brother, Jason, stating State Farm had not received
documentation that McCarthy “was actively looking to purchase
another home, or was moving forward with rebuilding the
dwelling,” and that additional living expense benefits for both
McCarthy and Michael Jr. would end December 31, 2019.

E. McCarthy and Michael Jr. File This Action Against
State Farm; The Trial Court Grants State Farm’s
Motion for Summary Judgment
McCarthy filed this action on November 12, 2019. In the
operative second amended complaint, McCarthy and Michael Jr.
alleged causes of action against State Farm for breach of
contract, breach of the implied covenant of good faith and fair
dealing, and elder abuse in violation of Welfare and Institutions
Code section 15610.4
State Farm moved for summary judgment or, in the
alternative, for summary adjudication on each cause of action
and on State Farm’s duties under Coverages A, B, and C. State
Farm argued Michael Jr.’s causes of action failed as a matter of

4 A second defendant, Eberl Claims Service LLC, is not a
party to this appeal.

9
law because he was not an insured. State Farm argued
McCarthy’s causes of action failed because State Farm paid her
everything it owed under the policy, in light of McCarthy’s failure
to document her loss. Regarding Coverage A (dwelling repairs),
State Farm argued that the insureds had a duty to prove their
loss by documenting the amount claimed, that State Farm had
paid $763,409.43 in benefits, and that McCarthy and Michael Jr.
never submitted documentation showing the cost to rebuild
exceeded that amount. Regarding Coverage B (personal
property), State Farm argued that it paid $186,191 in benefits
and that the insureds never submitted a list of personal property
destroyed in the fire, as the policy required. Regarding Coverage
C (additional living expense), State Farm argued that it paid for
temporary housing for McCarthy and for Michael Jr. through
December 2019 (even though Michael Jr. was not entitled to any
Coverage C benefits) and that State Farm stopped paying
additional living expense benefits because the insureds did not
submit proof they were rebuilding or relocating. State Farm also
moved for summary adjudication on the cause of action for breach
of the implied covenant.
State Farm argued there was no evidence it wrongfully
withheld benefits from an “infirm elderly person” or a “dependent
adult,” as required for elder abuse. Finally, State Farm argued
there was no evidence it engaged in any conduct that would
justify an award of punitive damages.
In opposition to the motion, Michael Jr. argued he was an
insured because he was a member of McCarthy’s household.
McCarthy and Michael Jr. submitted declarations by Michael Jr.
and insurance loss consultant Vincent Furriel stating Michael Jr.
lived “in a separate space attached to and appurtenant to the

10
insured dwelling” that “shared a continuous roof, enclosed
walkway, common courtyard and living space with the dwelling.”
Regarding her causes of action, McCarthy argued there were
questions of fact regarding whether State Farm breached the
insurance contract by dealing with and paying benefits to Fortier
as trustee of the trust, when State Farm knew the trust had been
terminated. McCarthy and Michael Jr. also relied on Furriel’s
declaration stating State Farm should have paid McCarthy and
Michael Jr. additional benefits under Coverages A, B, and C.
The court granted State Farm’s motion for summary
judgment. The court ruled Michael Jr.’s declaration did not raise
a triable issue of material fact regarding his status as an insured
because there was “no indication that [McCarthy and
Michael Jr.] acted as a household.” The court stated: “There is
no indication that [Michael Jr.] helped care for . . . McCarthy.”
The court also stated McCarthy and Michael Jr. “obtained
separate living arrangements after the fire.”
The court also concluded there was no triable issue of
material fact regarding whether State Farm improperly withheld
benefits. Regarding Coverage A, the court ruled that Furriel’s
conclusory declaration lacked foundation and that McCarthy and
Michael Jr. did not submit any estimates to State Farm until
months after State Farm filed the motion for summary judgment
in this action. The court also determined the policy required
State Farm to pay Coverage A benefits to the trust as an
additional insured. Regarding Coverage B, the court ruled the
policy required State Farm to pay Coverage B benefits to the
trustee as the legal representative for the deceased named
insured, Michael Sr. The court also ruled McCarthy and
Michael Jr. did not present evidence they ever submitted a proof

11
of loss to State Farm. Regarding Coverage C, the court ruled
that State Farm paid additional living expenses for McCarthy
and Michael Jr. for one year, that McCarthy and Michael Jr. did
not show the family was making any effort to rebuild or relocate,
and that State Farm was not required to cover unsubstantiated
expenses.
The court also ruled State Farm was entitled to judgment
as a matter of law on the causes of action for breach of the
implied covenant of good faith and fair dealing and for elder
abuse, as well as the claim for punitive damages. McCarthy and
Michael Jr. timely appealed from the ensuing judgment.

