JENNIFER L. THURSTON, Magistrate Judge.
Halonda and Jarvis Naff contend Defendant State Farm General Insurance Company wrongfully cancelled their insurance policy and denied their claim following a house fire that caused the loss of personal property. State Farm argues its actions were proper and seeks a declaration of rights in its counterclaim, and seeks summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 31) For the following reasons, Defendant's motion for summary judgment is
On December 26, 2012, the home owned by Jarvis and Halonda Naff at 331 Donna Avenue in Bakersfield, California, caught fire and burned. (JSF 9) The contents of the home were totally lost. (PSF 17) The Naffs had in place a homeowner's policy issued by State Farm. (JSF 8; Doc. 6-1 at 2-51)
(JSF 8; Doc. 6-1 at 43, emphasis in original)
After the fire, Plaintiffs hired David Coston to do repair work on the home. (PSF 14) Mr. Avery "asked David Coston to have an inventory prepared identifying the contents of the house." (PSF 15; Coston Depo. 24:8-24) "Pursuant to Mr. Avery's direction . . . Coston asked Sharon Endlsey to go through everything and to document every item that [she] saw which had been destroyed in the fire." (PSF 18) Ms. Endley went to the home and listed every item that she could recognize, prepared an inventory and gave it to Mr. Avery. (PSF 20, 25) Thomas Collier, who worked for State Farm's Special Investigations Unit, "determined the [total] value of the property on the Endsley list . . . was approximately $147,815.18." (PSF 43)
On May 29, 2013, Plaintiffs gave State Farm "an inventory of personal property they claim was damaged and destroyed . . . and requested financial compensation for the damaged personal property." (JSF 10) Mrs. Naff completed an inventory form that requested information for each item claimed, such as where it was purchased, the age, and "today's repair cost/replacement cost/amount of loss (without tax)." (PSF 27) The Naffs claim that each item on Mrs. Naff's inventory was in the home at the time of the fire. (JSF 11) They deny that they knowingly misrepresented the age or value of any item on the inventory. (JSF 12; JSF 13) The reported total value of items on Mrs. Naff's inventory form that they owned at the time of the bankruptcy petition was approximately $26,000. (See JSF 14-40)
In June 2013, Mrs. Naff gave a recorded statement to Mr. Collier. (PSF 34) Mrs. Naff "indicated she had felt overwhelmed by the entire process . . . and been confused in regard to how to complete certain columns including the columns for where purchased, age, and `today's repair cost/replacement cost/amount of loss." (Id.) Mr. Avery and Mr. Collier directed Mrs. Naff to provide a new inventory form. (PSF 35)
On August 13, 2013, "Plaintiffs submitted a revised loss inventory to State Farm." (JSF 41) Mrs. Naff reported she was advised "to be more accurate on how long she had the items" prior to submitting the second inventory. (JSF 43) Mrs. Naff asserts she "remove[ed] some items that had been found in storage, combin[ed] items, and correct[ed] certain information that she was confused by." (PSF 36) Plaintiffs maintain "each item on the August 13, 2013 inventory was in the home at the time of the fire." (JSF 44) Plaintiffs deny they "knowingly misrepresented the age of even one item," and "deny that they knowingly overvalued even one item" on the August inventory. (JSF 45-46) The reported total value of items that Mrs. Naff indicated were aged three years or more on the August inventory was approximately $18,000. (See JSF 47-54, 60-66, 68-76, 78-84; DSF 55-58, 67, 77, 85-86)
During the investigation, State Farm learned that the Naffs had filed Chapter 7 Bankruptcy.
