Day v. Geico Cas. Co.

1

JESSICA DAY, Plaintiff, v. GEICO CASUALTY COMPANY, et al., Defendants.

No. 21-cv-02103-BLF

United States District Court, N.D. California, San Jose Division

January 17, 2024

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

[RE: ECF NO. 171]

BETH LABSON FREEMAN, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants GEICO Casualty Company, GEICO Indemnity Company, and GEICO General Insurance Company's (collectively “GEICO”) Motion for Summary Judgment. ECF No. 171 (“Mot.”). Plaintiff Jessica Day opposes the motion. ECF No. 190 (“Opp.”). GEICO filed a reply in support of its motion. ECF No. 199 (“Reply”). The Court held a hearing on the motion on December 14, 2023. ECF No. 209.

For the following reasons, the Court DENIES GEICO's motion.

I. BACKGROUND

On April 8, 2020, near the beginning of the COVID-19 pandemic GEICO announced the “GEICO Giveback,” a program that provided a 15% discount on new and renewed auto and motorcycle insurance policies. ECF No. 172-6 at 8. Day alleges that GEICO unfairly profited from vehicle insurance premiums because the GEICO Giveback was insufficient to account for a reduction in claims due to fewer miles driven and fewer vehicle accidents during the pandemic.

In a series of Bulletins beginning on April 13, 2020, the California Insurance Commissioner, Ricardo Lara, and the California Department of Insurance (“CDI”) directed insurance companies to issue premium relief to California policyholders to account for the curtailed activities of policyholders due to the COVID-19 pandemic and “stay at home” orders.”

ECF No. 171-1 (“Vocke Decl. Ex. C”) at 17-29 (CDI Bulletins dated April 13, 2020, May 15, 2020, December 3, 2020, and March 11, 2021). In order to comply with the CDI Bulletins, GEICO regularly reported its data to the CDI. ECF No. 171-2 (“Ward Decl. Ex. C”) at 19-25 (emails transmitting GEICO's reports and data on Bulletin compliance to the CDI); see also ECF No. 171-2 (“Ward Decl. Ex. I”) at 51-53 (GEICO letter responding to the CDI's final order on Bulletin compliance by producing more data). On January 26, 2023, Ken Allen, Deputy Commissioner of the CDI's Rate Regulation Branch, emailed Angela Rinella of GEICO, stating:

[B]ased on the data and other information submitted to the Department by [GEICO], the PPA premium previously returned to its California PPA policyholders under the Giveback Program, and the methodology utilized by the Department to calculate whether insurers returned a sufficient amount of PPA premium to account for the lower risk of loss during the COVID pandemic period, the Department has determined that GEICO is not required to return any additional premium to its California PPA policyholders.

ECF No. 171-2 (“Ward Decl. Ex. D”) at 27-32.

On March 25, 2021, Day filed this action on behalf of a putative class asserting causes of action for breach of contract, unjust enrichment, frustration of purpose, California's False Advertising Law, and California's Unfair Competition Law. See ECF No. 1 (“Compl.”). Following the Court's order granting in part with leave to amend and denying in part GEICO's motion to dismiss, Plaintiff filed an amended complaint in February 2022, bringing claims for breach of contract and violation of California's Unfair Competition Law under the “unfair” prong. See ECF No. 68 (“Am. Compl.”). On June 14, 2022, the Court granted GEICO's motion to dismiss Plaintiff's breach of contract claim. See ECF No. 87. GEICO answered the Amended Complaint in July 2022. See ECF No. 89 (“Answer”).

On October 31, 2022, the Court certified the following class:

All California residents who purchased personal automobile, motorcycle, or RV insurance from GEICO covering any portion of the time period from March 1, 2020 to the present.

ECF No. 116 at 16-17. The class excludes “the Defendant, any entity in which Defendant has a controlling interest, and Defendant's officers, directors, legal representatives, successors, subsidiaries, and assigns” and “any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff.” See id. at 17. In November 2022, GEICO petitioned the Ninth Circuit for interlocutory review of the certification order, see ECF No. 119; the petition was denied on February 21, 2023, see ECF No. 146. On November 7, 2023, the Court modified the class definition to narrow the policy coverage period from March 1, 2020 to the present to March 19, 2020 through July 11, 2021. See ECF No. 198 at 5.

