Filed 11/2/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ALLEN LETGOLTS et al.,

Plaintiffs and Appellants,

v.

DAVID H. PIERCE & 

ASSOCIATES, PC, et al.,

Defendants and Respondents.

 B306905

 (Los Angeles County

 Super. Ct. No. BC537637)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Daniel S. Murphy, Judge. Affirmed.

Timothy D. McGonigle Professional Corporation and 

Timothy D. McGonigle for Plaintiffs and Appellants.

Freeman Mathis & Gary, Frances M. O’Meara, Stephen M. 

Caine and Holly M. Teel for Defendants and Respondents.

____________________
2

A case within a case can arise when a legal malpractice suit 

accuses lawyers of poor work. The main case is the malpractice 

suit: were the defendant lawyers’ performances deficient? The 

case within the case is whether the lawyers’ performances 

mattered. If the underlying suit on which the lawyers worked 

lacked merit, then their alleged malpractice could not have had 

an impact, because the client would have lost anyway. The issue 

is causation: whether possible malpractice could have caused 

harm. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239–1240.)

This appeal follows that pattern.

Married couple Allen Letgolts and Gabriella Plattner hired 

a law firm to get money from an insurance company: National 

Contractors Insurance Company, Inc. But National’s policy was 

a special and narrow kind of manuscript policy that excluded the 

kind of construction defect claims Letgolts and Plattner were 

pursuing. Plaintiffs Letgolts and Plattner also asserted a claim 

for personal injury from when Plattner fell down stairs. 

National’s policy did cover personal injuries. But Plattner’s tardy 

and uncorroborated claim was at odds with the detailed lists of 

problems Plattner herself gave the insurer years before. Plattner 

thus effectively impeached herself. The trial court implicitly 

rejected Plattner’s testimony about her personal injury claim. 

We credit this implied credibility determination. 

As a result, the trial court rejected the legal malpractice 

suit against the defendant law firm because pursuing insurance 

money from National was a lost cause from the start. This ruling 

was correct: whether the law firm committed malpractice did not 

matter, because Letgolts and Plattner could not have won their 

insurance case. We affirm.
3

I

Letgolts and Plattner are the plaintiffs and appellants. 

They had a bad experience remodeling their home in 2008. The 

fallout continues today, 13 years later, with this appeal. 

The defendants and respondents in this legal malpractice 

case are the law firm of David H. Pierce and Associates, P.C., and 

Charles Pressman, who is a lawyer with that firm. We refer to 

this firm and Pressman collectively as Pierce. 

We summarize the facts in three phases.

First is the 2007 to 2010 time frame. In these years, 

Letgolts and Plattner hired contractor Boris Pinchevskiy to 

remodel their home. Pinchevskiy made a mess of the project and 

then walked away, so Letgolts and Plattner sued him and others.

The second phase is 2010 to 2015, which was a quiescent 

interval.

The third phase is 2015 to 2020, which produced forward 

motion in the dispute, culminating in a 2020 bench trial. The 

trial court ruled against Letgolts and Plattner, who now appeal.

We describe these three phases.

A

The first factual phase was from 2007 to 2010. This phase 

began with Letgolts and Plattner planning their home remodel 

and room addition. This remodel ended in litigation.

Letgolts and Plattner planned their remodel with care, 

according to their later unverified complaint. Their allegations 

tell this story.

In 2007, Letgolts and Plattner consulted Maritza Hartnett, 

an insurance agent who had helped them obtain car insurance, 

homeowners insurance, flood insurance, and earthquake 

insurance. Plattner, a practicing lawyer, told Hartnett about the 
4

planned remodel. Plattner said it would be major: it would take 

some of their home “down to the studs.” Plattner wanted full 

insurance against all hazards. 

Hartnett assured Plattner her existing homeowners policy 

with Fire Insurance Exchange fully covered the situation. 

Hartnett was wrong: the Fire Insurance Exchange policy 

excluded property damage caused by “construction activities.” 

“Construction activities” were what Plattner and Letgolts wanted 

Pinchevskiy to undertake. 

Plattner and Letgolts alleged that, had Hartnett accurately 

disclosed that the Fire Insurance Exchange policy excluded 

property damage caused by construction activities, they would 

have obtained different insurance or a similar product, such as a 

bond, to protect them against the risk of construction-related 

property damage.

