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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 sentence, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 claim for underinsured motorist coverage. 

Sanchez brought a coverage lawsuit against GEICO, asserting various causes of action 

including breach of contract, bad faith, and fraud. The trial court granted summary 

judgment for GEICO. 

Sanchez appeals from the judgment. He contends that the trial court erred in 

granting summary judgment because “there are 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/$300,000, property damage coverage limits of 

$50,000, and uninsured and underinsured motorist bodily injury limits of 

$15,000/$30,000. In April 2007, Sanchez signed GEICO’s “California Uninsured 

Motorist Bodily Injury (UM & UND) Coverage” form (the waiver form). The form 

explained that California law requires insurers 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/$60,000. The form informed 

Sanchez, “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 coverage less than your 

[bodily injury liability] limits, but not less than the minimum limit of $15,000/$30,000.” 

The waiver form reflects that Sanchez selected the minimum limits. By signing the 

waiver form, Sanchez affirmed that he wanted 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. (Ins. Code, § 11580.2, subds. (a)(1), (m), (n).) 

The signature block on the form included a provision stating, “I affirm that the 

coverages mentioned on this form have been explained to me. I understand that my 

selections apply to all motorcycles (as defined in my contract) on my policy. These 

selections apply to each subsequent renewal, reinstatement, substitute, amended, altered, 

modified, transfer or replacement policies with this company unless I notify GEICO 

Indemnity in writing.” 

Two and a half years after he obtained the policy, Sanchez purchased a Kawasaki 

motorcycle. On September 12, 2009, he telephoned GEICO to have the Kawasaki added 

to his existing motorcycle policy. The “Policy Log” for his policy, which reflects entries 

made by GEICO employees contemporaneously with actions taken, does not show that 
3 

Sanchez requested any changes to the existing coverage on his Honda motorcycle when 

he added the Kawasaki to his policy. 

GEICO e-mailed a “California Proof of Financial Responsibility” insurance card 

and a “Verification of Coverage” for the Kawasaki to Sanchez on September 12, 2009. It 

sent the documents to the wrong e-mail address. GEICO sent the documents to the 

correct e-mail address on September 17, 2009. 

On September 13, 2009, GEICO mailed proof of insurance on the Kawasaki, a 

policy endorsement declaration for the Honda and the Kawasaki, and a customer 

feedback survey form to Sanchez at his residence. The policy endorsement declaration 

confirmed bodily injury liability coverage limits of $100,000/$300,000, property damage 

liability coverage limits of $50,000, and uninsured and underinsured motorist bodily 

injury liability coverage limits of $15,000/$30,000 on each of the motorcycles. 

Thereafter, Sanchez made premium payments on the amended policy. 

On February 23, 2010, GEICO mailed policy renewal documents to Sanchez at his 

residence. The transmittal letter 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 will find a form that will assist you in making any needed 

changes to the Uninsured Motorist 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 premium payment on March 27, 2010. 

In May 2010, Sanchez suffered property damage and personal injuries in a 

motorcycle accident with an underinsured motorist. Sanchez settled with the 

underinsured motorist for $25,000, which was $10,000 more than the underinsured 

driver’s policy limit. Sanchez submitted a claim for underinsured motorist coverage to 

GEICO. GEICO denied the claim because Sanchez’s $15,000 underinsured motorist 
4 

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 adding the Kawasaki to his existing 

policy and said that he wanted the “ ‘maximum coverage’ ” for both motorcycles. 

Sanchez alleged that the GEICO sales representative told him he could get maximum 

coverage on the Honda but not on the Kawasaki 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 record with him” and because “his rates 

thereafter changed.” 

In deposition, Sanchez could not recall 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 replaced and from there, if I were 

to hurt somebody else, they would be covered. If I had an accident I would be covered. 

That is what it means.” Sanchez said the agent told him he could not get 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 conversation 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 making 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 listened 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 policy documents that GEICO e-mailed and 

mailed to him in September 2009 and February 2010. However, he did not deny that he 

received them. He acknowledged that he produced one of those documents in response 
5 

to discovery. He conceded in his opposition to GEICO’s summary judgment motion that 

he “received various insurance documents from [GEICO]” after the Kawasaki was added 

to his policy. 

Sanchez testified that it was not his custom 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 could get on this bike. 

I was making my monthly payments. A lot of these 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.” “Uninsured 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 conspicuous 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 too non-specific and ambiguous to impose a duty 

on GEICO to suggest or to provide higher coverage limits. 

