Filed 9/30/22 Sandpebble Apartments v. Nevada Capital Ins. CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

SANDPEBBLE APARTMENTS,

LLC,

Plaintiff and Appellant,

v.

NEVADA CAPITAL 

INSURANCE COMPANY,

Defendant and 

Respondent.

 B315903

 (Los Angeles County

 Super. Ct. No.19STCV29373)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Monica Bachner, Judge. Affirmed.

Law Offices of Wallace C. Doolittle, Wallace C. Doolittle, 

and James P. Downs for Plaintiff and Appellant.

Gladstone Weisberg, Gene A. Weisberg and Ronald 

Anthony DiPietra for Defendant and Respondent.
2

Non-party Sand Pebble Village Apartment Homes, LLC 

(Sandpebble 1) owned real property and insured that property 

under an insurance policy issued by respondent Nevada Capital 

Insurance Company (Nevada Capital). After the property 

sustained damage in a fire, Sandpebble 1 sold the property to 

appellant Sandpebble Apartments, LLC (Sandpebble 2), 

purportedly assigning its interest in the insurance policy as well. 

A dispute subsequently arose between Sandpebble 2 and Nevada 

Capital over the payments Nevada Capital issued under the 

policy. Sandpebble 2 ultimately sued Nevada Capital, asserting 

causes of action for breach of contract and declaratory relief. 

Sandpebble 2 alleged Nevada Capital failed to pay the full 

amount Sandpebble 2 was owed under the insurance policy. 

Nevada Capital moved for summary judgment on the 

grounds that Sandpebble 2 was not a named insured under the 

policy and neither the named insured, non-party Sandpebble 1, 

nor Sandpebble 2 incurred repair costs in excess of payments 

Nevada Capital made. The trial court overruled Sandpebble 2’s 

objections to Nevada Capital’s separate statement and entered 

summary judgment for Nevada Capital.

Sandpebble 2 contends the judgment must be reversed. It 

argues that the trial court erred in overruling its objections to 

Nevada Capital’s separate statement; Nevada Capital failed to 

carry its burden of showing summary judgment was warranted;

and Sandpebble 2 demonstrated triable issues of material fact 

regarding its status as an assignee or third party beneficiary of 

Sandpebble 1’s insurance policy, the accuracy of Nevada Capital’s 

payment calculations, and the propriety of Nevada Capital’s 

withholding of a depreciation payment. Sandpebble 2 also seeks 

to amend its operative complaint. We affirm the judgment. 
3

FACTUAL BACKGROUND

I. Insurance Policy

Sandpebble 1 owned real property in Las Vegas, Nevada. 

It insured the property between April 28, 2015 and April 28, 2016

with an insurance policy issued by Nevada Capital. The policy 

identified Sandpebble 1 as the named insured, and Canon 

Financial Services Inc. and Wells Fargo Bank as additional 

insureds. Neither Sandpebble 2 nor its principal, manager, and 

sole member, Dmitry Piterman, was mentioned anywhere in the 

policy. 

In the event the insured property sustained covered 

damage, the policy gave Nevada Capital the option of paying the 

value of lost or damaged property; paying the cost of repairing or 

replacing lost or damaged property; taking all or part of the 

property at an agreed or appraised value; or repairing, 

rebuilding, or replacing the property with other property of like 

kind and quality. The policy also provided that Nevada Capital 

would determine the value of the covered property “[a]t 

replacement cost without deduction for depreciation,” subject to 

various conditions. 

The policy also provided, “Your rights and duties under this 

policy may not be transferred without our written consent, except 

in the case of the death of an individual Named Insured.” The 

policy defined “your” to refer to “the Named Insured shown in the 

Declarations,” Sandpebble 1. It defined “our” as “the Company 

providing this insurance,” Nevada Capital. 
4

II. Fire Loss 

On or about June 28, 2015, the property was damaged in a 

fire. Sandpebble 1 tendered a claim to Nevada Capital on or 

about the same day.1 

III. Limited Assignment of Rights and Claims 

Around the time of the fire, Sandpebble 1 was in the 

process of selling the property. In support of its summary 

judgment opposition, Sandpebble 2 filed a “Limited Assignment 

of Rights and Claims” purportedly between Sandpebble 1, 

Nevada Capital, and Piterman. According to that document, “the 

sale was not complete, title had not passed, and escrow had not 

closed prior to the Fire Loss.” In the Limited Assignment of 

Rights and Claims, Sandpebble 1, Nevada Capital, and Piterman 

recognized the need to “facilitate the continued adjustment and 

the balance of the Fire Claims that would be potentially 

recoverable by the Insureds [Sandpebble 1] under the terms and 

provisions of the Policy had there been no sale of the Property.” 

