Supreme Court of California Justia
Docket No. S136690
TRB Investments v. Fireman's Fund

Filed 11/13/06


) Ct.App.
Kern County
Defendant and Respondent.
) No. CV-250247-AEW

This case involves a property insurance policy that withdraws coverage for
specified perils while the insured premises are vacant. The pertinent exclusion
contains an exception stating that buildings “under construction” are not
considered vacant. The question before us concerns whether the work being
performed on the building at the time of the loss rendered the building “under
construction” such that the vacancy exclusion does not apply.
Plaintiffs argue their efforts meant that the structure was “under
construction” and therefore covered under the policy when a water heater or
waterline ruptured and caused substantial damage to the property. Defendant
insurer disagrees with this interpretation of the policy. The Court of Appeal
affirmed a grant of summary judgment in favor of the insurer, determining that the
word “construction,” as utilized in the policy, “envisions the building of a new
structure,” which did not occur here.

We reverse the Court of Appeal. As used in the insurance policy here, the
word “construction” cannot reasonably be understood to be limited only to the
erection of a new structure. Rather, the term contemplates all building endeavors,
whether classified as new construction, renovations, or additions, which require
the substantial and continuing presence of workers at the premises. This standard
serves the purposes underlying the vacancy exclusion, which is premised upon the
recognition that unoccupied properties face an increased risk of damage, whether
from property-related crime such as theft or vandalism or from building damage or
loss related to neglect. If, however, a construction project results in the continuous
and substantial presence of workers on the property, then the underlying
justifications for the vacancy exclusion no longer exist, a point recognized by the
inclusion of an “under construction” exception to the general vacancy exclusion.
Given the parties here were unaware of this standard when litigating
defendant’s summary judgment motion, they failed to elicit key facts that might
have bearing on the issue of whether there was a substantial and continuing
presence of workers at the building in the period prior to the claimed loss here.
Since these facts are not present in the current record, we do not decide whether
the activity here satisfies the standard we announce today. Rather, we remand the
matter to permit either party to bring a new summary judgment motion based upon
the proper standard.
In June 1999, plaintiffs TRB Investments, Inc., Fran Mar Co., Coldwater
Farms, P&R Almond Orchards, Inc., Thomas-Cattani, Inc., and 1731 Chester
Group procured a property insurance policy from defendant Fireman’s Fund
Insurance Company. As originally issued, this policy covered property located on
California Avenue in Bakersfield, California. An amendatory endorsement was
added to this policy upon its renewal in June 2000. This endorsement included a
vacancy exclusion that provides as follows:

“8. Vacancy

“If loss or damage occurs to a building that has been vacant for more than 60
consecutive days prior to the occurrence of that loss or damage, we will:

“a. not pay for any loss or damage caused by:
1. Vandalism;
2. Sprinkler leakage, unless you have protected the system
against freezing;
3. Building glass breakage;
4. Water damage;
5. Theft, or
6. Attempted theft

“b. Reduce the amount we would otherwise pay for the loss or damage

by 15%.
“A building is vacant when it does not contain enough business personal
property to conduct customary operations.

“Buildings under construction are not considered vacant.”
A cancellation endorsement added to the policy, meanwhile, provides that
defendant may cancel the policy upon the occurrence of certain specified
conditions, one of which is that “[t]he [insured] building has been vacant or
unoccupied 60 or more days.” This cancellation provision does not apply to
“[b]uildings in the course of construction, renovation or addition.”
In November 2000, plaintiffs added to the policy the commercial property
involved in this dispute, a former bank building located on Chester Avenue in
Bakersfield. This property was rented to the Salvation Army beginning on
December 1, 2000. This tenant left the premises at the end of 2000, and the
building had no tenants after that point up through the time of the damage giving
rise to the instant suit. The property lacked “enough business personal property to