In reliance on Hartnett’s bad advice and with no bond or 

other insurance, Letgolts and Plattner signed a contract with 

Pinchevskiy on December 8, 2007. His crew began demolition.

On January 15, 2008, an event central to this appeal either 

did, or did not, occur. In 2020, Plattner would claim she fell down 

a home staircase Pinchevskiy allegedly had rebuilt in a negligent 

way. Plattner in 2020 portrayed the supposed fall as serious: 

“On January 15, 2008, I fell down the unfinished stairs at the job 

site and suffered a concussion, lacerations, muscle strain, and 

tendonitis and sought care from a physician.” 

We will return to the uncertainty surrounding this alleged 

January 15, 2008 fall and Plattner’s alleged concussion, 

lacerations, and medical care. For now, we continue in 

chronological order.
5

As 2008 progressed, Pinchevskiy botched the home 

remodel. He had cashed six figures of prepayment from Letgolts 

and Plattner and demolished parts of their home, but he 

abandoned the unfinished job on July 1, 2008. His negligence 

caused extensive damage to the home. Plattner claimed 

Pinchevskiy left the place “completely uninhabitable.” 

Later in 2008, Letgolts and Plattner sought relief from 

Pinchevskiy and his insurer National.

Pinchevskiy went bankrupt. National became insolvent. 

Neither is party to this suit.

On September 11, 2008, Plattner wrote a claims letter to 

Pinchevskiy’s insurance broker to make a claim against National. 

Plattner enumerated her problems with the home remodel: 

1. Pinchevskiy had promised the job would be done by 

April 1, 2008, but it was not; 

2. Pinchevskiy walked off the job, leaving electrical, 

plumbing, and framing work incomplete;

3. Gas pipes were left unconnected;

4. Water pipes were not configured for proper drainage;

5. The electrical sub-panel was inadequate for the house 

and the main electrical panel was not connected; and

6. Walls and ceilings Pinchevskiy had removed contrary 

to plans required further foundation work and 

bracing of remaining walls. 

In this letter, Plattner did not mention falling down stairs, 

her concussion, her lacerations, or her medical expenses. 

Plattner signed her claims letter “Plattner Law Office” with a 

Century City address different from her home address. 
6

On January 20, 2009, Plattner sent National’s insurance 

adjuster another letter detailing her claims against Pinchevskiy. 

Plattner now itemized 19 problems:

1. Pool shed destroyed;

2. Air conditioning pipes and wires cut;

3. Spiral staircase removed and door frames destroyed;

4. Foundation undermined, causing floor above to sag;

5. Drain pipes cut;

6. Wood floors destroyed;

7. Brick patio torn up and more drain pipes cut;

8. Electrical lines to sub-panel cut and all existing 

wiring removed in house;

9. Windows damaged;

10. Fireplace damaged;

11. Previously existing wiring replaced with 

inferior product;

12. Door frames damaged and destroyed;

13. Gas and water lines poorly connected and left 

unconnected under the floorboards;

14. Wall built jutting out from house by six inches;

15. Security system destroyed;

16. Sprinkler system destroyed;

17. Driveway destroyed;

18. Excessive dirt excavation causing floor to sink 

over two inches; and

19. Excavation leaving driveway without lateral 

support, causing it to crumble. 

As we have just listed, item three described Pinchevskiy’s 

removal of a spiral staircase. Plattner’s letter did not mention a 
7

defectively reconstructed staircase, Plattner’s fall, her concussion, 

her lacerations, or her medical treatment. 

Letgolts and Plattner retained attorney Scott Marks, who 

on November 13, 2009, filed a complaint against three 

defendants: 

1. Fire Insurance Exchange, which the complaint 

identified as Letgolts and Plattner’s home insurer;

2. Hartnett, the insurance agent who advised Letgolts 

and Plattner about insurance; and

3. Pinchevskiy.

This complaint alleged Hartnett assured Letgolts and 

Plattner their existing homeowners policy with Fire Insurance 

Exchange would cover possible property damage by Pinchevskiy. 

