Zhang v. Safeco Insurance Company of America et al

Filing 42


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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 YANTING ZHANG, 5 Plaintiff, 6 7 8 9 No. C 12-1430 CW v. SAFECO INS. CO. OF AMERICA, INC. and LEONARD BAINES, Defendants. ________________________________/ ORDER DENYING MOTION FOR RECONSIDERAION AND MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION (Docket Nos. 40, 41) United States District Court For the Northern District of California 10 Plaintiff Yanting Zhang moves for reconsideration of the 11 12 13 14 15 16 17 Court’s May 2013 order granting summary judgment to Defendant Safeco Insurance Company of America, Inc. Civil Local Rule 7-9 for leave to file the motion for reconsideration. motion. Defendant has not filed an opposition to either After considering Plaintiff’s submissions, the Court denies both motions. BACKGROUND 18 Plaintiff brought this action against Safeco in February 19 20 21 22 23 24 25 26 27 28 She also moves under 2012. In her complaint, she alleged that the company had breached its contract to provide insurance coverage for a property that she owned in Richmond, California. Specifically, Plaintiff alleged that Safeco failed to compensate her adequately for damage caused to the property by a series of vandalism incidents between June 2009 and January 2010. In May 2013, this Court granted Safeco’s motion for summary judgment. Docket No. 37, Order Granting Defendant’s Motion for Summary Judgment, at 12. The Court found that Plaintiff had not 1 presented any evidence to dispute Safeco’s estimate of the 2 property damage and failed to produce a timely damage estimate of 3 her own.1 4 failed to present any evidence that she continued to possess an 5 insurable interest in the property after the first vandalism 6 occurred in June 2009; in fact, Plaintiff openly admitted that she 7 sold the property the week that the first vandalism occurred, 8 thereby terminating Safeco’s contractual obligations to provide 9 coverage for any of the damage resulting from subsequent incidents Id. at 8-11. The Court also found that Plaintiff United States District Court For the Northern District of California 10 of vandalism. 11 granted summary judgment to Safeco on all claims. 12 Judgment was entered on May 1, 2013. 13 Id. Based on these undisputed facts, the Court Id. at 12. Four weeks later, on May 29, Plaintiff filed a motion for 14 reconsideration of the summary judgment order. 15 her motion, she asserted that she had recently obtained a damage 16 estimate from a licensed contractor whom she had hired to inspect 17 the property in July 2009, a month after the initial vandalism. 18 She argues that this “newly-discovered evidence warrants 19 reconsideration of the ruling.” 20 Docket No. 40. In Id. at 3. On July 3, 2013, five weeks after filing the motion for 21 reconsideration, Plaintiff moved for leave to file a motion for 22 reconsideration. 23 grounds for seeking reconsideration as her prior motion, Docket No. 41. The motion reiterated the same 24 25 1 26 27 28 Although Plaintiff submitted a damage estimate dated August 12, 2010, this estimate was based on an inspection that took place more than a year after Safeco produced its initial damage estimate. During the interim period, Plaintiff sold the property and the property was vandalized several more times. Accordingly, the August 2010 estimate was not sufficient to raise a dispute of material fact. 2 1 highlighting the recently obtained damage assessment from July 2 2009. 3 4 DISCUSSION I. 5 Motion for Leave to File a Motion for Reconsideration Plaintiff seeks leave to file a motion for reconsideration 6 under Civil Local Rule 7-9. 7 reconsideration only after obtaining leave of the court to do so. 8 Civil L.R. 7-9(a). 9 request may be made only if the court has not yet entered a final That rule permits a party to move for However, the rule also makes clear that such a United States District Court For the Northern District of California 10 judgment. 11 of the claims and the rights and liabilities of all the parties in 12 a case, any party may make a motion before a Judge requesting that 13 the Judge grant the party leave to file a motion for 14 reconsideration of any interlocutory order made by that Judge.” 15 (emphasis added)). 