Citing the provision of the policy that required Nevada 

Capital to consent in writing to the transfer of Sandpebble 1’s 

“rights and duties under [the] policy,” the Limited Assignment of 

Rights and Claims purportedly assigned to Piterman Sandpebble 

1’s “rights to make claim [sic] and receive payment for 

[Sandpebble 1’s] Fire Claims over the amount [Nevada Capital] 

has already paid that would have been recoverable and collectible 

by [Sandpebble 1] under the Policy terms had no sale of the 

1 Although the operative complaint alleges the fire loss claim 

was submitted “[o]n or about August 2014,” it is undisputed that 

the fire and claim submission occurred during the effective term 

of the policy, in or about June 2015. 
5

Property taken place. . . .”2 The parties—Sandpebble 1, Nevada 

Capital, and Piterman—further agreed that Sandpebble 1 and

Piterman “are responsible for paying vendors that perform actual 

repairs, demolition, or restoration work upon the Property.” 

They also agreed that “[t]his limited assignment does not confer 

any status or standing as an insured or beneficiary under the 

Policy to [Piterman] or to any other person or entity, or any right 

or standing to sue [Nevada Capital], whether under theories of 

contract, equity or tort, save and except the right to sue for 

performance of the terms of this Agreement.” 

Sandpebble 2 was neither a party to nor mentioned in the 

Limited Assignment of Rights and Claims. The signature lines 

for representatives of Sandpebble 1 and Nevada Capital indicated 

that those individuals would be signing on behalf of their 

respective corporate entities. Piterman’s signature line did not 

mention Sandpebble 2 or indicate that he was signing on the 

entity’s behalf. Piterman and a representative of Sandpebble 1 

signed the Limited Assignment of Rights and Claims on 

September 3, 2015. There is no signature by a representative of 

Nevada Capital. 

IV. Sale to Sandpebble 2

Sandpebble 1 sold the property to Sandpebble 2 on 

September 28, 2015. Sandpebble 2 alleged in the operative 

complaint that “[p]ursuant to the purchase agreement, 

Sandpebble 1 assigned all its right [sic], title and interest in and 

to the benefits of the policy and the claims loss to Sandpebble 2.” 

Piterman declared the same in his declaration in support of 

summary judgment. The purchase agreement was not provided 

2 The parties agreed that Nevada Capital had paid “a total 

sum of $0.00” at this point. 
6

to the trial court at summary judgment and is not in the 

appellate record. 

V. Initial Repair Work and Payments

In December 2015, Belfor Property Restoration (Belfor) 

issued an estimate to repair the property at a cost of 

$1,298,025.88.3 Piterman signed the estimate and agreed to 

unspecified terms contained therein. Belfor subsequently 

commenced repair work on the property. 

The cost of the repair work and the amount Nevada Capital 

paid for it are disputed. These disputes are not material in light 

of our ultimate conclusion that Sandpebble 1 did not assign the

insurance policy rights and benefits to Sandpebble 2. We note, 

however, that the parties agreed that Nevada Capital issued 

some payments to Piterman; Nevada Capital withheld 

$245,803.11 for “depreciation”; and Belfor ultimately stopped 

work, placed a lien on the property, and filed a lis pendens in 

2017. 

VI. Sale of Property, Final Repair Work, and Payments

It is undisputed that Sandpebble 2 sold the property to 

non-party Wilshire Unlimited, LLC on or about May 18, 2018. 

Wilshire Unlimited contemporaneously assigned its interest in 

the property to non-parties Sandpebble Nevada LLC, CP 

Sandpebble, LLC, and WU Nevada, LLC as tenants in common; 

the parties refer to the latter entities collectively as the “Wu 

Group.” 

3 Sandpebble 2 asserted in its dispute facts, without 

evidentiary support, that the estimate covered “building repair, 

excluding demolition, asbestos removal, construction fencing, and 

landscaping.”
7

The purchase and sale agreement, filed by Sandpebble 2 

with its summary judgment opposition, recognized that some 

rental units on the property remained “down” due to the fire. 

Sandpebble 2 represented and warranted that the total cost to 

complete repairs of the down units was approximately $700,000. 