On December 4, 2015, Mr. Collier telephoned Mrs. Naff and told her State Farm had completed its investigation and was denying the claim for the personal property losses. (Doc. 31-6 at 99) The information was further detailed in a letter dated December 5, 2015:
(Doc. 31-6 at 99-100) State Farm indicated in the letter that the above list was "not meant to be an exhaustive description of each and every concealment and/or misrepresentation you made." (Id. at 100) State Farm indicated the claim was also denied because Mrs. Naff "did not comply with [the] duties after a loss as described in the Homeowners Policy"—which included providing documentation in support of the claim. (Id.) Finally, State Farm indicated it did "not intend, by this letter, to waive any policy defenses in addition to those stated . . . and reserve[d] its right to assert additional policy defenses at any time." (Id. at 101)
Plaintiffs filed a claim with the Department of Insurance, and received a "right to sue" on December 15, 2014. (Doc. 1-2 at 8) Accordingly, Plaintiffs initiated this action by filing a complaint in Kern County Superior Court on February 19, 2015, alleging State Farm is liable for: (1) a breach of the duty of good faith and fair dealing, (2) breach of contract, (3) intentional infliction of emotional distress, and (4) negligent infliction of emotional distress. (Id. at 5-12) State Farm filed Notice of Removal and its Answer in April 2015. (Docs. 1, 6)
Under the "sham affidavit" rule, "a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mutual Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). The Ninth Circuit explained, "[I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact." Id. Because of the jury's role in resolving questions of credibility, courts have urged caution when applying the sham affidavit rule. Id. (citing Kennet Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir. 1980)); see also Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (explaining the sham affidavit rule has limited application "because it is in tension with the principle that the court is not to make credibility determinations when granting or denying summary judgment").
To determine whether a declaration should be stricken as a sham, the Ninth Circuit requires the district court to "make a factual determination that the contradiction was actually a `sham," and created specifically to avoid summary judgment. Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009). In addition, "the inconsistency between a party's deposition testimony and subsequent affidavit must be clear and unambiguous to justify striking the affidavit." Id. at 998-99. The Court explained that "minor conflicts between [a declarant's] earlier deposition testimony and subsequent declaration . . . do not justify invocation of the sham affidavit rule." Id. at 999.
Defendant argues the declaration of Mrs. Naff submitted in opposition to State Farm's motion should be stricken as a sham declaration. (Doc. 33 at 11) Defendant argues that Mrs. Naff asks the Court "to believe what is clearly and unambiguously contrary to her prior testimony and statements to State Farm." (Doc. 33 at 12) Defendant observes Mrs. Naff "testified at deposition that anything owned by her adult daughter Joshlyn was out of the house at the time of the fire," though some items remained for Joshlyn's baby. (Id., citing H. Naff Depo. 137:23-138:18) However, in the declaration Mrs. Naff indicated Joshyln "did have some personal property at [the] house," including bras, plastic containers, and purses. (Doc. 32-1 at 1, 10, 12, Naff Decl. ¶ 2) In addition, Defendant notes Mrs. Naff "testified during her examination under oath that at least one of the fishing baskets was hers for when she and her husband would go fishing two to three times a week," but in the attachment to her declaration indicated the four fishing baskets belonged to Jeremy, Jarvis Jr., and Jalasia. (Doc. 33 at 12; see also Doc. 32-4 at 10) While clearly the statements conflict, there is no showing that the conflicts are significant and, therefore, they do not warrant an order striking the declaration under the "sham affidavit" rule.
Defendant contends the Court is also being asked to "believe the unbelievable" because Mrs. Naff asserts her daughter Jalasia "was the true owner of the 70 Fisher Price Laugh & Learn CDs, 350 Disney Books, Crayola crayons, arts & crafts boxes, glue, 50 kid game cards, [and] 2 boxes of sidewalk chalk," as opposed to belong to Mrs. Naff "as part of her in-home daycare [operation]." (Doc. 33 at 12) While the Court cannot determine whether Defendant's supposition is correct—it may be— notably, Defendant does not identify any conflicting statements Mrs. Naff made under oath to support this supposition. Indeed, the Court reviewed the entirety of her statements made under oath to State Farm attached to Defendant's motion, as well as the transcript of the deposition testimony, and did not find any "clear and unambiguous" testimony to the contrary.