DISCUSSION

A. Applicable Law and Standard of Review
“A court may grant a motion for summary judgment only
when all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” (Fajardo v. Dailey (2022)
85 Cal.App.5th 221, 225, internal quotation marks omitted; see
Code Civ. Proc., § 437c, subd. (c); Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 618.)
“A defendant seeking summary judgment must show that the
plaintiff cannot establish at least one element of the cause of
action.” (Regents, at p. 618; see Long Beach Memorial Medical
Center v. Allstate Ins. Co. (2023) 95 Cal.App.5th 710, 715; Mattei
v. Corporate Management Solutions, Inc. (2020) 52 Cal.App.5th
116, 122.) “‘Only after the defendant carries that initial burden
does the burden shift to the plaintiff “to show that a triable issue
of one or more material facts exists as to the cause of

12
action . . . .”’” (Fajardo, at pp. 225-226; see Luebke v. Automobile
Club of Southern California (2020) 59 Cal.App.5th 694, 703.)
“‘“We review a grant of summary judgment de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law.”’ [Citations.] We ‘liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts
concerning the evidence in favor of that party.’” (Fajardo v.
Dailey, supra, 85 Cal.App.5th at p. 226; see Long Beach Memorial
Medical Center v. Allstate Ins. Co., supra, 95 Cal.App.5th at
p. 716.) “‘Only admissible evidence is liberally construed in
deciding whether there is a triable issue.’” (Alexander v. Scripps
Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 225.)

B. The Trial Court Did Not Err in Granting
State Farm’s Motion for Summary Adjudication on
the Breach of Contract Cause of Action
The elements of a cause of action for breach of an insurance
contract are (1) the existence of the contract, (2) the insureds’
performance or excuse for nonperformance, (3) the insurer’s
breach, and (4) resulting damages. (Janney v. CSAA Ins.
Exchange (2021) 70 Cal.App.5th 374, 390.) The trial court ruled
that State Farm met its initial burden on summary adjudication
by showing it paid all benefits it owed under the policy and that
McCarthy and Michael Jr. did not raise a triable issue of material
fact regarding whether State Farm improperly withheld benefits.
The trial court did not err.5

5 Because we conclude the trial court did not err in ruling
State Farm did not breach the insurance contract, we do not

13
 1. State Farm Was Entitled to Judgment on
Coverage A (Dwelling Repair)
State Farm paid $763,409.43 in Coverage A benefits for
dwelling repairs and debris removal. The policy limits were
$827,516.6 McCarthy and Michael Jr. argue State Farm
breached the insurance contract by failing to pay an additional
$176,304.25.
The policy stated State Farm would pay “up to the
applicable limit of liability shown in the Declarations, the
reasonable and necessary cost to repair or replace with similar
construction and for the same use on the premises shown in the
Declarations, the damaged part of the [covered] property.” State
Farm submitted evidence it inspected the property twice,
discussed the property with McCarthy and Fortier, and based on
that information, prepared a 166-page estimate of the cost to
rebuild.7 On February 8, 2019 State Farm paid that amount (less

reach whether Michael Jr. was insured as a member of
McCarthy’s household under Coverage A or B.

6 State Farm paid an additional $228,394.84 in other types of
Coverage A benefits, such as for trees, shrubs, and landscaping,
for a total of $991,804.27 under Coverage A.