Relying on Hartnett’s advice, Letgolts and Plattner did not obtain 

a bond or other insurance. Then Pinchevskiy damaged their 

property during his bungled remodeling effort. Letgolts and 

Plattner sought to hold Hartnett, Fire Insurance Exchange, and 

Pinchevskiy liable for the property damage Pinchevskiy caused.

Hartnett and Fire Insurance Exchange are not parties to 

this appeal. 

This 2009 complaint mentioned “property damage” in 19 

different paragraphs. The complaint did not mention a staircase, 

a fall down it, a concussion, lacerations, or medical treatment for 

Plattner. 

On February 2, 2010, National’s coverage counsel 

responded to Plattner’s claims letters with a 26-page analysis of 

why National had no duty to defend or indemnify Pinchevskiy 

against the lawsuit by Letgolts and Plattner. This analysis 

summarized the dispute and stated counsel “would appreciate 

being advised of any corrections or comments” about its account 
8

of the situation. The parties call this document the “claims 

rejection letter.”

This letter reviewed why National’s policy did not cover

Plattner’s claims. The letter mentioned coverage counsel’s 

independent investigation of Plattner’s claims. 

The letter does not allude to a supposed fall by Plattner, a 

concussion, lacerations, or medical treatment. Nor is there a 

reference to “stairs,” apart from item three, quoted above, 

reciting Plattner’s report of “Spiral staircase removed and door 

frames destroyed.” 

Letgolts and Plattner did not complain the claims rejection 

letter omitted Plattner’s injuries from falling down stairs.

B

The second factual phase is from 2010 to 2015. Little 

happened. Attorney Marks had sued Pinchevskiy, Hartnett, and 

Fire Insurance Exchange on behalf of Letgolts and Plattner. The 

suit against Pinchevskiy proceeded glacially.

Although Pinchevskiy did not retain counsel, Marks failed 

to obtain a default judgment against him. Marks withdrew from 

the case in July 2012. Marks is not a party to this appeal.

After their disappointing experience with attorney Marks, 

Letgolts and Plattner retained a second round of attorneys: 

Pierce. Pierce secured a default judgment against Pinchevskiy, 

but it took Pierce until June 2015 to do this. Pierce’s theory 

against National was that it had wrongfully failed to defend 

Pinchevskiy and therefore was liable for the entire judgment 

against him. But National filed for liquidation before Pierce 

could collect on the judgment. 

In sum, by 2015, Pierce had gotten Letgolts and Plattner a 

judgment about the 2008 remodeling fiasco, but the judgment 
9

was uncollectable against both Pinchevskiy, who was bankrupt, 

and National, which was defunct.

C

The third factual phase is from 2015 to 2020. In these 

years, Letgolts and Plattner sued Pierce for malpractice. The 

case proceeded to a bench trial, which Letgolts and Plattner lost. 

We detail these events.

For the third time, Letgolts and Plattner retained counsel. 

The purpose now was to sue their previous lawyers for legal 

malpractice. 

This malpractice case is the one currently on appeal. 

Letgolts and Plattner originally filed this case many years ago. 

They filed the operative pleading—the Fifth Amended 

Complaint—in 2018. This pleading accused Pierce of negligent 

delay in seeking recovery from Pinchevskiy’s insurer, National. 

The allegation was that Pierce could have secured payment for 

Letgolts and Plattner from National, but Pierce’s slow pace let 

National slip into liquidation. Letgolts and Plattner alleged 

Pierce thereby lost them millions of dollars of a potential recovery 

from National.

To defend against this legal malpractice by Letgolts and 

Plattner, Pierce used the mechanism of a case within a case. 

Pierce’s lawyers argued Letgolts and Plattner could never have 

prevailed against National because they never presented a claim 

covered by Pinchevskiy’s policy with National. So, these defense 

lawyers asserted, Pierce’s alleged sluggishness did not matter: 

no insurance recovery ever was possible from National. 

Therefore, they reasoned, Pierce’s alleged malpractice could not 

have made a difference. 
10

On February 5, 2020, the trial court held a one-day 

bifurcated bench trial. One witness testified: Plattner. The 

court determined Pierce’s defense was valid and entered 

judgment against Letgolts and Plattner, who now appeal.

II

We independently review the trial court’s legal rulings and 

deferentially review its factual findings.

