damage to its six storey apartment building on appeal state farm defends the ruling arguing on page one of its answer in brief that it fully reimbursed wilcher for all documented damage caused by the fire as a matter of law i don't think the record bears that assertion out i think there are numerous tribal issues of fact in this morning i'll show you four and it only takes one so you can you just get the legal framework here so one doesn't matter and two right here what's your contention and now what does it matter whether this is a replacement covering try not and secondly or or even if it's your apparent it if it's just repairs or you're still in the same place and secondly there's this argument about whether your position depends on culture placement or a colleague upgrades or not well it in a larger sense and it's sort of medicines that matters because the it was a replacement cost policy and the way that california defines section twenty fifty one point five of the  california surance code for it has a cascade of how that claim is supposed to be adjusted and so with the replacement cost policy if the insurer has as state farm did here included term it says that we don't have to pay replacement value so you've done the replacement the way the adjustment is supposed to work is that first the section twenty fifty one point five subdivision a says that they have to pay actual cash value or what that is correct because the definition of actual cash value that gets imported into the policy so we start with the replacement cost statute which then because of the term that state farm is included that says we don't have to pay for replacement costs initially you have to do the replacement first so then you look at what would be owed under a national cash value policy section two thousand and fifty one of the code and section two thousand and fifty one does that's why this morning actually although there's a lot of discussion about the legal standards in the briefs what i was going to just talk about are the factual that's why when i try to clarify i meant yeah i guess i don't want to miss read what you just answered judge and it didn't seem to me that really mattered whether it was replaced or repaired or you but there were certain damages that nobody got paid for in any event that's correct so the replace or repair so so i don't i think you're right and the coverage issues are interesting to people like me who pay lots of attention to coverage and state farm's analysis is consistently not correct because in the district court they denied that it was an actual that was replacement cost policy and their adjustment is always preceded is that it was never a replacement cost policy to the point where they purport to quote the statute for replacement cost coverage but they actually put the wrong language and so they cite the right statute number but then they say look we did just like the statute says in that it's the a c v statute but for the purposes of the summary judgment it doesn't matter because there are travel so what you're suggesting is i understand that since it was initial and temporary there is a question of fact as to whether cap two elevator was ever repaired to its pretty last condition hawk and because it never worked we didn't have to do anything and it's very clear state farm concedes that only temporary repairs were made if you look at page twenty nine of the brief in responding to my argument the read  manor notes that state farm paid for temporary repairs a o b a twenty nine but they were not followed by further repairs that that's exactly true that's the problem is that in essence state farm saying look if it was a roof that was damaged in the fire that if they threw a tarp over it to keep it from leaking that that was a temporary pair and that discharge or obligation so tribal issue number one did they only pay for temporary repairs tribalists you to that they even pay for the pages forty three and forty four of the read brief they say there's no evidence of the invoice and then they cite their own documents referring to the invoice and then their declaration separation mr franklin says that it wasn't paid because such repairs were not warranted but those were the temporary repairs and in fact if you look at the claim note into we are to eighty the january twenty third i'm sorry to your two seventy nine the adjuster asked for permission to pay it saying that had been reviewed it was reasonable so he did an about face and then said it was unnecessary that state farm has never said why and the record shows that the repairs did included replacing burnout rails and replacing sort of scavenging the parts from one that were available from one side of the unit to the other to make temporary repairs so they clearly were the temporary repairs that state farm is relying on to claim that it didn't repair so it didn't even pay for the repairs that's troubleshooter to travel issues three and four intertwined and they go to the issue that you talked about as if that what kind of repairs to the elevators require and we have they concede that we will sure submitted the large space report before they made their decision that's in the record to your one thousand and one twenty and we discuss it at pages seventeen and eighteen of  p and large base says this is what it's going to take to repair or replace it's going to cost eight hundred fifty thousand dollars exclusive of the code upgrades now in the district court say from says anyone who's read the document would know it doesn't say that so now their argument is that page forty three of the red brief the report was not to repair the elevators it was expressly to replace them which is accurate in a sense but it misses sort of the the reality which is the reason it was for recommended replacement is because the damage was so extensive that they were damaged beyond repair so it minimum there's a tribal issue fact about what repairs were needed and what was how much it would cost there is no other evidence state farm never got you know of a direct bird never submitted anything in the district court there was no evidence at all they just simply said ignore the  big report and there's no grounds to do that so i think that would be pretty clearly justify reversal of the summary judgment so on remand the question is is state farm entitle to summary judgment on the bad faith claim because judge real said if there's no coverage as a matter of law there can be bad faith that is true but if the converse is true as well if there is coverage then there's a travel issue state farm urges alternative it's not enough to say state farm does that you can grant summary