It further agreed that if the costs exceeded that amount, “Buyer 

shall be credited against the Purchase Price an amount equal to 

the difference between the . . . costs determined by Buyer to be 

necessary to complete the Down Units and the Estimated Cost to 

Complete. . . . In review of the current quote from Belfor, Seller 

agrees to provide a credit of $155,013.10 at Closing.”4

The purchase and sale agreement also contained a 

provision regarding insurance proceeds. Sandpebble 2 

represented and warranted “that insurance proceeds of at least 

Three Hundred Thousand Dollars ($300,000.00) will be available 

to Buyer in order to complete the Down Units.” Sandpebble 2 

agreed to either assign those proceeds, or, if “written evidence of 

the assignability of the insurance proceeds to Buyer from the 

insurance company is not provided . . ., then upon the Closing, 

Buyer shall receive a credit toward the Purchase[ ] Price equal to 

Three Hundred Thousand ($300,000.00) (or the difference 

between the Available Funds and the proof of funds delivered by 

the insurance company that are available).” Sandpebble 2 and 

4 The quote from Belfor was contained in a May 18, 2018 

services agreement between Belfor and the Wu Group. The 

agreement provided that Belfor would be paid $845,013.10 for the 

remaining work. It is unclear why there is a $10,000 discrepancy 

between the $155,013.10 credit provided in the purchase and sale 

agreement and the $145,013.10 difference between the Belfor 

contract amount and the $700,000 estimate contained in the 

purchase and sale agreement. 
8

the Wu Group contemporaneously signed a “cooperation 

agreement” pursuant to which they agreed no insurance proceeds 

would be assigned. Instead, Sandpebble 2 would provide a 

$300,000 credit. 

At the time of the sale to Wilshire Unlimited/Wu Group, 

Sandpebble 2 and Belfor entered an agreement pursuant to 

which Belfor agreed to release the lis pendens and remove the 

lien in exchange for payment of $430,000. The $430,000 payment 

to Belfor was made out of escrow when the sale of the property 

closed. Belfor released the lis pendens and removed the lien a 

few days later. 

After the May 18, 2018 sale, Wu Group and its agents and 

assignees issued checks to Belfor totaling $814,039.78.5 The last 

of these checks was dated March 21, 2019. 

In January 2019, counsel for Sandpebble 2 emailed Nevada 

Capital and requested additional payment in an unspecified 

amount under threat of legal action. He attached Belfor’s 

invoices from 2018, as well as evidence of payment, including the 

credits and payments made when the property was sold to 

Wilshire Unlimited/Wu Group. Nevada Capital refused.

PROCEDURAL HISTORY

I. Operative Complaint

Sandpebble 2 filed its initial complaint against Nevada 

Capital and insurance agent B&B Premier Insurance Solutions

(B&B Premier) on August 19, 2019. Sandpebble 2 asserted 

causes of action for breach of contract, breach of the covenant of 

5 Sandpebble 2 asserts the checks totaled $889,306.01, but 

this total includes one of the checks twice: a $75,276.23 check 

dated November 27, 2018 and numbered 001292. It also contains 

a $10.00 discrepancy. 
9

good faith and fair dealing, and declaratory relief against Nevada 

Capital, and a cause of action for negligence against B&B 

Premier. After a series of demurrers was sustained with leave to 

amend, Sandpebble 2 ultimately dismissed its negligence cause of 

action against B&B Premier and filed a third amended complaint 

against Nevada Capital only, on February 5, 2021. 

The third amended complaint asserted only two causes of 

action: breach of contract and declaratory relief. Sandpebble 2 

alleged that Sandpebble 1 submitted a fire loss claim to its 

insurer, Nevada Capital, in or about August 2014. It alleged that

it bought the property from Sandpebble 1 on or about September 

28, 2015, and the purchase agreement “assigned all [Sandpebble 

1’s] right, title and interest in and to the benefits of the policy 

and the claims loss to Sandpebble 2.” It further alleged that “[a]t 

all times material hereto, Sandpebble 2 was and is the assignee 

and beneficiary of the entire insurance policy and all claims 

rights [sic] that are the basis of this action.” Sandpebble 2 

alleged that Nevada Capital authorized Belfor to repair the 

property, but Belfor “stopped work for lack of payment, and

Nevada Capital withheld further disbursements to Belfor. At that 

time, approximately $450,000 was still owed to Belfor.” It alleged 

that it then sold the property on or about May 18, 2018, providing 

a credit to Belfor for the outstanding amounts in the purchase 

and sale agreement. It alleged that Nevada Capital represented 

that it would pay Sandpebble 2 when the construction was 

completed, but refused to do so, even after Sandpebble 2 provided 

requested documentation. 

