Supreme Court of California Justia
Docket No. S131992
Essex Ins. v. Five Star Dye etc.


Filed 7/6/06

IN THE SUPREME COURT OF CALIFORNIA

ESSEX INSURANCE COMPANY,
Plaintiff, Cross-defendant,
and
Appellant,
S131992
v.
Ct.App. 2/5 B167295
FIVE STAR DYE HOUSE, INC.,
Los Angeles County
Defendant, Cross-complainant, )
Super. Ct. No. BC 156517
and
Respondent.

In Brandt v. Superior Court (1985) 37 Cal.3d 813 (Brandt), this court held
that in a tort action against an insurance company for breach of the duty of good
faith and fair dealing, an insured may recover as damages those attorney fees that
are incurred in the same action and are attributable to the attorney’s efforts to
recover policy benefits that the insurer has wrongfully withheld. We reasoned that
when an insurer’s tortious conduct consists of depriving its insured of policy
benefits, the attorney fees that the insured reasonably and necessarily incurs to
obtain those policy benefits constitute an economic loss proximately caused by the
insurer’s tort, and thus those attorney fees (now commonly referred to as Brandt
fees) are recoverable as tort damages. (Id. at pp. 817-819.)
The issue here is this: When an insured assigns a claim for bad faith
against the insurer, and the assignee brings a tort action against the insurer that
1



includes a claim for wrongfully withheld policy benefits, may the assignee recover
Brandt fees? Our answer is “yes.”
I. FACTS AND PROCEDURAL BACKGROUND
Luis Sanchez, doing business as L.A. Machinery Moving (hereafter
Sanchez), was in the trucking business, specifically, transporting commercial
machinery. In June 1994, Sanchez contracted to deliver two commercial dryers to
Five Star Dye House, Inc. (Five Star), a designer jeans manufacturer that uses
dryers in the manufacturing process. During transportation of the dryers, one fell
while on Sanchez’s truck and was damaged. Five Star refused to accept delivery
of the damaged dryer.
Five Star sued Sanchez for negligence (the underlying action), seeking as
damages the profits it lost while the damaged dryer was being repaired. Sanchez
tendered defense of the action to his liability insurance carrier, Essex Insurance
Company (Essex). Essex denied coverage, however, and refused to defend
Sanchez in the action. Sanchez undertook a defense using his own funds; the trial
resulted in a judgment against him for $1.35 million, plus costs.
Sanchez then assigned to Five Star all of his claims and causes of action
against Essex.1 In exchange, Five Star agreed to delay execution on the judgment
in the underlying action until the claims against Essex for the judgment amount
were exhausted. Notwithstanding the assignment, Sanchez remained liable for the
full judgment amount, plus interest.2

1
Not before us is the validity of the underlying assignment. Therefore, for
purposes of analysis, we assume its validity.
2
The assignment states: “Luis Sanchez, dba L.A. Machinery Movers
(‘Assignor’), conveys and assigns to Five Star Dye House, Inc., (‘Assignee’), all
of its rights, remedies, titles and/or interest in and to any and all claims and/or
causes of action against Essex Insurance Company (‘Essex’), arising from the
(Footnote continued on next page.)
2



Essex then filed this action in superior court for declaratory relief against
both Five Star and Sanchez. Essex sought a declaration that it did not have a duty
to defend Sanchez in the underlying action. Under the assignment from Sanchez,
Five Star cross-complained against Essex for, among other claims, breach of
contract and tortious breach of the covenant of good faith and fair dealing. During
the course of the litigation, Sanchez was dismissed as a defendant in the
declaratory judgment action, based on his assignment of all claims to Five Star.
The trial court found the existence of an insurance contract between
Sanchez and Essex, potential coverage under that policy for Five Star’s claim
against Sanchez, and bad faith by Essex in not defending Sanchez in the
underlying action. The court awarded Five Star $1.6 million in damages against
Essex, but it denied Five Star’s request for Brandt fees.
The Court of Appeal affirmed the trial court’s judgment against Essex, but
it reversed as to the denial of attorney fees. The Court of Appeal held that when
an insured assigns a bad faith cause of action against an insurer, the assignee
receives the right to recover the policy benefits in full, including Brandt fees. The
court expressly disagreed with another Court of Appeal decision, Xebec