7 McCarthy and Michael Jr. argue the estimate was
inadmissible because State Farm did not authenticate it and it
included hearsay. They forfeited this argument, however, by not
making these objections in the trial court. (See Code Civ. Proc.,
§ 437c, subd. (b)(5) [“Evidentiary objections not made at the
hearing shall be deemed waived”]; Reid v. Google, Inc. (2010)
50 Cal.4th 512, 531-532 [to preserve evidentiary issues on appeal,
a party must object in writing before the summary judgment
hearing or orally at the hearing]; Joshi v. Fitness International,

14
previous advances). State Farm contended the insureds did not
present any evidence the cost to rebuild exceeded the amount
State Farm paid. State Farm met its initial burden on summary
judgment.
In opposition to the motion, McCarthy and Michael Jr.
submitted the declaration of Furriel, their insurance loss
consultant, who stated State Farm owed an additional
$176,304.25 for Coverage A. The trial court, however, sustained
State Farm’s objection to that portion of Furriel’s declaration,
ruling that Furriel made “no attempt to substantiate his
calculations” and that his opinion “lacks foundation and is
inadequate to raise a triable issue.” (See Alexander v. Scripps
Memorial Hospital La Jolla, supra, 23 Cal.App.5th at p. 225 [“‘an
expert’s opinion rendered without a reasoned explanation of why
the underlying facts lead to the ultimate conclusion has no
evidentiary value because an expert opinion is worth no more
than the reasons and facts on which it is based’”].) McCarthy and
Michael Jr. do not challenge this ruling.8

LLC (2022) 80 Cal.App.5th 814, 830 [under section 437c,
subdivision (b)(5), a party forfeits an evidentiary objection to a
declaration by not raising it in the trial court].)

8 In their opening brief McCarthy and Michael Jr. argue
Furriel’s “testimony created a fact issue,” but they do not argue
the trial court erred in sustaining State Farm’s objection to a
portion of Furriel’s declaration. And in their reply brief
McCarthy and Michael Jr. address State Farm’s (forfeited)
argument Furriel’s declaration contained inadmissible hearsay,
but again they do not challenge the trial court’s evidentiary
ruling.

15
 In any event, even if the court erred in excluding it,
Furriel’s opinion did not create a triable issue of material fact on
Coverage A. Furriel stated that he was an insurance loss
consultant, that he inspected the property, and that he prepared
reports “[b]ased principally on that inspection.” His only “report”
regarding Coverage A was a spreadsheet that showed a “coverage
limit,” “amounts paid,” and a “coverage balance” of $176,304.25.
Nowhere did Furriel explain how he calculated the alleged
“coverage balance”; it appears he simply subtracted the amount
State Farm paid from the policy’s Coverage A limit.9 But the
policy did not provide State Farm had to pay the policy limit,
even in the event of a total loss; as discussed, the policy required
State Farm to pay “the reasonable and necessary cost to repair or
replace with similar construction,” up to the policy limit. And
although McCarthy and Michael Jr. argued the calculations by
State Farm’s adjuster “were incorrect and incomplete,” Furriel
did not say what was wrong with State Farm’s estimate or
provide an alternative estimate.10 Even under the liberal

9 Although Pamela and Michael Jr. assert Furriel relied on a
“commonly-used software for estimating the cost of repairs and
reconstruction for residential and commercial structures,”
Furriel’s declaration says nothing about a software program or
the cost to repair or rebuild.

10 The policy required the insureds to prove the loss by
providing “specifications of any damaged building and detailed
estimates for repair of the damage.” McCarthy and Michael Jr.
did not give State Farm an estimate of the cost to rebuild the
property. (See Abdelhamid v. Fire Ins. Exchange (2010)
182 Cal.App.4th 990, 1000 [insurer was entitled to summary
judgment where no reasonable trier of fact could find the insured

