Filed 2/29/16 Kling v. Farmers Ins. Exchange CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


ANTHONY N. KLING, as TRUSTEE                                         B260738
of the ANTHONY N. KLING TRUST
of 1997,                                                             (Los Angeles County
                                                                      Super. Ct. No. SC115299)
         Plaintiff and Appellant,

         v.

FARMERS INSURANCE
EXCHANGE,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard A. Stone, Judge. Affirmed.
         Law Offices of David C. Knieriem and David C. Knieriem for Plaintiff and
Appellant.
         HollinsLaw, Andrew S. Hollins and Kathleen Mary Kushi Carter for
Defendant and Respondent.
                                    SUMMARY
      In December 2011, an insured owner of real property sued a first party
commercial property insurer, alleging breach of contract, breach of the covenant of
good faith and fair dealing, and seeking declaratory relief and punitive damages
after the insurer refused to cover significant damage to the insured’s commercial
buildings caused by negligent subterranean construction on an adjoining property.
The insurer claimed the insured was or should have been aware of appreciable
damage to the insured property but no later than July 2008, but failed timely to
notify the insurer or to file suit within the policy’s two-year contractual limitations
provision.
      The trial court granted summary judgment in favor of the insurer on the
ground that the evidence on which the insured principally relied in opposing the
summary judgment motion (his declaration) was factually inconsistent with his
prior pleadings, testimony and discovery responses, all of which demonstrated that
the insured knew by 2008 that at least one insured structure had suffered
appreciable damage. On appeal, the insured insists the court erred in granting
summary judgment because there is no evidence he was aware of any appreciable
loss to any insured structure before 2010 and, even if such evidence existed, the
insurer is equitably estopped from asserting the contractual limitations bar. We
disagree, and affirm the summary judgment entered in favor of the insurer.


              FACTUAL AND PROCEDURAL BACKGROUND
The Insurance Policy
      Defendant and respondent Farmers Insurance Exchange (Farmers) issued a
Businessowners Policy (Policy) to Mary J. Kling, Trustee of the Family under the
Heywood F. and Mary J. Kling Revocable Trust, dated July 28, 1987, and plaintiff
and appellant Anthony N. Kling, Trustee of the Anthony N. Kling Trust of 1997,

                                           2
dated November 26, 1997 (Kling). Subject to certain exclusions and limitations,
the Policy provides “all risk” coverage for several commercial buildings owned by
                             1
Kling located at 3115-3125 Santa Monica Boulevard, in Santa Monica (property).
       The Policy provides that Farmers will “pay for direct physical loss of or
damage to Covered Property . . . caused by or resulting from any Covered Cause of
Loss,” but excludes coverage “for loss or damage caused by or resulting from”
among other things, “Settling, cracking, shrinking or expansion.” “Covered
Property” includes, “the buildings and structures at the premises . . . ,” but does not
include “Land (including land on which the property is located)” or “Outdoor
fences.” The Policy requires the insured promptly to notify Farmers in the event of
loss or damage to covered Property, and requires that any legal action against
Farmers based on the Policy be “brought within 2 years after the date on which the
direct physical loss or damage occurred.”


Construction Excavation by Kling’s Neighbor Causes Damage to Property
       In 2006, Joseph Hassid and other owners of real property located at 3107-
3111 Santa Monica Boulevard, immediately west of and adjacent to Kling’s
property (collectively, Hassid), began work on a large commercial building project
(Bay Cities), which included the excavation for and construction of a multi-level
subterranean parking structure.
       In January 2007, Kling observed cracking, settling and subsidence in parts of
his property. He believed the damage and land movement was the result of
inadequate, negligent excavation and shoring in connection with the subterranean


1     At various spots in the record, the buildings are identified as either 3115-3125 or
3115-3123, and it is not clear whether there are five or six structures. None of this
information is important for purposes of our analysis.