(Footnote continued from previous page.)

facts and circumstances regarding the lawsuit filed in the Superior Court of the
State of California for the County of Los Angeles, bearing Case No. BC 119424,
entitled Five Star Dye House, Inc. v. Rosco Machine Company, et al., (‘Five Star
Lawsuit’), including but not limited to, claims and\or causes of action for Breach
of Contract, Breach of the Covenant of Good Faith and Fair Dealing, Fraud and
Declaratory Relief arising from Essex’ failure to provide a defense or indemnity to
Assignor arising from the Five Star Lawsuit . . . . In exchange for this assignment,
Assignee agrees to defer collection of the judgment against Assignor until such
time as all efforts to collect the judgment against Essex and/or any insurance
broker and/or agent . . . have been exhausted.”
3



Development Partners, Ltd. v. National Union Fire Ins. Co. (1993) 12
Cal.App.4th 501, 572 (Xebec), which held to the contrary.
We granted Essex’s petition for review to determine whether assignment of
a tort action against an insurer for wrongfully withholding policy benefits includes
the right to recover Brandt fees.
II. LEGAL BACKGROUND
A. The American Rule and Brandt
Embodied in Code of Civil Procedure section 1021, the “American rule”
states that except as provided by statute or agreement, the parties to litigation must
pay their own attorney fees. In addition to its various statutory exceptions (see,
e.g., Civ. Code, § 1717), the American rule is subject to common law exceptions
that this court has created. (Trope v. Katz (1995) 11 Cal.4th 274, 279.) Brandt,
supra, 37 Cal.3d 813, is the source of one such exception.
In Brandt, an insured sued the insurer for breach of the implied covenant of
good faith and fair dealing, seeking damages that included attorney fees. (Brandt,
supra, 37 Cal.3d at p. 816.) Citing the American rule and Code of Civil Procedure
section 1021, the trial court struck the portion of the complaint seeking attorney
fees. (Brandt, supra, 37 Cal.3d at p. 816.) We held that when an insurer denies
coverage in bad faith, the insured can recover attorney fees in an action to recover
the policy benefits. (Id. at p. 817.)
After observing that an insurer’s breach of the covenant of good faith and
fair dealing is a tortious act, we reasoned in Brandt: “ ‘When such a breach
occurs, the insurer is “liable for any damages which are the proximate result of
that breach.” [Citation.]’ [Citation.] [¶] When an insurer’s tortious conduct
reasonably compels the insured to retain an attorney to obtain the benefits due
under a policy, it follows that the insurer should be liable in a tort action for that
4

expense. The attorney’s fees are an economic loss—damages—proximately
caused by the tort. [Citation.] These fees must be distinguished from recovery of
attorney’s fees qua attorney’s fees, such as those attributable to the bringing of the
bad faith action itself. What we consider here is attorney’s fees that are
recoverable as damages resulting from a tort in the same way that medical fees
would be part of the damages in a personal injury action.” (Brandt, supra, 37
Cal.3d at p. 817.)
In a tort action for wrongful denial of policy benefits, Brandt allows the
insured to recover as tort damages only the attorney fees incurred to obtain the
policy benefits wrongfully denied. (Brandt, supra, 37 Cal.3d at p. 819.) But
attorney fees expended to obtain damages exceeding the policy limit or to recover
other types of damages are not recoverable as Brandt fees. (Ibid.; see Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 811-812 [attorney fees to obtain emotional
distress damages and punitive damages not recoverable under Brandt].) This
follows from the rationale of Brandt: The tort of bad faith against the insured
entitles the insured to recover the policy benefits in full, undiminished by attorney
fees, but not to recover attorney fees in general. Allowing recovery of attorney
fees incurred to obtain damages beyond the policy limit or to obtain punitive
damages would allow the insured to recover attorney fees as attorney fees,
violating the American rule, embodied in Code of Civil Procedure section 1021,
that parties generally must pay their own attorney fees. “Rather, Brandt merely
entitles the insured to all of the benefits due under the policy, undiminished by the
expenses incurred in retaining an attorney to recover under the policy.” (Cassim v.
Allstate Ins. Co., supra, at p. 815 (conc. & dis. opn. of Baxter, J.).)
This court has in various decisions reaffirmed Brandt’s rule awarding
attorney fees to an insured who is injured by the bad faith conduct of the insurer.
(Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 806, fn. 10; White v. Western
5