16
construction courts apply to expert declarations submitted in
opposition to motions for summary judgment (see Jennifer C. v.
Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320,
1332), Furriel’s purely conclusory opinion had no evidentiary
value. (See Everett v. State Farm General Ins. Co. (2008)
162 Cal.App.4th 649, 659 [contractor’s estimate that stated the
cost of code upgrades exceeded policy limits, but that “offered no
explanation as to how and why he reached this conclusion” or
“any documentation to support it,” did not create a triable issue
of material fact regarding a breach of contract cause of action];
Lincoln Fountain Villas Homeowners Assn. v. State Farm Fire &
Casualty Ins. Co. (2006) 136 Cal.App.4th 999, 1009-1010
[declaration by counsel for the insured stating counsel’s
consultants “‘prepared reports and estimates regarding the
nature and cost of repair for the [insured’s] earthquake damages’”
in an amount three times greater than the insurer’s estimate did
not create a triable issue of material fact regarding the insured’s
entitlement to additional policy benefits]; cf. Doe v. Good
Samaritan Hospital (2018) 23 Cal.App.5th 653, 662 [an “‘opinion
unsupported by reasons or explanations does not establish the
absence of a material fact issue for trial, as required for summary
judgment’” (italics omitted)].) Because the undisputed material
facts established State Farm paid the insureds the cost to
rebuild, State Farm was entitled to judgment as a matter of law
on Coverage A. (See Behnke v. State Farm General Ins. Co.
(2011) 196 Cal.App.4th 1443, 1468 [insurer was entitled to
summary judgment on a breach of contract cause of action

“complied with the condition of her insurance contract requiring
her to provide a proof of loss with supporting documentation”].)

17
because the insurer “paid all policy benefits [the insured] was
entitled to receive”].)

2. State Farm Was Entitled to Judgment on
Coverage B (Personal Property)
Coverage B covered “personal property owned or used by an
insured.” State Farm paid an advance of $186,191, which was
30 percent of the policy limit of $620,637. McCarthy and
Michael Jr. argue State Farm breached the insurance contract by
paying some of the Coverage B benefits to the trust and by failing
to pay “full Coverage B limits.”

a. State Farm Properly Paid Coverage B
Proceeds to the Trustee
As discussed, the named insureds were McCarthy and
Michael Sr., who died in 2016. The policy provided that, if a
named insured died, State Farm would insure “the legal
representative of the deceased,” but “only with respect to the
premises and property of the deceased covered under this policy
at the time of death.” State Farm argued it properly paid
Coverage B benefits jointly to McCarthy (as a named insured)
and to the trustee of the trust, as legal representative of
Michael Sr. (as the other named insured). The trial court ruled
that this evidence met State Farm’s initial burden on Coverage B
and that McCarthy and Michael Jr. failed to create a triable issue
of material fact.
McCarthy and Michael Jr. argue State Farm did not meet
its moving burden on summary judgment because State Farm did
not submit evidence Fortier, the trustee, was Michael Sr.’s legal
representative. But State Farm did submit that evidence. “‘The

18
term “legal representative,” as used in [a fire insurance policy],
means any person who, by operation of law, stands in place of
and represents the insured, and includes executors,
administrators, trustees, receivers, guardians, and any who
stand clearly in a representative capacity.’” (Loomis v. Vernon
Mut. Fire Ins. Co. (1961) 14 Wis.2d 470, 473; see New York
Mutual Life Ins. Co. v. Armstrong (1886) 117 U.S. 591, 597
[6 S.Ct. 877, 879] [“The term ‘legal representatives’ [in an
insurance policy] is not necessarily restricted to the personal
representatives of one deceased, but is sufficiently broad to cover
all persons who, with respect to his property, stand in his place
and represent his interest, whether transferred to them by his act
or by operation of law”]; Leopold v. Leopold (Mo.Ct.App. 1977)
552 S.W.2d 276, 278 [the “primary meaning” of the “‘term “legal
representative”’” in “an insurance policy is executor or
administrator [citation], but the term as there found may also
have a secondary meaning ‘which includes anyone who succeeds
to the rights of another’”]; 4 Couch on Insurance (3d ed. 2023)
§ 59:23 [“[a]lthough the words ‘personal representatives’ or ‘legal
representatives’ are ordinarily interpreted as referring to the
executor under the will of the insured or the administrator of
insured’s estate, those words have another or secondary meaning,
which includes anyone who succeeds to the rights of another,
such as heirs, next of kin, assignee by contract or operation of
law, a trustee, receiver, or the like” (fn. omitted)]; see also
Prob. Code, § 39 [defining “fiduciary” as a “personal
representative, trustee, guardian, conservator, attorney-in-fact
under a power of attorney, . . . or other legal representative”].)11