Familiar malpractice and insurance law is the backdrop to 

this review. Letgolts and Plattner sued Pierce on the legal 

malpractice theory that Pierce was unprofessionally slow: had 

the law firm moved with professional dispatch, it could have 

secured and enforced a judgment against Pinchevskiy that 

National, while solvent, could have satisfied. Pierce’s defense 

was that Letgolts and Plattner never presented a claim within 

National’s policy, meaning the insurance company had no duty to 

Pinchevskiy to defend or to indemnify him against Letgolts and 

Plattner. According to Pierce, this meant Letgolts and Plattner 

never stood a chance of securing an enforceable judgment that 

National would have paid, so any alleged malpractice by Pierce 

could not have harmed them. The trial court accepted this theory 

and ruled for Pierce. Letgolts and Plattner protest this ruling by 

arguing National had a duty to indemnify and, at the very least, 

to defend Pinchevskiy, given the claims Letgolts and Plattner had 

raised against him. (See Montrose Chemical Corp. v. Superior 

Court (1993) 6 Cal.4th 287, 295–300.)

Our analysis is in three steps. 

First, we examine the National insurance policy at the 

center of this case. 
11

Second, we determine the trial court correctly interpreted 

this policy to exclude the construction defect claims by Letgolts 

and Plattner. 

Third, we assay the personal injury claim. Plattner 

testified at the bench trial she hurt herself by falling down a 

defectively constructed staircase. This testimony was in 2020 

about an event that Plattner said was in 2008. The trial court 

did not expressly reject Plattner’s tardy injury claim on 

credibility grounds. That implicit finding, however, is the 

necessary implication of the court’s ruling. We ascribe this 

credibility finding to the trial court, which dooms Plattner’s 

personal injury claim. 

A

National sold contractor Pinchevskiy a particular and 

specialized kind of insurance policy. It was a manuscript policy 

rather than a standard general commercial liability policy. (See 

Croskey et al., Cal. Practice Guide: Insurance Litigation (The 

Rutter Group 2021) §§ 3:33–3:40 [distinguishing standard from 

nonstandard or “manuscript” insurance policies]; Dart Industries, 

Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1074, 

fn. 5 [same][citing Croskey, supra].)

The type of manuscript policy National sold Pinchevskiy 

excluded Pinchevskiy’s own sloppy construction work from 

coverage. In other words, if Pinchevskiy’s deficient work required 

repair, that was on Pinchevskiy. It was not the insurer’s 

problem. 

The pertinent provision within this policy was “exclusion 

(k)(6).” This provision is central to this appeal. Exclusion (k)(6) 

reads as follows, with our italics:
12

“This insurance does not apply to ‘property damage’ to . . . 

[t]hat particular part of any real property or personal property 

that must be restored, repaired or replaced because ‘your work’ 

was incorrectly performed on it.” 

The case law labels this a “faulty workmanship exclusion.” 

(E.g., Clarendon America Ins. Co. v. General Security Indemnity 

Co. of Arizona (2011) 193 Cal.App.4th 1311, 1325 (Clarendon).)

The principle is simple. The insurance company says, 

“Contractor, you are on the hook for your own bad construction 

work. We are not.”

This commercial arrangement makes common sense.

The issue is moral hazard. It would create a moral hazard 

for insurance companies to sell insurance to contractors that 

would tempt the contractors then to exploit by doing cheap 

construction work for clients, only to leave the insurers 

responsible for fixing the faults. 

We illustrate the issue in concrete but simplified terms. In 

a small job with no subcontractors, consider how a builder might 

be enticed to increase the profit on a job by cutting corners. How 

much steel rebar should the builder buy and lay down before 

pouring the cement slab: the proper amount to strengthen the 

slab, or less? How many beams should the builder put in the 

ceiling before concealing the beams with drywall? How many 

nails in each two by four? Less steel and fewer beams and nails 

would cost less, cut the builder’s expenses, and increase the 

builder’s profits. Cutting these corners will be invisible, for the 

shortcuts will be hidden within the floor and behind the paint. 

Perhaps no one will notice before the first large earthquake. 

Perhaps that will take decades—or centuries.
13

The prospect of legal liability for poor work helps deter 

builders from cutting corners. (See, e.g., Civ. Code, § 895 et seq.) 

