Filed 3/19/15 Sanchez v. GEICO Indemnity CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

RICHARD SANCHEZ, Plaintiff and Appellant,

v. GEICO INDEMNITY COMPANY, Defendant and Respondent. H040156 (Santa Clara County Super. Ct . No. 1-12-CV222323)

ORDER MODIFYING OPINION

THE COURT: It is ordered that the opinion filed on March 16, 2015, be modified as follows: 1. On page 6, the first full paragraph, the first senten ce, beginning “The trial court denied,” delete the word “denied” and replace it with “granted” so the sentence reads: The trial court granted the motion. There is no change in the judgment.

________________ ______ __________ ____________ ___________ Date Mihara, J.

_______ _______________ ____________ Elia, Acting P. J.

__________ _______________ __________ Bamattre-Manoukian, J.Filed 3/16/15 (unmodified version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

RICHARD SANCHEZ, Plaintiff and Appellant,

v. GEICO INDEMNITY COMPANY, Defendant and Respondent. H040156 (Santa Clara County Super. Ct . No. 1-12-CV222323)

Plaintiff Richard Sanchez suffered personal injuries and property damage in a motorcycle accident with an underinsured driver. His insurance carrier, defendant GEICO Indemnity Company, denied his clai m for underinsured motorist coverage. Sanchez brought a coverage lawsuit against GEICO, asserting various causes of action including breach of contract, bad faith, a nd fraud. The trial court granted summary judgment for GEICO. Sanchez appeals from the judg ment. He contends that the trial court erred in granting summary judgment because “there ar e triable issues of fact that [GEICO] promised maximum coverage on [Sanchez’s] motorcycle” and failed to provide it. We
affirm.2 I. Background Sanchez insured his Honda motorcycle with GEICO in 2007. He selected bodily injury coverage limits of $100,000/$300,0 00, property damage coverage limits of $50,000, and uninsured a nd underinsured motorist bodily injury limits of $15,000/$30,000. In April 2007, Sanche z signed GEICO’s “California Uninsured Motorist Bodily Injury (UM & UND) Coverage” form (the waiver form). The form explained that California law requires insure rs to offer their policyholders uninsured motorist bodily injury coverage with limits equal to but not exceeding the policyholder’s bodily injury liability limits, up to a maximum of $30,000/$6 0,000. The form informed Sanchez, “You may select a higher limit of UM & UND, up to $1 00,000/$300,000. You may also reject the coverage entirely or select UM & UND cove rage less than your [bodily injury lia bility] limits, but not less than the minimum limit of $ 15,000/$30, 000.”
The waiver form reflects th at Sanchez selected the mini mum limits. By signing the waiver form, Sanchez affirmed that he wa nted uninsured and underinsured motorist bodily injury coverage limits of $15,000/$30, 000, which were lower than what California law otherwise requires insurers to provide. (In s. Code, § 11580.2, su bds. (a)(1), (m), (n).) The signature block on the form included a provision stating, “I affirm that the coverages mentioned on this fo rm have been explained to me. I understand that my selections apply to all motorcycles (as defi ned in my contract) on my policy. These selections apply to each subse quent renewal, reinstatement, substitute, amended, altered, modified, transfer or replacement policie s with this company unless I notify GEICO Indemnity in writing.” Two and a half years after he obtained th e policy, Sanchez purchased a Kawasaki motorcycle. On September 12, 2009, he tele phoned GEICO to have the Kawasaki added to his existing motorcycle policy. The “Polic y Log” for his policy, which reflects entries made by GEICO employees contemporaneously with actions taken, does not show that3 Sanchez requested any changes to the existi ng coverage on his Honda motorcycle when he added the Kawasaki to his policy.
GEICO e-mailed a “California Proof of Fi nancial Responsibility ” insurance card and a “Verification of Coverage” for the Kawasa ki to Sanchez on September 12, 2009. It sent the documents to the wrong e-mail addr ess. GEICO sent the documents to the correct e-mail address on September 17, 2009. On September 13, 2009, GE ICO mailed proof of insurance on the Kawasaki, a policy endorsement declaration for the Ho nda and the Kawasaki, and a customer feedback survey form to Sanc hez at his residence. The policy endorsement declaration confirmed bodily injury liab ility coverage limits of $100,000 /$300,000, property damage liability coverage limits of $5 0,000, and uninsured and un derinsured motorist bodily injury liability coverage lim its of $15,000/$30,000 on e ach of the motorcycles. Thereafter, Sanchez made premium payments on the amended policy. On February 23, 2010, GEICO mailed polic y renewal documents to Sanchez at his
residence. The transmittal lette r stated, “Please take a moment to review the package to make sure you agree with the limits of liability and coverages shown.” The declarations page similarly stated, “Please verify that the coverages you requested are accurately reflected on your policy Declaration sheet. Other coverages and limits may also be available. Enclosed you w ill find a form that will assi st you in making any needed changes to the Uninsured Mo torist Coverages shown.” The policy renewal documents reflected no changes to the existing coverage limits on Sanchez’s two motorcycles. He renewed the policy and made a prem ium payment on March 27, 2010. In May 2010, Sanchez suffered property damage and personal injuries in a motorcycle accident with an underinsur ed motorist. Sanchez settled with the underinsured motorist for $25,000, which was $10,000 more than the underinsured driver’s policy limit. Sanche z submitted a claim for underinsured motorist coverage to
GEICO. GEICO denied the claim because Sanchez’s $15,000 underinsured motorist4 coverage limits were extinguished by the $ 25,000 he received from the underinsured driver’s insurance company.