                                             3
construction activity on the adjacent property. In January 2007, Kling retained
Robert Zweigler (Zweigler), a geotechnical and civil engineer, “[t]o determine . . .
the condition of [the Property], whether it had subsided due to [Hassid’s
construction project], where it had subsided, and what [Hassid’s contractors] were
still doing wrong in January 2007 to inform [them] to stop doing it.” Several
weeks later Zweigler verbally informed Kling that both past and ongoing improper
shoring of the subterranean construction on the Hassid property had caused and
was causing subsidence on Kling’s property. Bill Lloyd (now deceased), the
attorney then representing Kling, notified Hassid on Kling’s behalf of the improper
shoring.
      Vida Hamadani is the Farmers insurance agent with whom Kling has dealt
since 2002. In 2007, Kling told Hamadani about the excavation project on
Hassid’s adjacent parcel. He also told her that he had seen cracks in the patio, a
crack in a retaining wall and some tilting and westward movement of a block wall
on his own parcel. In 2007, Hamadani verbally informed Kling that the Policy
excluded coverage for “soils, land, dirt, cracks” or damage caused by soil
deterioration.


Kling Sues Hassid
      On July 1, 2008, Kling filed a lawsuit against Hassid (Hassid Action). He
sought damages for negligent construction activities which he alleged began prior
to February 2007. Kling alleged that Hassid’s failure to provide adequate lateral
and adjacent support along the depth of Kling’s property had caused damage to




                                          4
structural components of the property, including its buildings and their
             2
foundations.


Kling Notifies Farmers of Damage to the Property
      Construction on the Hassid parcel remained ongoing in September 2010.
During the last quarter of 2010 Kling noticed that pieces from a ceiling had fallen
in at least one building. In 2011, ceilings began caving in after large portions of
drywall fell from the ceilings in two rooms at 3115, and one in 3117. Ceiling
plaster and drywall continued falling out throughout 2011. Kling claimed that, as
the ceilings began caving in and the buildings shifted on their foundation, the City
of Santa Monica informed him the structures had become unsound and had to be
demolished and rebuilt.
      On March 17, 2011, Kling submitted a claim for damage to the Property to
Farmers. Kling reported that he first noticed the damage in 2007. He said it was
likely due to soil problems resulting from improper shoring during negligent
excavation work conducted by his neighbor which began in 2006 and remained
ongoing.
      On June 23, 2011, Farmers denied Kling’s claim based on the two-year
contractual limitations provision, which bars legal action under the Policy unless
“brought within 2 years after the date on which the direct physical loss or damage
occurred.”

2     Specifically, Kling alleged that, “during the aforesaid construction and
continuing to date, support for the structures on the Kling property has been
compromised to the point where there has been subsidence under the building
adjacent the Bay Cities Property causing settling, cracking of the foundation,
cracking in the floor, cracking in the walls and other structural damage which is
as yet unknown, in part, because [Kling has] yet to remove the interior of the
building to determine the whole of the damage.” (Italics added.)


                                          5
Kling Sues Farmers, Which Moves for Summary Judgment
      On December 19, 2011, Kling filed the instant action against Farmers
alleging causes of action for breach of contract, breach of the implied covenant of
good faith and fair dealing and declaratory relief. Kling also sought punitive
damages.
                                                               3
      In due course, Farmers moved for summary judgment. In support of its
motion Farmers submitted, among other evidence, a request that the court take
judicial notice of Kling’s complaints in this and in the Hassid Action, declarations
by Zweigler and the Farmers’ Adjuster who handled Kling’s March 2011 claim,
excerpts from Kling’s depositions in the Hassid Action and some of Kling’s
discovery responses in this litigation.
      Farmers argued Kling’s claim was time barred because he knew or had
notice that the Property suffered appreciable damage well before September 14,
2009, the earliest point at which the date of inception of the loss could have
occurred to have fallen within the two-year contractual limitations provision.
Farmers argued that it was undisputed that, as early as 2007 and no later than 2008,
Kling knew or strongly suspected that the dominant or efficient proximate cause of
the damage to the Property was negligent excavation and shoring activity
conducted on his neighbor’s adjacent parcel. Because third party negligence is not
excluded by Kling’s “all risk” policy, he had a duty to report that third party
negligence to Farmers by 2008, and to file suit by mid-September 2009. His
failure timely to do so now barred coverage.



3     Farmers also moved for summary adjudication on the punitive damages claim.
That motion, which is not at issue, was later denied as moot.