Sandpebble 2 alleged that Nevada Capital’s refusal to pay 

“for the final amounts paid to Belfor” was a breach of the 
10

insurance policy. It asserted that the breach caused it damages

“in the amount of at least $388,999.27, calculated as follows:

“a. The original contract with Belfor was in the amount 

of $1,298,000;

“b. $117,000 was charged by Belfor in addition to the 

original contract amount for demolition and pre-contract charges, 

which was paid directly to Belfor;

“c. Belfor issued a change order for code upgrades in the 

amount of $225,334.65;

“d. Belfor later discounted the code upgrade change 

order by $99,335.38;

“e. To date, based upon the documents provided by 

Belfor and Nevada Capital, Nevada Capital has paid Plaintiff 

$1,035,000 toward the building repairs, not including payments 

made for loss of rent.” 

In its second cause of action for declaratory relief, 

Sandpebble 2 requested a “judicial determination that Nevada 

Capital is obligated under the express and implied terms of the 

Policies [sic] to reimburse Plaintiff with respect to the remaining 

cost of the fire loss.” 

II. Summary Judgment Proceedings 

A. Motion 

On March 24, 2021, Nevada Capital filed a motion for 

summary judgment, or, in the alternative, summary 

adjudication. Nevada Capital argued that the undisputed 

material facts established that it did not owe additional policy 

benefits because it paid more on the underlying insurance claim 

than either its insured, Sandpebble 1, or Sandpebble 2 paid to 

repair the property. Nevada Capital further argued that it had 

no obligation to Sandpebble 2 because, even if Sandpebble 2 had 
11

been assigned the policy benefits, that was insufficient to make it 

an insured under the policy. Nevada Capital contended that the 

declaratory relief claim was entirely derivative of the breach of 

contract claim, and it was entitled to summary judgment for the 

same reasons. Nevada Capital filed a separate statement and 

numerous exhibits in support of its motion. 

B. Opposition and Objections

Sandpebble 2 filed a brief opposing the summary judgment 

motion, supporting exhibits, and a separate statement 

responding to the facts set forth in Nevada Capital’s separate 

statement. In its opposition brief, Sandpebble 2 argued that 

Nevada Capital’s admission that it retained $245,803.11 in 

depreciation alone precluded summary judgment. Sandpebble 2 

further argued that its evidence showed “the repair cost to 

Sandpebble was $1,439,405.28, plus amounts for asbestos 

removal, construction fencing, demolition and code upgrade 

change order,” but Nevada Capital only paid approximately 

$1,035,000 toward the repairs. 

Sandpebble 2 also contended summary judgment was 

unwarranted because “Nevada Capital’s mathematical 

calculations of the numbers and/or its grasp of the facts are just 

plain wrong.” According to Sandpebble 2, the “true and accurate 

facts” showed that Sandpebble 2 and Wu Group collectively paid 

Belfor “$1,439,405.28, plus [unspecified] amounts for asbestos 

removal, construction fencing, demolition and code upgrade 

change orders that was [sic] outside the $1,298,025.88 and 

$845,013.18 contracts. Nevada Capital has only paid 

[Sandpebble 2] $1,035,000 toward the building repair under the 

contract with Belfor. Plaintiff and the Wu [G]roup entered into a 

cooperation agreement regarding completion of the repairs. 
12

Plaintiff paid for the repairs through escrow. . . .” Sandpebble 2 

reiterated its separately made objections to Nevada Capital’s 

separate statement, and accused Nevada Capital of misleading 

the court through “attempts to pin Plaintiff down by citing 

Plaintiff’s responses to Nevada Capital’s interrogatories.” It 

contended that it “later discovered [unspecified] proof and facts in 

discovery from Nevada Capital and by subpoena from third 

parties that were obtained after Plaintiff [sic] interrogatory 

responses.” 

Sandpebble 2 separately objected to Nevada Capital’s 

separate statement as “contain[ing] improper argument and 

misleading statements.” Though it objected to “undisputed facts 

numbered 6-11, 13, 16-22, 25, 28, 32-38,” it included only the 

following explanation of its grounds, omitting some listed 

paragraphs while adding others: “6 (‘substantial payments’); 7 

(combining all loss payments together and not addressing 

building repair costs); 11 (completely misleading); 15 [sic] 

(argument); 17 (argument); 19 (argument); 24 [sic] (argument 

and misleading); 28 (argument); 34 (misleading); 35 

(argumentative and misleading); and 36 (argumentative and 

misleading).” The objections refer to “Objections to Evidence filed 

herewith,” but no such document appears in the trial court docket 

or the appellate record. 

