The opinion
Filed 1/30/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
VLADIMIR MYASNYANKIN,
Plaintiff and Respondent,
v. A166946
NATIONWIDE MUTUAL
INSURANCE COMPANY, (Alameda County
Defendant and Appellant. Super. Ct. No. 22-CV-011144)
VLADIMIR MYASNYANKIN,
Plaintiff and Appellant,
A167445
v. (Alameda County
NATIONWIDE MUTUAL Super. Ct. No. 22-CV-011144)
INSURANCE COMPANY,
Defendant and Respondent.
Residential property insurance policies commonly require an insured to
submit to an examination under oath (EUO) if requested by the insurer in
connection with the resolution of a claim. (Croskey et al., Cal. Practice
Guide: Insurance Litigation (The Rutter Group 2023) ¶ 6:289.) Insurance
Code1 section 2071.1, subdivision (a)(4), provides that an insured subject to
an EUO “may record the examination proceedings in their entirety.” We are
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of part II of the
Discussion.
1 All undesignated statutory references are to the Insurance Code.
presented with an issue of first impression: whether this provision entitles an
insured to make a video recording of the insurer’s participants in an EUO.
After considering the statute’s plain language, statutory framework, and
legislative history, we conclude the provision does confer such a right. In the
unpublished portion of this opinion, we resolve a dispute over attorney fees.
BACKGROUND
The facts are not contested. Following water damage to his home,
Vladimir Myasnyankin (Myasnyankin or plaintiff) filed a claim under his
property insurance policy with Nationwide Mutual Insurance Company
(Nationwide).2 Pursuant to the policy terms, Nationwide required plaintiff to
submit to an EUO, which was scheduled to be in person. Relying on section
2071.1, subdivision (a)(4) (hereafter section 2071.1(a)(4)), plaintiff sought to
video record the entire proceeding, including Nationwide’s attorneys and
claims adjusters. Nationwide refused to proceed with the EUO, asserting
section 2071.1(a)(4) only permitted plaintiff to video record himself. Further,
Nationwide threatened to deny plaintiff’s claim unless he agreed to proceed
with the EUO. Plaintiff then sued Nationwide seeking a declaration of his
rights under section 2071.1.
Nationwide filed a demurrer to the complaint on the grounds that
neither the policy nor section 2071.1 vested plaintiff with the right to video
record all participants at his EUO. Looking at the plain language of section
2071.1 and the legislative history, and examining the distinction between
section 2071.1 and the rules of civil procedure regarding depositions (Code
Civ. Proc., § 2025.330, subd. (c)), the trial court overruled Nationwide’s
demurrer. The trial court interpreted the phrase “record the examination
2 Nalini Kumar, a separate insured with a different claim subject to
another policy, is no longer party to the action.
2
proceedings in their entirety” as including “video recording of the persons
asking the questions, the person answering the questions, and any other
aspect of the proceedings.” At the trial court’s suggestion, the parties entered
a stipulated judgment in favor of Myasnyankin. Nationwide appealed the
judgment (No. A166946). The trial court denied plaintiff’s subsequent motion
for attorney fees, and plaintiff appealed that order (No. A167445). We
granted plaintiff’s motion to consolidate the appeals for argument and
decision.
DISCUSSION
I. Demurrer Appeal
“ ‘An insured’s compliance with a policy requirement to submit to an
examination under oath is a prerequisite to the right to receive benefits
under the policy.’ ” (Abdelhamid v. Fire Ins. Exchange (2010)
182 Cal.App.4th 990, 1001 (Abdelhamid).) “Examinations under oath are
frequently conducted under circumstances where the loss is undocumented or
suspect.” (Croskey et al., Cal. Practice Guide: Insurance Litigation (The
Rutter Group 2023) ¶ 6:289.3.) “The purpose of the examination under oath
is to enable the insurer to obtain the information necessary to process the
claim: ‘ “As the facts with respect to the amount and circumstances of a loss
are almost entirely within the sole knowledge of the insured, ... it is
necessary that it [the insurer] have some means of cross-examining, as it
were, upon the written statement and proofs of the insured, for the purpose of
getting at the exact facts before paying the sum claimed of it.” ’ ” (Brizuela v.
CalFarm Ins. Co. (2004) 116 Cal.App.4th 578, 591–592 (Brizuela).) “The
examination is normally conducted orally before a court reporter who
administers the oath and transcribes the proceeding.” (Croskey at al., supra,
¶ 6:289.)
3
Section 2071.1, subdivision (a), applies to “any policy that insures
property and contains a provision for examining an insured under oath,” and
enumerates a nonexclusive list of “rights of each insured who is requested to
submit to an examination under oath.”3 One such right is to “record the
3 Section 2071.1, subdivision (a), provides, in its entirety: “This section
applies to an examination of an insured under oath pursuant to Section 2071
labeled ‘Requirements in case loss occurs’ and other relevant provisions of
that section [setting forth the standard form of fire insurance policy], and to
any policy that insures property and contains a provision for examining an
insured under oath, when the policy is originated or renewed on and after
January 1, 2002.
“The following are among the rights of each insured who is requested to
submit to an examination under oath:
“(1) An insurer that determines that it will conduct an examination
under oath of an insured shall notify the insured of that determination and
shall include a copy of this section in the notification.
“(2) An insurer may conduct an examination under oath only to obtain
information that is relevant and reasonably necessary to process or
investigate the claim.
“(3) An examination under oath may only be conducted upon
reasonable notice, at a reasonably convenient place and for a reasonable
length of time.
“(4) The insured may be represented by counsel and may record the
examination proceedings in their entirety.
“(5) The insurer shall notify the insured that, upon request and free of
charge, it will provide the insured with a copy of the transcript of the
proceedings and an audio or video recording of the proceedings, if one exists.
Where an insured requests a copy of the transcript, the recording, or both, of
the examination under oath, the insurer shall provide it within 10 business
days of receipt by the insurer or its counsel of the transcript, the recording, or
both. An insured may make sworn corrections to the transcript so it
accurately reflects the testimony under oath.