                                          6
      The only evidence Kling submitted in opposition to the summary judgment
motion was his own declaration (with attached exhibits), and the declaration of a
structural engineer he retained in spring 2011 to review the Property. Kling argued
in opposition to the summary judgment motion––as he does on appeal––that the
Policy provides coverage only for the actual “structures” or “buildings” and that,
apart from “one very slight paint crack” in the interior of 3115, he observed no
damage to any building before 2010, only damage to non-covered portions of his
property.
      In its reply, Farmers argued Kling improperly had asserted an entirely new
theory in opposition to the summary judgment motion than the one he had pled and
relied upon to prosecute the litigation. Specifically, Farmers argued that, before it
filed the summary judgment motion, Kling consistently had argued that the
contractual limitations period did not bar his lawsuit because the initial damage of
which he had concededly been aware fell within the Policy’s “settling, cracking,
shrinking and expansion” exclusion, and it was only when that damage progressed
to the point that parts of the buildings began to collapse that the two-year
limitations period began to run. Now, however, in opposition to the summary
judgment motion, Kling suddenly was arguing that the initial (excluded) damage of
which he had admittedly been aware occurred only on “non-covered portions” of
his land. He asserted that the Policy covered only damage to the buildings, not any
of the damage he had begun seeing in 2007 to outdoor spaces and structures, i.e.,
cracks in the concrete patio and retaining wall and fence. Except for “one very
slight paint crack” inside 3115, Kling claimed not to have seen any damage in or
outside any building before 2010.
      Farmers argued that Kling was impermissibly attempting to change his
theory in response to the summary judgment motion to circumvent the otherwise
unavoidable conclusion that he was or should have been aware of appreciable

                                          7
damage to at least one building caused by Hassid’s negligent excavation work no
later than 2008. Farmers lodged objections to the evidence Kling submitted in
support of his opposition, taking particular issue with Kling’s declaration. Farmers
pointed to numerous inconsistencies between the factual assertions in that
declaration and Kling’s discovery responses in this action, and his pleading and
deposition testimony in the Hassid Action.
       Kling filed a response to Farmers’ evidentiary objections and, without
obtaining leave to do so filed a sur-reply, which the court nevertheless considered
in ruling on the summary judgment motion.


The Court’s Ruling
       On June 12, 2014, following oral argument, the trial court announced its
intent to adopt as final its previously announced tentative ruling. Subject to its
                                                                            4
subsequent ruling on modified evidentiary objections to be submitted, the court
granted Farmers’ motion for summary judgment on the ground that Kling had
failed to raise a triable issue of material fact with regard to his failure to adhere to
the Policy’s two-year contractual limitations period. In short, the court found that
Kling knew or should have known that at least one of the covered buildings had
suffered appreciable damage no later than 2008.




4       Given the lack of specificity in Farmers’ “blunderbuss” evidentiary objections, the
court ordered Farmers to resubmit its objections with proper citations to and detailed
recitations of the alleged inconsistent statements in Kling’s pleadings, deposition
testimony and/or discovery responses on which the objections were based.


                                             8
Modified Objections, Final Evidentiary Ruling and Appeal
       On June 18, 2014, as ordered by the court, Farmers submitted explicit,
modified evidentiary objections to Kling’s evidence in opposition to the summary
judgment motion, and a modified proposed order.
       Kling responded to the evidentiary objections on June 23, 2014. Farmers
replied on June 27, 2014.
       On July 1, 2014, the court entered an order on Farmers’ modified objections,
sustained 22 of the 37 remaining objections (Farmers had withdrawn 11).
Judgment was entered on October 22, 2014. This timely appeal followed.


                                   DISCUSSION
1.     The Controlling Legal Principles
       A motion for summary judgment “shall be granted if 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.” (Code Civ. Proc.,
§ 437c, subd. (c).) A defendant moving for summary judgment has the burden to
show that “one or more elements of the cause of action . . . cannot be established,
or that there is a complete defense to that cause of action.” (Code Civ. Proc.,
§ 437c, subd. (p)(2).) If the defendant is able to make this showing, the burden
shifts to the plaintiff to show by admissible evidence that a triable issue of material
fact exists. (Ibid.)
       We independently review the record and the trial court’s determination,
considering the parties’ evidence (with the exception of evidence to which
objections were appropriately sustained), and uncontradicted inferences reasonably
supported by that evidence. (Kahn v. East Side Union High School Dist. (2003) 31
Cal.4th 990, 1003.)