Sanchez sued GEICO in 2012. In his third amended complaint, he alleged that he telephoned GEICO on September 12, 2009, about ad ding the Kawasaki to his existing policy and said that he wanted the “ ‘max imum coverage’ ” for both motorcycles. Sanchez alleged that the GEICO sales repr esentative told him he could get maximum coverage on the Honda but not on the Kawasa ki since it was “so old.” Sanchez averred that he “reasonably and actually relie[d] on the oral promise of maximum coverage because of [GEICO’s] reputation and track re cord with him” and because “his rates thereafter changed.” In deposition, Sanchez could not reca ll whether he told the GEICO sales representative that he wanted “full coverage” or “maximum coverage” on his motorcycles. He testified that “[t]o me they are both the same.” He explained that “[t]o me, full coverage means bodily injury, my bike being replace d and from there, if I were to hurt somebody else, they wo uld be covered. If I had an a ccident I would be covered.
That is what it means.” Sanch ez said the agent told him he could not ge t full coverage on
his Kawasaki because “it was old and it was used .” He said the sales representative told
him at the end of the conversa tion that he had full coverage on the Honda motorcycle. He did not recall any discussion with the sales agent about underinsured motorist coverage. He did not recall the agent maki ng any representation about the amount of underinsured motorist coverage or “saying anything about that . . . .” Sanchez took no notes during the conversation on September 12, 2009. No one lis tened in, although his
friend Barbara Crum “was around at the time” and may have heard some portion of what Sanchez said during the conversation. Sanchez did not recall receiving the polic y documents that GEICO e-mailed and mailed to him in September 20 09 and February 2010. Howeve r, he did not deny that he received them. He acknowledged that he pr oduced one of those documents in response5 to discovery. He conceded in his opposition to GEICO’s summary judgment motion that
he “received various insurance documents fro m [GEICO]” after the Kawasaki was added to his policy.
Sanchez testified that it was not his cu stom and practice to read documents from
GEICO. He would “scan” them but “would not read every word” because he “took the agent’s word on it that I would have coverage, the max coverage I coul d get on this bike. I was making my monthly payments. A lot of th ese things that are in here just in the policy in general I don’t understand what is in there.” “When it says limits and
deductible I don’t know what that means.” “U ninsured motorist that wasn’t explained to me by the agent. . . . He didn’t explain much except what my payments would be and . . . but I requested max or full coverage.” GEICO moved for summary judgment on Sanchez’s complaint. GEICO argued that Sanchez was bound by the clear and cons picuous terms of the coverage declarations,
that his failure to read the policy was not a defense, and that his alleged request for “ ‘full’ ” or “ ‘maximum’ ” coverage was t oo non-specific and ambiguous to impose a duty on GEICO to suggest or to prov ide higher coverage limits. Sanchez argued in opposition that there we re triable issues of fact because among other things (1) an “Adjustment Customiza tion+” notation in GEICO’s records created a reasonable inference of full coverage on the Honda; (2) GEICO prom ised and then failed to produce a tape recording of its Septem ber 12, 2009 telephone conversation with Sanchez; (3) GEICO failed to offer any te stimony from the agent denying that GEICO promised him full coverage; (4) a GEICO agent admitted to a “ ‘glitch’ ” in its system; and (5) GEICO’s attorney told him the company made a mistake and suggested he sue
GEICO. Sanchez submitted his own declarati on, a declaration from his daughter, and a declaration from Crum in oppos ition to the motion. Sanchez’s daughter declared that he was seriously injured in the accident, that she contacted GEICO to report it, and that
Sanchez was unable to work for about two mont hs after the accident. Crum declared that6 she recalled Sanchez telling her before the acci dent “that he purchased full coverage on
the Honda.”
The trial court denied the motion. In a three-page order, the court ruled that Sanchez’s “non-specific and ambiguous statem ents that he wanted ‘full’ or ‘maximum’ coverage” were “insufficient as a matter of la w to create an obligati on on [GEICO’s] part
to have increased the amount of underi nsured motorist coverage (‘UIMC’) on [Sanchez’s] Honda motorcycle beyond amounts previously maintained by him.” The court concluded that “[Sanchez’ s] lack of a targeted inquir y towards [GEICO’s] agent to increase such coverage defeats his assertion that the agent should have known that he wanted more than the previously obtained $15,000 in UIMC on the Honda.” “Absent such a duty, [Sanchez’s] neg ligence claims fail.” Sanchez’s fraud claim failed because he “fail[ed] to submit evidence which demonstrat es a triable issue of material fact with respect to whether he discussed UIMC on the Honda with the agent.” His misrepresentation claim failed because “there can be no misrepresent ation of UIMC with regard to the Honda when it was not even discussed.” The court ruled that Sanchez’s remaining cl aims for breach of oral contract, bad faith, reformation, and estoppel also failed. Those claims were “predicated on the notion that he is not bound [by] the express terms of the policy.” GEICO’s evidence “demonstrate[d] that: no changes were request ed by [Sanchez] with regard to the UIMC limits on the Honda on September 12, 2009 [citation]; [Sanchez] was mailed policy documents clearly and conspicuously eviden cing $15,000/$30,000 uninsured motorist coverage/UIMC on the Honda in Septembe r 2009 and February 2010 [citation]; the policy declarations sent in February 2010 ad vised [Sanchez] to verify that the amounts of coverage he requested were accurately refl ected on the declaration sheets [citation]; [Sanchez] did not object to the coverage or limits [citation]; and [S anchez] accepted the terms of his policy by making pa yments toward his premium [citation]. [Sanchez] fails
to demonstrate a triable issue of material fact as to whether he received and/or objected to7 the clear and unambiguous terms of his polic y. Consequently, [S anchez’s] remaining claims fail.” The court entered judgment fo r GEICO. Sanchez filed a timely notice of appeal.