conduct customary operations” during this span. However, plaintiffs did retain an
architectural firm and a general contractor to transform the building into a
“leasable shell,” in which many of the interior nonsupporting walls would be
removed so that the space could be refashioned to suit a particular tenant’s needs.
In April 2001, plaintiffs began negotiations with Goodwill Industries for a long-
term “build to suit” lease. By June 20, 2001, plaintiffs, the contractor, and the
tenant agreed in principle to the terms of a lease and to initial floor plans. On or
around July 2, 2001, Goodwill entered into a lease agreement for the property.
On June 11 and June 20, 2001, the contractor engaged in “walk throughs”
of the building, on the latter date being joined by subcontractors involved with the
project. Between June 20 and June 29, 2001, the electrical subcontractor removed
the electrical main panel covers, traced the circuitry from these panels, took down
the walls around two panels and the subpanels connected to these panels, removed
unneeded circuits and floor boxes, removed exposed electrical lines, and turned on
and tested the remaining circuits for demolition safety. From June 29 to July 14,
2001, the electrical subcontractor periodically continued to work at the building,
tracing other circuit runs, reviewing subpanel locations and functionality, turning
on and testing all of the electrical circuits, and assisting the heating, ventilation
and air conditioning (HVAC) subcontractor in testing the building’s HVAC units.
Beginning on July 1, 2001, the HVAC subcontractor also tested, evacuated, and
charged the refrigeration system, making several trips to the building to perform
this work.
On the morning of Monday, July 16, 2001, workers discovered that a water
heater or waterline on the third floor of the Chester Avenue building had burst,
causing significant water damage. The line burst occurred sometime between July
14 and July 16, 2001. This damage notwithstanding, plaintiffs completed the
planned improvements to the structure in the ensuing months. This work was
substantial. The project entailed the “overall complete demolition of [the]
structure to shell walls” and the development of a “core space” within the
building. The specific changes made to the structure included the installation of
“walls, doors, windows, electrical, telephone, and computer wiring, plumbing,
HVAC, paint, coverings,” and additional restrooms, and the transformation of a
basement into classroom space and old bank vaults into usable office space. All
told, these improvements cost plaintiffs $1,250,881.09.
Plaintiffs tendered their water damage claim to defendant pursuant to the
policy, which had been renewed again in June 2001. On December 7, 2001,
defendant denied plaintiffs’ claim. After attempts to reach an informal resolution
of the dispute failed, plaintiffs filed this lawsuit on May 21, 2003. Defendant,
pointing to the vacancy exclusion in the policy, moved for and received summary
judgment in its favor. Plaintiffs filed a timely appeal. The Court of Appeal agreed
with the superior court, finding that the vacancy exclusion applied and that the
premises were not “under construction” at the time of the loss. The Court of
Appeal assumed that the work being performed by plaintiffs at the time of the
water damage constituted renovations to the building, but concluded that “under
construction” did not encompass renovations to an existing structure.
The Court of Appeal offered five justifications for its interpretation of the
pertinent policy language. First, the Court of Appeal stated that “the plain
meaning of the word construction, in its ordinary and popular sense, does not
include steps taken to renovate an existing building.” Here, the Court of Appeal
cited to dictionaries defining “construction” as “ ‘the act of putting parts together
to form a complete integrated object,’ ” and “ ‘the creation of something new, as
distinguished from the repair or improvement of something already existing,’ ”
and defining renovation as “ ‘restor[ing] to life, vigor or activity,’ ” and
“ ‘clean[ing] up, replac[ing] worn and broken parts in, [and] repair[ing].’ ” The
Court of Appeal concluded from these definitions that construction “envisions the
building of a new structure and requires the putting together of various parts in
order to bring the building to a point of readiness for occupancy.” In contrast, “A
building under renovation is readily able to be occupied but requires some repair
and improvements in order to meet the aesthetic or business needs of the
occupant.” Surveying the work commenced prior to the loss, the Court of Appeal
regarded these efforts as mere renovations, insufficient to render the building
incapable of occupation.
Second, the Court of Appeal explained that “there is no evidence that the
parties gave a different meaning to the term construction so that renovations would
be included.” Third, the Court of Appeal noted that “ ‘[b]uildings in the course of
construction, renovation, or addition’ ” are excluded from the cancellation
endorsement attached to the policy. From this language, the Court of Appeal
concluded that “if the policy had wanted to include renovations as an exception to
the vacancy exclusion, it would have said so.” Fourth, the Court of Appeal stated
that its interpretation of “construction” was consistent with the purpose of a
vacancy exclusion “to prevent vandalism and ensure the prompt discovery of
damage.” The Court of Appeal surmised, “[b]uildings under construction will