“(6) In an examination under oath, an insured may assert any objection
that can be made in a deposition under state or federal law. However, if as a
result of asserting an objection, an insured fails to provide an answer to a
material question, and that failure prevents the insurer from being able to
4
examination proceedings in their entirety.” (§ 2071.1(a)(4).) The parties
agree the provision grants insureds the right to make an audio or video
recording, but dispute who can be recorded on video. Plaintiff argues the
statute entitles an insured to video record the insurance company’s
representatives, while Nationwide contends the provision only confers on
insureds the right to video record themselves.4
“ ‘As in any case involving statutory interpretation, our fundamental
task here is to determine the Legislature’s intent so as to effectuate the law’s
purpose.’ [Citation.] The well-established rules for performing this task
require us to begin by examining the statutory language, giving it a plain and
commonsense meaning. [Citation.] We do not, however, consider the
statutory language in isolation; rather, we look to the statute’s entire
substance in order to determine its scope and purposes. [Citation.] That is,
we construe the words in question in context, keeping in mind the statute’s
nature and obvious purposes. [Citation.] We must harmonize the statute’s
various parts by considering it in the context of the statutory framework as a
whole. [Citation.] If the statutory language is unambiguous, then its plain
meaning controls. If, however, the language supports more than one
reasonable construction, then we may look to extrinsic aids, including the
ostensible objects to be achieved and the legislative history.” (Los Angeles
County Metropolitan Transportation Authority v. Alameda Produce Market,
LLC (2011) 52 Cal.4th 1100, 1106–1107.)
determine the extent of loss and validity of the claim, the rights of the
insured under the contract may be affected.
“(7) An insured who submits a fraudulent claim may be subject to all
criminal and civil penalties applicable under law.”
4 United Policyholders filed an amicus brief in support of plaintiff.
5
We begin with the plain language. Section 2071.1 provides that “each
insured who is requested to submit to an examination under oath . . . may be
represented by counsel and may record the examination proceedings in their
entirety.” (§ 2071.1(a)(4), italics added.) “Entirety” is defined as “the state of
being entire or complete;” “entire,” in turn, is defined as “with no element or
part excepted.” (Merriam-Webster’s Unabridged Dict. Online,
<https://unabridged.merriam-webster.com/unabridged/entirety> &
<https://unabridged.merriam-webster.com/unabridged/entire> [as of Jan. 22,
2024], italics added; see also Oxford English Dict. Online (2024)
<https://doi.org/10.1093/OED/8031425223> [as of Jan. 22, 2024] [phrase “in
its entirety” means “in its complete form, as a whole”].) The plain language
thus provides an insured may record every element and part of the
examination proceeding.
“Examination proceeding” is also a broad term. A different subdivision
of section 2071.1 uses the term “testimony” to denote the insured’s answers to
questions. (§ 2071.1, subd. (a)(5) [“An insured may make sworn corrections to
the transcript so it accurately reflects the testimony under oath.” (Italics
added)].) “ ‘[W]hen different words are used in contemporaneously enacted,
adjoining subdivisions of a statute, the inference is compelling that a
difference in meaning was intended.’ ” (Kleffman v. Vonage Holdings Corp.
(2010) 49 Cal.4th 334, 343.) Thus, the use of “testimony” elsewhere in the
same statute suggests that the Legislature intended the term “examination
proceedings” to include more than just the insured’s responses to questions.
Indeed, as plaintiff notes, a statute governing depositions expressly limits
recording rights to “testimony.” (See Code Civ. Proc., § 2025.330, subd. (c)
[party noticing deposition “may . . . record the testimony by audio or video
technology” (italics added)].) The insurer’s representatives at an EUO are an
6
element or part of the examination proceeding, and therefore fall within the
scope of the plain language. This construction is supported by the statutory
framework. Section 2071.1, subdivision (a) provides a nonexclusive list of
rights of insureds, indicating an obvious purpose to protect those subject to
EUOs.5
To the extent the statutory language is susceptible to a different
interpretation, the legislative history strongly supports our construction.6
The history of section 2071.1, added in 2001 (Stats. 2001, ch. 583, § 5), is
unequivocal that the motivating purpose was to provide protections for
insurance consumers during the claims process. Section 1 of the enacted bill
expressly so provides: “Existing legal protections for insurance policyholders
proved to be inadequate after the Northridge earthquake. The public
requires additional safeguards against unfair claim settlement practices by
insurance companies. It is the intent of the Legislature that the provisions of
this act add basic consumer protections to those currently set forth in the
Insurance Code and supporting regulations.” (Stats. 2001, ch. 583, § 1, italics
added.)
As the bill’s author explained, “Existing law needs to be modernized. It
allows insurers to use lawyers to delay claim settlements, conduct fishing
expeditions, intimidate and harass innocent consumers while ostensibly
investigating their claims, but provides few balancing protections for
claimants.” (Sen. Com. on Ins., Background Information Request for Sen. Bill
5 This purpose is not impacted by the statute’s recognition that “An
insured who submits a fraudulent claim may be subject to all criminal and
civil penalties applicable under law” (§ 2071.1, subd. (a)(7)), a provision that
simply restates existing law.
6 We grant plaintiff’s June 2, 2023 unopposed request for judicial notice
of certain legislative history materials.
7
No. 658 (2001–2002 Reg. Sess.), p. 3.)7 Other supporters of the bill similarly
contended “that the current EUO process was enacted in 1949 and gives
‘virtually unlimited investigation rights to insurance companies’ with little
consumer protection.” (See Sen. Rules Com., Off. of Sen. Floor Analyses,
analysis of Sen. Bill No. 658 (2001–2002 Reg. Sess.) as amended Sept. 12,
2001, p. 7.) “The author introduced this bill to address concerns by property
owners who had been subjected to abuses by insurance companies during the
insurance claim process, including individuals and victims of the 1991
Oakland firestorm and the 1994 Northridge earthquake. [¶] . . . [T]he bill
establishes basic due process rights for insureds who are subjected to EUOs,”
among other protections. (Assem. Floor Analysis, 3d reading analysis of Sen.
Bill No. 658 (2001–2002 Reg. Sess.) as amended Sept. 12, 2001, p. 3.) Thus,
the legislation was intended to not only enhance the process due an insured
but also provide consumer protection provisions, such as the right to record.8
To be sure, the legislative history does not explicitly address whether
section 2071.1(a)(4) encompasses the right to video record the insurer’s
representatives. However, it demonstrates an express and unequivocal
intent to protect insureds from harassment in EUO proceedings, and this
purpose is served by granting insureds such a right. Significantly, video
records nonverbal conduct, such as eye-rolls or glares, which would not be
7 “Courts consider such background information documents in
discerning legislative intent.” (California Fair Plan Assn. v. Garnes (2017)
11 Cal.App.5th 1276, 1296, fn. 23.)
8 The dissent suggests the Legislature intended to provide only due
process protections. We see no basis in the statutory language or legislative
history to so limit the statute. To the contrary, the Legislature’s express
intent was to “add basic consumer protections to those currently set forth in
the Insurance Code and supporting regulations.” (Stats. 2001, ch. 583, § 1,
italics added.)