Finally, Defendant asserts the classification of items as "gifts" to her children, including CDs, DVDs, and game consoles indicates the declaration is a sham. (Doc. 33 at 13-14, citing Doc. 32-4 at 5, Naff Decl. ¶ 12) Defendant contends that Mrs. Naff "Declared under Penalty of Perjury to the United States Bankruptcy Court for the Eastern District of California that she made no such gifts." (Id., citing Doc. 31-4 at 31) Notably, in the declaration Mrs. Naff does not indicate who the gifts were from, whether from her, her husband or Mrs. Naff's father— who gave her "several hundred dollars, if not more" each month for several years—or when the gifts were received by her children. (See Doc. 32-4, ¶¶ 6, 23) Thus, the evidence is ambiguous such that there is not a clear conflict between the declaration and the representation made to the Bankruptcy Court . (See Doc. 31-4 at 31)
Though Defendant raises issues that may certainly cause the jury to disbelieve the plaintiffs, it fails to identify "clear and unambiguous" conflicts between the deposition testimony and subsequent declaration of Halonda Naff, the Court does not find the declaration is a sham created to avoid summary judgment. Therefore, Defendant's objection to the declaration as a "sham" is
Previously, this Court observed that "attorneys routinely raise every objection imaginable without regard to whether the objections are necessary, or even useful, given the nature of summary judgment motions in general, and the facts of their cases in particular." Burch v. Regents of the Univ. of Cal., 453 F.Supp.2d 1110, 1119 (E.D. Cal. 2006). Here, both parties object that evidence presented by the other party is irrelevant. However, such objections are inappropriate, because the Court must determine whether a fact is relevant and material as part of "the summary judgment standard itself." See id. Accordingly, objections on these grounds are
To the extent that statements offered by either party are speculative or represent a legal conclusion, the Court, as a matter of course, will not factor that material into the analysis. See Burch, 433 F. Supp.2d at 1119 ("[S]tatements in declarations based on speculation or improper legal conclusions, or argumentative statements, are not facts and likewise will not be considered on a motion for summary judgment. Objections on any of these grounds are simply superfluous in this context.") (citation omitted, emphasis in original). Rather, the Court's analysis cites evidence only that it has deemed admissible.
The "purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In addition, Rule 56 allows a court to grant summary adjudication, or partial summary judgment, when there is no genuine issue of material fact as to a particular claim or portion of that claim. Fed. R. Civ. P. 56(a); see also Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) ("Rule 56 authorizes a summary adjudication that will often fall short of a final determination, even of a single claim . . .") (internal quotation marks and citation omitted). The standards that apply on a motion for summary judgment and a motion for summary adjudication are the same. See Fed. R. Civ. P. 56 (a), (c); Mora v. Chem-Tronics, 16 F.Supp.2d 1192, 1200 (S.D. Cal. 1998).
Summary judgment, or summary adjudication, should be entered "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the "initial responsibility" of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. An issue of fact is genuine only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party, while a fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). A party demonstrates summary adjudication is appropriate by "informing the district court of the basis of its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrates the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323 (quoting Fed. R. Civ. P. 56(c)).
If the moving party meets its initial burden, the burden then shifts to the opposing party to present specific facts that show there is a genuine issue of a material fact. Fed R. Civ. P. 56(e); Matsushita, 475 U.S. at 586. An opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 587. The party is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that a factual dispute exits. Id. at 586 n.11; Fed. R. Civ. P. 56(c). Further, the opposing party is not required to establish a material issue of fact conclusively in its favor; it is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). However, "failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323.
The Court must apply standards consistent with Rule 56 to determine whether the moving party demonstrated there is no genuine issue of material fact and judgment is appropriate as a matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion for summary judgment, the Court can only consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Further, evidence must be viewed "in the light most favorable to the nonmoving party" and "all justifiable inferences" must be drawn in favor of the nonmoving party. Orr, 285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).