II. Discussion
A. Standard of Review “The purpose of the law of summary ju dgment is to provide courts with a mechanism to cut through the parties’ pleadi ngs in order to determine whether, despite their allegations, trial is in fact n ecessary to resolve their dispute.” ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 ( Aguilar ).) “[T]he party moving for summary judgment bears the burden of persuasion that th ere are no triable issues of material fact and that [the moving party] is entitle d to judgment as a matter of law.” ( Id. at p. 850.) The moving party “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie sh owing of the existence of a triable issue of material fact.” ( Ibid .) “A prima facie showing is one that is sufficien t to support the position of the party in question.” ( Aguilar , at p. 851.) “[A] ‘defendant . . . has met’ his ‘burde n of showing that a cause of action has no
merit if’ he ‘has shown that one or more elem ents of the cause of action . . . cannot be established, or that there is a complete de fense to that cause of action. Once the defendant . . . has met that burden, the burden sh ifts to the plaintiff . . . to show that a
triable issue of one or more material facts ex ists as to that cause of action or a defense thereto. The plaintiff . . . may not rely u pon the mere allegations or denials’ of his ‘pleadings to show that a triable issue of mate rial fact exists but, instead,’ must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’ [Citation.]” ( Aguilar , supra , 25 Cal.4th at p. 849.)8 “ ‘ “Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo.” ’ ” ( Food Pro Internat., Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th 976, 993.) Although our review is de novo, “it is limited to issues which have been adequately raised and suppo rted in [the appellant’s] brief.” ( Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn 6.) “It is the duty of counsel by argument and the
citation of authorities to show that the claimed error exists.” ( In re Estate of Randall (1924) 194 Cal. 725, 728.) An appellate brie f must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” (Cal. Ru les of Court, rule 8. 204(a)(1)(B).) “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]” ( Badie v. Bank of
America (1998) 67 Cal.App. 4th 779, 784-785.)