                                           9
      Our review involves the same three-step process employed by the trial court.
First, we identify the issues framed by the pleadings. Second, we determine if the
defendant has made an adequate factual showing to justify judgment in its favor.
Finally, if the defendant has carried its initial burden, we determine whether the
plaintiff has raised a triable factual issue. (Chavez v. Carpenter (2001) 91
Cal.App.4th 1433, 1438.) To satisfy its burden, the plaintiff “‘may not rely upon
the mere allegations or denials of its pleadings . . . but, instead, shall set forth the
specific facts showing that a triable issue of material fact exists . . . .’ [Citations.]”
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)


2.    Summary Judgment was Proper Because Kling was Aware That at Least
      One Building had Sustained Appreciable Damage by 2008

      a.     Kling’s Policy
      Kling’s Policy is an “all risk” policy. Under an “all risk” policy, a peril is
covered unless specifically excluded. (State Farm Fire & Casualty Co. v. Von Der
Lieth (1991) 54 Cal.3d 1123, 1131 (State Farm); see Garvey v. State Farm Fire &
Casualty Co. (1989) 48 Cal.3d 395, 406–407 (Garvey).) If an event falls within
basic policy coverage, it is up to the insurer to prove the claim is excluded.
(Garvey, supra, 48 Cal.3d at p. 406.)
      As pertinent here, Kling’s Policy provides that Farmers “will pay for the
direct physical loss of or damage to Covered Property at the premises . . . caused
by or resulting from and Covered Cause of Loss[,]” unless that loss is, among other
things, specifically excluded by the Policy. The Policy also provides that Farmers
“will not pay for loss or damage caused by or resulting from . . . Settling,
cracking, shrinking or expansion.” Third party negligence (e.g., inadequate
excavation, construction or shoring), is a “risk of direct physical loss” that is not



                                            10
specifically excluded under the Policy. (See Garvey, supra, 48 Cal.3d at p. 408;
State Farm, supra, 54 Cal.3d at pp. 1131–1132.)
      The Policy also requires that, in the event of “loss of or damage to Covered
Property,” Kling must give Farmers “prompt notice of the loss or damage[,]” “a
description of how, when and where the loss or damage occurred[,]” and take “all
reasonable steps to protect the Covered Property from further damage . . . .”
Finally, and critically for purposes of our analysis, the Policy prohibits any “legal
action against [Farmers] under [the Policy] unless: . . . . The action is brought
within 2 years after the date on which the direct physical loss or damage occurred.”


      b.     There is no Dispute that the Neighbor’s Negligent Construction
             Activity was the Efficient Proximate Cause of Kling’s Damages

      In California, under an “all risk” policy, first party claims are insured if a
covered risk (e.g., third party negligence) is the “efficient proximate cause” of the
loss even if an excluded risk (soil subsidence) also contributed to the loss.
(Garvey, supra, 48 Cal.3d at p. 412; see Sabella v. Wisler (1963) 59 Cal.2d 21, 31-
32 (Sabella) [defining efficient cause to which loss should be attributed as “‘the
one that sets others in motion’”].) Although typically a question of fact, efficient
proximate cause may be determined as a matter of law where, as here, the facts are
undisputed. (Sabella, supra, 59 Cal.2d at p. 32; Mission National Ins. Co. v.
Coachella Valley Water Dist. (1989) 210 Cal.App.3d 484, 492.)
      Although Kling argues that the initial cracking, settling and subsidence on
his land was excluded under the Policy, it is undisputed that he always believed
that the efficient proximate cause of the damage to his property was the negligent
subterranean construction activity on his neighbor’s property. Although he argued
that the damage had not progressed to the point that the covered structures were in
danger of imminent collapse until late 2010 and 2011, that impending collapse was