Title Ins. Co. (1985) 40 Cal.3d 870, 890; see also Track Mortgage Group, Inc. v.
Crusader Ins. Co. (2002) 98 Cal.App.4th 857, 867; Campbell v. Cal-Gard Surety
Services, Inc. (1998) 62 Cal.App.4th 563, 571-572.) The Brandt rule is now a
well-settled but narrow exception to the general rule that each party to litigation
must pay its own attorney fees.
B. The General Rule of Assignability
California, as set forth both in case law and by statute, maintains a policy
encouraging the free transferability of all types of property. (See Civ. Code,
§§ 954, 1044, 1458; Farmland Irrigation Co. v. Dopplmaier (1957) 48 Cal.2d
208, 222; Robert H. Jacobs, Inc. v. Westoaks Realtors, Inc. (1984) 159
Cal.App.3d 637, 645.)3 “[I]t is a fundamental principle of law that one of the
chief incidents of ownership in property is the right to transfer it.” (Bias v. Ohio
Farmers Indemnity Co. (1938) 28 Cal.App.2d 14, 16.)
This “chief incident of ownership” applies equally to tangible and
intangible forms of property, including causes of action. Originally codified in
1872, section 954 states: “A thing in action, arising out of the violation of a right
of property, or out of an obligation, may be transferred by the owner.” An
assignment is a commonly used method of transferring a cause of action.
Although the assignability of causes of action is derived from the common
law, section 954 had the effect of liberalizing restrictions on the types of actions
that may be assigned to a third party. (Wikstrom v. Yolo Fliers Club (1929) 206
Cal. 461, 464.) We summarized the resulting state of the law as to the
assignability of claims in Reichert v. General Ins. Co. (1968) 68 Cal.2d 822
(Reichert). In Reichert, the plaintiff purchased a 325-unit motel and received

3
Unless otherwise stated, all further statutory references are to the Civil
Code.
6



assignments of multiple fire insurance policies for the premises. (Id. at pp. 825-
826.) Later, a fire caused significant damage to the motel. (Id. at p. 826.) After
the insurance companies failed to indemnify the plaintiff for the damages, the
plaintiff lost possession of the motel in bankruptcy. (Id. at pp. 826-827.) When
the plaintiff sued the insurance companies for the resulting loss, they demurred to
the complaint on the ground that the plaintiff’s causes of action had passed to the
trustee in bankruptcy. (Id. at pp. 828-829.) Under bankruptcy law, the trustee in
bankruptcy received all causes of action that the bankrupt could have assigned.
(Id. at p. 829, citing 11 U.S.C. § 110.) Thus, whether the plaintiff’s causes of
action against the insurance companies were assignable was the central question in
Reichert. (Reichert, supra, at pp. 829-830.)
This court in Reichert defined when a cause of action is assignable: “As a
general proposition it can be said ‘ “that the only causes or rights of action which
are not transferable or assignable in any sense are those which are founded upon
wrongs of a purely personal nature, such as slander, assault and battery, negligent
personal injuries, criminal conversation, seduction, breach of marriage promise,
malicious prosecution, and others of like nature. All other demands, claims and
rights of action whatever are generally held to be transferable.” ’ ” (Reichert,
supra, 68 Cal.2d at p. 834, quoting Wikstrom v. Yolo Fliers Club, supra, 206 Cal.
at p. 463.) We concluded that the plaintiff’s causes of action against the insurance
companies for breach of their duties under the insurance policies were assignable,
and thus they passed to the trustee in bankruptcy. (Reichert, supra, at pp. 830,
835-837.)
Actions for bad faith against insurance companies can introduce
problematic elements into this seemingly bright-line rule defining assignability of
causes of actions, as shown by this court’s decision in Murphy v. Allstate Ins. Co.
(1976) 17 Cal.3d 937 (Murphy). There, the plaintiff sought to enforce a judgment
7

