RESPONDENT CALIFORNIA MUTUAL INSURANCE’S BRIEF FOLLOWING A JUDGMENT OF THE SUPERIOR COURT IN AND FOR THE COUNTY OF MONTEREY THE HONORABLE LYDIA M. VILLAREAL, PRESIDING No. H048443 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE INNS BY THE SEA Plaintiff and Appellant, v. CALIFORNIA MUTUAL INSURANCE COMPANY, Defendant and Respondent.

 

https://drive.google.com/file/d/1O_9jDHbgs34al3eVebp9ecKdMU-QDBF5/view?usp=sharing 
No. H048443
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE INNS BY THE SEA Plaintiff and Appellant,
v.
CALIFORNIA MUTUAL INSURANCE COMPANY, Defendant and Respondent.
Court of Appeal
No. H048443
Monterey County
Case No.: 20CV001274
RESPONDENT CALIFORNIA MUTUAL INSURANCE’S BRIEF FOLLOWING A JUDGMENT OF THE SUPERIOR COURT IN AND FOR THE COUNTY OF MONTEREY THE HONORABLE LYDIA M. VILLAREAL, PRESIDING

CONCLUSION 

Throughout the California Mutual policy, the property coverage is repeatedly defined as limited to physical loss of or damage to property.

Nowhere in the policy is there any coverage promise that speaks to the presence of a virus, much less to a government shelter-in-place order that does not prohibit entry and exists not because of property damage, but because of a virus.

Where, as here, Inns cannot bring its claim within any of the coverage promises in the policy, the judgment based on the order sustaining the demurrer without leave to amend should be affirmed.

Respectfully submitted,
Dated: March 9, 2021

INNS BY THE SEA v. CALIFORNIA MUTUAL INSURANCE COMPANY: THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY CASE NO. 20CV001274, Court of Appeal Case Sixth Appellate District H048443, Supreme Court Case S265034: REPORTER'S TRANSCRIPT OF PROCEEDINGS MONDAY, AUGUST 4, 2020 BEFORE THE HONORABLE LYDIA M. VILLARREAL, JUDGE & ORDER GRANTING DEFENDANT CALIFORNIA MUTUAL INSURANCE COMPANY'S DEMURRER TO PLAINTIFF'S COMPLAINT

ABSTRACT: RE: INNS BY THE SEA v. CALIFORNIA MUTUAL INSURANCE COMPANY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY CASE NO. 20CV001274 Court of Appeal Case: Sixth Appellate District H048443 Supreme Court Case: S265034 On August 6, 2020, Judge Lydia M. Villarreal, Judge of the Superior Court of Monterey, ordered “that the California Mutual's Demurrer to Plaintiffs entire Complaint is sustained without leave to amend on the grounds that the allegations fail to state facts sufficient to constitute a cause of action.” The REPORTER'S TRANSCRIPT OF PROCEEDINGS MONDAY, AUGUST 4, 2020 BEFORE THE HONORABLE LYDIA M. VILLARREAL, JUDGE and the ORDER GRANTING DEFENDANT CALIFORNIA MUTUAL INSURANCE COMPANY'S DEMURRER TO PLAINTIFF'S COMPLAINT documents copies are embedded. In the REPORTER'S TRANSCRIPT OF PROCEEDINGS, Judge Lydia M. Villarreal states, “It seems to me that the language of the policy supported the defendant's position that it talks about the business suspension must be caused by direct physical loss of or damage to property at the premises, and it seems that the cases for the most part are --seek to address some sort of physical destruction or physical change in usefulness, and I am not sure that COVID creates that physical change” and “the distinction in my mind is that when California shut down, when the Governor ordered us all to shelter in place and businesses to close, it wasn't necessarily because there was COVID at your hotels. It was because there was a fear that COVID might arrive at your hotels, and there was a fear by having people move around the state, that that would cause us all to infect each other. So even if we assume that COVID infects the air, which I get your point on that, I think the science supports you on that, but I guess the question I have is, was that the cause?”

https://drive.google.com/file/d/1FL78CSggXj20iUH33l7i_60eOK6cfV6m/view?usp=sharing

REPORTER'S TRANSCRIPT OF PROCEEDINGS MONDAY, AUGUST 4, 2020 BEFORE THE HONORABLE LYDIA M. VILLARREAL, JUDGE

  https://drive.google.com/file/d/1weaaKwD8OlibrRZtGbKPz8vl5JdAfncr/view?usp=sharing 

ORDER GRANTING DEFENDANT CALIFORNIA MUTUAL INSURANCE COMPANY'S DEMURRER TO PLAINTIFF'S COMPLAINT

REFERENCES: 

State high court asked to rule on business interruption dispute
Daily Journal 
October 21, 2020

Rulings in Business Interruption Litigation During the COVID-19 Pandemic 
By David A. Pestell 

Recent Rulings Expose Flaws in COVID-19 Business Interruption Claims 
By Adam H. Fleischer and Matthew P. Fortin 
September 3, 2020 

Hotel group takes on insurance co. in fight over coronavirus coverage 
By MARY SCHLEY 
The Carmel Pine Cone 
October 23, 2020 
6A & 23A

INNS BY THE SEA v. CALIFORNIA MUTUAL INSURANCE COMPANY: THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY CASE NO. 20CV001, Court of Appeal Case Sixth Appellate District H048443, Supreme Court Case S265034: PETITION TO TRANSFER FROM THE CALIFORNIA COURT OF APPEAL SIXTH APPELLATE DISTRICT CASE NO. H048443 AFTER A DECISION BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY CASE NO. 20CV001274 THE HONORABLE LYDIA M. VILLARREAL, PRESIDING

ABSTRACT: On October 16, 2020, THE INNS BY THE SEA, Plaintiff and Appellant, filed a PETITION TO TRANSFER FROM THE CALIFORNIA COURT OF APPEAL SIXTH APPELLATE DISTRICT CASE NO. H048443 AFTER A DECISION BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY CASE NO. 20CV001274 THE HONORABLE LYDIA M. VILLARREAL, PRESIDING arguing that the case warrants transfer “Because the Case Presents an Urgent Matter of Public Concern for Small Businesses” and “Because It Presents a Pure Question of Law, the Resolution of Which Would Avoid Wasteful, Duplicative Litigation Below.” The PETITION TO TRANSFER FROM THE CALIFORNIA COURT OF APPEAL SIXTH APPELLATE DISTRICT CASE NO. H048443 AFTER A DECISION BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY CASE NO. 20CV001274 THE HONORABLE LYDIA M. VILLARREAL, PRESIDING document copy is embedded. Importantly, the issue: whether or not coronavirus amounts to “physical loss of or damage to property.”

  https://drive.google.com/file/d/1rprZySx_DTQa3anjyvVVocT8MBmaE64p/view?usp=sharing

PETITION TO TRANSFER FROM THE CALIFORNIA COURT OF APPEAL SIXTH APPELLATE DISTRICT CASE NO. H048443 AFTER A DECISION BY THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF MONTEREY CASE NO. 20CV001274 THE HONORABLE LYDIA M. VILLARREAL, PRESIDING 

REFERENCES: 

State high court asked to rule on business interruption dispute
Daily Journal
October 21, 2020

Rulings in Business Interruption Litigation During the COVID-19 Pandemic
By David A. Pestell

Recent Rulings Expose Flaws in COVID-19 Business Interruption Claims
By Adam H. Fleischer and Matthew P. Fortin
September 3, 2020

Hotel group takes on insurance co. in fight over coronavirus coverage
By MARY SCHLEY
The Carmel Pine Cone
October 23, 2020
6A & 23A