                                          11
not the efficient proximate cause. The cause, of which Kling was aware no later
than July 2008, was always shoddy work performed on his neighbor’s construction
project which had caused and continued to cause “direct physical loss or damage”
to Kling’s covered property and which gave rise to his obligation under the Policy
promptly to notify Farmers, providing a “description of the property involved” and
“how, when and where the loss or damage occurred.” (See State Farm, supra, 54
Cal.3d at p. 1133 [insured’s property cracked and tilted due to excluded peril (earth
movement and rising groundwater levels) but damage was covered because the
efficient proximate cause of loss was negligent failure of third parties to adequately
preserve the area (a covered peril)].)
      By mid-2008, Kling knew or strongly suspected that the damage to his land
and buildings was the result of negligent excavation and inadequate shoring on
Hassid’s project, a covered risk under the Policy. He testified at his deposition in
the Hassid Action in January 2011, that he had not submitted a claim to his insurer
for the damage because he believed Hassid was responsible and was required “to
pay [him] for the damage [he] did to [Kling’s] property.” Indeed, although Kling
acknowledged that he had property insurance, he “[didn’t] know” “whether or not
[he had] any coverage for those purported damages,” and “[didn’t] recall” ever
having “inquired to determine whether [he had] insurance coverage for the alleged
5 and a half million dollars of damages” he sought in the Hassid Action, “because
[Hassid was] supposed to pay for it.”


      c.     Summary Judgment was Properly Granted Based on Kling’s
             Inconsistent Factual Positions

      The trial court granted summary judgment on the ground that Kling’s action
was barred as a matter of law by the contractual limitations provision because he
was aware of appreciable property damage which he attributed to Hassid’s

                                         12
negligent construction as early as 2007 and no later than 2008, but waited to sue
Farmers until December 2011. Kling argues that, because he observed no damage
to any building before 2010, it cannot be said that he knew or was on notice of
“substantial” damage to any “covered” property before then.
      The Policy states that the two-year limitations period for filing legal action
against Farmers is triggered by “the date on which the direct physical loss or
damage occurred.” The California Supreme Court defines the date of loss
sufficient to trigger a contractual limitations provision as the “point in time when
appreciable damage occurs and is or should be known to the insured, such that a
reasonable insured would be aware that his notification duty under the policy has
been triggered.” (Prudential-LMI Com. Insurance v. Superior Court (1990) 51
Cal.3d 674, 687 (Prudential-LMI).) This period begins running once appreciable
(not “substantial,” as Kling asserts) damage is reasonably apparent, but does not
necessarily turn on the occurrence of the physical event causing the loss. An
insured’s underestimation of the extent of the damage will not excuse his or her
failure to report it. (Id. at p. 687.) Thus, the running of the contractual limitation
period began not when Kling became aware of the imminent collapse of his
building, but when it was reasonably apparent that appreciable damage had
occurred, even though the full extent of that damage was not yet known. (Doheny
Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132
Cal.App.4th 1076, 1086 (Doheny Park).) Moreover, the occurrence of
“appreciable damage” does not depend on whether an insured knows the damage is
a covered peril under an all-risk policy. (Larkspur Isle Condominium Owners’
Assn. v. Farmers Ins. Group (1994) 31 Cal.App.4th 106, 111-112 (Larkspur Isle)
[“inception of loss” was not delayed until counsel informed insured that damage
might be covered].) It is the occurrence of a cognizable event, not the insured’s



                                          13
knowledge of the event’s legal significance, that triggers the limitations period.
(Lawrence v. Western Mutual Ins. Co. (1988) 204 Cal.App.3d 565, 573.)
      The trial court found, and we agree, that several unexplained contradictions
between Kling’s pleading and deposition testimony showed that by 2008, Kling
knew that at least one building had sustained appreciable damage as a result of
what he firmly believed were negligent construction practices on his neighbor’s
project.
      First, in the complaint filed on July 1, 2008 in the Hassid Action, Kling
alleged that negligent and inadequate shoring, excavation and Hassid’s failure to
provide lateral support in connection with subterranean construction of the Bay
Cities project resulted in instability in and damage to exterior elements of Kling’s
real property. Kling went on to allege at paragraph 17 of that complaint that: “. . .
during the aforesaid construction and continuing to date, support for the structures
on the Kling property has been compromised to the point where there has been
subsidence under the building adjacent the Bay Cities Property causing settling,
cracking of the foundation, cracking in the floor, cracking in the walls and other
structural damage which is as yet unknown, in part, because [Kling has] yet to
remove the interior of the building to determine the whole of the damage . . . .”
(Italics added.)