Defendant's motion for summary judgment is premised, in large part, upon representations Plaintiffs made to the Bankruptcy Court in 2010 and inconsistency with the inventory lists provided after the fire. (See Doc. 31-1 at 9-18) Plaintiff contends State Farm is "estopped from relying on the Bankruptcy [proceedings] because it was not a basis for denying the Naffs' claim or voiding their insurance policy," which Plaintiff argues is a violation of the California Code of Regulations.
Though cast as estoppel, the argument sounds more in the doctrine of waiver. However, the Ninth Circuit has determined that in an insurance context, "the distinction between waiver and estoppel has been blurred." Intel Corporation v. Hartford Accident & Indemnity Co., 952 F.2d 1551, 1559 (9th Cir. 1991). The court explained that an insurer has an obligation to notify the insured of the policy exclusions upon which a denial is based, and failure to do so results in the ground being waived. Id. at 1560-61. "[W]hatever exclusions an insurer fails to include in a letter denying coverage are lost forever." Id. at 1560. Thus, the insurer is estopped from later "`sandbagging' the insured by constantly raising additional exclusions." Id. at 1560 (citing McLaughlin v. Connecticut General Life Ins. Co., 565 F.Supp.434, 451 (N.D. Cal. 1983)).
The rationale behind the doctrine is sound. "If an insurance company could deny a claim without thoroughly investigating it and then defend a subsequent lawsuit on grounds which it develops during discovery for trial, the company's incentive to fulfill its duty to investigate would be significantly diminished." Intel, at 1559, citing McLaughlin, at 451. However, to invoke the doctrine, the insured must demonstrate either there has been misconduct by the insurer that prejudices the insured in recovering on the claim or there was detrimental reliance by the insured. Intel Corp., 952 F.2d at 1559.
It is undisputed that the defendant notified the Naffs of the exclusions in the policy upon which it was denying the claim—"Your Duties After Loss"
Plaintiffs contend that when State Farm denied their claim, "the reasons provided were: (1) the alleged claim for the patio cover; (2) the discrepancies in the inventories; and (3) the failure to provide requested documentation." (Doc. 32 at 15) Because there was no reference to the bankruptcy proceedings, Plaintiffs contend "State Farm is estopped from making such an argument now." (Id.)
In the denial letter, State Farm informed Mrs. Naff that the claim was being denied because the company determined "[she] intentionally concealed and/or misrepresented material facts when presenting [the] claim to State Farm," and she "did not comply with [the] duties after a loss as described in the Homeowners Policy"—which included providing documentation in support of the claim. (Doc. 31-6 at 99-100) State Farm indicated in the letter that it was providing examples of the misrepresentations it believed Mrs. Naff made but the list was "not meant to be an exhaustive description of each and every concealment and/or misrepresentation you made." (Id. at 99, 100)
Plaintiffs have not identified any cases in which the insurance company is obligated to identify every fact to support its position that a particular exclusion applied. More importantly, Plaintiffs do not allege they relied to their detriment on State Farm's failure to identify the bankruptcy proceedings as an additional fact upon which the Concealment or Fraud exclusion was based. Consequently, the Court declines to invoke the doctrine of estoppel.
Defendant argues Plaintiffs are "judicially estopped" from disputing the value of items that were not disclosed in the bankruptcy proceeding and from arguing the items were undervalued. (Doc. 31-3 at 11-12) "Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position, and then later seeking an advantage by taking a clearly inconsistent position." Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001). The purpose of the doctrine "is to protect the integrity of the judicial process . . . by prohibiting parties from deliberately changing positions according to the exigencies of the moment." New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (internal quotation marks, citation omitted).