B. Sanchez’s Contentions Sanchez does not challenge the sufficien cy of GEICO’s initia l showing on the motion. Thus, he has forfeited any argument that GEICO did not sa tisfy its initial burden
to show that one or more elements of each of Sanchez’s claims c ould not be established or that there was a comple te defense to each. ( Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1084.) Accordingly, we proceed directly to his contention that he
raised “triable issues of fact that [GEICO] promised maximum coverage on his motorcycle.” 1. Negligence and Gross Negligence Sanchez argues that “by promising to provide maximum coverage, [GEICO] undertook a duty to provide the $100,0 00/$300,000 of Uninsured Motorist Coverage . . . .” The contention is relevant to his negligence and gr oss negligence claims because duty is an essen tial element of each. ( Ahern v. Dillenback (1991) 1 Cal.App.4th 36, 42 ( Ahern ); Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35,9 52.) Sanchez has not identified what triable fact issues remain w ith respect to these
causes of action. We find none. “[A]s a general proposition, an insurance ag ent does not have a duty to volunteer to an insured that the latter should procure ad ditional or different insurance coverage.” ( Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 927 ( Fitzpatrick ).) “The rule changes, however, when . . . there is a request or inqui ry by the insured for a particular type or extent of coverage . . . .” ( Ibid .) “An insurance agent ha s an ‘obligation to use reasonable care, diligence, and judgment in procuring insuranc e requested by an insured.’ [Citations.]” ( Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1119 ( Desai ).) However, the request must be sufficiently “targeted” or “specific” before an insurance agent will be he ld to have undertaken such an obligation. ( Fitzpatrick , at pp. 928-929.) “[I]n the ordinary case, ‘the onus is . . . square ly on the insu red to inform the agent of the insura nce he requires.’ ” ( Wallman v. Suddock (2011) 200 Cal.App.4th 1288, 1309 ( Wallman ).)
Ahern and Fitzpatrick are instructive. The plaintiffs in Ahern told their insurance agent that they wanted an overseas automobile policy that provided “full coverage or ‘the best coverage that exists.’ ” ( Ahern , supra , 1 Cal.App.4th at p. 40.) They made a claim under the policy after Mrs. Ahern suffered in juries in a hit and run collision with an
unidentified and uninsured motorist in France. The insurer denied th e claim. The Aherns sued the agent and the in surer for negligence. ( Id . at p. 41.) The appellate court affirmed summary judgment for the defe ndants. The court held that the agent did not assume a duty to procure uninsured motori st coverage for the Aherns or to advise them of its availability where the undisp uted evidence show ed that “Joan Ahern was generally unaware of uninsured motorist coverage and the subject did not come up” when she and her husband purchased the policy. ( Id. at p. 42.) The plaintiffs in Fitzpatrick sued their insurance ag ent and the insurer for negligence after a serious accident with an underinsur ed motorist left th em with expenses10 that exceeded their coverage limits. ( Fitzpatrick , supra , 57 Cal.App.4th at p. 918.) They contended that their longtime ag ent knew that they “generally wanted the upper limits of coverage” yet failed to advise them that they could obtain a personal umbrella policy at little additional cost. ( Id. at pp. 927-928.) They argued th at they “ ‘relied on’ ” the agent to advise them about adequate coverage, “ ‘and he led [them] to believe that the automobile coverage that was prev iously carried was fine.’ ” ( Id. at p. 928.) The appellate court affirmed summary judgment for the defendants. The court observed that the Fitzpatricks’ “conclusory st atement” that they relied on the agent’s advice lacked “any allegation concerning any sort of specif ic inquiry” to the agent “much less specific advice in the opposite direction.” ( Ibid .) The lack of “any sort of targeted inquiry by [the Fitzpatricks] or advice by [the agent]” defeat ed the Fitzpatricks’ claim that the agent knew or should have known that they wa nted a personal umbrella policy. ( Id . at pp. 928- 929; see also Wallman , supra , 200 Cal.App.4th at pp. 1 311-1312 [“Plaintiffs’ vague requests for insurance that would protect them