                                          14
      At Farmers’ request, the court took judicial notice of the complaint in the
Hassid Action, and agreed that these allegations were contradicted by facts later
                                                5
asserted in Kling’s self-serving declaration.
      Kling argues there is no support for the conclusion that allegations in the
complaint in the Hassid Action, to which Farmers was not a party, constitute
                    6
judicial admissions. He is correct, but that point is irrelevant.
      Although the allegations are not judicial admissions, they are binding
evidentiary admissions. “‘It may be stated as a general rule that a pleading


5     Specifically, Kling states that between January and March 2007, he saw only
“a very slight crack” in an interior wall of 3115. He goes on to state that “[i]n
2008 and 2009, I did not see additional paint cracks in 3115. . . . In 2007, 2008
and 2009, I did not observe any further paint cracking in unit 3115, I did not
observe any cracking of any paint in the interior or exterior of units 3117-3123.
During 2007 through 2009, I did not observe any floor cracks in the interior of
commercial units 3115 to 3123. During 2007 through 2009, I did not observe any
plaster cracks, ceiling cracks in commercial units 3115 to 3123 other than the one
very slight paint crack I identified in 2007 . . . . During 2007 through 2009, I did
not observe any separation of walls to ceiling, or any interior or exterior damage
to commercial units 3115 to 3123.” (Italics added.) Except for the statement, “In
2008 and 2009, I did not see additional paint cracks in 3115,” the trial court
sustained Farmers’ evidentiary objections to paragraph 50 of Kling’s declaration as
speculative, lacking foundation and because it contradicted factual representations
made in his prior pleading, deposition testimony and discovery responses.
6     Kling also claims he was denied a chance to respond to Farmers’ claim that
facts asserted in his declaration contradicted factual allegations in the Hassid
Action, because Farmers first raised this argument in its reply brief. Not so. First,
the issue understandably was first raised in Farmers’ reply because it was not until
Kling filed his opposition to the summary judgment motion and declaration that
Farmers knew Kling had completely altered his theory of liability. Second, the
court gave Kling ample opportunity to respond to Farmers’ evidentiary assertions
and objections. Kling took full advantage of that opportunity, filing a 76-page
response to Farmers modified evidentiary objections as well as a sur-reply.


                                          15
containing an admission is admissible against the pleader in a proceeding
subsequent to the one in which the pleading is filed. [Citations.] This is true even
on behalf of a stranger to the former action.’ [Citation.]” (Minish v. Hanuman
Fellowship (2013) 214 Cal.App.4th 437, 457 (Minish); Dolinar v. Pedone (1944)
63 Cal.App.2d 169, 176; cf., Myers v. Trendwest Resorts, Inc. (2009) 178
Cal.App.4th 735, 746 [“‘“pleader cannot blow hot and cold as to the facts
                          7
positively stated”’”].)
      As the trial court observed, the factual allegations quoted from the Hassid
complaint reflects that in July 2008 Kling claimed that negligent subterranean
construction work on his neighbor’s property had caused and was causing
appreciable damage to the foundation and other parts of at least one insured
structure. The fact of physical damage was clear even though its full extent was
not known and would not be known for some time. That language, as the trial
court stated, was “demonstrably inconsistent” with factual attestations in the
declaration Kling filed five years later in which he claimed that he saw no
appreciable damage in or outside any structure before 2010.
      The court’s decision to reject Kling’s attempt to manufacture a factual issue
whether he was aware of appreciable structural damage before 2010 is also
buttressed by Kling’s deposition testimony in the Hassid Action. In that
testimony, Kling testified that he became aware of negligent construction on the
Hassid job site in early January 2007 when he saw soil subsidence and damage to




7      As such, the party against whom the pleading is offered always has an opportunity
to show that the pleading’s allegations were inadvertently made, unauthorized or made
under mistake of fact. (Minish, supra, 214 Cal.App.4th at p. 457.) Kling made no such
showing.


                                           16
his patio, a staircase, retaining wall and concrete foundation, and also saw cracks
                                            8
forming inside and in the front of 3115.
       Kling further testified that he knew at the time he retained Zweigler in
January 2007, or a few weeks later, that at least one structure had suffered
appreciable damage:
       “Q And when you showed Mr. Zweigler your property, did you show him
       the interior of the building?
       “A Yes.
       “Q All five addresses?
       “A I don’t recall.
       “Q To the best of your recollection, what did he observe the first time?
       “A He observed subsidence caused by [Hassid].
       “Q Where did he observe it?
       “A . . . at the point at which . . . my building . . . touches my retaining wall.
       [and] [s]ome part of inside of 3115.
       “. . .
       “Q Did you show him any of the interior portions of 3117 through 3123?
       “A I believe I did.
       “Q And did you see any evidence of what you believed was subsidence at
       that time in any of those addresses?
       “A I answered that question already, sir.
       “Q You can answer it again.
       “. . .