8
captured by audio recordings or reporter’s transcripts. (See Weil & Brown,
Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023)
¶8:659.) In addition, the knowledge that a person is being video recorded
may prompt that person to modify their behavior in a positive manner. (Cf.
ibid. [video recording a deposition witness “tends to make the witness more
candid. (The ‘eye of the camera’ is upon him or her, etc.)”].) “ ‘[C]ivil statutes
for the protection of the public are, generally, broadly construed in favor of
that protective purpose.’ ” (Pineda v. Williams-Sonoma Stores, Inc. (2011)
51 Cal.4th 524, 530.) Granting insureds the right to record the insurer’s
representatives furthers the Legislature’s purpose to protect insurance
consumers from harassment during EUOs.9 For this reason, we reject
Nationwide’s argument that video recording an insurer’s representatives is
unreasonable.
In addition, the legislative history reveals the Legislature expanded the
scope of an insured’s right to record EUOs during the amendment process.
As initially introduced, the bill amended section 2071, which sets forth the
standard form of fire insurance policy, to afford an insured subject to an EUO
the right to “tape-record the examination.” (Sen. Bill No. 658 (2001–2002
Reg. Sess.) as introduced Feb. 23, 2001, § 5, p. 9.) Subsequently, the bill was
amended both to apply the EUO protections more broadly to all property
insurance policies, and to expand the recording right to encompass the right
9 Plaintiff argues it is important to capture the body language of not
just the person examining the insured, but also “non-examining participants
such as adjusters and fraud investigators . . . who are routinely present at
EUOs.” For in-person EUOs, such as plaintiff’s, we agree. For remote EUOs,
however, we find that the face of a remote viewer whose camera is turned off
or who is otherwise not visible on the teleconferencing platform—and who
therefore cannot convey nonverbal signals—is not part of the proceedings for
purposes of section 2071.1(a)(4).
9
to “record the examination proceedings in their entirety.” (Sen. Bill No. 658
(2001–2002 Reg. Sess.) as amended May 9, 2001, § 4, p. 11.) This expansion
of the right to record—from “tape-record[ing]” to “record[ing]” and, more
significantly for our purposes, from “the examination” to “the examination
proceedings in their entirety”—reveals a legislative intent that the insured’s
right to record the EUO proceedings be comprehensive. We see no basis to
exclude from this broadly phrased and intentionally expanded right the right
to video record the insurer’s representatives.10
Nationwide argues that construing section 2071.1(a)(4) to entitle
insureds to video record the insurer’s representatives in an EUO will increase
costs and delays with no attendant benefit—in essence, an argument that
such a construction would be contrary to “the presumption that the
Legislature intends reasonable results consistent with its apparent purpose.”
(Catholic Mutual Relief Society v. Superior Court (2007) 42 Cal.4th 358, 372.)
We are not persuaded.
Nationwide contends additional costs will flow from “requiring someone
to manage the camera for the duration of the Examination Under Oath,” and
delays will ensue from “the amount of time needed to setup the additional
10 The dissent acknowledges the significance of this expanded language,
but construes the expansion as temporal, such that the right to record
extends beyond the questions and answers of the examination to encompass
all discussions and exchanges from, presumably, the moment the participants
enter the room or join the videoconference until the moment they leave. The
parties did not brief this issue on appeal, so we need not resolve it. But we
note that it may be reasonable to construe the statute to include such a
temporal completeness. In any event, there is no reason why the
interpretation proposed by the dissent precludes the construction adopted in
this opinion that the right includes video recording the insurer’s
representatives. Indeed, as discussed above, our construction furthers the
Legislature’s purpose of protecting insureds from harassment during EUO
proceedings.
10
camera(s)” and the possibility of “technical difficulties.”11 The record before
us indicates EUOs are held both in person (as plaintiff’s was scheduled to be)
and on Zoom or other videoconferencing platforms (as Kumar’s was scheduled
to be). With respect to the former, Nationwide does not claim video recording
of EUOs must be done by a professional videographer, and the need for a
videographer, or indeed for any person to constantly manage the camera, has
been obviated by current technology. “Smartphones that become video
cameras with the flick of a thumb are ubiquitous” (Nieves v. Bartlett (2019)
139 S.Ct. 1715, 1739 (dis. opn. of Sotomayor, J.)), and such a smartphone can
be placed on a tripod or otherwise propped up and left to record the insurer’s
representatives, without the need for a person standing by.12 If the EUO is
conducted on a videoconferencing platform, it is simply a matter of the
insured recording the screen on their device. We presume the cost and delay
attributable to recording an insurer’s representatives will be, in most if not
all cases, de minimus.13
11 Nationwide’s assertion that delay is exemplified by this action
scarcely warrants mention. The delay in this case, of course, was not caused
by any video recording arrangements—which Nationwide refused to permit—
but rather by the parties’ dispute and subsequent litigation over whether
plaintiff was entitled to make such arrangements.
12 At a hearing in a separate action, the transcript of which was
submitted by Nationwide below, plaintiff’s counsel represented that his
practice for videotaping everyone at EUOs is to set up “one tripod with an
iPod (sic) on it,” which is placed “in the corner of the room, and it … pretty
much captures everyone, usually side or angled views.”
13 To the extent there is a cost, counsel for both parties stated at oral
argument that the insured bears the cost of any recording made pursuant to
section 2071.1(a)(4). We agree that section 2071.1(a)(4) assigns any cost to
the insured. Although section 2071.1, subdivision (a)(5), entitles an insured
to a free copy of any audio or video recording the insurer has elected to have
made (see ante, fn. 3), subdivision (a)(4) provides the insured “may record”
11
Nationwide also argues there is no benefit to insureds to video record
the insurer’s representatives. Nationwide contends other protections are
sufficient, to wit, the ability of an insured to file a complaint about their
insurer—including any improper conduct during an EUO—with the
Department of Insurance (§ 12921.1, subd. (a)). This complaint procedure
was in effect when section 2071.1 was enacted, and the Legislature found it
insufficient to secure the rights of insureds in the EUO process. (See
§ 12921.1, subd. (a) [mandating complaint procedure be established “on or
before July 1, 1991”]; Stats. 2001, ch. 583, § 5 [adding § 2071.1].) The
Legislature may quite sensibly have concluded that such complaints would be
more easily resolved if insureds could record all aspects of the proceedings, or
that enabling insureds to record the insurer’s representatives could help
prevent improper conduct in the first instance and thereby obviate the need
for a complaint. Nationwide also asserts there is no need to video record the
insurer’s participants because the questions asked by the insurer’s
representative will be captured by the reporter’s transcript or on the audio
portion of any video recording of the insured. As we have already discussed
above, these methods do not capture nonverbal conduct, which may be
intimidating or harassing.
In sum, the plain language, statutory framework, and legislative
history all support a construction of section 2071.1(a)(4) granting insureds
the proceedings. This difference supports the parties’ agreement that if the
insured wants a recording beyond any that the insurer is making, the insured
must arrange and pay for that recording.