obtained in an earlier tort action by bringing a direct action against the tortfeasor’s
insurance company, alleging breach of the insurer’s duty to the insured (the
tortfeasor) by refusing to settle within policy limits. (Murphy, supra, at pp. 939-
940.) The trial court granted judgment on the pleadings for the defendant
insurance company, and the plaintiff appealed. (Id. at p. 939.)
The plaintiff argued that the action was authorized by Insurance Code
section 11580, subdivision (b)(2), or, alternatively, by former Code of Civil
Procedure section 720. (Murphy, supra, 17 Cal.3d at p. 940.) This court found
that the plaintiff could not pursue the claim under Insurance Code section 11580,
subdivision (b)(2). That provision merely made the judgment creditor a third
party beneficiary of the insurance contract, allowing the judgment creditor to
enforce only those contract provisions that were designed to benefit injured
claimants. The duty to settle and the covenant of good faith and fair dealing,
however, were designed to benefit the insured, not injured third party claimants.
(Id. at pp. 942-944.)
This court in Murphy next considered former Code of Civil Procedure
section 720, which then provided: “ ‘If it appears that a person or corporation,
alleged to have property of the judgment debtor, or to be indebted to him, claims
an interest in the property adverse to him, or denies the debt, the judgment creditor
may maintain an action against such person or corporation for the recovery of such
interest or debt . . . .’ ” (Murphy, supra, 17 Cal.3d at p. 945, fn. omitted; see now
Code Civ. Proc., § 708.210 [“If a third person has possession or control of
property in which the judgment debtor has an interest or is indebted to the
judgment debtor, the judgment creditor may bring an action against the third
person to have the interest or debt applied to the satisfaction of the money
judgment.”].) Under this provision, the judgment creditor may assert only those
causes of action belonging to the judgment debtor that are assignable. (Murphy,
8

supra, 17 Cal.3d at pp. 945-946.) Thus, this court in Murphy addressed the
question whether the insured’s causes of action against the insurer for breach of
the duty to settle and breach of the covenant of good faith and fair dealing were
assignable. (Id. at pp. 945-946.)
Under the particular facts at issue, we concluded that although the cause of
action itself was assignable, it potentially included damages that were not
assignable and therefore not recoverable in an action under former section 720 of
the Code of Civil Procedure. (Murphy, supra, 17 Cal.3d at p. 946.) “The insured
may assign his cause of action for breach of the duty to settle without consent of
the insurance carrier, even when the policy provisions provide the contrary.
[Citation.] However, part of the damage arises from the personal tort aspect of the
bad faith cause of action. [Citation.] And because a purely personal tort cause of
action is not assignable in California, it must be concluded that damage for
emotional distress is not assignable. [Citations.] The same is true of a claim for
punitive damage.” (Murphy, supra, 17 Cal.3d at p. 942.)
This court in Murphy described the bad faith action against the insurer as a
“hybrid cause of action,” one comprised of both assignable and nonassignable
components. (Murphy, supra, 17 Cal.3d at p. 946.) Because the cause of action
could not be split, allowing the injured claimant to proceed under former section
720 of the Code of Civil Procedure would deprive the insured of any opportunity
to recover the nonassignable damages (emotional distress damages and punitive
damages) and thereby “defeat the very purpose of the cause of action.” (Murphy,
supra, at p. 946.) Although we concluded in Murphy that the action was barred,
we suggested how an assignment might be used in this situation to protect the
interests of both the insured and the claimant: “Requiring assignment before the
claimant may proceed would of course insure notice to the insured that the
claimant wished to proceed against the insurer. At that point the insured would
9