8        “Q . . . when was the first time you became aware of these claimed negligent acts?
         “A . . . . I knew of negligence as to the job site in the first week of January 2007.
         “Q And how did you become aware at that time of this negligence that you claim?
         “A When I saw the subsidence happening on my property.
         “...
         “Q Well, how did you notice it?
         “A . . . I saw that the block wall had moved west and south from the building. . . .
[¶] . . . I noticed other soils subsidence on that date also.
         “Q Where?
         “A In the patio, . . . a retaining wall had split, a stair had separated, a slab of
concrete foundation had cracked. I went into 3115. A crack was –– cracks were forming
inside of 3115. There are cracks behind 3117. There was a crack in the front of 3115.”
(Italics added.)


                                                17
      “A I believe it’s been fully answered ad nauseum earlier this morning, sir.
      [¶] . . . [¶] . . . I will stand by what I said earlier. . . . [¶] To the extent that
      I leave something out, I’ll refer to my previous answer. 3117, floors,
      ceilings, patio, plunger, framing the parking lot, façade. 19 cracking.”
      (Italics added.)


      Kling asserts that his deposition testimony is inadmissible hearsay because
the depositions were not taken in this action. He is mistaken. That testimony is
admissible as a party admission in this case, regardless of the fact that it occurred
in a prior action. (See Evid. Code, § 1220.) The California Supreme Court has
long held that a party may not create a triable issue of fact to defeat summary
judgment merely by means of a self-serving declaration that contradicts his own
deposition testimony. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d
                                                                          9
1, 21-22 (D’Amico); Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12.)
      In determining whether a triable factual issue exists, the court may give
“great weight” to admissions made in discovery and “disregard contradictory and
self-serving affidavits of the party.” (Preach v. Monter Rainbow (1993) 12
Cal.App.4th 1441, 1451 (Preach).) In D’Amico, the court held, that “‘[w]here . . .
there is a clear and unequivocal admission by the plaintiff . . . in his deposition’”
and the plaintiff contradicts that admission in a subsequent declaration, “‘we are

9       To date, the California Supreme Court has declined to address the appropriate
standard of review for evidentiary rulings in summary judgment proceedings. (See Reid
v. Google, Inc. (2010) 50 Cal.4th 512, 535 [“Thus, we need not decide generally whether
a trial court’s rulings on evidentiary objections based on papers alone in summary
judgment proceedings are reviewed for abuse of discretion or reviewed de novo.”].)
However, most appellate courts, including this one, have held that summary judgment
evidentiary rulings, like other evidentiary rulings, are reviewed for abuse of discretion.
(See e.g., Kincaid v. Kincaid (2011) 197 Cal.App.4th 75, 82-83; Garrett v. Howmedica
Osteonics Corp. (2013) 214 Cal.App.4th 173, 181; Park v. First American Title Co.
(2011) 201 Cal.App.4th 1418, 1427; Miranda v. Bomel Construction Co., Inc. (2010) 187
Cal.App.4th 1326, 1335; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694;
Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 192, fn. 15.)

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forced to conclude there is no substantial evidence of the existence of a triable
issue of fact.’ [Citation.]” Such admissions “have a very high credibility value,”
especially when “obtained not in the normal course of human activities and affairs
but in the context of an established pretrial procedure whose purpose is to elicit
facts.” (D’Amico, supra, 11 Cal.3d at pp. 21-22.) “Accordingly, when such an
admission becomes relevant to the determination, on motion for summary
judgment, of whether or not there exist triable issues of fact . . . , it is entitled to
and should receive a kind of deference not normally accorded evidentiary
allegations in affidavits.” (Id. at p. 22.) Where, as here, a declaration submitted in
opposition to a motion for summary judgment motion clearly contradicts the
declarant’s earlier deposition testimony, the court is free to disregard the
declaration and “‘conclude there is no substantial evidence of the existence of a
triable issue of fact.’” (Id. at p. 21.)
       Kling’s declaration briefly acknowledges his deposition testimony in the
Hassid Action, but makes no effort to explain the significant contradictions
between that testimony in 2010 and 2011 and factual representations in his
declaration. (See Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 549
[“We cannot accept as substantial evidence of a triable issue of fact a declaration
that directly contradicts the declarant’s prior statement, where the contradiction is
unexplained. We may not ignore this significant contradiction.”].) Our thorough
review of the record yields no credible explanation for the discrepancies nor any
basis upon which to conclude that Kling’s deposition testimony was mistaken or
the result of his misunderstanding of any question. (See Price v. Wells Fargo Bank
(1989) 213 Cal.App.3d 465, 482 (Price), overruled on another ground by
Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013)
55 Cal.4th 1169, 1179-1182.) The trial court was entitled to give Kling’s
deposition testimony “special consideration” (Girard v. Ball (1981) 125