usually have workers on the property on a daily basis, which deters potential
vandals and encourages the early discovery of fire or water damage. Renovation,
however, does not require daily involvement with the property.” Fifth and finally,
the Court of Appeal pointed to decisions from other jurisdictions interpreting the
word “construction,” in the context of property insurance policies, as not including
repairs or renovations.
We granted review.
Plaintiffs argue that a building is “under construction” while it is being
renovated, and assert that the work being performed on the premises involved here
when the water damage occurred constituted “construction” under this
interpretation of the policy language. The Court of Appeal disagreed, determining
that “under construction,” as used in the policy, “envisions the building of a new
structure.” The Court of Appeal did not specify whether work on an existing
building could ever bring about a “new structure” under this interpretation.
According to the Court of Appeal, however, “construction” does not include
renovation, and therefore the vacancy exclusion applies against the insureds in this
case. We apply de novo review to this question of policy interpretation.
(E.M.M.I. Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 470.)
The proper interpretation of the “under construction” clause poses an issue
of first impression in the courts of this state. Other courts faced with construing
insurance policies have arrived at different interpretations of this or similar
language. It has been held in some quarters that the word “construction” does not
encompass repairs, renovations, and comparable work on an existing building.
(See Myers v. Merrimack Mut. Fire Ins. Co. (7th Cir. 1986) 788 F.2d 468, 472
[interpreting vacancy exclusion clarifying that buildings “ ‘in process of
construction’ ” are not regarded as vacant]; Travelers Indemnity Company v.
Wilkes County (Ga.Ct.App. 1960) 116 S.E.2d 314, 317 [construing policy
exclusion applicable to buildings “in the process of construction”]; Jerry v.
Kentucky Cent. Ins. Co. (Tex.Ct.App. 1992) 836 S.W.2d 812, 814-816
[interpreting policy language providing that “a building in the course of
construction” is not considered vacant].) Other courts have determined that
“construction” includes renovations to an existing structure. (Brouillette v.
Phoenix Assur. Co. (La.Ct.App. 1976) 340 So.2d 667, 670-671; Warren Davis
Prop. v. United Fire & Cas. (Mo.Ct.App. 2003) 111 S.W.3d 515, 522.) None of
the preceding opinions, however, engaged in the sort of thorough examination of
the policy language undertaken by the Court of Appeal below.
Well established interpretive rules guide our own review of the vacancy
exclusion and its “under construction” clause. “Interpretation of an insurance
policy is a question of law and follows the general rules of contract interpretation.
[Citation.] ‘The fundamental rules of contract interpretation are based on the
premise that the interpretation of a contract must give effect to the “mutual
intention” of the parties. “Under statutory rules of contract interpretation, the
mutual intention of the parties at the time the contract is formed governs
interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible,
solely from the written provisions of the contract. (Id., § 1639.) The ‘clear and
explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular
sense,’ unless ‘used by the parties in a technical sense or a special meaning is
given to them by usage’ (id., § 1644), controls judicial interpretation. (Id.,
§ 1638.)” [Citations.] A policy provision will be considered ambiguous when it is
capable of two or more constructions, both of which are reasonable. [Citation.]
But language in a contract must be interpreted as a whole, and in the
circumstances of the case, and cannot be found to be ambiguous in the abstract.’
[Citation.] [¶] Moreover, insurance coverage is ‘ “ ‘interpreted broadly so as to
afford the greatest possible protection to the insured, [whereas] . . . exclusionary
clauses are interpreted narrowly against the insurer.’ ” ’ [Citation.]” (MacKinnon
v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 647-648, fn. omitted.) “As a
coverage provision, [an] exception [to an exclusion] will be construed broadly in
favor of the insured. [Citations.] This broad construction will aid the insured in
meeting its burden of proof, thereby ensuring that the end result (coverage or
noncoverage) conforms to the insured’s objectively reasonable expectations.”
(Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1192.)
As did the Court of Appeal, we begin our analysis by examining the “under
construction” language at issue here to ascertain its common meaning. “Under”
means “receiving or undergoing the action or effect of.” (Webster’s Collegiate
Dict. (10th ed. 2000) p. 1283.) “Construction” means “the act of putting parts
together to form a complete integrated object” (Webster’s 3d New Internat. Dict.
(2002) p. 489); “[t]he creation of something new, as distinguished from the repair
or improvement of something already existing” (Black’s Law Dict. (6th ed. 1990)
p. 312); “[t]he act of building by combining or arranging parts or elements”
(Black’s Law Dict. (7th ed. 1990) p. 308); and “[t]he action of framing, devising,
or forming, by the putting together of parts; erection, building” (3 Oxford English
Dict. (2d ed. 1989) p. 794). As the Court of Appeal observed, there is no doubt
that the term “construction,” as commonly understood, includes the building of a