in the event of ‘any possible lawsuit that could happen in the future’ ” we re insufficient to apprise the agent that plaintiffs “wanted excess insurance for past years or for properties th ey no longer owned.”].) We find Sanchez’s alleged request for “f ull” or “maximum” coverage analogous to the vague and conclusory requests in Ahern , Fitzpatrick , and Wollman. Sanchez presented no evidence that he discussed the issue of underinsured motorist coverage with the GEICO sales representative. It was undi sputed that the agent did not undertake to explain what full uninsured an d underinsured motorist cove rage would be. Further, the “Policy Log” for Sanchez’s policy reflects no request for any change in coverage on his Honda motorcycle. On this record, Sanchez’s alleged request for “full” or “maximum” coverage was not sufficiently targeted or sp ecific to impose a duty on the GEICO sales representative to procure additional underinsured motorist coverage. ( Fitzpatrick , supra , 57 Cal.App.4th at pp. 928-929.)11 Sanchez argues that his “targeted reque st for maximum coverage” on the Honda was “similar to the plaintiff’s cove rage request for 100% coverage in Desai . . . .” We cannot agree. Desai was before the court on appeal from the sustaining of a demurrer without leave to amend. The ap pellate court reversed the orde r of dismissal, holding that Desai’s complaint alleged a viable claim agai nst Farmers for its agent’s negligent failure to deliver the agreed-upon coverage. ( Desai , supra , 47 Cal.App.4th at p. 1121.) The complaint alleged that he sought to purchase earthquake, fire, and hazard insurance on his property. ( Id. at p. 1114.) He told the agent that he wanted 100 percent coverage for the cost of repairing or replacing improvement s to the property, in cluding increases for inflation. ( Ibid .) The agent told him that Farmers o ffered such insurance. She orally represented that the policy provided “ ‘100 [p ercent] coverage for the costs of repairs and/or replacement of th e improvements to the property in cluding any a nd all increases in costs of repair or rebuilding in the event of a loss.’ ” ( Ibid .) Desai purchased the policy based on her representations. ( Ibid .) When he later suffered $546,757 in losses from an earthquake and a fire, Farmers refused to pa y more than the $158 ,734 policy limit. ( Id . at pp. 1114-1115.)
Desai is easily distinguished. Sanchez’s a lleged request for “full coverage” bears no resemblance to Desai’s targeted request. Desai demanded a specif ic type and amount of coverage on his property. The agent repr esented that the policy provided exactly what Desai requested. Sanchez, by contrast, ma de only a vague and conclusory request for “full coverage.” The GEICO agent made no re presentation at all. Sanchez’s reliance on
Desai is misplaced. Sanchez argues that GEICO “failed to o ffer any testimony from the agent denying that it promised [Sanchez] full coverage.” He does not explain why this fact is significant. We do not think it is. It was undi sputed that the agent did not undertake to explain what full uninsured and underinsured motorist coverage would be. The subject of
uninsured and underinsured moto rist coverage was not even di scussed. On this record,12 Sanchez’s vague and conclusory request for “full coverage” did not raise a triable issue of fact about the GEICO agent’s alleged negligent failure to procure the coverage Sanchez claims he requested. ( Fitzpatrick , supra , 57 Cal.App.4th at p. at pp. 928-929.) 2. Fraud and Misrepresentation Sanchez alleged in his complaint that GE ICO “promised and represented . . . that maximum coverage would be placed on his Honda motorcycle.” This allegation is relevant to his fraud and misrepresentation cl aims because a false representation is an
essential element of each claim. ( Conroy v. Regents of Un iversity of California (2009) 45 Cal.4th 1244, 1255; Hackethal v. National Casualty Co. (1987) 189 Cal.App.3d 1102, 1111.) Sanchez’s argument on appeal consists of two bare assertions : (1) that “[i]t is undisputed . . . GEICO . . . represented in writing it was able to provide a ‘maximum’ of $100,000/$300,000 of Uninsured Mo torist coverage to . . . Sanchez . . . .” and (2) that “by promising [to] provide maximum cove rage, [GEICO] . . . engaged in a misrepresentation.” A record citation to the waiver form that he signed and citations to McNeill v. State Farm Life Ins. Co. (2004) 116 Cal.A pp.4th 597, 603 ( McNeill ) and Butcher v. Truck Ins. Exchange (2000) 77 Cal.A pp.4th 1442, 1462 ( Butcher ) follow these