II. REQUESTS FOR JUDICIAL NOTICE AND EVIDENTIARY OBJECTIONS

GEICO requests that the Court take judicial notice of CDI Bulletins, CDI press releases, state and federal announcements regarding the COVID-19 pandemic, and a U.S. Department of Transportation and the Federal Highway Administration report. Mot. at 20-23. Day did not object to this request. “The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201. The Court may take judicial notice of public records and government documents available from reliable sources, including government websites. See Moreland Apartments Assocs. v. LP Equity LLC, No. 5:19-CV-00744-EJD, 2019 WL 6771792, at *3 n.3 (N.D. Cal. Dec. 12, 2019); see also Perryman v. Litton Loan Servicing, LP, No. 14-CV-02261-JST, 2014 WL 4954674, at *3 (N.D. Cal. Oct. 1, 2014) (taking judicial notice of form and premium rate filings made to and approved by the CDI). Accordingly, GEICO's request with respect to these documents is GRANTED.

GEICO also requests that the Court take judicial notice of various court filings in similar cases concerning premium refunds in response to COVID-19. Mot. at 20-23. Day did not object to this request. “A court may . . . take judicial notice of the existence of another court's opinion or of the filing of pleadings in related proceedings; the Court may not, however, accept as true the facts found or alleged in such documents.” GemCap Lending, LLC v. Quarles & Brady, LLP, 269 F.Supp.3d 1007, 1019 (C.D. Cal. 2017) (internal quotations omitted). Accordingly, GEICO's request with respect to these documents is GRANTED. The Court takes judicial notice of these court filings, but does not take judicial notice of the facts within them.

Day objects to the January 26, 2023 email from Ken Allen of CDI to Angela Rinella of GEICO, arguing that the email is irrelevant under Fed.R.Evid. 401 and risks unfair prejudice, confusing the issues, and wasting time under Fed.R.Evid. 403. Opp. at 19. The Court finds that the email is relevant to issues in this case and that such relevance is not substantially outweighed by any risk of unfair prejudice, confusing issues, and wasting time. Moreover, on summary judgment the Court is unlikely to be confused or to be improperly influenced by the email. Accordingly, the Court OVERRULES Day's objection.

GEICO objects to the October 20, 2023 declaration of Day's expert, Allan Schwartz, arguing that it is a supplemental expert report that should be stricken as untimely and prejudicial because it was produced after the deadline for expert discovery had passed. Reply at 1, 12. The supplemental declaration was submitted in response to GEICO's evidence in support of its motion for summary judgment. See ECF No. 190-11 (“Schwartz Decl.”). Expert discovery in this case closed on June 30, 2023, with any rebuttal reports due on July 28, 2023. See ECF No. 149 (setting expert discovery deadlines). Federal Rule of Civil Procedure 26 provides that parties must disclose expert testimony “at the times and in the sequence that the court orders.” Fed.R.Civ.P. 26(a)(2)(D). Rule 37 provides that if a party fails to comply with Rule 26, “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Because Schwartz's declaration includes expert opinion and analysis, the Court will construe the declaration as a supplemental expert report. Day disclosed the declaration after the close of expert discovery and has not shown that the late admission of this declaration would be substantially justified or harmless. Accordingly, the Court STRIKES the supplemental declaration at ECF No. 190-11. See Rodman v. Safeway Inc., 125 F.Supp.3d 922, 938 (N.D. Cal. 2015) (striking a supplemental expert report produced for the first time in opposition to a motion for summary judgment and after the close of expert discovery), aff'd, 694 Fed.Appx. 612 (9th Cir. 2017).

III. LEGAL STANDARD

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if the evidence and all reasonable inferences in the light most favorable to the nonmoving party “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The moving party “bears the burden of showing there is no material factual dispute,” Hill v. R+L Carriers Inc., 690 F.Supp.2d 1001, 1004 (N.D. Cal. 2010), by “identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). In judging evidence at the summary judgment stage, the Court “does not assess credibility or weigh the evidence, but simply determines whether there is a genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559-60 (20...