16 Id. (“Before the entry of a judgment adjudicating all As noted above, Plaintiff sought leave to file a motion for 17 reconsideration in July 2013, more than two months after the Court 18 entered its final judgment in this case. 19 request for leave to file a motion for reconsideration must be 20 denied. 21 II. 22 Accordingly, Plaintiff’s Motion for Reconsideration Because Plaintiff failed to obtain leave of the Court to file 23 a motion for reconsideration under Civil Local Rule 7-9, she may 24 not seek reconsideration under that rule. 25 reconsideration under Federal Rules of Civil Procedure 59(e) and 26 60(b), both of which allow a party to seek relief from a final 27 order or judgment. 28 these rules in her motion, the Court nevertheless construes her She may, however, seek Although Plaintiff fails to cite either of 3 1 request for reconsideration as arising under these rules. 2 Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) 3 (“Although the [plaintiffs] never indicated which Federal Rule of 4 Civil Procedure governed their motion, a motion for 5 reconsideration of summary judgment is appropriately brought under 6 either Rule 59(e) or Rule 60(b).”). 7 See Under Rule 59(e), a party may move “to alter or amend a 8 judgment” within twenty-eight days of the entry of judgment.2 9 Fed. R. Civ. P. 59(e). “A Rule 59(e) motion is appropriate ‘if United States District Court For the Northern District of California 10 the district court: (1) is presented with newly discovered 11 evidence, (2) committed clear error or the initial decision was 12 manifestly unjust, or (3) if there is an intervening change in 13 controlling law.’” 14 1060, 1064 n.1 (9th Cir. 2005) (citing Sch. Dist. No. 1J, 15 Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 16 1993)). 17 reconsideration of a “final judgment, order, or proceeding” when 18 one of the following is shown: “(1) mistake, inadvertence, 19 surprise or excusable neglect; (2) newly discovered evidence that, 20 with reasonable diligence, could not have been discovered in time 21 to move for a new trial under Rule 59(b); (3) fraud (whether 22 previously called intrinsic or extrinsic), misrepresentation, or 23 misconduct by an opposing party; (4) the judgment is void; (5) the 24 judgment has been satisfied, released or discharged . . .; or 25 (6) any other reason justifying relief.” Circuit City Stores, Inc. v. Mantor, 417 F.3d Rule 60(b) similarly allows a party to seek Fed. R. Civ. P. 60(b). 26 27 28 2 Plaintiff satisfied the twenty-eight day requirement here. 4 1 Here, Plaintiff seeks reconsideration solely on the basis of 2 “newly discovered evidence” -- specifically, the recently obtained 3 July 2009 damage estimate which, she contends, contradicts 4 Safeco’s damage estimate. 5 recognize “newly discovered evidence” as a basis for seeking 6 reconsideration, the same standard applies under either rule. 7 11 Wright, Miller & Kane, Fed. Prac. & Proc. § 2808 (3d ed. 2013) 8 (“The same standard applies for establishing this ground for 9 relief, whether the motion is under Rule 59 or 60(b)(2).”). Although Rule 59(e) and Rule 60(b) each See Under United States District Court For the Northern District of California 10 that standard, the party seeking reconsideration must show that he 11 or she “exercised ‘due diligence’ to discover [the newly 12 discovered] evidence” and that the evidence is “of such magnitude 13 that production of it earlier would have been likely to change the 14 disposition of the case.” 15 Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987). 16 not met either of these requirements in this case. 17 Coastal Transfer Co. v. Toyota Motor Plaintiff has First, Plaintiff has not established that she exercised “due 18 diligence” in trying to obtain the July 2009 damage estimate 19 before filing her summary judgment brief. 20 that the contractor she hired to produce the damage estimate 21 relocated to a different part of the state without sending her a 22 copy of the estimate, Zhang Decl. ¶¶ 4-7, she does not explain why 23 she was unable to locate him until this year, nearly four years 24 after she hired him and more than a year after she initiated this 25 action. 26 contractor -- namely, entering his name into Google and finding 27 his business’s website, id. ¶ 9 -- suggests that she could have Although she asserts Further, the means by which she ultimately found the 28 5 1 found him much sooner with minimal effort.3 2 failure to obtain the damage estimate until after the entry of 3 judgment reveals a lack of reasonable diligence and precludes 4 reconsideration under Rules 59(e) and 60(b). 