But it would dull that discipline if contractors could obtain 

insurance indemnifying them for the costs of fixing their own 

shoddy work. Misguided insurance like that would create a 

moral hazard.

Moral hazard is the bad incentive the fact of insurance can 

give to an insured. The bad incentive is to increase risky or 

destructive behavior covered by the insurance. If the presence of 

insurance tempts insureds to cut corners or to take unwise risks, 

insurance will have created a perverse and socially undesirable 

incentive. (See Wexler v. California FAIR Plan Assn. (2021) 63 

Cal.App.5th 55, 63, 70–75 [explaining moral hazard generally]; 

Western Employers Ins. Co. v. Arciero & Sons, Inc. (1983) 146 

Cal.App.3d 1027, 1031–1032 [explaining moral hazard in the 

contractor setting]; cf. Clarendon, supra, 193 Cal.App.4th at p. 

1325 [in this kind of policy, contractors bear the risk of fixing 

their own faulty workmanship, while insurers bear the risk of 

damage to the property of others].)

Moral hazard is a general phenomenon in the insurance 

world. The hazard is moral because it can tempt good people to 

do bad things: to take unwise risks where they profit if all goes 

well but avoid liability if fortune does not smile.

Allowing a stranger to buy insurance on your life is a 

classic and extreme example of moral hazard’s perverse 

incentive. That insurance would tempt the stranger to arrange 

for your death, to make it look like an accident, and to collect the 

policy payoff. (See Warnock v. Davis (1881) 104 U.S. 775, 779 

[life insurance policies that allow strangers to profit from the 
14

“early death” of the insured “have a tendency to create a desire 

for the event”].)

Judge Posner gives another illustration. He explained an 

insurance company would not willingly insure a pension plan and 

its sponsor against an underpayment of benefits. Coverage like 

that would create an acute moral hazard problem. “Such 

insurance would give the plan and its sponsor an incentive to 

adopt aggressive (just short of willful) interpretations of ERISA 

designed to minimize the benefits due, safe in the belief that if, as 

would be likely, the interpretations were rejected by the courts, 

the insurance company would pick up the tab. Heads I win, tails 

you lose.” (May Dept. Stores Co. v. Fed. Ins. Co. (7th Cir. 2002) 

305 F.3d 597, 601, italics added (Posner), abrogated on other 

grounds by Americold Realty Trust v. ConAgra Foods, Inc. (2016) 

577 U.S. 378, as recognized in RTP LLC v. ORIX Real Estate 

Capital, Inc. (7th Cir. 2016) 827 F.3d 689, 691–692.)

Insurance companies know all about moral hazard. They 

seek to guard against it. It would be unprofitable for them to 

encourage insureds to magnify the very risks against which the 

insurance company is insuring. No insurance company wants to 

encourage its insureds to game its own system against itself. 

Rational companies will write policies to eliminate moral hazard. 

So it was with National’s policy with Pinchevskiy. 

National’s policy evinced a goal of avoiding moral hazard. 

National did not want to tempt contractors like Pinchevskiy to 

play heads I win, tails you lose against it. National did insure 

Pinchevskiy against accidentally harming other people. But 

when it came to insuring the quality of Pinchevskiy’s own 

construction work, National’s coverage drew the line. To do 

otherwise would have encouraged Pinchevskiy to save money by 
15

cutting corners on quality, “safe in the belief that if [the cut 

corners caused construction defects], . . . the insurance company 

would pick up the tab.” (Posner, supra, 305 F.3d at p. 601.) 

B

We now turn to the property damage claims by Letgolts and 

Plattner. The next section takes up their personal injury claim.

National’s policy excluded Letgolts and Plattner’s property 

claims, which were the results of Pinchevskiy’s own faulty 

workmanship. The faulty workmanship exclusion meant these 

claims could not support a recovery against National.

The initial and seemingly main reason Letgolts and 

Plattner were unhappy with Pinchevskiy was that he botched 

their remodel. He took too long and left too soon. The work he 

did do was of low quality. Pinchevskiy then used bankruptcy to 

dodge personal liability for his own substandard performance.