new structure. Contrary to that court’s suggestion, however, the “plain meaning”
of that term would not seem to exclude other types of building endeavors short of
erecting a new structure, such as substantial improvements or modifications to an
existing structure, including projects that transform a hovel into a mansion, raze
and replace the entire interior of a structure, or otherwise fundamentally transform
a building. Under certain circumstances, such endeavors may be seen as
comprising an “act of putting parts together to form a complete integrated object”
or “building by combining or arranging parts or elements” as much as the erection
of a new structure.
Indeed, the Legislature, in defining the term “construction” in various
contexts, has recognized that the term may have a broad meaning encompassing a
spectrum of building endeavors. For example, the Legislature has defined the
“construction” of state buildings as “includ[ing] the extension, enlargement,
repair, renovation, restoration, improvement, furnishing, and equipping of any
public building.” (Gov. Code., § 15802, subd. (b); see also id., § 53800, subd. (d)
[providing an identical definition of “construction”].) Certain administrative
regulations likewise define “construction” as including substantial renovation,
repair, or alteration efforts. (Cal. Code Regs., tit. 2, § 8102 [defining
“construction” as “the process of building, altering, repairing, improving, or
demolishing any public structure or building . . . . It does not include the routine
operation, routine repair, or routine maintenance of existing structures, buildings,
or real property”]; Cal. Code Regs., tit. 5, § 57152 [defining “construction project”
as “includ[ing] new construction, alteration, and extension or betterment of
existing structures”]; Cal. Code Regs., tit. 8, § 11160 [defining “construction
occupations” as “all job classifications associated with construction, including but
not limited to, work involving alteration, demolition, building, excavation,
renovation, remodeling, maintenance, improvement, and repair work”].) These
definitions suggest that laypersons do not limit the phrase “under construction” to
the erection of completely new buildings.
Notwithstanding that the term “construction” in ordinary parlance may
include building projects short of the erection of a new structure, defendant argues
the cancellation endorsement found in the policy defines that term narrowly. As
discussed, that endorsement allowed defendant to cancel the insurance policy if
the building “has been vacant or unoccupied 60 or more days” but not if the
building was “in the course of construction, renovation or addition.” Defendant
argues this provision signifies that the term “construction” was meant to exclude
“renovation or addition.” The Court of Appeal agreed, reasoning that “[t]his is
evidence that [defendant] considered renovations and additions to be distinct from
construction and expressly chose not to except these circumstances from the
vacancy exclusion.”
The Court of Appeal’s interpretation of the insurance contract here would
lead to an anomalous result. Under such interpretation, if the insured conducted a
“renovation” of the building and a specified loss occurred during the renovation,
then the insurer would not be obligated to pay under the vacancy exclusion since
the “under construction” exception would not apply. At the same time, however,
the insurer would not have the power to cancel the policy since the cancellation
endorsement excludes “renovation[s].” This interpretation, which binds an insurer
to a contract in which it is not obligated to provide coverage for lack of
occupancy, makes little sense. There would appear no principled reason why, if
vacancy for purposes of renovation violates a provision of the insurance contract
such that the insurer need not provide coverage, then the insurer should not also be
empowered to cancel the contract based upon the same violation of the contract
We believe the more reasonable interpretation is that the term “under
construction” as used in the vacancy exclusion was meant to be the functional
equivalent of “construction, renovation or addition” as used in the cancellation
endorsement, i.e., the latter provides a more detailed gloss on the former. It has
been recognized that vacant buildings face an increased risk of property crime,
including vandalism, as well as property damage arising from neglect or disrepair.
(See Belgrade v. National American Ins. Co. (1962) 204 Cal.App.2d 44, 47; Myers
v. Merrimack Mut. Fire Ins. Co., supra, 788 F.2d at p. 472.) Thus, both the
vacancy exclusion and the cancellation endorsement serve to protect the insurer
against the increased risks of loss that occur when premises are unoccupied for an
extended period of time. Likewise, the construction exception to the vacancy
exclusion serves the same function as the construction exception in the
cancellation endorsement. If a building is regularly occupied during normal
business hours, as is usually contemplated for commercial structures, then an
insurer can assess risk based upon such occupancy. When there is substantial
construction activity on the premises, the risk of loss becomes roughly equivalent
to that of an occupied building, thus giving the insurer the benefit of its prior risk
The Court of Appeal’s focus upon whether the term “under construction”
encompasses only the erection of new structures or also includes renovations thus