judgment because our position was reasonable this genuine dispute rule requires of a finding for the district court or this court that their position was reasonable as a matter of law and fact district court didn't evaluate this issue at all that's true and they didn't bitch they didn't address it because the dish court said there's no breach of contract right and and so therefore if there are genuine issues of  fact then at that point the breach if you will the bad faith claim goes right back to the district judge that's all i'm saying that's all you're so that's all i'm saying why don't you move them to the request to continue the  know with with respect i don't think i need to get to that because i think the issues are so clear the one thing before my time runs out i do want to get is there anything you didn't get in that matters not theirs that was it we could've made a better record but the record that we made was ample to support the claims i'm making i haven't had to reach in and look at any of the other stuff that's why i'm not in the reply to your constitution that right the one issue that i'm concerned about though if judge real made a finding that is that that will sure was for close from proving up all of the evidence anything that he can complain about in the adjustment finding that it failed to cooperate and i think that that is more tribal issues of fact that forecloses first of all there's no evidence that of a failure to cooperate that's discussed state farm in the red brief discusses it at forty four to forty nine you don't point to any evidence that says there was a single document that wasn't given that they weren't given access to so there's no support in the record second of all the law in california is that insurer has an independent duty to do a full investigation you don't just get to rely on what the insured say and say well if you told us to investigate it we will but we only investigate as much as you tell us to that is not how it works in california and third under california law in campbell versus allstate is a one thousand nine hundred sixty three supreme court case that we cite the policyholders that can only have their claim for close for lack of cooperation if the insurance company shows that it has been substantially prejudiced by that lack and the burden is on the insurer and and prejudices never presume in  some time because you're on a stamp i'm finished my point i can state state farm says no prejudice can be presumed citing a district court case martinez doesn't say that doesn't use the word presumed and the record here shows there's no prejudice this isn't a third party case where after the fact state farm is being asked to so you defend a liability case and the witnesses are gone the buildings there it's an remediated all they have to do is go and investigate and the damages available when we go back to the district court we good morning may it please the court my name is valerie rojas and i represent state farm general insurance company i just wanted to first think a little more to my case or i just want to start first by clarifying the record with respect to the lurch its report it is in fact based upon lurch its assumption that the elevators need to be brought up to care and it's explicitly hasn't i don't understand how you can say that explicitly it isn't if you look at e r one twenty the last paragraph of the i'm referring to e r one twenty when you're talking about a complete renovation of the shaft lurch bates themselves said it's based upon their assumption that it has to be brought up to current code well there's no question they think that the elevator needs to be brought up to go to but the question is whether there's damages in that report that are not for bringing up or code that need to be determined by a jury that you can determine on summary judgment simply because one wants to ignore it that's the question you're i mean reading the report i guess i'm trying you're telling me if i read the report again i'll be glad to go read it again that there is no way that that report says these are the damages exclusive of the damages for bringing up the code you're correct you're right doesn't use those words and what it says in the place that you were noting it is our recommendation that there's a total  it does say that it does say that it's based upon bringing complete oist way to current and now it doesn't say that and says that the hardest way needs to be brought up to code but then it says that the estimate it says in addition that's in addition to what it is that's being covered by this estimate your honor from the beginning this case was based upon the replacement of these elevators pursuant to the city's requirement for state farm was told repeatedly that the replacement would need to be done pursuant to the city's rick well let me ask you something let's take the non operative elevator right i apparently state farm's position is that because it was an operating at that moment it doesn't have to pay anything for it that's not accurate state farm paid for repairs to both elevators robinson's building maintenance and to into seventy three described their invoices forward everybody is calling temporary repairs all right but he didn't repair that one so and  leaking and then i have a big fire so it has to be fixed right meanwhile i have a big fire and now i need a whole new roof why isn't that something that's that's compensable it is your and state farm day even though the aforesaid working in the sense that it was leaking state farm did pay for remediation efforts on the second car to seventy three into seventy of the e r robinson's building describes that it's a subcontractor of elevators it describes what it did to both cars this is a shaft that is not divided the clean the entire shaft you can't clean one without cleaning the other and that's the ride to mr franklin mr franklin did not pay the elevator invoice he's the general contractor he describes in  declaration that he didn't pay it because it didn't appear warranted or caused by the fire damage why that's important is because u k elevator also tells us that they have been working on these elevators for at least ten years ek elevators also tells us that they conducted a complete modernization of one in two thousand and seven without replacement of the motor and were undertaking repairs i guess the question is why there aren't tribal issues the fact that all those and there are not there is no invoice in the record and you assert that a re you prepared cab to elevator to it's pretty lawless conditions but the invoices all say that the payments were for initial and temporary what do i do with that