Pinchevskiy’s policy with National, however, did not step 

into the breach. Paragraph (k)(6) excluded Pinchevskiy’s faulty 

workmanship from the policy. The trial court ruling on property 

damage was correct: National’s faulty workmanship exclusion 

excluded Pinchevskiy’s faulty workmanship.

This conclusion has support from lofty sources. Justice 

Traynor’s trim decision in Volf v. Ocean Accident & Guarantee 

Corp. (1958) 50 Cal.2d 373, 373–376 reached a similar decision 

regarding a similar insurance exclusion. The esteemed Professor 

Macaulay explained Justice Traynor’s ruling made good sense: a 

contrary decision would have lessened the incentive for the 

contractor “to exercise care or to make repairs at the least 

possible cost.” (Macaulay, Justice Traynor and the Law of 

Contracts (1961) 13 Stan.L.Rev. 812, 825–826.) The court in 

Maryland Casualty Company v. Reeder (1990) 221 Cal.App.3d 
16

961, 967–968 quoted and endorsed Macaulay’s analysis. So do 

we.

In their appellate briefing, Letgolts and Plattner emphasize 

particular items of damaged property: their pool shed and their 

driveway. They say the shed and driveway were not within the 

scope of services in Pinchevskiy’s contract and argue this 

property, therefore, must fall outside the faulty workmanship 

exclusion. 

This argument is incorrect. It lacks support from text, 

logic, and authority.

The text of the policy contravenes this argument. “This 

insurance does not apply to ‘property damage’ to . . . [t]hat 

particular part of any real property or personal property that 

must be restored, repaired or replaced because ‘your work’ was 

incorrectly performed on it.” (Italics added.) Letgolts and 

Plattner wanted their shed and driveway repaired because 

Pinchevskiy wrecked them. The text of the contract excludes 

those claims.

No logic supports this argument. The rationale for the 

faulty workmanship exclusion is to force contractors to bear 

liability for their own defective work. The goal is to ensure 

contractors do acceptable work. This goal is unaffected by 

whether the work is within or beyond the scope of a contract. 

Letgolts and Plattner supply no reasoning to overcome this point.

This argument also lacks legal precedent. In their briefing, 

Letgolts and Plattner rely on Tokio Marine Speciality Insurance 

Company v. Thompson Brooks, Inc. (N.D. Cal. 2017) 252 

F.Supp.3d 753, 760–761, which is irrelevant. The Tokio holding 

was the faulty workmanship exclusion does not apply when a 

third party, beyond the control of the contractor, is responsible 
17

for the property damage. (Ibid.) That holding makes good sense 

but does not apply where no third party was beyond 

Pinchevskiy’s control.

At oral argument and after giving Pierce fair notice, 

Letgolts and Plattner cited another irrelevant case: Global 

Modular, Inc. v. Kadena Pacific, Inc. (2017) 15 Cal.App.5th 127. 

Part of Global interprets a faulty workmanship exclusion. (See 

id. at pp. 139–144.) Global affirmed a summary judgment 

because there was a fact question about whether the contractor’s 

work was faulty. (Id. at p. 144 [“we do not know whether Global’s 

rain protection was defective or simply overcome by heavy rain”]; 

see also id. at p. 141 & fn. 2.) Here, however, the contractor’s 

work was defective. Letgolts and Plattner strongly agree this is 

so. Global thus is not pertinent. 

We do not address the arguments by Letgolts and Plattner 

concerning other and cumulative reasons the trial court gave for 

its ruling. Nor do we address another decision cited at oral 

argument that the authoring federal district court decided 

against publishing. 

C

This section concerns the personal injury claim. The trial 

court ruled Plattner and Letgolts never presented the personal 

injury claim to National. In 2020, Plattner testified by 

declaration as well as in person. She claimed that, on January 

15, 2008, she fell down stairs and suffered a concussion, which 

she later orally reported to a claims adjuster. The trial court in 

this bench trial evidently did not credit Plattner’s tardy, 

uncorroborated, and self-serving testimony. The court’s ruling is 

clear, although it is implicit rather than express. Substantial 

evidence supports it. We defer to it.
18

We begin with the trial court’s ruling. The court wrote in 

its statement of decision that there was “NO COVERAGE FOR 

PLAINTIFF PLATTNER’S UNDISCLOSED BODILY INJURY 

CLAIM.” The italics are ours and pinpoint the crux. Plattner’s 

personal injury claim was for her supposed concussion and 

lacerations from her supposed fall down the stairs. The trial 

court found Plattner never disclosed this claim to National.