fails to take into account the rationales underlying the vacancy exclusion and the
construction exception. We believe the proper inquiry for determining whether a
building is “under construction” for purposes of defining an exception to the
vacancy exclusion is whether the building project, however characterized, results
in “substantial continuing activities” by persons associated with the project at the
premises during the relevant time period. (Will Realty Corp. v. Transp. Ins. Co.
(Mass.App.Ct. 1986) 492 N.E.2d 372, 373; see also Vennemann v. Badger Mut.
Ins. Co. (8th Cir. 2003) 334 F.3d 772, 774.) Under that test, “sporadic entry” (Will
Realty, supra, 492 N.E.2d at p. 373) would be insufficient to find a substantial
continuing presence of workers required for a finding of “construction.” (See
Vennemann, supra, 334 F.3d at p. 774 [construction project insufficient to fall
within construction exception to vacancy exclusion].) We believe this test better
serves the purposes underlying the vacancy exclusion and more accurately reflects
the reasonable expectations of an insured than any test turning upon technical
distinctions between “construction” on one hand and “renovation” or
“remodeling” on the other.
Defendant contends the building here was not “under construction”
because, at the time of the loss, contractors were engaged in only “preparatory”
activities in contemplation of future construction. The characterization of the
activities here as “preparatory” is no more helpful than characterizing the building
endeavor as a “renovation” or “remodeling.” Whether the construction activity at
issue is performed in contemplation of, or in preparation for, a building endeavor
of even greater scope involving more workers is beside the point. The question
remains the same no matter what stage of a construction project is at issue, i.e., are
there “substantial continuing activities” on the premises by those involved in the
construction endeavor? (Will Realty Corp. v. Transp. Ins. Co., supra, 492 N.E.2d
at p. 373.)
As noted above, we normally “ ‘ “apply a de novo standard of review to an
order granting summary judgment when, on undisputed facts, the order is based on
the interpretation or application of the terms of an insurance policy.” [Citations.]
. . .’ ” (County of San Diego v. Ace Property & Cas. Ins. Co. (2005) 37 Cal.4th
406, 414.) Therefore, we would ordinarily determine whether the circumstances
here constituted “construction” for purposes of finding coverage. It is true that
there is no dispute regarding the facts elicited by the parties here. However, since
they were unaware of the standard we adopt today, the parties did not elicit key
facts which might have a bearing on the relevant inquiry, i.e., whether the
construction project here was such that there were substantial continuing activities
on the premises during the relevant period (here, within 60 days prior to the loss).
The record reflects that electrical and HVAC subcontractors engaged in various
activities at the building, and that various other personnel, such as the contractor
and the architect, also spent time there in the weeks prior to the loss at issue. But,
the record does not disclose the number of people associated with the construction
project, how many hours per day or days per week they were in the building, and
how much of the building was occupied by these persons at any given time. Those
and similar facts would be needed to determine whether there was a substantial
continuing presence of construction personnel.
The version of facts presented by defendant in support of the summary
judgment motion seemed to suggest that only a handful of workers were at the
premises at any given time to perform minor tasks and the presence of workers
was sporadic at best, although the facts presented focused more on what was being
done rather than on the number of workers and time spent doing them. If shown,
such sporadic entry would render summary judgment for defendant appropriate.
On the other hand, plaintiffs’ version of facts presented in opposition to the
summary judgment motion seemed to suggest that the presence of workers was
more or less continuous during business hours prior to the loss, though the facts
alleged were vague as to the scope of their presence. Such facts, if established,
might render summary judgment for plaintiffs appropriate. Or, it might be the
case that a genuine factual dispute exists on these points, which would preclude
summary judgment for either party. Thus, whether the loss here should be
covered under the policy would seem a close issue which cannot be resolved on
the facts currently before us.
We therefore reverse the Court of Appeal’s judgment affirming the trial
court’s grant of summary judgment for defendant. We remand to the Court of
Appeal with directions to remand the matter to the trial court to permit either party
to file a new summary judgment motion. (See General Star Indemnity Co. v.
Superior Court (1996) 47 Cal.App.4th 1586, 1592-1595; Redwood Theatres, Inc.
v. Festival Enterprises, Inc. (1988) 200 Cal.App.3d 687, 713-714.) This will
allow the parties to present factual allegations germane to the standard we have
outlined above.
The judgment of the Court of Appeal is reversed. The matter is remanded
to the Court of Appeal with directions to reverse the order granting summary
judgment and to remand the matter to the trial court for proceedings consistent
with this opinion.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion TRB Investments, Inc. v. Fireman’s Fund Insurance Company