12
the right to make a video recording of the insurer’s representatives at an
EUO, and such a construction is not unreasonable.14
II. Fees Appeal
Plaintiff argues the trial court erred in denying his motion for attorney
fees under Code of Civil Procedure section 1021.5. We agree.
14 The dissent also seems to argue that, even if we have properly
interpreted section 2071.1(a)(4), the insurer may deny the claim if the
insured insists on video recording all or some of the insurer’s participants at
the EUO. The dissent relies on 3 cases as authority; we find each inapposite.
In Hickman v. London Assurance Corp. (1920) 184 Cal. 524, the insured
argued the privilege against self-incrimination permitted him to refuse to
answer questions at the examination without suffering a forfeiture of its
claim. The court disagreed with the underlying premise: no such privilege
existed as to “a private examination arising out of a contractual relationship.”
(Id. at p. 532.) In Brizuela, supra, 116 Cal.App.4th 578, the insured
improperly conditioned his participation in an EUO on the insurer providing
him with a copy of a prior recorded statement he had given. (Id. at p. 589
[“There is no authority for the proposition that an insurer is under a legal
obligation to provide an insured with a copy of the insured’s previously
recorded statements taken before a civil action has been filed and discovery
commenced.”].) The statutory provision discussed in Abdelhamid,
supra, 182 Cal.App.4th 990, granting insureds the right to object to certain
questions, included the express qualification that if an insured asserts that
statutory right, “the rights of the insured under the contract may be affected”
if, “as a result of asserting an objection, an insured fails to provide an answer
to a material question, and that failure prevents the insurer from being able
to determine the extent of loss and validity of the claim.” (§ 2071.1,
subd. (a)(6); see Abdelhamid, at p. 1004.) No such language appears in
section 2071.1(a)(4), strongly suggesting the Legislature did not intend that
right to be similarly qualified. Further, in each of these cases, the court could
conclude that the insured’s conduct undermined the insurer’s ability to
investigate the claims. In contrast, an insured’s exercise of the right to
record the entire EUO proceedings has no impact on the insurer’s ability to
investigate the underlying claim. There is no reason to construe the statute,
as the dissent suggests, as obligating an insured to submit to an EUO despite
the insurer’s refusal to comply with section 2071.1(a)(4).
13
A. Legal Background and Standard of Review
“[Code of Civil Procedure] [s]ection 1021.5 authorizes an award of fees
when (1) the action ‘has resulted in the enforcement of an important right
affecting the public interest,’ (2) ‘a significant benefit, whether pecuniary or
nonpecuniary, has been conferred on the general public or a large class of
persons ...,’ and (3) ‘the necessity and financial burden of private enforcement
... are such as to make the award appropriate....’ ” (Serrano v. Stefan Merli
Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1026.) “The Legislature enacted
the provision to codify the private attorney general doctrine previously
developed by the courts. [Citations.] The doctrine rests on the recognition
that privately initiated lawsuits, while often essential to effectuate important
public policies, will as a practical matter frequently be infeasible without
some mechanism authorizing courts to award fees. [Citations.] Accordingly,
‘ “the fundamental objective of the doctrine is to encourage suits enforcing
important public policies by providing substantial attorney fees to successful
litigants in such cases.” ’ ” (Vasquez v. State of California (2008) 45 Cal.4th
243, 250 (Vasquez).)
“Generally, we review an award [or denial] of attorney fees under
section 1021.5 for an abuse of discretion.” (McCormick v. Public Employees’
Retirement System (2023) 90 Cal.App.5th 996, 1004 (McCormick); see also
Choi v. Orange County Great Park Corp. (2009) 175 Cal.App.4th 524, 528–
529 (Choi).) However, “the appellate court does not have to defer totally to
the trial court when the litigation results in a published appellate opinion.
‘In that case ... the appellate court often is well situated to decide (1) whether
the legal action has a significant impact on the law because it enforces an
important legal right, and (2) whether that decision confers a significant
benefit on a substantial segment of the citizenry.’ [Citations.] Here, the trial
14
court did not know that the litigation would result in a published opinion
interpreting the meaning of [a statutory provision]. [Citation.] Thus, the
lower court performed its assessment of the case without access to all the
pertinent circumstances available now. [Citation.] The lower court could not
consider how the application of the ‘important right’ and ‘significant benefit’
criteria of section 1021.5 are affected by the change in circumstances caused
by our published decision.” (Early v. Becerra (2021) 60 Cal.App.5th 726, 737
(Early); see also McCormick, at p. 1005 [because litigation resulted in
published appellate opinion, “we will independently review the trial court’s
assessment of the significant-benefit element”].)
B. Important Right
“When determining whether a litigant has vindicated an important
right affecting the public interest, ‘[t]he “judiciary [must] exercise judgment
in attempting to ascertain the ‘strength’ or ‘societal importance’ of the right
involved.” [Citation.] “The strength or societal importance of a particular
right generally is determined by realistically assessing the significance of
that right in terms of its relationship to the achievement of fundamental
legislative goals.” ’ ” (City of Oakland v. Oakland Police & Fire Retirement
System (2018) 29 Cal.App.5th 688, 710 (City of Oakland).) “Courts have
broadly interpreted the important right concept and ‘frequently reject
attempts to characterize rights in their most narrow or personal light.’ ”
(Sweetwater Union High School Dist. v. Julian Union Elementary School
Dist. (2019) 36 Cal.App.5th 970, 988.)
The trial court found this element not established, reasoning, “While
the Court agrees with Plaintiff that the Legislature targeted a perceived
problem by enacting the statute to curb abuses by insurance companies
during the claims process, the Court finds the ability to record operates as a
15
tool in promoting the efficiency of the proceedings and not as a[] ‘right’ of
‘societal importance’ or a determinative factor of whether due process is being
afforded.”
We respectfully disagree with the trial court’s characterization of the
right to record. As indicated by the legislative history discussed above, the
Legislature affirmatively expanded the right to record during the bill
amendment process and clearly contemplated the right as a means of
protecting insureds from harassment and abuse by insurance companies
during EUOs. The Legislature expressly stated its intent that the bill
enacting section 2071.1 “add[s] basic consumer protections to those currently
set forth in the Insurance Code and supporting regulations.” (Stats. 2001,
ch. 583, § 1, italics added.) “[T]he enforcement of the California consumer
protection laws” has been recognized as “an important right affecting the
public interest.” (Colgan v. Leatherman Tool Group, Inc. (2006)
135 Cal.App.4th 663, 703 [lawsuit challenging products’ claim to be “Made in
U.S.A.” when parts of the products were manufactured outside United States
vindicated an important right].)