Plattner points out she testified in the bench trial that she 

had given an oral report of this injurious fall to a claims adjuster. 

The trial court rejected this testimony by writing that 

Plattner’s bodily injury claim was “undisclosed.” 

The trial court did not expand on its succinct finding. It did 

not write, for instance, “I disbelieve Plattner’s testimony about 

how she fell down.” Nor did the court write, “I reject Plattner’s 

claim that she made an oral report of the fall to National’s claims 

adjuster.” The trial court did not specify the basis for its finding. 

This lack of specificity does not reduce the force of this trial 

court finding, so long as the record reveals a rational ground that 

supports it. (See Schmidt v. Superior Court (2020) 44 

Cal.App.5th 570, 582 [in a bench trial, the court may believe or 

disbelieve uncontradicted witnesses if there is a rational ground 

for doing so].) The absence of an express credibility finding does 

not matter when the trial court’s implied finding is clear and 

enjoys rational support. (See ibid.).

We indulge all presumptions and intendments in support of

the judgment. (E.g., Jameson v. Desta (2018) 5 Cal.5th 594, 609.) 

This fundamental rule is old. (See Ford v. Holton (1855) 5 Cal. 

319, 321.)

It is understandable that trial judges occasionally are 

diffident about stating in very direct terms that they reject a 
19

party’s testimony. A bench trial can be an intimate affair: few 

may attend, and the regulars may all seem to be worthy people 

despite their commitment to a litigation dispute that has become 

overwhelmingly partisan. Over the years, the trial judge may 

have developed empathy for both parties, despite their perhapsexcessive zeal for their own cause. It can be unpleasant to write 

the words you know they will read: “I do not believe you.” A 

compassionate trial court may soften the language in its ruling. 

Gentle words do not detract from the ruling’s authority.

Letgolts and Plattner argue the court’s finding is “error on 

its face,” because Plattner testified she did fall and did tell the 

adjuster, and there was no conflicting testimony. 

This record gave the trial court a rational basis for rejecting 

Plattner’s credibility. The objective facts of this case made her 

uncorroborated claim dubious.

Plattner’s words in 2008 and 2009 suggested her words in 

2020 were a tardy and self-serving invention. Plattner was a 

practicing lawyer in 2008. She personally wrote two lists of what 

had gone wrong with Pinchevskiy’s failed 2008 remodel. Her lists 

were very detailed: “Electrical lines to sub-panel cut” and such. 

Plattner wrote and sent one list on September 11, 2008. She 

wrote the other on January 20, 2009. Neither time did Plattner 

say Pinchevskiy defectively built or rebuilt a staircase, which 

caused Plattner to fall and to suffer lacerations and a concussion. 

Nor did these detailed lists include anything about Plattner’s 

supposed medical treatment for her concussion and lacerations. 

The notion lawyer Plattner listed the problem with an 

electrical sub-panel but left out her concussion is hard to accept.

The trial court was entitled to conclude the key fact was the 

evidence that was missing, not the evidence that was present. A 
20

concussion is a serious brain injury. Medical bills are a common 

and verifiable way for plaintiffs to document bodily injury. The 

trial court noted Plattner’s omission of “any reference to a slip 

and fall or bodily injury.” “[N]or is there any reference to medical 

bills . . . .” 

The trial court could infer a simple and rational 

explanation for Plattner’s failure in 2008 and 2009 to include 

anything about her supposed 2008 fall: her unreported fall did 

not occur, she did not report it, and Plattner’s convenient and 

uncorroborated 2020 testimony to the contrary was unbelievable. 

The trial court fairly could conclude Plattner was not credible.

Nor was the trial court required to accept Plattner’s 

implausible explanation for her omissions. Her explanation was 

as follows, with our italics:

Q. Ms. Plattner, you authored Exhibit 213, 

correct? That is your email to [Boris Pinchevskiy’s] 

insurance broker?

A. Yes, I did.

Q. And you said that the purpose of this was to 

alert Boris’ insurance broker or the carrier about your 

claims, correct?