11 It appears Michael Sr.’s estate did not have a court-
appointed executor or administrator. At the hearing on the

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It was undisputed Fortier was the trustee of Michael Sr.’s trust.
Thus, she was the legal representative of her father, a deceased
insured.
In addition, McCarthy told State Farm that Fortier would
handle the claim. Fortier, in turn, told Forsyth that Michael Sr.
had died, that the trust owned his interest in the property, and
that she was the trustee. Fortier told Forsyth that Michael Sr.’s
estate had an interest in personal property at the Malibu
property. Given this information, the policy required State Farm
to pay Coverage B benefits for Michael Sr.’s personal property to
Fortier as Michael Sr.’s legal representative.
McCarthy and Michael Jr. argue State Farm should not
have paid any proceeds to the trustee because, after the trustee
distributed the trust’s assets in 2017, the trust “was terminated”
and “ceased to exist.” They assert that, at the time of the fire,
State Farm “knew that the former Trust no longer existed” but
nevertheless paid benefits to the trustee, who “controlled the
proceeds and withheld some of the benefits, despite not having
any personal property on the insured premises.”12 But McCarthy

motion for summary judgment, counsel for McCarthy and
Michael Jr. stated that there was no appointed legal
representative of Michael Sr.’s estate and that “there was no
probate.” (See Valentine v. Read (1996) 50 Cal.App.4th 787, 792
[“Property held in a revocable living trust is not subject to
probate administration after the settlor dies.”].) McCarthy and
Michael Jr. do not argue on appeal that only an executor or
administrator of Michael Sr.’s estate, as opposed to a trustee of
his trust, could be his legal representative.

12 McCarthy and Michael Jr. argue it was undisputed Fortier
did not have any personal property at the Malibu property. State

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and Michael Jr.’s argument the trust was terminated after
Fortier distributed its assets is contradicted by the terms of the
trust, which stated: “After the death of [Michael Sr.], the trust
may not be amended, revoked, or terminated except as
specifically provided in this instrument.” McCarthy and
Michael Jr. did not present any evidence the trust was
terminated “as specifically provided” in the trust.
McCarthy and Michael Jr. argue a letter from attorney
Michael Harris stating Fortier “distributed the assets and
terminated the Trust” raised a triable issue of fact regarding
whether it was proper for State Farm to make payments to the
trust.13 But Harris provided no factual basis for his statement
Fortier “terminated” the trust. The letter from Harris did not
create a triable issue of material fact. (See Granadino v. Wells
Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 415 [once the
defendant meets its initial burden, the “plaintiff must produce
‘“substantial”’ responsive evidence sufficient to establish a triable
issue of fact”; “‘responsive evidence that gives rise to no more

Farm, however, paid Fortier Coverage B benefits not in her
individual capacity for personal property she had at the Malibu
property, but as trustee for the trust and legal representative of
Michael Sr., who according to Fortier had personal property
there. And although McCarthy and Michael Jr. argue “the
former Trust” did not have any personal property at the Malibu
property, they do not argue—and did not present any evidence—
Michael Sr. or his trust or estate did not have any personal
property at the Malibu property at the time of the fire.

13 State Farm argues Harris’s letter contains hearsay and
lacks foundation. State Farm forfeited these evidentiary
objections by not making them in the trial court.

21
than mere speculation cannot be regarded as substantial, and is
insufficient to establish a triable issue of material fact’”].)
Similarly, McCarthy’s statement in her declaration (which the
trial court excluded in a ruling McCarthy and Michael Jr. do not
challenge in their opening brief) it was “her current
understanding” that “the Trust did not have any interest in the
Property” after the trustee distributed the trust’s interest in the
Malibu property to Michael Sr.’s children did not create a triable
issue of material fact regarding whether State Farm breach the
insurance contract by making payments to the trust.
But even if the Trust terminated after the trustee
distributed the trust assets (see Prob. Code, § 15407, subd. (a)(2)
[a trust terminates by operation of law when the trust’s purpose
is fulfilled]), such a circumstance would not prevent Fortier as
trustee from acting as Michael Sr.’s legal representative: Fortier
retained the authority to do whatever was necessary to wind up
the trust. “On termination of the trust, the trustee continues to
have the powers reasonably necessary under the circumstances to
wind up the affairs of the trust.” (Prob. Code, § 15407, subd. (b);
see Sterling v. Sterling (2015) 242 Cal.App.4th 185, 200 [trustee
of a revoked trust had the power to sell a major asset as part of
the winding up process]; Rest.3d Trusts, § 89, com. b, p. 271
[“Although the termination date for a trust has arrived, the
trustee does not thereby necessarily cease to be trustee but
normally continues to serve until the trust is finally wound up.”].)
Once State Farm paid policy proceeds that belonged in part to
Michael Sr., his share of the proceeds became part of the trust