The publication of Part I, resolving the merits appeal, further weighs in
favor of finding an important right. “[W]hile ‘the fact of publication does not
reach the level of a “prima facie showing” the right was important ..., it goes
some distance in that direction.’ ” (City of Oakland, supra, 29 Cal.App.5th at
p. 710; accord, Doe v. Westmont College (2021) 60 Cal.App.5th 753, 764 [“The
publication of an opinion suggests that the case involved a matter of public
importance.”].)
The Legislature considered the right to record necessary to further the
legislative goal of protecting insureds during the claims process. We find it
16
sufficiently important to satisfy Code of Civil Procedure section 1021.5’s
requirement.
C. Significant Benefit
“When determining whether a lawsuit conferred a significant benefit on
the general public or a large class of persons, a trial court should perform ‘a
realistic assessment, in light of all the pertinent circumstances, of the gains
which have resulted in a particular case.’ [Citation.] ‘The extent of [the
significant benefit] “ ‘ “need not be great,” ’ ” “[n]or is it required that the
class of persons benefited be ‘ “readily ascertainable.” ’ ” ’ [Citations.]
‘Furthermore, “evidence of the size of the population benefited by a private
suit is not always required. The substantial benefit may be conceptual or
doctrinal, and need not be actual and concrete, so long as the public is
primarily benefited.” ’ ” (McCormick, supra, 90 Cal.App.5th at p. 1005.) “The
courts are not required to narrowly construe the significant benefit factor.”
(Indio Police Command Unit Assn. v. City of Indio (2014) 230 Cal.App.4th
521, 543; see also Cal. Attorney Fee Awards (Cont. Ed. Bar 3d ed. 2023)
§ 3.51 [“As with the important right factor, courts have broadly construed the
significant benefit factor.”].)
The trial court found this element not established, reasoning,
“Plaintiff’s counsel speculates that ‘if the result here is applied ... to
Nationwide insureds, it would confer a significant benefit to tens of
thousands of Nationwide’s California customers.’ Even assuming a change in
Nationwide’s policy, Plaintiff[] does not provide evidence of any conduct by
[N]ationwide examiners that has been a source of concern and that has now
been rectified. Plaintiff has not made a sufficient showing of a significant
benefit on a large class or the general public.” (Record citation omitted.)
17
The trial court’s focus on the lack of evidence that Nationwide engaged
in harassing and abusive behavior was misplaced. Plaintiff was not obligated
to so establish; instead, it is sufficient that the law was expressly enacted to
address such problems and Nationwide refused to comply with this aspect of
it.
Obtaining a published opinion establishing the recording rights of
insureds subject to EUOs is a substantial benefit to all property insurance
holders in the state. Nationwide must stop refusing such requests, and any
other insurers that have taken the same position must also stop. Further,
plaintiff’s success on appeal ensures that companies that have been
complying with such requests will continue that practice. That a national
policyholder advocacy organization filed an amicus brief on plaintiff’s behalf
in the merits appeal is a testament to the significance of the determination
for insureds. (See Surfrider Foundation v. Martins Beach 1, LLC (2017)
14 Cal.App.5th 238, 279 [“The significance of that legal determination is
attested by the amicus curiae briefs filed in support of both parties on
appeal.”].)
D. Necessity and Financial Burden
The trial court did not determine whether plaintiff established
necessity and financial burden. The parties have briefed the issue on appeal
and, as a matter of judicial efficiency, we will decide it in the first instance.
“[T]he necessity and financial burden requirement ‘ “really examines
two issues: whether private enforcement was necessary and whether the
financial burden of private enforcement warrants subsidizing the successful
party’s attorneys.” ’ [Citation.] The ‘necessity’ of private enforcement
‘ “ ‘ “looks to the adequacy of public enforcement and seeks economic
equalization of representation in cases where private enforcement is
18
necessary.” ’ [Citations.]” ’ [Citation.] . . . [¶] The second prong of the inquiry
addresses the ‘financial burden of private enforcement.’ In determining the
financial burden on litigants, courts have quite logically focused not only on
the costs of the litigation but also any offsetting financial benefits that the
litigation yields or reasonably could have been expected to yield.”
(Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214–1215 (Whitley).)
Nationwide argues private enforcement was not necessary because
public enforcement was available under section 12921.1, which directs the
Insurance Commissioner to establish a program “to investigate complaints
. . . and, when warranted, to bring enforcement actions against insurers or
production agencies.” (§ 12921.1, subd. (a).)15 But the bare possibility of
public enforcement does not preclude an award of attorney fees. Thus, a
defendant’s argument that “private enforcement was not necessary since
public enforcement was available through the Department of Fair
Employment and Housing (DFEH)” was rejected because “[t]here is nothing
to ensure DFEH could have or would have prosecuted the claim. As a
practical matter, public agencies cannot be expected to take every
meritorious case. One of the justifications for the private attorney general
doctrine is a recognition that: ‘In the complex society in which we live it
frequently occurs that citizens in great numbers and across a broad spectrum
have interests in common. These, while of enormous significance to the
15 Although Nationwide also suggests section 2071.1, subdivision (b),
constitutes an avenue for public enforcement, this provision only directs the
Insurance Department to “conduct a study quantifying the number of
examinations under oath performed by carriers regulated by the department
and the number of contacts made by consumers regarding alleged concerns
with the utilization of the examination under oath process for the resolution
of pending claims.” We fail to see how such a study constitutes a public
enforcement mechanism.
19
society as a whole, do not involve the fortunes of a single individual to the
extent necessary to encourage their private vindication in the courts.
Although there are within the executive branch of the government offices and
institutions ... whose function it is to represent the general public in such
matters and to ensure proper enforcement, for various reasons the burden of
enforcement is not always adequately carried by those offices and institutions,
rendering some sort of private action imperative.’ ” (Best v. California
Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1468–1469; accord,
Committee To Defend Reproductive Rights v. A Free Pregnancy Center (1991)
229 Cal.App.3d 633, 641, fn. 9 [“Neither party to this appeal has submitted
authority holding that an individual who wishes to pursue an action to
benefit the public, grounded on Business and Professions Code section 17200
et seq. (or any similar statute), can only obtain section 1021.5 fees if she has
first solicited the public entity having appropriate statutory authority to sue
on behalf of the public to remedy the same perceived public injury. Section
1021.5 and its legislative history . . . do not suggest such a precedent
condition to entitlement to such fees.”].) It is undisputed that no public
enforcement action was pending at the time of plaintiff’s lawsuit. Plaintiff
established that private action was necessary.