assertions. Sanchez does not analyze the cited cases or provide any reasoned argument on how those cases apply to this case. “Sim ply hinting at an argument and leaving it to the appellate court to develop it is not adequate.” ( Cryoport Systems v. CNA Ins. Cos. (2007) 149 Cal.App.4th 627, 633 ( Cryoport ).) The meager hints that Sanchez provides do not reveal what his argument might be.
In McNeill , the court reversed a trial court order sustaining a demurrer to the plaintiff’s complaint for fraud. ( McNeill , supra , 116 Cal.App.4th at p. 603.) In doing so, the court observed generally that an insurance company’ s agent may be personally responsible for an intentional misrepresentation. ( Ibid .) In Butcher , the court reversed summary judgment in favor of an insure r. It did so because the plain tiffs presented evidence that they specifically asked the agent to obtain a policy that covered liability for personal13 injury arising out of malicious prosecution, and the agent negligently misled them into thinking that he had done so. ( Butcher , supra , 77 Cal.App.4th at pp. 1446-1448.) That
evidence raised a triable issu e of material fact that pr ecluded summary judgment. ( Id . at p. 1465.)
Unlike in Butcher , Sanchez presented no evidence th at raised a triable issue of fact. To the extent he argues that the waiv er form contained a misrepresentation, we reject the contention. The form explaine d, “You may select a higher limit of UM & UND, up to $100,000/$300,000. You may also reject the coverage entirely or select UM & UND limits less than your BI limits, but not less than the minimum limit of $15,000/$30,000.” This is an explanati on, not a representation. Sanchez clearly indicated his selection of the minimum $15,000/ $30,000 limits. By signing the form, he affirmed that “the coverages mentioned in this form have been explained to me.” He also affirmed his understanding that his selecti on would apply to renewa ls unless he notified GEICO in writing. On this re cord, the mere availability of higher limits does not create a
triable issue of fact.
3. Breach of Contract and Bad Faith Sanchez alleged in his co mplaint that he and GEIC O had an oral contract “whereby [GEICO] agreed to increase [his] mo torcycle coverage to the maximum available.” He further alleged that GEICO br eached that contract “by failing to provide the maximum coverage.” On appeal, he asserts that “there are triable issues of fact that [GEICO] promised maximum coverage on his motorcycle.” We disagree. “In determining whether the papers show that there is no triable issue . . . the court
shall consider all of the evid ence set forth in the papers, ex cept that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence . . . .” (Code Civ. Proc., § 437c, subd. (c).) “An inference is a deduction of fact that may logically and r easonably be drawn from another fa ct or group of facts found
or otherwise established in the action.” (Evid. Code, § 600, subd. (b).) “ ‘When14 opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evid ence, and not such as are derived from speculation, conjecture, imagination, or guesswork.’ [Citation.]” ( Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 647.) “A party may not avoid summary judgment based on mere speculation and conjecture . . . .” ( Compton v. City of
Santee (1993) 12 Cal.App.4t h 591, 595-596.) In the four-page section of his br ief entitled “APPLYING LAW TO CASE FACTS,” Sanchez mentions various items of evid ence that he asserts raise triable issues
of fact. GEICO counters that much of this evidence is inadmissible and/or irrelevant and that speculative inferences dr awn from such evidence cannot be used to manufacture disputed issues of material fa ct. We agree with GEICO. One of Sanchez’s assertions is that “[GE ICO’s] records admit to an ‘Adjustment