22
estate, and Fortier had the duty as trustee to distribute the
proceeds to the trust beneficiaries.14

b. There Was No Evidence the Insureds’
Personal Property Loss Exceeded What
State Farm Paid
As discussed, State Farm paid an advance of $186,191 in
Coverage B benefits for personal property (30 percent of the
policy limit of $620,637). The policy required the insureds to
submit within 60 days “an inventory of damaged . . . property,”
showing “in detail the quantity, description, age, replacement
cost and amount of loss.” In its motion for summary judgment,
State Farm argued the insureds never submitted a personal
property inventory or proof of loss demonstrating that the value
of their lost personal property exceeded the amount State Farm
paid.
McCarthy and Michael Jr. argue the trial court erred in
ruling State Farm met its initial burden on summary judgment
because State Farm did not submit any evidence they failed to
submit a list of personal property. But State Farm did. State
Farm submitted excerpts from its claim file showing State Farm
repeatedly asked McCarthy, Michael Jr., and Fortier to submit
lists of personal property destroyed in the fire. Two weeks after

14 To the extent Fortier distributed the proceeds inequitably,
as McCarthy and Michael Jr. assert, they may have a cause of
action against Fortier for breach of fiduciary duty, but they do
not have a claim against State Farm. Indeed, there has been
litigation among the family members. (See Fortier et al. v.
LaBerge et al. (Super. Ct. L.A. County, No. 19SMCV01483.)

23
the fire, Forsyth sent the family personal property inventory
forms and explained how to complete the forms or provide an
inventory online. In March 2019 Forsyth wrote a claim file note
stating that he had met with each family member several times
“to discuss contents lists and the documentation for their
personal property,” but that he had not yet received the lists. In
June 2019 State Farm offered to advance 75 percent of the
personal property limits without an inventory if McCarthy and
Fortier would sign an attestation stating their destroyed personal
property was worth at least $465,477.75. But McCarthy would
not sign.
McCarthy and Michael Jr. argue they submitted the
required personal property inventory and created a triable issue
of fact by submitting a “personal property report” prepared by
their expert, Furriel. Counsel for McCarthy and Michael Jr. sent
Furriel’s personal property report to State Farm in January 2022.
The trial court found that report, sent months after State Farm
filed its motion for summary judgment, did not satisfy the proof
of loss requirement, contained unsubstantiated calculations, and
did not raise a triable issue of material fact regarding State
Farm’s payment of Coverage B benefits. The trial court was
correct. Furriel’s declaration did not say how he obtained
information about McCarthy’s and Michael Jr.’s lost property or
how he calculated its replacement cost. And the trial court
excluded the paragraph of Furriel’s declaration that stated State
Farm owed an additional $595,772.43 for Coverage B benefits, a
ruling McCarthy and Michael Jr. do not challenge.15

15 Although Furriel did not explain the basis for the amounts
on his spreadsheet, it appears he calculated the policy limit for
Coverage B as 75 percent of the limit for Coverage A, plus an

24
 In addition, McCarthy and Michael Jr. did not provide
Furriel’s personal property report to substantiate their claim, as
State Farm requested and as the policy required. Instead, it
appears Furriel prepared his report for the purpose of opposing
State Farm’s motion for summary judgment; counsel for
McCarthy and Michael Jr. sent the report to State Farm in
January 2022, two days before filing the opposition to
State Farm’s motion. McCarthy and Michael Jr. argue that State
Farm “was plainly not injured by any delay in an inventory”
because in June 2019 (seven months after the fire) State Farm
offered to pay 75 percent of Coverage B policy limits without an
inventory and gave the insureds 36 months from the date of the
payment to replace the property and submit the documentation
required to receive the replacement cost.16 McCarthy and

additional amount for inflation, for a total amount of
$625,772.43. The Coverage B policy limit, however, was
$620,637.