C. Reply and Objections 

In its reply, Nevada Capital argued that any expenditures 

by the Wu Group were irrelevant, because the “policy does not 

afford any benefits based on the amounts that the Wu Group 

paid.” It further argued that the alleged assignment of benefits 

under the policy did not make Sandpebble 2 an insured under the 

policy—but, even if it had, “Nevada Capital paid more towards 
13

the repairs than Sandpebble 1 and Plaintiff, combined, ever paid, 

even after considering the credits that Plaintiff provided to the 

Wu Group.” Nevada Capital disputed that it breached the policy 

by withholding the depreciation, because the insured, Sandpebble 

1, did not pay more to repair the property than Nevada Capital 

disbursed. Nevada Capital also filed evidentiary objections to 

numerous statements made in the declarations Sandpebble 2 

submitted in opposition to the summary judgment motion. 

D. Hearing and Ruling 

The court heard the motion on June 10, 2021 and took the 

matter under submission. The appellate record does not contain 

a reporter’s transcript of the hearing. 

The court issued a written ruling on July 1, 2021. The 

court first addressed the parties’ objections. It overruled 

Sandpebble 2’s objections to Nevada Capital’s separate statement 

as “improper,” because “the summary of evidence set forth in the 

Separate Statement is not evidence subject to objection,” and 

Sandpebble 2 did “not object to the cited evidence supporting 

these facts to which Plaintiff has raised objections.” The court 

sustained eight of Nevada Capital’s objections and overruled 10 

others. Because neither party challenges the rulings on Nevada 

Capital’s objections, facts with sustained objections were omitted 

from the recitation above.

The court then considered the breach of contract claim. It 

determined that Sandpebble 2 would have to establish three 

elements to prevail: “(1) that plaintiff suffered a loss, all or part 

of which was covered under an insurance policy with defendant; 

(2) that defendant was notified of the loss as required by the 

policy; and (3) the amount of the covered loss that defendant 

failed to pay.” The court concluded that Nevada Capital met its 
14

initial burden of showing that Sandpebble 2 could not establish 

the first of these elements. Specifically, “Defendant submitted 

evidence the Policy provides that the rights and duties of the 

Named Insured shown in the Declarations, Sandpebble 1, may 

not be transferred without Defendant’s written consent . . . . 

Defendant submitted evidence it never consented to an 

assignment of the Sandpebble 1 Policy to Plaintiff. Defendant’s 

evidence establishes that Sandpebble 1, not Plaintiff is the 

insured party under the Policy. As such, given Defendant is 

required to pay the cost to repair in an amount not more than the 

policyholder actually spent to repair the Property, any amounts 

purportedly paid by Plaintiff or the subsequent purchaser the Wu 

Group were not made by the policyholder. To the extent the 

claim is based on amounts paid by Plaintiff (or the Wu Group), 

any rights Sandpebble 1 had to seek such payments pursuant to 

the Policy were not assignable to Plaintiff or the Wu Group 

absent Defendant’s written consent, which was not provided.” 

The court accordingly concluded that the burden shifted to 

Sandpebble 2 to demonstrate a triable issue of material fact. 

The court concluded Sandpebble 2 failed to meet its burden. 

The court found Sandpebble 2 did not submit evidence supporting 

its allegations that it was an assignee or beneficiary of the policy, 

or refuting Nevada Capital’s evidence that Sandpebble 1 was the 

named insured and Nevada Capital did not provide the written 

consent required for Sandpebble 1 to assign the policy. The court 

further concluded that the Limited Assignment of Rights and 

Claims did not create a triable issue of material fact, “because, by 

its terms, it is between Sandpebble 1 as ‘Insureds’ and non-party 

[Dmitry] Piterman (‘Piterman’) as ‘Buyers’ along with Defendant 

as the insurance company, and Plaintiff is not a party to the 
15

Assignment.” The court added that the Limited Assignment of 

Rights and Claims was not signed by Nevada Capital, “and as 

such, there is no triable issue of fact as to Defendant’s evidence it 

did not sign or consent to any assignment of Sandpebble 1’s 

rights and duties under the Policy.” 

In light of the above, the court declined to reach Nevada 

Capital’s arguments “relating to: (1) whether Plaintiff can 

present evidence the costs incurred to repair the Property 

exceeded the amount paid by Defendant for the purposes of 

establishing a breach; and/or (2) whether Plaintiff can establish 

that Sandpebble 1, the party insured by the Policy, incurred any 

costs to repair the damage.” 

The court then considered the declaratory relief cause of 

action. It concluded that Sandpebble 2’s failure to address the 

cause of action in its opposition operated as a concession to 

Nevada Capital’s argument that it was derivative of the breach of 

contract cause of action. The court thus concluded that summary 

adjudication was warranted on this cause of action for the same 

reasons as the breach of contract action. 