The Supreme Court observed the circumstances under which judicial estoppel may be invoked "are probably not reducible to any general formulation." New Hampshire, 532 U.S. at 750. However, the Court identified several factors that may be considered to determine whether the doctrine should be applied:
Id., 531 U.S. at 750-51 (citations and internal quotation marks omitted); see also Ah Quin v. County of Kauai DOT, 733 F.3d 267, 270 (9th Cir. 2013) (same).
Significantly, a party's position must be "`tantamount to a knowing misrepresentation to or even fraud on the court'" for the doctrine to be invoked. Johnson v. State, Oregon Dep't of Human Res., Rehab. Div., 141 F.3d 1361, 1367 (9th Cir. 1998) (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362-63 (3d Cir. 1996)). Consequently, the Ninth Circuit found that "[i]f incompatible positions are based not on chicanery, but only on inadvertence or mistake, judicial estoppel does not apply." Id. (citing In re Corey, 892 F.2d 829, 836 (9th Cir. 1989)).
Defendant contends the Naffs should be "judicially estopped from disputing that they only had $6,000 in personal property as of July 30, 2010." (Doc. 31-3 at 13) Defendant argues the fact that Plaintiffs disclosed $6,000 during the bankruptcy proceedings is incompatible with the inventories that "reflect goods with value of more than three or four times that claimed on the bankruptcy petition." (Doc. 31-1 at 13) Notably, however, Plaintiffs were asked to disclose the "current value" of the property during the bankruptcy proceedings (Doc. 31-4 at 6) while State Farm's inventory forms asked them for their opinions of the "replacement cost" (see, e.g. Doc. 31-5 at 84).
Moreover, Mrs. Naff attests that, in fact, of the items listed on the May 2013 inventory were purchased after the bankruptcy and many items belonged to her children rather than to her or Mr. Naff. (Doc. 32-4 at 5, 8) When these items are deducted, she asserts that the true value of the household items belonging to her and her husband was $5,525. Id. As to the August 2013 inventory, Mrs. Naff claims only $5,840 worth of the items belonged to her and Mr. Naff at the time of the bankruptcy proceedings. Id. at 5, 10.
In any event, undoubtedly, the "current value" of the items disclosed in the bankruptcy proceeding may be different from the "replacement cost" of the property. In State Farm Fire & Casualty Co. v. Billingsley, the court explained, "a $1,000 kitchen set may have been worth only $100 on the market but can only be replaced for $1,000." Id., 2010 U.S. Dist. LEXIS 37112 at *25-26 (S.D. Ala. Apr. 14, 2010); Hoffman v. Foremost Signature Ins. Co., 989 F.Supp.2d 1070, 1079 (D. Or. 2013), ["`[v]aluation in bankruptcy cases is far different than determining replacement value for purposes of insurance coverage" and "[i]t is the rare case where debtor schedules more than $5,000 in household furnishings, and often the number is closer to $3,000.'"]; Brown v. Allstate Prop. & Cas. Ins. Co. 2015 WL 1646684, at *2 (E.D. Mich. Apr. 14, 2015) [inherent difference in valuation methods between bankruptcy petitions and insurance claims].
Similarly, though the Plaintiffs reported the "current value" of their property as $6,000 in the bankruptcy proceedings in 2010, this is not necessarily "incompatible" with a replacement value of $17,695—the value of the goods it is undisputed that that was reported by Plaintiffs in August 2013. Likewise, Mrs. Naff attests that, in fact, the household items she and Mr. Naff owned at the time of the bankruptcy were roughly equivalent to that reported in the petition.