16 The policy required State Farm to pay “the cost to repair or
replace less depreciation” (actual cash value) until the insured
replaced the property, at which time State Farm would pay full
replacement cost. The policy gave the insured two years to
replace the property and receive full replacement cost; Insurance
Code section 2051.5, former subdivision (b)(1)(A)(ii), now
subdivision (b)(1)(B), extended that period to three years for a
loss relating to a state of emergency. Neither the policy nor
section 2051.5 allowed an insured up to three years to submit
proof of loss; in fact, as discussed, the policy required the insured
to submit an inventory of damaged personal property within
60 days. Undesignated statutory references are to the Insurance
Code.

25
Michael Jr. contend State Farm’s offer was evidence it “did not
expect to be provided the full estimate immediately.” But
McCarthy and Michael Jr. provide no authority for their
contention State Farm was required to accept as proof of loss a
personal property inventory submitted by insureds in opposition
to an insurer’s motion for summary judgment, more than three
years after the loss. Belatedly complying with policy terms only
after suing the insurance company and receiving a motion for
summary judgment does not reflect true compliance.

3. State Farm Was Entitled to Judgment on
Coverage C (Additional Living Expenses)
Coverage C covered “the necessary increase in cost” to
maintain the named insured’s standard of living “for the shortest
of: (a) the time required to repair or replace the premises; (b) the
time required for your household to settle elsewhere; or
(c) 24 months.” State Farm paid $130,874.56 in Coverage C
benefits for McCarthy’s hotel and Michael Jr.’s rental property
through December 31, 2019.17 The trial court ruled State Farm
met its initial burden on summary judgment regarding Coverage
C by presenting evidence “the reasonably necessary time for
repairs or relocation had passed, considering the lack of
documentation from [McCarthy and Michael Jr.] indicating any
efforts to rebuild or relocate.” The trial court also ruled that,

17 Because Michael Jr. was not a named insured, he was not
entitled to any additional living expenses. It appears State Farm
initially paid Michael Jr.’s expenses by mistake (assuming he was
Michael Sr., the named insured), but nevertheless ultimately
decided to pay the rent for the entirety of his one-year lease.

26
because McCarthy and Michael Jr. did not present evidence they
had incurred additional rental expenses after December 31, 2019,
there was no triable issue of material fact regarding whether
State Farm breached the policy by withholding Coverage C
benefits.
McCarthy and Michael Jr. argue section 2051.5,
former subdivision (b)(2),18 required State Farm to pay additional
living expenses for up to three years. Former subdivision (b)(2),
provided that, in the event of a covered loss relating to a state of
emergency (such as the Woolsey Fire), an insurer must cover
additional living expenses for at least 24 months, “subject to
other policy provisions,” and for up to 36 months “if an insured
acting in good faith and with reasonable diligence encounters a
delay or delays in the reconstruction process that are the result of
circumstances beyond the control of the insured.”
McCarthy and Michael Jr. argue the lawsuit Fortier and
her brother Jason filed against them in August 2019 prevented
them from rebuilding and required State Farm to pay their
additional living expenses for three years under section 2051.5,
former subdivision (b)(2). McCarthy and Michael Jr. misconstrue
the statute. First, former subdivision (b)(2), stated that an
insurer’s obligation to pay additional living expenses for an
extended period is subject to other policy provisions. And State
Farm’s policy required it to pay additional living expenses for the
time required to rebuild, to relocate, or for two years, whichever

18 Section 2051.5, former subdivision (b)(2), was effective from
September 21, 2018 to December 31, 2020. The Legislature
amended section 2051.5 and deleted former subdivision (b)(2),
but added similar language to section 2060, subdivision (b)(1),
operative July 1, 2021 (Stats. 2020, ch. 258, § 5 and ch. 261, § 1.)