The court entered judgment for Nevada Capital on July 26, 

2021. Sandpebble 2 timely appealed. 

DISCUSSION 

Sandpebble 2 contends the trial court erred by granting 

summary judgment in favor of Nevada Capital. It argues that 

the trial court improperly overruled its objections to Nevada 

Capital’s separate statement, and Nevada Capital did not meet 

its initial burden. Even if Nevada Capital successfully made its 

prima facie showing, Sandpebble 2 argues that it demonstrated 

“numerous triable issues of material fact,” including whether 

Nevada Capital’s calculations were accurate, whether 
16

Sandpebble 2 was an assignee of the policy or an intended 

beneficiary of the assignment to Piterman, and whether Nevada 

Capital improperly retained and was unjustly enriched by the 

depreciation. Sandpebble 2 also requests an opportunity to 

amend the operative complaint to name Piterman as a real party 

in interest if we conclude Piterman was entitled to receive the 

benefits of the insurance policy. 

We conclude the trial court properly overruled Sandpebble 

2’s improper objections, correctly concluded that Nevada Capital 

met its burden of showing Sandpebble 2 could not establish one 

or more elements of its causes of action, and correctly concluded 

that Sandpebble 2 failed to demonstrate a material issue of 

triable fact. 

I. Standard of Review

We review the trial court’s summary judgment ruling de 

novo. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 

768.) “‘In performing our de novo review, we must view the 

evidence in a light favorable to plaintiff as the losing party 

[citation], liberally construing [the plaintiff’s] evidentiary 

submission while strictly scrutinizing [the defendant’s] own 

showing, and resolving any evidentiary doubts or ambiguities in 

plaintiff's favor.’” (Andrews v. Foster Wheeler LLC (2006) 138 

Cal.App.4th 96, 100.)

A defendant moving for summary judgment must make a 

prima facie showing that there are no triable issues of material 

fact in order to meet its initial burden of production. (Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861; see also 

Code Civ. Proc. § 437c, subd. (c).) Once the defendant has met 

that burden, the burden shifts to the plaintiff to make a prima 

facie showing that a triable issue of material fact exists. (Aguilar 
17

v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) “The 

motion for summary judgment shall be granted if all the papers 

submitted show that there is no triable issue as to any material 

fact and that the moving party is entitled to a judgment as a 

matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

II. Rulings on Objections

Sandpebble 2 argues that Nevada Capital’s separate 

statement was procedurally defective, and the trial court thus 

abused its discretion in overruling Sandpebble’s objections 

thereto. We agree with Sandpebble 2 and the weight of authority 

that abuse of discretion is the proper standard of review for this 

issue. (See Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 

1109, 1118; Eisenberg et al., Cal. Practice Guide: Civil Appeals 

and Writs (The Rutter Group 2021) ¶ 8.168, p. 8-148 [“Pursuant 

to the weight of authority, appellate courts review a trial court’s 

rulings on evidentiary objections in summary judgment 

proceedings for abuse of discretion.”].) We find no abuse of 

discretion here.

Sandpebble 2 cited no legal authority for its objections in 

the trial court, nor did it clarify what its objections to several 

paragraphs even were. These deficiencies alone provided the 

trial court a valid basis to overrule the objections. (See Evid. 

Code, § 353.) They also remain largely unremedied on appeal. 

Although Sandpebble 2 cites Code of Civil Procedure section 

437c, subdivision (b)(1) for the proposition that a separate 

statement must contain facts, and California Rules of Court, rule 

3.1350(d)(2) for the proposition that a separate statement should 

only include material facts, it does not explain how, or even what 

portions of, the challenged paragraphs of the separate statement 

violated those requirements. 
18

More fundamentally, as the trial court observed, 

Sandpebble 2 objected only to assertions made in Nevada 

Capital’s separate statement, not the evidence those assertions

cited. Assertions made in a separate statement are not evidence. 

“‘Objections’ to such statements are therefore ineffectual.” (Cole 

v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 767 fn. 8 

[referring to statements made in a memorandum of points and 

authorities].) The trial court did not abuse its discretion in 

overruling Sandpebble 2’s objections. 

III. Satisfaction of Initial Burden 

Sandpebble 2 contends Nevada Capital did not meet its 

initial burden because its “calculations were inaccurate, 

incomplete and mathematically incorrect. Most importantly, [sic] 

failed to establish why they paid out a portion of the policy 

benefits but refused to pay out $245,803.11 of remaining policy 

benefits that they admitted they intentionally retained.” 