have the choice of partially assigning and then joining in the action, or of
bargaining for a release from liability in excess of coverage. The release would
permit the insured to protect himself from continued exposure to personal liability.
Further, because the judgment creditor would then both own and control the cause
of action against the insurer, he could attempt to satisfy his judgment thereby.
Finally, the insured could protect his right to nonassignable claims for punitive,
emotional and personal injury damage.” (Id. at pp. 946-947.)
C. Conflicting Court of Appeal Decisions
In Xebec, supra, 12 Cal.App.4th 501, Xebec Corporation entered into an
agreement with Xebec Development Partners (XDP), whereby XDP would
provide nearly $14 million to Xebec Corporation for research and development,
and Xebec Corporation in exchange would assign to XDP the rights to new
technology. (Id. at p. 517.) Later, XDP sued Xebec Corporation and two of its
officers for misappropriating the funds earmarked for research and development.
(Ibid.) National Union Fire Insurance Company (National Union) claimed it had
not received timely notice of the lawsuit and on this basis declined to defend the
Xebec Corporation officers in the suit, which resulted in a stipulated arbitration
award against Xebec Corporation and the two officers, on which judgment was
then entered, in excess of $9 million. (Id. at pp. 521-523.) The arbitration
settlement agreement included provisions under which Xebec Corporation
assigned to XDP its rights against National Union. (Id. at p. 523.) Under this
assignment, XDP sued National Union for refusing in bad faith to defend the
officers of Xebec Corporation in the original lawsuit. (Id. at p. 524.)
The action was tried to a jury, which returned a general verdict against
National Union for more than $7 million, and the trial court awarded XDP
attorney fees under Brandt, supra, 37 Cal.3d 813. (Xebec, supra, 12 Cal.App.4th
10

at pp. 526, 571.) In a lengthy opinion dealing with a variety of issues arising from
the complicated underlying factual situation, the Xebec Court of Appeal reversed
the trial court’s ruling as to the award of Brandt fees to XDP, devoting just over
one page to that issue. (Id. at pp. 571-572.)
The Court of Appeal in Xebec observed that XDP was “a third party
claimant” and a “stranger to the policy.” (Xebec, supra, 12 Cal.App.4th at p. 572.)
As an assignee of the insured, XDP “could assert only those rights the insureds
had had, and it could assert the rights only in the stead of the insureds.” (Ibid.)
Because none of the insureds had incurred attorney fees to compel payment of
policy benefits, the Court of Appeal concluded that XDP could not assert their
rights under Brandt, nor could it assert a right to Brandt fees on its own behalf
because “the fees it thus incurred cannot be construed as tort damages to XDP,
because National Union had no duty to XDP to pay policy benefits to anyone.”
(Ibid., italics in original.)
In this case, the Court of Appeal expressly disagreed with that analysis. It
focused on this court’s language in Murphy, supra, 17 Cal.3d at page 942, and in
Reichert, supra, 68 Cal.2d at page 834, articulating the principle that all tort
claims are assignable under section 954 except those of a purely personal nature.
The Court of Appeal here reasoned that Brandt fees constitute an economic loss
and are not personal in nature, and therefore under section 954 the right to recover
Brandt fees is assignable. It rejected Essex’s argument that because Brandt fees
are tort damages, only fees incurred by the insured are recoverable. It observed
that the right assigned by Sanchez was the right to recover the policy benefits in
full, “undiminished by the attorney fees incurred in bringing the actions to recover
those benefits,” and that “[t]he identity of the party incurring attorney fees to
vindicate the insured’s rights under the insurance policy is irrelevant . . . .”
11