and here's why your honor from the beginning not why answer my question the a l even looking at the invoices to see if you're right the invoices do not say end of story they all say initial and temporary everybody was under the assumption that these were because we were under the assumption that the city was going to require the renovation and widening of the shaft that was not done but again this seems like an issue of fact that the judge cannot make based on the invoices i look at these invoices i can't say they're paid in full they say initial and temporary and the fact that their initial temporary agrees with the lurch bates report which  understand it evaluated the cap to elevator after it was put back into service so i just said to myself how do i say that this has been fully paid the claim file references the numerous reports to the elevator and the shaft as temporary the declarations by present fishies of fact regard to the extent of the fire damage and what additional report repairs are required i guess i'm trying to figure out how i get to the end there have been no additional repairs to the elevators there was never a well i did it because there's no additional repairs doesn't mean you should have not repaired them to the full extent stand not just temporary put them back together you are when this case was filed there was never an issue with the ek elevator invoice at s e r twenty two and twenty five where welsh are manners responding to in iraq the tories they are discussing the lurch bates report only based on the assumption that eventually these elevators would need to be completely renovated and eighty eight compliant that's why everyone is using the word temporary there is no evidence that state farm didn't pay an invoice for the repairs to the elevators there's no invoice well when i look at your summary of last statement it says we made a payment for robinson's building maintenance invoice robin's building maintenance invoice levon twenty that's eleven nineteen levin twenty for shark you electric in sixty nine but it also shows that you did not pay that ek elevator invoice one o six one five right in mr franklin explains in his declaration why that wasn't paid and there is so therefore i'm trying to figure out how do i say there's no genuine issue of fact because we have no invoice we have no evidence that we do have an invoice i'm quoting from and you're quoting from our summary of loss that's now his quoting from the invoice that was paid but said that it was temporary oh the robinsons building maintenance yes that's not in the record but yeah that was paid there's a description of the the invoices in the record at the claim notes that i  mentioned previously in two seventy three the robinsons building maintenance subcontractors are the ones who performed the work to the elevators there were no additional invoices submitted for any additional work there was invoices was before well that depends on how you look at it why does happen how you look at it and now needs at least those parts correct right so it's a wash condition that it was before as a result of the fire because that's the way you got the other one operating wise who might their conflict and their record because robinson's building replaced in repaired parts in those both elevators and no and my understanding is that it did it by taking the parts from the one that kitchen fire and you have an old refrigerat in the fire damages the hose to the ice maker the ice maker breaks and you need to technician out there to repair it with state farm did was paid for the repairs that the insured chose to make it is not required to get an entirely new refrigerator that you know a newer model and up to current energy codes it's only required excellent if this was a elevator for trade or that wasn't in great shape but it was operating and now because of the fire it's now beyond repair my understanding is that they did you have to pay for the  new refrigerators and not right if it was damaged beyond repair yes by the fire even though it was already not to record correct i was operating right but there's no evidence of these elevators can be repaired they were repaired by the first y repair right correct so why are we did we don't have to deal with replacement cost correct that's correct to be done so all we're looking at is whether there is in fact all of the repairs up to the former level of the elevators were pay it were paid or not by state farm correct what we're looking at is whether state farm paid all of the pain the insured for all of the invoices of the actual repairs mean of the but if you said it so you're not claiming that because they so far haven't made them and that you know response no i'm saying there's no evidence that we haven't paid for some repairs we have paid for the repairs let me get let me go further and as i address this claim for bad faith if in fact there are genuine issues of fact as relates to whether the repairs were paid then the bad faith needs to go back to right that's correct so you don't dispute that well it would go back in are you dispute that there was a problem with the bridge but if we're sending it back as to the bridge because we think there's a genuine issue of fact we've got to set it back for the bad faith as well no no not necessarily if there's a genuine issue and if there's a genuine dispute the court can find as a matter of law that there was no bad faith in this read well but just a minute if you're suggesting that there's no evidence of bad faith if in fact there are genuine issues of mary and mr mary's declaration is material for his attempt to prove that the city was requiring code upgrades since conducting the deposition of the city's three b six witness about these elevators we know that that wasn't accurate anyway well not just kind of just because you have a deposition of one side of the deposition of the other side which which suggests just the opposite but the city is the ultimate say has the ultimate say on whether these because even if even if that were true he wasn't hired to do to renovate or remodel the elevators and miry is not large but if he was told to say that he was that he was what  responsible for this and that and to give evidence about it he's a structural engineer for the for the entire building not necessarily just the elevators he wasn't supposed to that's correct and he says that and then he said that they told me anyway to say that i had an opinion about the elevators when they didn't yes you're right so he was told to say something that wasn't true that's what he claims that's what he claims so it's let evidence of bad faith i know you are on your time