5 833 F.2d at 212 (“Evidence is not ‘newly discovered’ under the 6 Federal Rules if it was in the moving party’s possession at the 7 time of trial or could have been discovered with reasonable 8 diligence.”). 9 Thus, Plaintiff’s Coastal Transfer, Second, even if Plaintiff had exercised reasonable diligence United States District Court For the Northern District of California 10 in trying to obtain the 2009 damage estimate, it would not have 11 changed the outcome of this case. 12 that she never provided Safeco with a copy of her contractor’s 13 damage estimate in 2009, as she was obliged to do if she wanted to 14 dispute Safeco’s original estimate. 15 (“[Plaintiff] also admitted that she never formally disputed 16 Safeco’s repair estimate by submitting a conflicting estimate from 17 a licensed contractor, despite Safeco’s invitation to do so.” 18 (citing Plaintiff’s deposition)). 19 20 21 22 23 24 25 26 27 28 Plaintiff has already admitted See Docket No. 37, at 9 Her recent assertion that she 3 The Court notes that Plaintiff’s account of her efforts to obtain the 2009 damage estimate contains various inconsistencies. For instance, Plaintiff never explains why she stopped trying to obtain the damage estimate from the contractor in 2009 after she hired him specifically to produce the estimate. Nor does she explain why she declined to hire another contractor to repair the property after she lost contact with the first contractor. Nor does she explain why she failed to mention the July 2009 damage estimate to Safeco until after she commenced this litigation. Nor does she explain why she told Safeco in December 2009 that it would cost $60,000 to repair the damage from the first two vandalisms if she had a July 2009 estimate stating that it would cost $119,000 to repair the damage from the first vandalism alone. See Docket No. 26-2, Ives Decl. ¶ 8, Ex. 5. Nor does she explain how she was able to remember the contractor’s name this year when she previously testified at her deposition that she “couldn’t recall his name” and “couldn’t recognize his name now.” Zhang Decl., Ex. 1, Zhang Depo. 55:1-:10. Nevertheless, despite these inconsistencies, the Court accepts her assertions as true for the purposes of this motion. 6 1 did not receive a copy of the estimate until this year merely 2 confirms that she failed to provide the estimate to Safeco 3 immediately after the vandalism. 4 What’s more, the damage estimate Plaintiff now seeks to 5 submit is dated July 23, 2009 -- two weeks after she called Safeco 6 to contest its damage estimate. 7 explained in the summary judgment order, Plaintiff called Safeco 8 on July 10, 2009 and “complained that her contractors thought 9 [Safeco]’s estimate was too low.” Calderon Decl., Ex. 1, at 2. Docket No. 37, at 2-3. As This is United States District Court For the Northern District of California 10 the only communication between Safeco and Plaintiff in the record 11 where Plaintiff ever mentioned hiring her own contractors to 12 assess the damage from the first vandalism. 13 call occurred before the contractor had produced his damage 14 estimate -- and, it appears, before he had even inspected 15 Plaintiff’s property4 -- Plaintiff could not have been referring 16 to this estimate during the call. 17 Thus, because this In sum, there is no evidence in the record to suggest that 18 Plaintiff discussed the July 2009 damage estimate with Safeco, let 19 alone provided Safeco with a copy of the estimate, prior to her 20 filing this lawsuit. 21 estimate earlier, it would not have been enough to support an 22 inference that Safeco ignored contrary evidence in producing its 23 damage estimate or otherwise breached its policy. 24 this “newly discovered evidence” does not provide grounds for 25 reconsideration of the Court’s May 2013 summary judgment order. Thus, even if Plaintiff had submitted the Accordingly, 26 27 4 28 The July 2009 estimate identifies July 15, 2009 as the date when the contractor entered the property. Calderon Decl., Ex. 1, at 2. 7 1 2 CONCLUSION For the reasons set forth above, Plaintiff’s motion for 3 reconsideration (Docket No. 40) and motion for leave to file a 4 motion for reconsideration (Docket No. 41) are DENIED. 5 IT IS SO ORDERED. 6 7 8 Dated: 11/14/2013 CLAUDIA WILKEN United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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