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 130 Cal.App.4th 1594
Rehearing Granted


Opinion No.

Date Filed: November 13, 2006


County: Kern
Judge: Arthur E. Wallace


Attorneys for Appellant:

Law Office of Timothy L. Kleier, Timothy L. Kleier; Law Office of Mark A. Ginella and Mark A. Ginella
for Plaintiffs and Appellants.

Law Office of Amy Bach, Amy Bach; Goldstein, Gellman, Melbostad, Gibson & Harris, Lee S. Harris;
Fried & Epstein and Lee M. Epstein for United Policyholders as Amici Curiae on behalf of Plaintiffs and


Attorneys for Respondent:

Hager & Dowling, Jeffery D. Lim, Jessica M. Johnson and John v. Hager for Defendant and Respondent.

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

Timothy L. Kleier
Law Office of Timothy L .Kleier
2020 Eye Street, Suite 201
Bakersfield, CA 93301
(661) 323-1677

Mark A. Ginella
Law Office of Mark A. Ginella
P.O. Box 2767
Valley Center, CA 92067
(760) 751-2970

John V. Hager
Hager & Dowling
319 E. Carrillo Street
Santa Barbara, CA 93101
(805) 966-4700

Opinion Information
Date:Docket Number:
Mon, 11/13/2006S136690

1Trb Investments, Inc. (Plaintiff and Appellant)
Represented by Timothy Laurance Kleier
Attorney at Law
2020 Eye Street, Suite 201
Bakersfield, CA

2Trb Investments, Inc. (Plaintiff and Appellant)
Represented by Mark Anton Ginella
Attorney at Law
P.O. Box 2767
Valley Center, CA

3Fran Mar Company (Plaintiff and Appellant)
Represented by Timothy Laurance Kleier
Attorney at Law
2020 Eye Street, Suite 201
Bakersfield, CA

4Fran Mar Company (Plaintiff and Appellant)
Represented by Mark Anton Ginella
Attorney at Law
P.O. Box 2767
Valley Center, CA

5Coldwater Farms, Llc (Plaintiff and Appellant)
Represented by Timothy Laurance Kleier
Attorney at Law
2020 Eye Street, Suite 201
Bakersfield, CA

6Coldwater Farms, Llc (Plaintiff and Appellant)
Represented by Mark Anton Ginella
Attorney at Law
P.O. Box 2767
Valley Center, CA