A. Yes.

Q. You didn’t include any of your personal 

injuries, slip and fall in this, did you?

A. It doesn’t look like I did. I thought it covered 

damage. I didn’t know it covered injury. 

It was reasonable for the trial court to reject Plattner’s 

explanation. Plattner did not explain, and her counsel did not 

inquire, whether Plattner had a copy of the policy on which she 

supposedly based her belief. Either way, her explanation falters. 
21

If she had a copy, then attorney Plattner testified to a legal 

understanding of the insurance policy that was backwards: in 

fact, the policy included personal injury and excluded property 

damage. If she did not have a copy, then the basis for her belief 

is mystifying. Nor did Plattner explain why she would have been 

making any decisions adverse to her cause when making initial 

demands to an opposing insurance company. The trial court 

fairly could discount Plattner’s explanation.

Letgolts and Plattner contend Marks’s November 13, 2009 

complaint described and disclosed Plattner’s concussion and 

lacerations from her supposed fall. This argument urges an 

interpretation of the complaint that is unreasonable. It was 

reasonable for the trial court to reject this interpretation. 

Context makes this point.

Context begins by recalling attorney Scott Marks sued 

three defendants on behalf of Letgolts and Plattner. These three 

defendants were insurance agent Hartnett, the Fire Insurance 

Exchange, and Pinchevskiy. Marks used three substantive 

paragraphs to plead the cause of action against Pinchevskiy. 

These three paragraphs follow a logical pattern: duty 

arose; duty was breached; breach caused injury. We summarize 

this logical pattern.

Paragraph 41 recounted that Pinchevskiy owed Letgolts 

and Plattner a duty of reasonable care because the couple 

retained Pinchevskiy to remodel their house. 

Paragraph 42 is the key, for it described how Pinchevskiy 

breached his duty to Letgolts and Plattner. This paragraph 

alleged seven particulars:
22

1. Pinchevskiy caused property damage to a pool shed, 

doors and door frames, wood floors, sprinkler system, 

security system, brick patio, fireplace, and driveway;

2. He undermined the foundation of the home;

3. He improperly repaired, moved, maintained, and/or 

installed electrical lines, air conditioning lines, and 

gas lines;

4. He cut other air conditioning pipes, electrical lines, 

and gas lines;

5. He improperly constructed a room addition;

6. He violated statutory provisions against job 

abandonment, substandard work, diverting money, 

and failing to provide lien protection; and

7. Pinchevskiy failed to account for about $110,000 of 

Letgolts and Plattner’s payment of about $187,000.

Next, paragraph 43 described the kinds of damage 

Pinchevskiy caused Letgolts and Plattner. First were dollar 

damages “in an amount to be proven at trial.” “As a further 

direct and legal result of [Pinchevskiy’s] professional negligence, 

each Plaintiff has suffered significant emotional distress, 

including anxiety, anger, frustration and sleeplessness, as well as 

additional trauma to their respective bodies and mind, shock and 

injury to their respective nervous systems, all of which continue 

to cause them great mental, physical, nervous pain and suffering, 

all in an amount well in excess of the minimum jurisdiction of 

this Court, in an amount to be proven at trial.” 

Letgolts and Plattner focus on the word “trauma,” which we 

have emphasized. They say this word shows they had submitted 

a claim for “bodily injury” that triggered National’s duty to 

defend Pinchevskiy in their suit against him. 
23

This argument fails. National’s policy defined “bodily 

injury” to mean physical injury. With our emphasis, the policy 

excluded “emotional, mental, or psychological distress, injury, 

trauma or anguish, or other similar condition.” Letgolts and 

Plattner respond the word trauma must be interpreted to include 

Plattner’s bodily injury from falling down the stairs. But the 

trial court disbelieved this testimony. Even if it had not, 

paragraph 42 notably omits falling, lacerations, or a concussion, 

and it is reasonable to interpret “trauma” in paragraph 43 in 

light of paragraph 42. A remodeling debacle reasonably could 

inflict a degree of psychological trauma on homeowners. Nothing 

in the complaint reasonably supports a broader interpretation of 

this word.

DISPOSITION

We affirm the judgment and award costs to the 

respondents.

WILEY, J.

We concur: 

GRIMES, Acting P. J. OHTA, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.