III. ANALYSIS
We start from the proposition that assignability is the rule. (§ 954.) From
that general rule we except those tort causes of actions “ ‘ “founded upon wrongs
of a purely personal nature.” ’ ” (Reichert, supra, 68 Cal.2d at p. 834.) Actions
for bad faith against an insurer have generally been held to be assignable
(Communale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 661-662),
including claims for breach of the duty to defend (Hamilton v. Maryland Casualty
Co. (2002) 27 Cal.4th 718, 728). Although some damages potentially recoverable
in a bad faith action, including damages for emotional distress and punitive
damages, are not assignable (Murphy, supra, 17 Cal.3d at p. 942), the cause of
action itself remains freely assignable as to all other damages (id. at p. 946).
Here, the claim that Sanchez assigned to Five Star is based on Essex’s
tortious breach of its contract obligation under the policy to defend its insured,
Sanchez, in the lawsuit brought against him by Five Star. In suing on this
assigned claim, Five Star has not sought damages for emotional distress or
punitive damages, or damages for injury to reputation or other personal interests.
What Five Star has sought to recover as tort damages is the monetary value of the
policy benefits wrongfully withheld by Essex.
As this court has explained, “[w]hen an insurer’s tortious conduct
reasonably compels the insured to retain an attorney to obtain the benefits due
under a policy,” the fees incurred for those attorney services “are an economic
loss—damages—proximately caused by the tort.” (Brandt, supra, 37 Cal.3d at
p. 817.) Those attorney fees do not possess any of the personal aspects that
preclude assignment of other tort damages, such as damages for emotional
distress. They are not damages arising “from the personal tort aspect of the bad
faith cause of action.” (Murphy, supra, 17 Cal.3d at p. 942.)
12

We reject Essex’s argument that because Brandt fees are tort damages, they
are recoverable only if incurred by the insured personally, rather than by the
assignee. “As a general rule, the assignee of a chose in action stands in the shoes
of his assignor, taking his rights and remedies . . . .” (Salaman v. Bolt (1977) 74
Cal.App.3d 907, 919.) Had Sanchez brought the bad faith action against Essex,
his right to recover Brandt fees would be unquestioned. As the assignee of
Sanchez’s claim against Essex, Five Star stands in his shoes, and so may assert his
right to recover any Brandt fees incurred in prosecuting the assigned claim. We
agree with the Court of Appeal here that the right that Sanchez assigned to Five
Star was the “right to recover the policy benefits in full, undiminished by the
attorney fees incurred in bringing the action to recover those benefits.” Were we
to accept Essex’s argument, Sanchez would no longer be assigning the right to
recover the policy benefits in full.
Essex also argues that allowing Five Star, an assignee, to recover Brandt
fees from it would not serve to make the insured whole, which is the essential
purpose of Brandt fees, because, under the terms of the assignment from Sanchez
to Five Star, the amount that Five Star recovers as Brandt fees will not reduce
Sanchez’s liability on the judgment in the underlying action. We disagree. In
exchange for the assignment, Five Star agreed to defer collection of the judgment
against Sanchez until “all efforts to collect the judgment against Essex . . . have
been exhausted.” (See fn. 2, ante.) Thus, all sums recovered from Essex,
including Brandt fees, will be credited against the judgment in the underlying
action, directly reducing Sanchez’s liability to Five Star.
Disallowing recovery of Brandt fees in cases such as this would result in a
windfall for the insurer, whose liability for tortious conduct would be significantly
reduced because of the fortuitous circumstance of the assignment of the bad faith
claim. As we have recognized, recoverable Brandt fees may exceed the contract
13

benefits wrongfully withheld. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at
p. 809.) Disallowing recovery of Brandt fees incurred by assignees would also
tend to discourage assignment of bad faith claims against insurance companies,
contrary to the public policy favoring transferability of causes of action.
IV. CONCLUSION
We conclude that an insured’s assignment of a cause of action against an
insurance company for tortious breach of the covenant of good faith and fair
dealing by wrongfully denying benefits due under an insurance policy carries with
it the right to recover Brandt fees that the assignee incurs to recover the policy
benefits in the lawsuit against the insurance company.4
The Court of Appeal’s judgment is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