Sandpebble 2 does not clarify which cause of action it is 

discussing, or what the elements of the relevant causes of action 

are. 

A defendant moving for summary judgment has the initial 

burden to show the plaintiff cannot establish one or more 

elements of the challenged cause of action or there is a complete 

defense to that cause of action. (Code Civ. Proc., § 437c, subd. 

(p)(2).) A defendant meets its burden by presenting affirmative 

evidence negating an essential element of the plaintiff’s claim, or 

demonstrating that “the plaintiff does not possess, and cannot 

reasonably obtain, needed evidence” to prove an essential 

element. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 

p. 855.) 
19

A. Breach of Contract

Sandpebble 2’s first cause of action was for breach of 

contract. “To state a cause of action for breach of contract, a party 

must plead the existence of a contract, his or her performance of 

the contract or excuse for nonperformance, the defendant’s 

breach, and resulting damage.” (Harris v. Rudin, Richman & 

Appel (1999) 74 Cal.App.4th 299, 307.) “Wrongful failure to 

provide coverage or defend a claim is a breach of contract.” 

(Isaacson v. California Insurance Guarantee Association (1988) 

44 Cal.3d 775, 791.) In the context of a claim alleging breach of 

an insurer’s contractual duty to pay a covered claim, the plaintiff 

must prove that it suffered a loss covered by the policy, that it 

notified the insurer of the loss in the manner required by the 

policy, and the amount of the covered loss the insurer failed to 

pay. (See CACI 2300.) 

Here, Nevada Capital submitted evidence showing that 

Sandpebble 1 was the named insured under the insurance policy 

at issue, and that Sandpebble 2 was not. Nevada Capital also 

submitted evidence that the policy contained a provision stating 

that the named insured could not transfer its rights and duties 

under the policy without the written consent of Nevada Capital, 

and that no such consent was provided to assign the rights and 

duties to Sandpebble 2 or Wu Group. This evidence was 

sufficient to show that Sandpebble 2 could not establish that 

there was a contract between Nevada Capital and Sandpebble 2, 

or that Sandpebble 2 suffered a loss that was covered by the 

policy. The accuracy of mathematical calculations or retention of

benefits is not relevant to the threshold issue whether 

Sandpebble 2 was covered by the policy in the first instance. 
20

Sandpebble 2’s argument that Nevada Capital failed to carry its 

initial burden on the breach of contract claim thus lacks merit. 

B. Declaratory Relief

“[T]o state a cause of action for declaratory relief, there 

must be an ‘actual controversy’ relating to the legal rights and 

duties of the parties.” (Country Side Villas Homeowners Assn. v. 

Ivie (2011) 193 Cal.App.4th 1110, 1118; see also Code Civ. Proc.,

§ 1060 [“Any person interested under a written instrument . . . or 

under a contract, or who desires a declaration of his or her rights 

or duties with respect to another, or in respect to, in, over or upon 

property . . . may, in cases of actual controversy relating to the 

legal rights and duties of the respective parties, bring an original 

action or cross-complaint in the superior court for a declaration of 

his or her rights and duties in the premises, including a 

determination of any question of construction or validity arising 

under the instrument or contract.”].) Notwithstanding the 

existence of an actual controversy, a claim for declaratory relief 

that is “wholly derivative” of a failed claim cannot stand. (See 

Ball v. FleetBoston Financial Group (2008) 164 Cal.App.4th 794, 

800.) 

The declaratory relief Sandpebble 2 requested in the 

operative complaint was “a judicial determination that Nevada 

Capital is obligated under the express and implied terms of the 

Policies [sic] to reimburse Plaintiff with respect to the remaining 

cost of the fire loss.” This is in essence a restatement of the cause 

of action for breach of contract: Sandpebble 2 requested a 

declaration that Nevada Capital breached the policy. It is 

therefore “wholly derivative” of the breach of contract cause of 

action, and Nevada Capital met its initial burden by meeting its 

burden on the breach of contract cause of action.
21

IV. Failure to Meet Shifted Burden 

Once the defendant has met its initial burden, the burden 

shifts to the plaintiff to make a prima facie showing that a triable 

issue of material fact exists. (Aguilar v. Atlantic Richfield Co., 

supra, 25 Cal.4th at p. 850.) Sandpebble 2 contends it met that 

burden—presumably as to both intertwined claims—by 

producing evidence showing that Nevada Capital paid funds to 

and on behalf of Piterman. It argues, “If there was no 

assignment of policy benefits, they [sic] why would [Nevada 

Capital] be paying out benefits to Dmitry Piterman and 

Sandpebble 2’s lender? The answer is: there had to have been an 

assignment – otherwise [Nevada Capital] would not have been 

paying out benefits to Dmitry Piterman and Sandpebble 2 and its 

lender. The trial court committed error in finding there was no 

enforceable assignment to either Dmitry Piterman or Sandpebble 

2.” 