Customization+’ on 9/12/09 . . . which corrob orates [his] testimony that he requested a change in coverage on the Honda.” He does not develop this argument further. The GEICO transaction summary that he c ites sheds no light on what the “Adjust Customization+” entry might mean. Any sugg estion that the brief entry supports an inference that Sanchez asked the agent to increase the coverage on his Honda is pure speculation. “ ‘Speculation, however, is not evidence’ that can be utilized in opposing a motion for summary judgme nt. [Citation.]’ ” ( Knapp v. Doherty (2004) 123 Cal.App.4th 76, 99 ( Knapp ).) Sanchez conclusorily assert s that GEICO “promised to provide its tape recording and then failed to produce it” and similarl y “failed to produce its Diary notes from May 2, 2010 until June 27, 2011 . . . .” To the ex tent he argues that GEICO “intentionally concealed or dest royed evidence” and that we shou ld therefore “infer that it
would have been unfavorable to [GEICO],” we reject the contention. GEICO submitted evidence that it does not record all telephone conversations. Calls are recorded at random, and the recordings of those calls are saved for only 30 days. Sanchez15 acknowledged in deposition that the GEICO agen t advised him that “she couldn’t find the . . . recordings because they didn’t keep them that l ong.” GEICO submitted evidence that it produced its “ ‘Activity Log’ ” (which Sanc hez calls “Diary notes”) with some portions redacted to protect attorney-client privilege and confidentiality. It is not “reasonably
deducible” from this evidence that GEICO concealed or destroyed evidence. (Code Civ. Proc., § 437c, subd. (c).) We reject Sa nchez’s suggestion to the contrary. Sanchez asserts that “[GE ICO] admitted to a ‘glitch’ in its system as an explanation for a failure to bi nd the maximum coverage . . . .” He claims that “[t]his admission assists in creating a triable issue of fact of coverage.” Not so. Sanchez conceded in deposition that the GEICO agent he spoke with sometim e after the accident did not say that his lack of coverage was caused by a computer glitch. In opposition to GEICO’s summary judgment motion, Sanchez subs equently declared th at the agent told
him “there must have been a glitch in the computer system ” and “indicated this caused the failure to bind the promised coverage .” There are two reasons why Sanchez’s declaration does not satisfy his burden to raise a triable issue of fact. First, the agent’s alleged statement that there “m ust have been” a glitch is sp eculative on its face. Such speculation cannot create a tr iable issue of fact. ( Knapp , supra , 123 Cal.App.4th at p. 99.) Second, Sanchez’s declaration that the agent “indicated” that the computer glitch “caused the failure to bind the promised cove rage” contradicts his prior sworn deposition testimony. It is “well-settled” that “ ‘[a] party cannot cr eate an issue of fact by a declaration which contradicts his pr ior [discovery responses].’ ” ( Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860-861; see D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 21-22, di sapproved on other grounds in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 944.)
Sanchez next asserts that “[GEICO’s] attorney told [him] that GEICO made a mistake, and suggested he sue it.” He claims that “[t]his admission assists in creating a16 triable issue of fact of coverage.” He doe s not develop the argument further. We reject
it. “[I]t is axiomatic that the party opposing summary judgment ‘ “must produce admissible evidence raising a triable issue of fa ct. [Citation.]” [Citation.]’ [Citation.] This requirement is black letter law . . . .” ( All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 960 ( All-Towing ); Code Civ. Proc., § 437c, subd. (p)(2).) “Evidence containing hear say is not admissible evidence a nd will not raise a triable issue defeating summary judgment.” ( Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1026-1027.) Sanchez’s testimony about what the attorney allegedly told him is hearsay. (Evid. Code, § 1200, subd. (a).) It is inadmissible unless a statutory exception to the hearsay rule applies. (Evid. Code, § 1200, subd. (b).) Sanchez appears to assume that the statement he attributes to “[GEICO’s] a ttorney” is admissible under the party admission exception to the hearsay rule. That exception provides that “[e]vidence of a statement is not made inadmissible by the hearsay rule when offered against the d eclarant in an action to which he is a party in either his individual or representative capacity . . . .” (Evid. Code, § 1220.) A “ ‘[d]eclarant’ is a pers on who makes a statement.” (Evid. Code, § 135.) “Ordinarily, the word ‘declarant’ is used in the Evidence Code to refer to a person who makes a hearsay statement as dis tinguished from the witn ess who testifies to the content of the statement.” (Cal. Law Re vision Com. com., 29B pt. 1A West’s Ann. Evid. Code (2011 ed.) § 135.) The party admi ssion exception to the hearsay rule does not apply here.