4
Xebec Development Partners, Ltd. v. National Union Fire Ins. Co., supra,
12 Cal.App.4th 501, is disapproved insofar as it is inconsistent with this
conclusion.
14



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Essex Insurance Company v. Five Star Dye House, Inc.
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 125 Cal.App.4th 1569
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S131992
Date Filed: July 6, 2006
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Kenneth R. Freeman

__________________________________________________________________________________

Attorneys for Appellant:

Carroll, Burdick & McDonough, David M. Rice, Laurie J. Hepler, Troy M. Yoshino, Don Willenburg,
John D. Boyle, Donna P. Arlow; Murchison & Cumming, Jean M. Lawler, Edmund G. Farrell and Bryan
M. Weiss for Plaintiff, Cross-defendant and Appellant.

Wiley Rein & Fielding, Laura A. Foggan, Gary P. Seligman; Sinnott, Dito, Moura & Puebla, Randolph P.
Sinnott and John J. Moura for Complex Insurance Claims Litigation Association as Amicus Curiae on
behalf of Plaintiff, Cross-defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Dodell Law Corporation, Herbert Dodell and Gerald J. Miller for Defendant, Cross-complainant and
Respondent.

Gianelli & Morris, Robert S. Gianelli, Sherril Nell Babcock; Ernst & Mattison, Don A. Ernst and Raymond
E. Mattison for Consumer Attorneys of California as Amicus Curiae on behalf of Defendant, Cross-
complainant and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Edmund Farrell
Muchison & Cumming
801 South Grand Avenue, 9th Floor
Los Angeles, CA 90017
(213) 630-1087

Herbert Dodell
Dodell Law Corporation
12121 Wilshire Boulevard, Suite 600
Los Angeles, CA 90025
(310) 824-1515


Opinion Information
Date:Docket Number:
Thu, 07/06/2006S131992

Parties
1Essex Insurance Company (Plaintiff, Cross-complainant and Appellant)
Represented by Jean Lawler
Murchison & Cumming
801 S. Grand Avenue, Suite 900
Los Angeles, CA

2Essex Insurance Company (Plaintiff, Cross-complainant and Appellant)
Represented by Donna P. Arlow
Carroll Burdick et al., LLP
633 W. Fifth Street, 51st Floor
Los Angeles, CA

3Essex Insurance Company (Plaintiff, Cross-complainant and Appellant)
Represented by Edmund G. Farrell
Murchison & Cumming
801 S. Grand Avenue, Suite 900
Los Angeles, CA

4Essex Insurance Company (Plaintiff, Cross-complainant and Appellant)
Represented by David M. Rice
Carroll Burdick & McDonough
44 Montgomery Street, Suite 400
San Francisco, CA

5Five Star Dye House, Inc. (Defendant, Cross-complainant and Respondent)
Represented by Herbert Dodell
Dodell Law Corporation
12121 Wilshire Boulevard, Suite 600
Los Angeles, CA

6Five Star Dye House, Inc. (Defendant, Cross-complainant and Respondent)
Represented by Gerald J. Miller
Dodell Law Corporation
12121 Wilshire Boulevard, Suite 600
Los Angeles, CA

7Complex Insurance Claims Litigation Association (Amicus curiae)
Represented by Randolph P. Sinnott
Sinnott Dito Moura & Puebla
707 Wilshire Boulevard, Suite 3200
Los Angeles, CA

8Consumer Attorneys Of California (Amicus curiae)
Represented by Sherril Nell Wells
Gianelli & Morris
626 Wilshire Boulevard, Suite 800
Los Angeles, CA

9Consumer Attorneys Of California (Amicus curiae)
Represented by Don Alan Ernst
Attorney at Law
1020 Palm Street
San Luis Obispo, CA


Disposition
Jul 6 2006Opinion: Affirmed

Dockets
Mar 7 2005Petition for review filed
  counsel for appellant Essex Ins. Co.
Mar 7 2005Record requested
 