As for the financial burden prong, the expected litigation benefits that
may offset the litigation costs are solely monetary ones. (Whitley, supra,
50 Cal.4th at p. 1217 [“As a logical matter, a strong nonfinancial motivation
does not change or alleviate the ‘financial burden’ that a litigant bears. Only
offsetting pecuniary gains can do that.”].) Because no money judgment would
result from the underlying litigation seeking declaratory relief on the legal
20
issue, the actual litigation costs plainly exceed the expected monetary
award.16 Nationwide makes no contrary argument.
E. Fee Amount
Nationwide raises arguments challenging the amount of fees sought by
plaintiff. We decline to determine a reasonable fee award, which is properly
addressed by the trial court in the first instance. We will remand for the trial
court to make this determination.
DISPOSITION
In case number A166946, we affirm the judgment. In case number
A167445, we reverse and remand. Plaintiff shall recover his costs on appeal.
SIMONS, J.
I concur.
BURNS, J.
(A166946/A167445)
16 Any monetary benefit plaintiff may ultimately gain in his insurance
claim is too remote to be considered as an offset of the litigation costs. (See
Early, supra, 60 Cal.App.5th at p. 742 [“ ‘ “Where personal benefits are a step
removed from the results of the litigation, the potential benefit is indirect and
speculative, and thus, a trial court does not abuse its discretion in concluding
that the financial burden criterion is satisfied for purposes of [Code of Civil
Procedure] section 1021.5.” ’ ”].)
21
JACKSON, P. J., Dissenting:
I respectfully dissent from the majority’s opinion because I disagree
with the majority’s interpretation of section 2071.1(a)(4).
Section 2071.1(a)(4) provides, in part, that an insured “may record the
examination proceedings in their entirety.” In this declaratory relief action,
plaintiff sought and obtained a court order that Nationwide “violated” section
2071.1(a)(4) and the applicable insurance contract when it “demanded” an
EUO of plaintiff “but refused to permit [plaintiff] to ‘record the examination
proceedings in their entirety,” and “actually conditioned or threatened to
condition payment of policy benefits” on plaintiff’s participation in an EUO
“in which [he] would be forced to forgo exercising [his] rights under [section]
2071.1(a)(4).” This ruling is contrary to the applicable law and the terms of
the parties’ agreement.
The standard form fire insurance policy, as set forth in section 2071,
provides, in relevant part, “The insured, as often as may be reasonably
required and subject to the provisions of Section 2071.1, shall . . . submit to
examinations under oath by any person named by this company . . . .” (Italics
added.) Section 2071.1, in turn, provides, in relevant part, “This section
applies to an examination of an insured under oath pursuant to Section 2071
labeled ‘Requirements in case loss occurs’ and other relevant provisions of
that section, and to any policy that insures property and contains a provision
for examining an insured under oath . . . .” (§ 2071.1, subd. (a).)
Under the section entitled “Duties After Loss,” the standard
Nationwide policy provides, in part, as follows: “In case of a loss to covered
property, we have no duty to provide coverage under this policy if you or an
‘insured’ seeking coverage fails to comply with the following conditions:
[¶] . . . [¶] . . . As often as we reasonably require: [¶] . . . [¶] . . . Submit to an
22
examination under oath by our representative . . . . Upon request, the exams
will be conducted separately and not in the presence of any other persons
except the legal representative of the person submitting to the examination
under oath, our representatives and a court reporter . . . .” (Boldface
omitted.)
Read together, the plain statutory and contract language unequivocally
require an insured to submit to an EUO. Despite this clear directive, the
trial court found Nationwide violated the law by requiring plaintiff to adhere
to these statutory and contractual requisites. This conclusion is based on an
erroneous interpretation of section 2071.1(a)(4).
Section 2071.1 provides an insured subject to an EUO “may record the
examination proceedings in their entirety.” (§ 2071.1, subd. (a)(4), italics
added.) A preliminary, but crucial step, in interpreting this phrase is
examining the word “may.” Section 16 of the Insurance Code, one of the
general provisions applicable to all sections of the code, instructs that the
word “shall” is mandatory and the word “may” is permissive, unless
otherwise provided from the context. Nothing in section 2071.1 provides that
an EUO—beyond transcription—must be recorded in a particular manner.
Indeed, subdivision (a)(5) provides an insurer “shall notify the insured that,
upon request and free of charge, it will provide the insured with a copy of the
transcript of the proceedings and an audio or video recording of the
proceedings, if one exists.” (Italics added.) The references to “shall” and
“will” with regard to “the transcript” juxtaposed with “an audio or video
recording . . . if one exists” reflect the former is required while the latter is
permissive. Subdivision (a)(4)—which provides an insured may record the
examination proceedings—is consistent with the interpretation that
additional forms of recording are permitted but not required.
23
Had the Legislature wanted to confer specific recording rights, it could
have done so as it has done in a variety of other contexts. For example,
persons attending various public meetings “shall have the right to record the
proceedings with an audio or video recorder . . . .” (Gov. Code, §§ 11124.1,
subd. (a), 54953.5, subd. (a), italics added; see Welf. & Inst. Code, § 4660.)
Similarly, in the context of certain licensing matters, “[a]ll proceedings
relating to an application at a meeting of the commission or at an evidentiary
hearing shall be recorded stenographically or by audio or video recording.”
(Bus. & Prof. Code, § 19870, subd. (e), italics added; see Health & Saf. Code,
§ 1736.5, subd. (g)(2) [disciplinary “hearing shall be audio or video recorded”];
Elec. Code, § 21160, subd. (g)(1) [in redistricting process “local jurisdiction
shall either video or audio record or prepare a written summary of each oral
public comment”]; but see Code Civ. Proc., § 2025.330, subd. (c) [party
noticing deposition “may also record the testimony by audio or video
technology if the notice of deposition stated an intention also to record the
testimony by either of those methods” (italics added)].)
Here, the Legislature could have specified—but did not—that the
insured “shall” have the “right to video record the examination proceedings.”
Nevertheless, even assuming the phrase “may record” bestows upon the
insured the right to video record the proceedings, nothing in the statutory
language suggests the insured has the right to video record the insurer’s
participants, including its attorneys and claims adjusters.
Section 2071.1, does not define “examination,” “proceedings” or
“entirety” and does not otherwise address what acts are encompassed or
excluded by these terms. In the absence of a legislative definition, it is
permissible to look to case law as a source to define the terms in question.
(Cleveland v. Taft Union High School Dist. (2022) 76 Cal.App.5th 776, 806.)
24
Words of a statute are given their usual and ordinary meanings. (Ibid.)
“ ‘When attempting to ascertain the ordinary, usual meaning of a word,
courts appropriately refer to the dictionary definition of that word’ (Wasatch
Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121–1122
[citations]), although the process of interpreting statutes involves more than
simply stitching together dictionary definitions [citation].” (Ibid.)