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Cal.App.3d 772, 781) and conclude that his contradictory declaration did not
“constitute ‘substantial evidence of the existence of a triable issue of fact.’”
(Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988)
199 Cal.App.3d 791, 800; see Leasman v. Beech Aircraft Corp. (1975) 48
Cal.App.3d 376, 382 [“[I]n view of plaintiff’s admissions in her deposition . . . that
she had suffered no physical injury,” contrary affidavits were properly
“disregarded as irrelevant, inadmissible or evasive.”].)
      Further, although D’Amico involved a party admission, other cases have
extended its rule to party-affiliated experts (Jacobs v. Fire Ins. Exchange (1995) 36
Cal.App.4th 1258, 1270) and nonparty witnesses (Preach, supra, 12 Cal.App.4th at
pp. 1447, 1451). Kling’s prior testimony was given under oath in a deposition in
his case against Hassid involving the same negligent construction he has always
claimed and believed was responsible for the damage caused to his commercial
property, we believe the testimony was entitled to deference, consistent with
D’Amico, even though Farmers was not a party to that litigation.


II. Kling’s Claim of Equitable Estoppel is Moot
      Kling contends that, even if appreciable damage did occur outside the two-
year contractual limitations period, the trial court erred by failing to apply
equitable principles of estoppel to preclude Farmers from asserting the limitations
provision as a bar to this action.
      Specifically, he argues that in 2007, he told his Farmers’ agent about cracks
in his patio and retaining wall and movement in a block wall on his land. Farmers
informed Kling that none of the damage he reported was covered, because his
Policy did “not provide coverage for ‘soils, land, dirt, cracks’ or damage caused by
soil deterioration.” Relying on Doheny Park, supra, 132 Cal.App.4th 1076, Kling
argues Farmers is estopped from asserting the limitations provision of the Policy

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because he relied on Hamadani’s representation that the damage to his property
was not covered and delayed filing suit. (Id. at p. 1090 [“insurer may be estopped
to assert a policy provision limiting the time to sue where it has caused the insured
to delay filing suit . . .”].)
       As the trial court correctly observed, Kling’s estoppel theory has a
fundamental problem. To invoke the doctrine of equitable estoppel, Kling must
show that he has suffered injury as a result of his reliance on Hamadani’s
statement. (Doheny Park, supra, 132 Cal.App.4th at p. 1090; Ashou v. Liberty
Mutual Fire Ins. Co. (2006) 138 Cal.App.4th 748, 766-767 (Ashou).) Kling has
not and cannot make that demonstration. Regardless of what Kling was told by
Farmers in 2007, on this record there is no question that, by July 2008, he was well
aware of additional facts indicating that appreciable structural damage had
occurred as a result of the excavation and subterranean construction on Hassid’s
property. As a result and at that point, Kling had a contractual obligation to notify
Farmers of the physical loss or damage, including a description of how, when and
where that loss or damage had occurred. This duty existed whether or not he knew
the physical damage or loss was a covered peril under the Policy, and even though
he did not yet know the full extent of that damage or loss. (See Prudential-LMI,
supra, 51 Cal.3d at p. 687; Larkspur Isle, supra, 31 Cal.App.4th at pp. 111–112.)
Accordingly, Kling’s action is time-barred and we need not address his claim of
reliance on Hamadani’s representations in 2007, nor the cause of action for
equitable estoppel.




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                    DISPOSITION
The judgment is affirmed. Kling shall bear costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                WILLHITE, Acting P. J.




We concur:




MANELLA, J.




COLLINS, J.




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