27
was shortest. Former subdivision (b)(2) of section 2051.5
extended the two-year period to three years, but it did not require
State Farm to pay additional living expenses for longer than the
time required to rebuild or relocate. State Farm presented
evidence that it asked the insureds for documentation showing
they were working with an architect, engineer, or contractor to
rebuild or with a realtor to relocate and that the insureds did not
provide any. McCarthy and Michael Jr. did not submit evidence
to create a triable issue of material fact regarding the application
of this provision.
Second, the delay caused by the intrafamily litigation was
not a circumstance beyond the insured’s control, within the
meaning of section 2051.5, former subdivision (b)(2). The statute
states: “Circumstances beyond the control of the insured include,
but are not limited to, unavoidable construction permit delays,
lack of necessary construction materials, and lack of available
contractors to perform the necessary work.” Litigation among
property owners is not this kind of circumstance. The statute’s
legislative history reflects that the Legislature was concerned
that, given the number of wildfires in California in recent years,
the construction industry was “struggling to keep up with
construction demand,” causing “reconstruction delays due to the
massive need for debris removal, permitting demand and lack of
contractors and materials.” (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Assem. Bill No. 1772 (2017-2018
Reg. Sess.) as amended Aug. 24, 2018.) McCarthy and
Michael Jr. offer no reason insureds who cannot agree whether to
rebuild or relocate—including those who resort to litigation to
settle their differences—should benefit from a statutory

28
extension of time designed to address allocation of, or competition
for, scarce resources in times of natural disasters.

C. The Trial Court Did Not Err in Granting
State Farm’s Motion for Summary Adjudication on
the Causes of Action for Breach of the Implied
Covenant and for Elder Abuse
McCarthy and Michael Jr.’s cause of action for breach of
the implied covenant of good faith and fair dealing is predicated
on their cause of action for breach of contract. Because
State Farm was entitled to summary adjudication on McCarthy
and Michael Jr.’s cause of action for breach of contract, State
Farm was also entitled to summary adjudication on their cause of
action for breach of the implied covenant of good faith and fair
dealing. (See Bennett v. Ohio National Life Assurance Corp.
(2023) 92 Cal.App.5th 723, 729 [“‘“[A]bsent an actual withholding
of benefits due, there is no breach of contract and likewise no
breach of the insurer’s implied covenant.”’”]; Caldera
Pharmaceuticals, Inc. v. Regents of University of California (2012)
205 Cal.App.4th 338, 359, fn. 17 [“where there is no breach of the
contract, there can be no breach of the covenant implied in that
contract”]; Behnke v. State Farm General Ins. Co., supra,
196 Cal.App.4th at p. 1470 [cause of action for bad faith denial of
insurance benefits fails as a matter of law where the insured
cannot establish a breach of contract].)
McCarthy’s cause of action for elder abuse failed as well.
Financial abuse of an elder occurs when a person or entity
“[t]akes, secretes, appropriates, obtains, or retains real or
personal property of an elder” for “a wrongful use or with intent
to defraud, or both.” (Welf. & Inst. Code, § 15610.30,

29
subd. (a)(1).) “[T]o establish a ‘wrongful use’ of property to which
an elder has a contract right, the elder must demonstrate a
breach of the contract, or other improper conduct.” (Paslay v.
State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 657.)
The elder must prove the party breaching the contract “knew or
should have known [its] conduct is likely to be harmful to the
elder.” (Welf. & Inst. Code, § 15610.30, subd. (b); Paslay, at
p. 658.) Because State Farm did not breach the insurance
contract, there was no wrongful use of McCarthy’s property. (See
Pitt v. Metropolitan Tower Life Ins. Co. (S.D.Cal., June 5, 2023,
No. 20-CV-694-RSH-DEB) ___ F.Supp.3d ___, ___ [2023 WL
3879587, p. 8] [no wrongful conduct under Welf. & Inst. Code,
§ 15610.30 where there was no breach of the insurance contract].)
State Farm was entitled to judgment as a matter of law on
McCarthy’s cause of action for elder abuse.

DISPOSITION

The judgment is affirmed. State Farm is to recover its
costs on appeal.

SEGAL, Acting P. J.

We concur:

FEUER, J. RAPHAEL, J.*

* Judge of the San Bernardino County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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