7P&R Almond Orchards, Inc. (Plaintiff and Appellant)
Represented by Timothy Laurance Kleier
Attorney at Law
2020 Eye Street, Suite 201
Bakersfield, CA

8P&R Almond Orchards, Inc. (Plaintiff and Appellant)
Represented by Mark Anton Ginella
Attorney at Law
P.O. Box 2767
Valley Center, CA

9Thomas-Cattani, Inc. (Plaintiff and Appellant)
Represented by Timothy Laurance Kleier
Attorney at Law
2020 Eye Street, Suite 201
Bakersfield, CA

10Thomas-Cattani, Inc. (Plaintiff and Appellant)
Represented by Mark Anton Ginella
Attorney at Law
P.O. Box 2767
Valley Center, CA

11Firemans Fund Insurance Company (Defendant and Respondent)
Represented by Jeffery D. Lim
Hager & Dowling
319 E. Carrillo Street
Santa Barbara, CA

12Firemans Fund Insurance Company (Defendant and Respondent)
Represented by John V. Hager
Hager & Dowling
319 E. Carrillo Street
Santa Barbara, CA

Nov 13 2006Opinion: Reversed

Aug 25 2005Petition for review filed
  by counsel for appellants (TRB Investments, Inc. et al.). (40.1)
Aug 25 2005Record requested
Aug 29 2005Received Court of Appeal record
  two doghouses
Sep 15 2005Answer to petition for review filed
  by counsel for (Fireman's Ins. Co,) (40.1(b))
Sep 27 2005Reply to answer to petition filed
  by counsel for (TRB Inv., et al.,) (40.1(b))
Sep 28 2005Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Sep 29 2005Note:
  Records sent to Cal-Coord. Office: CT=2, RT=4, 2, 3, 4, 7, 8, 9, Index, (manila folder containing misc. docs.
Oct 11 2005Certification of interested entities or persons filed
  respondent Fireman's Fund Insurance Company
Oct 31 2005Opening brief on the merits filed
  by counsel for aplts. (TRB Investments, Inc.) (40.1(b))
Dec 1 2005Received:
  from counsel for respondent (late) Answer Brief on the merits
Dec 5 2005Application for relief from default filed
  by counsel for respondent.
Dec 5 2005Answer brief on the merits filed
  w/permission by counsel for resp. (Fireman's Fund Ins. Co.)
Dec 22 2005Reply brief filed (case fully briefed)
  by counsel for (TRB Investments, Inc., et al.)
Jan 20 2006Received application to file Amicus Curiae Brief
  United Policy holder in support of aplt. (brief under same cover) (non-party)
Jan 24 2006Permission to file amicus curiae brief granted
  United PolicyHolder in support of appellant.
Jan 24 2006Amicus curiae brief filed
  United Policyholder in support of appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 14 2006Response to amicus curiae brief filed
  by counsel for Fireman's Fund Ins. Co. to amicus curiae brief of United Policyholders.
Aug 3 2006Case ordered on calendar
  September 6, 2006, at 1:30 p.m., in San Francisco
Aug 11 2006Application filed to:
  divide oral argument time. Respondent's counsel Timothy L. Kleier asking to share 15 minutes with co-counsel Mark A. Ginella.
Aug 14 2006Order filed
  The request of counsel for respondent in the above-referenced cause to allow two counsel to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to cocounsel Mark A. Ginella 15 minutes of respondent's 30-minute allotted time for oral argument is granted.
Sep 6 2006Cause argued and submitted
Nov 13 2006Opinion filed: Judgment reversed
  and Remanded to the Court of Appeal. OPINION BY: Moreno, J ---- joined: George, C.J., Kennard, Baxter, Werdegar, Chin, Corrigan, JJ.
Dec 14 2006Remittitur issued (civil case)
Dec 21 2006Received:
  from CA/5 receipt for remittitur.

Oct 31 2005Opening brief on the merits filed
Dec 5 2005Answer brief on the merits filed
Dec 22 2005Reply brief filed (case fully briefed)
Jan 24 2006Amicus curiae brief filed
Feb 14 2006Response 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