In the declaration that he submitted in opposition to GEICO’s motion, Sanchez
stated that GEICO retained counsel to defend him in a personal injury lawsuit filed by Crum, who was a passenger on the motorcycle when the accident occu rred. When he and his insurer-retained lawyer we re preparing for deposition in the personal injury action, Sanchez “explained” to the lawyer “that [GEICO] had promised me full coverage on my17 Honda.” The lawyer “said [GEICO] make [ sic ] a mistake” and “advised me to sue [GEICO].”
It is clear from Sanchez’s declaration the alleged “admission” was made by his lawyer rather than (as he now asserts) by GEICO’s attorney. Sanchez’s lawyer was the hearsay declarant. (Evid. Code, § 135; se e Cal. Law Revision Com. com., 29B pt. 1A West’s Ann. Evid. Code, supra , § 135.) There is no evidence that Sanchez’s lawyer in the personal injury action is a party to th is action in either his individual or his representative capacity. (Evid. Code, § 1220.) Sanchez does not attempt to argue that he is. Thus, he has not established that the lawy er’s alleged statements are admissible under the party admission exception to the hearsay rule. Even if he could do so, Sanchez ha s not provided a foundation to support admitting the statements. (Evid. Code, § 403.) “The propon ent of the proffered evidence has the burden of producing ev idence as to the existence of the preliminary fact, and the proffered evidence is inadmissibl e unless the court finds that there is eviden ce sufficient to sustain a finding of the existence of the pr eliminary fact, when: [¶ ] . . . [¶] . . . [t]he preliminary fact is the persona l knowledge of a witness conc erning the subject matter of his testimony . . . .” (Evid. Code, § 403.) Sanchez submitted no evidence that the lawyer appointed to represent him in the personal injury action had any knowledge about the instant case (apart from what Sanchez told him) that would allow him to opine that GEICO somehow made a “mistake.” The lawy er’s alleged statements are inadmissible for that reason as well. (Evid. Code, § 403.) It follows that those statements did not raise a triable issue of fact sufficient to defeat summary judgment. ( All-Towing , supra , 220 Cal.App.4th at pp. 959- 960; Code Civ. Proc., § 437c, subd. (p)(2).) 4. Reformation and Estoppel The entirety of Sanchez’s estoppel argument is that “estoppel also applies to afford [Sanchez] coverage.” Citations to Hartford Fire Ins. Co. v. Spartan Realty International,
Inc. (1987) 196 Cal.App.3d 1320 ( Hartford ) and Fanucci v. Allsta te Insurance Co.18 (N.D.Cal. 2009) 638 F.Supp.2d 1125 ( Fanucci ) follow the assertion. Neither case helps
Sanchez.
In Hartford , the court held that an insurer’s postaccident defense of its insured under a reservation of rights did not estop it from later de nying coverage under a policy that all parties agreed excluded coverage. ( Hartford , supra , 196 Cal.App.3d at pp. 1327- 1328.) Hartford bears no resemblance to this case.
In Fanucci , the federal district court denied the defendant insurer’s motion for summary judgment or partial summary judgme nt. Fanucci alleged that his insurer was estopped to deny uninsured motorist covera ge under an umbrella policy that did not provide such coverage. In opposition to the motion, she submitted evidence that the agent who sold her father the policy misrep resented that it would provide uninsured motorist coverage, and her father relied on that representation. ( Fanucci , supra , 638 F.Supp.2d at pp. 1141, 1144.) This evidence raised a tria ble issue of fact precluding summary judgment. Here by contrast, it was undisputed that the GEICO agent made no representations about uninsured and underinsu red motorist coverage. It was undisputed that the subject was not even mentione d during Sanchez’s September 12, 2009 conversation with the agent.

III. Disposition The judgment is affirmed.19 ____ ____________ ___________ Mihara, J.

WE CONCUR:

________________ _____________ Elia, Acting P. J.

________________ _____________ Bamattre-Manoukian, J.