Construed in the light most favorable to Sandpebble 2, the 

evidence shows that Nevada Capital made payments to 

Sandpebble 2’s principal, Piterman, notwithstanding Nevada 

Capital’s failure to sign the Limited Assignment of Rights and 

Claims. It is reasonable to infer from this evidence that Nevada 

Capital consented to an assignment of rights to Piterman. It is 

not reasonable, however, to make the secondary inferential leap 

that Nevada Capital consented to an assignment of rights to 

Sandpebble 2. The Limited Assignment of Rights and Claims

does not mention Sandpebble 2 or indicate that Piterman was 

signing the agreement on the entity’s behalf. To the contrary, the 

Limited Assignment of Rights and Claims specifically states that 

it “does not confer any status or standing as an insured or 

beneficiary under the Policy to [Piterman] or to any other person 
22

or entity.” The check ledger submitted by Sandpebble 2 does not 

identify Sandpebble 2 as a payee on any of the 35 checks Nevada 

Capital issued in connection with the claim.6 Even the Belfor 

estimate signed by Piterman does not mention Sandpebble 2. 

This evidence accordingly does not establish that Sandpebble 2, a 

legal entity separate and distinct from Piterman, received any 

benefits under the policy or was treated as an assignee by 

Nevada Capital. 

Sandpebble 2 additionally points to Piterman’s declaration, 

in which he asserted that “Sandpebble 1 assigned all its right, 

title and interest in and to the benefits of the policy and the 

claims loss to Sandpebble 2” pursuant to the purchase 

agreement. The purchase agreement is not in the record, and 

there is no suggestion in the declaration or elsewhere that 

Nevada Capital was party to the agreement or consented to the 

assignments it purportedly contained as required by the policy. 

This conclusory statement accordingly does not raise a triable 

issue of material fact regarding assignment of the policy. 

Nor does it or the other evidence warrant granting 

Sandpebble 2’s belated request to amend the operative complaint 

to add Piterman as the real party in interest. “If the motion for 

summary judgment presents evidence sufficient to disprove the 

plaintiff’s claims, as opposed to merely attacking the sufficiency 

of the complaint, the plaintiff forfeits an opportunity to amend to 

state new claims by failing to request it.” (Bostrom v. County of 

San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) “[A] plaintiff 

6 It also shows that all checks that were made jointly payable 

to Sandpebble 1 and its lenders, or to the entity Sandpebble 2 

asserts without evidentiary support was Sandpebble 2’s lender, 

were either voided or had payment stopped. 
23

wishing ‘to rely upon unpleaded theories to defeat summary 

judgment’ must move to amend the complaint before the 

hearing.” (Oakland Raiders v. National Football League (2005) 

131 Cal.App.4th 621, 648.) No such request was made in the 

trial court, despite the numerous opportunities Sandpebble 2 was 

given to amend its complaint. We decline leave to amend at this 

juncture. 

Sandpebble 2 asserts for the first time on appeal that 

Nevada Capital “is estopped from denying their consent to the 

assignment since Appellant incurred the expense of the ongoing 

repairs in reliance upon [Nevada Capital’s] previous performance 

and payment of repairs.” This argument cannot be raised for the 

first time on appeal. Nor can Sandpebble 2’s alternative 

contention that it is an intended beneficiary of any assignment to 

Piterman. Even if the latter argument were properly raised, 

Sandpebble 2 has not pointed to any evidence that “the 

contracting parties must have intended to benefit [Sandpebble 2] 

and such intent appears on the terms of the agreement.” (Harper 

v. Wausau Ins. Co. (1997) 56 Cal.App.4th 1079, 1087.) To the 

contrary, the Limited Assignment of Rights and Claims 

specifically states that it “does not confer any status or standing 

as an insured or beneficiary under the Policy to [Piterman] or to 

any other person or entity.” 

Sandpebble 2 has not raised a triable issue of material fact 

regarding the assignment of the insurance policy rights and 

benefits to Sandpebble 2. It accordingly has not demonstrated 

that the trial court erred in granting summary judgment for 

Nevada Capital on that basis. We need not and do not address 

its arguments regarding the accuracy of Nevada Capital’s 
24

calculations or its retention of the depreciation and alleged 

unjust enrichment thereby. 

DISPOSITION

The judgment of the trial court is affirmed. Nevada Capital 

is awarded its costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.