If an insurance policy is rendered void by the insureds, there can be no liability for breach of contract or for breach of the covenant of good faith and fair dealing. To demonstrate an insurance policy is void under California law based upon a misrepresentation (Liberty Mutual Fire Ins. Co. v. Scott, 486 F.3d 418, 423 (8th Cir. 2007)), the false statement must relate to a material matter, must be made despite knowledge of its falsity and with the intent to deceive or defraud the insurer. Ram v. Infinity Select Ins., 807 F.Supp.2d 843, 853 (N.D. Cal. 2011). "The intent to defraud is necessarily implied `when the misrepresentation is material and the insured wilfully makes it with knowledge of its falsity.'" Id. quoting Cummings v. Fire Ins. Exch., 202 Cal.App.3d 1407, 1418 (1988). A misrepresentation is material if it relates to the insurer's investigation to determine its obligations under the contract. Leasure v. MSI Ins. Co., 65 Cal.App.4th 244, 248 (1998). Deliberately overstating the value of the lost property is a material misrepresentation. Hyland v. Millers Nat. Ins. Co., 91 F.2d 735, 743 (9th Cir. 1937). Courts may infer that the insured made a material misrepresentation of the value of the insurance claim if the insured placed a value on the same property in a bankruptcy filing contemporaneously filed that leads to no other reasonable explanation. Liberty, at 423.
In each of the cases cited by the defendant
Nevertheless, Defendant argues that based upon the Naffs' representation to the Bankruptcy Court about the value of their personal property and the value the Naffs give to these items in the inventories
As noted above, at the time the Naffs filed bankruptcy in 2010, they claimed only $6,000 in household goods. In their May 2013 inventory, they claimed household goods that they had owned for at least three years in the amount of $25,920. (JSF 14-40) In their August 2013 inventory, they valued these items at $17,695. (JSF 47-54, 60-66, 68-76, 78-84)
As discussed above, in opposition to this motion, Mrs. Naff filed a declaration that explained these discrepancies. Mrs. Naff indicates that when preparing the first inventory, she was not given any "meaningful direction" as to how to fill out the form and that she "did the best [she] could based on [her] memory" of the items that had been in the home at the time of the fire, five months before. (Doc. 32-4 at 3. She reports that the State Farm representative told her the list "didnt [sic] have to be perfect and that I should just get it to them." Id.
Mrs. Naff declares that in the August 2013 inventory, she revised it to remove some items that she found in storage, to combine some items and to correct some information from the earlier inventory that was in error due to not having proper instructions as to how to complete the form. (Doc. 32-4 at 4) In completing the inventory, Mrs. Naff declares that when an item was 2½ years old, for example, she rounded up to indicate the item was three years old. Id. She indicates that she did not know that describing the age of the items as "3 years, rather than stating that they were 2 years and however many months, [would have] any adverse consequence to me whatsoever." Id. at 4-5. She explains that she believed that erring on the side of caution, by describing something as older than it was—given that this, generally, would reduce an item's replacement value—would not be considered wrong. Id. She reports further that she felt she was being harassed by State Farm so she adopted this rounding methodology to avoid further harassment. Id. Also, as discussed above, she reports that, indeed, the value of her household items at the time of the bankruptcy was roughly equivalent to that reported in the petition. (Doc. 32-4 at 5, 8, 10)
Notably, Defendant expressly excludes from the Court's analysis whether "the representations made about items less than 3 years old were false" when determining whether the plaintiffs made a material misrepresentation. (Doc. 31-1 at 16) Rather, it asks the Court to consider "solely the direct evidence of items claimed to be over 3 years old and assigned values in excess of what was claimed on the bankruptcy petition" when evaluating this argument. With this parameter, the Court must conclude, as it did in its analysis above, that the defendant has not shown there exists a lack of genuine dispute of material fact.
Because the defendant relies upon this same argument to demonstrate that it is entitled to summary judgment on the claim for breach of the covenant of good faith and fair dealing, for the same reasons, the Court must deny summary judgment on that claim as well.
Defendant fails to demonstrate the doctrine of judicial estoppel should be invoked, and has not carried the burden to show an absence of a genuine issue of material fact related to Plaintiffs' claims. See Celotex, 477 U.S. at 323. A jury must make credibility determinations and resolve the conflicts between the evidence. See T.W. Electrical Serv., Inc., 809 F.2d at 630.
Based upon the foregoing, the Court
IT IS SO ORDERED.