“ ‘Examination’ is defined as ‘(examination of the witness by counsel)
[i]nvestigation, questioning, probing, probe, scrutiny, inquiry,’ in Statsky,
West’s Legal Thesaurus/Dictionary (West, 1986) at page 291. The word is
commonly understood to mean interrogation with questions and answers.”
(Globe Indemnity Co. v. Superior Court (1992) 6 Cal.App.4th 725, 730.)
“Proceeding” has been defined in various ways, ranging from the broad
to the specific. Definitions of the term fall into one of two categories:
“Proceeding” may be used either in a general sense as “ ‘the form and manner
of conducting juridical business before a court or judicial officer;’ and more
particularly as ‘[a]n act which is done by the authority or direction of the
court . . . ; an act necessary to be done in order to obtain a given end.’ ”
(People v. Silverbrand (1990) 220 Cal.App.3d 1621, 1627.) Finally, “entirety”
is defined as “[t]he whole, as opposed to a moiety or part.” (Black’s Law Dict.
(11th ed. (2019) p. 673, col. 2.)
As nothing in the plain statutory language or related definitions
supports the meaning urged by plaintiff, it is necessary to consider the
legislative history. It is undisputed that section 2071.1 was enacted due to
concerns about perceived harassment of insureds by insurance companies.
However, nothing in the legislative history suggests the Legislature intended
to reduce harassment and intimidation by giving insureds the right to video
record everyone present at an EUO. Rather, the legislative history reflects
25
section 2071.1 was enacted to establish “basic due process rights” for insureds
who are subject to EUOs. (Assem. Com. on Ins., Background Info Re: SB 658,
p. 1.) Although the exact parameters of these “basic due process rights” were
not otherwise specified, the legislative history reflects Senate Bill No. 658
(2001–2002 Reg. Sess.) (Senate Bill 658) was promulgated to provide greater
protections to insureds by ensuring they are aware of the law of unfair claims
practices and other insurance practices. (Sen. Rules Com., Off. of Sen. Floor
Analyses, 3d reading analysis of Sen. Bill No. 658 (2001–2002 Reg. Sess.) as
amended May 25, 2001, pp. 1–2.) Senate Bill 658 also announced new
restrictions on the taking of evidence during EUOs, most notably by limiting
the scope to “ ‘relevant’ ” information that is reasonably necessary to process
or investigate the claim. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d
reading analysis of Sen. Bill No. 658, supra, at p. 2.) Additionally, insurance
companies, once unhindered in conducting EUOs, would be constrained by
reasonable limits in terms of notice, place, and time. (Ibid.) Insureds could
also be represented by counsel and assert any objection that could be made in
a deposition under state or federal law. (Id. at pp. 2–3.) Other protections
required that the same adjuster be used throughout the claim process to
prevent insureds from having to go back to square one each time a new
adjuster was assigned to the claim. (Id. at p. 3.)
Nothing in the legislative history suggests an insured’s ability to video
record an EUO—let alone video record an insurance company’s
participants—is necessary to safeguard an insured’s basic due process
rights.17 In fact, there is little, if any, discussion in the legislative history
17 Indeed, in California, criminal defendants are not entitled to video
recorded interrogations except under extremely limited circumstances. (See
Pen. Code, § 859.5; Welf. & Inst. Code, § 626.8 [adults and juveniles
26
about specific recording methods. And what minimal references there are,
none mention an insured’s right to video record an insurer’s participants.
As noted, Senate Bill 658 originally used the following language:
“[T]he insured may tape-record the examination and be represented by
counsel.” (Sen. Bill No. 658 (2001–2002 Reg. Sess.) as introduced Feb. 23,
2001, § 5, pp. 8–9.) Section 2071.1(a)(4) as enacted reads, in part, that an
insured subject to an EUO “may record the examination proceedings in their
entirety.” (Italics added.) Plaintiff argues the italicized language supports an
expansive view of insureds’ rights, which necessarily includes the ability to
video record the insurance company’s attorneys and other participants. Not
so.
The two key differences between the original language and section
2071.1(a)(4) as enacted are: (1) “may tape-record” became the more general
“may record”; and (2) “the examination” became “the examination
proceedings in their entirety.” To be sure, the law as enacted expanded an
insured’s methods of recording an EUO by removing the outdated reference
to “tape-record.” Similarly, changing “examination” to “examination
proceedings in their entirety” expanded the scope of what an insured is able
to record. However, this rewording does not establish an insured has a right
to video record all participants at an EUO. Rather, a more reasonable
interpretation is that insureds are permitted to record not just the
examination (i.e.—the questions and answers), but everything that occurs
during the whole proceeding (from start to finish)—thereby guarding against
suspected of murder]; see also Bang et al., Police recording of custodial
interrogations: A state-by-state legal inquiry (2018) 20(I) Internat. J. Police
Sci. & Mgmt. 3–18.) And, even then, there is no requirement that the
interrogators themselves must be video recorded. (See Pen. Code, § 859.5;
Welf. & Inst. Code, § 626.8.)
27
any off-the-record discussions or remarks that could potentially implicate
untoward conduct on the part of an insurer.
The legislative history reflects section 2071.1 was designed as a means
to level the playing field for insureds during EUOs, by educating insureds
about their rights; placing limits on the scope of acceptable questions;
allowing insureds to assert objections to questions; and requiring insurers to
conduct EUOs in a reasonable manner in terms of notice, location, and
duration. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis
of Sen. Bill No. 658, supra, pp. 1–3.) These procedural safeguards are
consistent with the fundamental hallmarks of due process, as they provide an
insured with notice and a meaningful opportunity to be heard. (U.S. Const.,
5th & 14th Amends.; Cal. Const., art. I, §§ 7 & 15; see People v. Silva (2021)
72 Cal.App.5th 505, 523.)
Nothing in the legislative history supports the position that the ability
to video record all participants at an EUO is a “right” or a determinative
factor of whether due process is being afforded. The trial court found as
much in denying plaintiff’s request for private attorney general fees. As the
trial court explained, “the Legislature targeted a perceived problem by
enacting [section 2071.1] to curb abuses by insurance companies during the
claims process, [and] the ability to record operates as a tool in promoting the
efficiency of the proceedings . . . .” (Italics added.) This interpretation—
which is consistent with the statutory language and legislative history—is
contrary to the judgment finding Nationwide “violated” the law when it
conditioned payment of policy benefits by requiring plaintiff “to forgo
exercising [his] rights under [section] 2071.1(a)(4).”
Case law has long confirmed an insurer may contractually require, as a
condition of coverage, that an insured submit to an EUO. (See, e.g., Globe
28
Indemnity Co. v. Superior Court, supra, 6 Cal.App.4th at pp. 730–731;
Robinson v. National Automobile & Casualty Co. (1955) 132 Cal.App.2d 709,
716; West v. State Farm Fire and Cas. Co. (9th Cir.1989) 868 F.2d 348, 351.)