Mar 8 2005Received Court of Appeal record
 
Mar 25 2005Answer to petition for review filed
  respondent Five Star Dtye House, Inc.
Apr 4 2005Reply to answer to petition filed
  appellant Essex Insurance Company
Apr 25 2005Time extended to grant or deny review
  to and including June 3, 2005
May 11 2005Received Court of Appeal record
 
May 11 2005Petition for review granted; issues limited (civil case)
  Petition for review GRANTED. The issue to be briefed and argued is limited to the following: Can an insured assign its right under Brandt v. Superior Court (1985) 37 Cal.3d 813 to recover the attorney fees it incurred to obtain insurance policy benefits that the insurer denied in bad faith? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
May 11 2005Note:
  Balance of record requested
May 18 2005Received Court of Appeal record
  B167295 -- six additional doghouses
May 25 2005Certification of interested entities or persons filed
  by David M. Rice, counsel for Appellant Essex Insurance Company
May 25 2005Request for extension of time filed
  to July 11, 2005 to file appellant's (Essex) opening brif on the merits
Jun 2 2005Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file Appelant's Opening Brief on the Merits is extended to and including July 11, 2005.
Jul 11 2005Opening brief on the merits filed
  by Appellant Essex Insurance Company
Jul 18 2005Certification of interested entities or persons filed
  by Respondent Five Star Dye House, Inc.
Jul 19 2005Received:
  Appellant's {Essex Insurance Company} corrected proof of service.
Aug 3 2005Answer brief on the merits filed
  respondent Five Star Dye House, Inc.
Aug 23 2005Reply brief filed (case fully briefed)
 
Sep 21 2005Received application to file Amicus Curiae Brief
  & brief of Complex Insurance Claims Litigation Assn [in support of appellant]
Sep 26 2005Received:
  Amicus Brief W/O application by Consumer Attorneys of California. (CRC 40.1(b) by FedEx) Counsel to send in application tomorrow along with corrected certificate of word count.
Sep 27 2005Permission to file amicus curiae brief granted
  The application of Complex Insurance Claims Litigation Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Sep 27 2005Amicus curiae brief filed
  by Complex Insurance Claims Litigation Association in support of appellant.
Sep 29 2005Note:
  the A/C brief of Consumer Attys. does contain the application, it is being sent up to ct.
Oct 3 2005Permission to file amicus curiae brief granted
  by Consumer Attorneys of California in support of respondent. Answers may be filed w/in 20 days.
Oct 3 2005Amicus curiae brief filed
  by Consumer Attorneys of California in support of respondent.
Oct 17 2005Response to amicus curiae brief filed
  to ac brief of Complex Insurance Claims Litigation Assn.>> respondent Five Star Dye House, Inc.
Oct 24 2005Response to amicus curiae brief filed
  by Appellant (Essex) to Amicus Curiae Brief of Consumer Attorneys of California
Nov 14 2005Received:
  Letter from respondent's counsel dated 11-8-2005 requesting that oral argument not be scheduled between the following dates: January 1, 2006 to February 5, 2006.
May 2 2006Case ordered on calendar
  June 2, 2006, at 1:30 p.m., in San Francisco
Jun 2 2006Cause argued and submitted
 
Jul 6 2006Opinion filed: Judgment affirmed in full
  Court of Appeal's judgment is affirmed. Opinion by: Kennard, J. -- joined by George, C.J., Baxter, Werdegar, Chin, Moreno, Corrigan, JJ.
Aug 8 2006Remittitur issued (civil case)
 
Aug 15 2006Received:
  Receipt for remittitur from Second District, Division 5.

Briefs
Jul 11 2005Opening brief on the merits filed
 
Aug 3 2005Answer brief on the merits filed
 
Aug 23 2005Reply brief filed (case fully briefed)
 
Sep 27 2005Amicus curiae brief filed
 
Oct 3 2005Amicus curiae brief filed
 
Oct 17 2005Response to amicus curiae brief filed
 
Oct 24 2005Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website