Hickman v. London Assurance Corp. (1920) 184 Cal. 524 illustrates this
principle. There, an insured was criminally charged with arson. (Id. at p.
526.) While the charges were pending, the insured appeared for an EUO but
refused to answer questions and produce documents on the advice of counsel
that his answers could be used against him at his criminal trial. (Id. at pp.
527–528.) He asserted his constitutional right against self-incrimination.
(Id. at pp. 531–532.) He offered to submit to an examination after the
conclusion of the criminal prosecution. (Id. at p. 528.) The California
Supreme Court concluded the insured’s refusal to submit to examination and
to produce his books and papers on the ground of his constitutional immunity
was not justified, as the constitutional privilege did not apply and his
production of documents and examination was a “condition precedent” to his
right to benefits under the policies. (Id. at pp. 532, 534.) The court stated:
“ ‘If the insured cannot bring himself within the terms and conditions of the
policy he cannot recover. The terms of the policy constitute the measure of
the insurer’s liability. If it appears that the contract has been violated, and
thus terminated by the assured, he cannot recover. He seeks to recover by
reason of a contract, and he must show that he has complied with such
contract on his part.’ ” (Id. at p. 534.)
While these cases predate the enactment of section 2071.1, “they reflect
a strong insistence on an insured’s performance of the contractual conditions
required for coverage, even when the insured might have a legitimate legal
basis for not wanting to comply.” (Abdelhamid v. Fire Ins. Exchange (2010)
182 Cal.App.4th 990, 1003–1004 (Abdelhamid).)
29
Subsequent cases have refused to excuse an insured from complying
with the statutorily mandated and contractually required precondition of
submitting to an EUO. For example, in Abdelhamid an insured appeared for
an EUO but refused to answer questions about her business or personal
finances on the advice of counsel. (Abdelhamid, supra, 182 Cal.App.4th at p.
996.) The insurance company denied her claim in part on the grounds that
her failure to answer questions during the examination breached a condition
precedent to her recovery under the policy. (Ibid.) The trial court granted
summary adjudication on the insured’s breach of contract claim. (Id. at p.
998.) In affirming summary adjudication in favor of the insurer, the
reviewing court found it “significant” that the terms of the standard fire
insurance policy in California, which have been “prescribed by the California
Legislature,” required an insured to submit to an EUO. (Abdelhamid, at p.
1004; §§ 2070, 2071.) Turning to subdivision (a)(6) of section 2071.1,18 the
court acknowledged the Legislature had “specifically recognized an insured’s
right to withhold information on the basis of privilege or other legal objection.
But, it has also recognized such information may be necessary to the insurer’s
investigation of the claim and, where the failure prevents the insurer from
being able to determine the validity of the claim or extent of loss, the
Legislature has acknowledged the insured’s rights under the contract may be
affected. The Legislature has placed that risk on the insured.” (Abdelhamid,
at p. 1004.) The court refused “to . . . adopt a rule that excuses insureds from
18 Section 2071.1, subdivision (a)(6), provides: “In an examination
under oath, an insured may assert any objection that can be made in a
deposition under state or federal law. However, if as a result of asserting an
objection, an insured fails to provide an answer to a material question, and
that failure prevents the insurer from being able to determine the extent of
loss and validity of the claim, the rights of the insured under the contract
may be affected.”
30
complying with the statutorily mandated and contractually required
preconditions for coverage after a loss because they assert a privilege or an
objection relying on the advice of counsel,” as this “would undermine this
statutory scheme.” (Id. at pp. 1004–1005.)
As the insured did in Abdelhamid, plaintiff urges an interpretation
that is antithetical to established precepts of law. The Legislature has
recognized an insured’s right to “record the examination proceedings in their
entirety.” (§ 2071.1, subd. (a)(4).) But, it has not authorized a rule excusing
insureds from the statutorily mandated and contractually required
preconditions for coverage—that they submit to EUOs—because they are
unable to video record the insurer’s participants and representatives.
Similarly instructive is Brizuela v. CalFarm Ins. Co. (2004) 116
Cal.App.4th 578, which involved an insured’s attempt to trade an agreement
to submit to an EUO in exchange for copies of his prior recorded statements.
(Id. at p. 583.) There, the insured repeatedly failed to provide a date for the
EUO and conditioned any examination on the insurance company’s providing
him with copies of his previous statements. (Ibid.) The insurance company
refused to accede to the insured’s request and denied the claim. (Id. at p.
585.) Finding no legal obligation to provide an insured with a copy of the
insured’s previously recorded statements, the court upheld summary
judgment for the insurance company on the grounds that its actions were
reasonable as a matter of law. (Id. at pp. 585–586, 588–589.) The court
found the insured was not permitted to condition his EUO on a requirement
that the insurer provide him with copies of his previous statements. (Id. at
pp. 589–590.) Brizuela recognized that “[e]ven if there might be
circumstances when it might be unfair or unreasonable for an insurer to
demand an examination under oath without complying with an insured’s
31
request for an earlier recorded statement,” there the insured gave no reason
why the insurer’s refusal to provide the statement was unfair or
unreasonable. (Ibid.)
So too here, there is no authority for the position that an insured is
entitled to video record an insurance company’s employees and
representatives during an EUO. And, given the absence of any evidence
suggesting Nationwide has conducted itself in an intimidating, abusive, or
harassing manner in its handling of plaintiff’s claim, nothing suggests
Nationwide’s refusal to allow the video recording of anyone other than
plaintiff was unfair or unreasonable.
From review of the plain language of section 2071.1 and its legislative
history, together with the applicable case law and statutory scheme, the
conclusion is that section 2071.1(a)(4) does not give an insured an unqualified
right to video record an insurance company’s participants in every instance
and/or a concomitant right to refuse to participate in an EUO unless this
specific method of recording is permitted.
Jackson, P. J.
32
Myasnyankin v. Nationwide Mutual Insurance Co. (A166946/A167445)
Trial Judge: Hon. Tara Desautels
Trial Court: Alameda County Superior Court
Attorneys:
BHC Law Group, LLP, Karen L. Uno; Hayes, Scott, Bonino,
Ellingson & Guslani, LLP, Mark G. Bonino and Donald L. Hall, III for
Defendant and Appellant in A166946 and Defendant and Respondent
in A167445.
Kerley Schaffer LLP, Dylan L. Schaffer for Plaintiff and
Respondent in A166946 and Plaintiff and Appellant in A167445.
Amy Bach and Richard B. Oatis for United Policyholders as
Amicus Curiae on behalf of Plaintiff and Respondent in A166946.
33