Sanchez argued in opposition that there were triable issues of fact because among 

other things (1) an “Adjustment Customization+” notation in GEICO’s records created a 

reasonable inference of full coverage on the Honda; (2) GEICO promised and then failed 

to produce a tape recording of its September 12, 2009 telephone conversation with 

Sanchez; (3) GEICO failed to offer any testimony 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 declaration, a declaration from his daughter, and a 

declaration from Crum in opposition 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 months after the accident. Crum declared that 
6 

she recalled Sanchez telling her before the accident “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 statements that he wanted ‘full’ or ‘maximum’ 

coverage” were “insufficient as a matter of law to create an obligation on [GEICO’s] part 

to have increased the amount of underinsured motorist coverage (‘UIMC’) on 

[Sanchez’s] Honda motorcycle beyond amounts previously maintained by him.” The 

court concluded that “[Sanchez’s] lack of a targeted inquiry 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] negligence claims fail.” Sanchez’s fraud claim failed because 

he “fail[ed] to submit evidence which demonstrates 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 misrepresentation of UIMC with 

regard to the Honda when it was not even discussed.” 

The court ruled that Sanchez’s remaining claims 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 requested by [Sanchez] with regard to the UIMC 

limits on the Honda on September 12, 2009 [citation]; [Sanchez] was mailed policy 

documents clearly and conspicuously evidencing $15,000/$30,000 uninsured motorist 

coverage/UIMC on the Honda in September 2009 and February 2010 [citation]; the 

policy declarations sent in February 2010 advised [Sanchez] to verify that the amounts of 

coverage he requested were accurately reflected on the declaration sheets [citation]; 

[Sanchez] did not object to the coverage or limits [citation]; and [Sanchez] accepted the 

terms of his policy by making payments toward his premium [citation]. [Sanchez] fails 

to demonstrate a triable issue of material fact as to whether he received and/or objected to 
7 

the clear and unambiguous terms of his policy. Consequently, [Sanchez’s] remaining 

claims fail.” The court entered judgment for GEICO. Sanchez filed a timely notice of 

appeal. 

II. Discussion 

A. Standard of Review 

“The purpose of the law of summary judgment is to provide courts with a 

mechanism to cut through the parties’ pleadings in order to determine whether, despite 

their allegations, trial is in fact necessary 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 there are no triable issues of material fact 

and that [the moving party] is entitled 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 showing of the existence of a triable issue of 

material fact.” (Ibid.) “A prima facie showing is one that is sufficient to support the 

position of the party in question.” (Aguilar, at p. 851.) 

“[A] ‘defendant . . . has met’ his ‘burden of showing that a cause of action has no 

merit if’ he ‘has shown that one or more elements of the cause of action . . . cannot be 

established, or that there is a complete defense to that cause of action. Once the 

defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a 

triable issue of one or more material facts exists as to that cause of action or a defense 

thereto. The plaintiff . . . may not rely upon the mere allegations or denials’ of his 

‘pleadings to show that a triable issue of material 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 supported 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 brief 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. Rules 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 sufficiency of GEICO’s initial showing on the 

motion. Thus, he has forfeited any argument that GEICO did not satisfy its initial burden 

to show that one or more elements of each of Sanchez’s claims could not be established 

or that there was a complete 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 $100,000/$300,000 of Uninsured Motorist 

Coverage . . . .” The contention is relevant to his negligence and gross negligence claims 

because duty is an essential 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 with respect to these 

causes of action. We find none. 

“[A]s a general proposition, an insurance agent does not have a duty to volunteer 

to an insured that the latter should procure additional 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 inquiry by the insured for a particular type or 

extent of coverage . . . .” (Ibid.) “An insurance agent has an ‘obligation to use 

reasonable care, diligence, and judgment in procuring insurance 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 held to have undertaken such an obligation. (Fitzpatrick, at 

pp. 928-929.) “[I]n the ordinary case, ‘the onus is . . . squarely on the insured to inform 

the agent of the insurance 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 injuries in a hit and run collision with an 

unidentified and uninsured motorist in France. The insurer denied the claim. The Aherns 

sued the agent and the insurer for negligence. (Id. at p. 41.) The appellate court affirmed 

summary judgment for the defendants. The court held that the agent did not assume a 

duty to procure uninsured motorist coverage for the Aherns or to advise them of its 

availability where the undisputed evidence showed 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 agent and the insurer for 

negligence after a serious accident with an underinsured motorist left them with expenses 
10 

that exceeded their coverage limits. (Fitzpatrick, supra, 57 Cal.App.4th at p. 918.) They 

contended that their longtime agent 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 that they “ ‘relied on’ ” the agent 

to advise them about adequate coverage, “ ‘and he led [them] to believe that the 

automobile coverage that was previously carried was fine.’ ” (Id. at p. 928.) The 

appellate court affirmed summary judgment for the defendants. The court observed that 

the Fitzpatricks’ “conclusory statement” that they relied on the agent’s advice lacked 

“any allegation concerning any sort of specific 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]” defeated the Fitzpatricks’ claim that the agent 

knew or should have known that they wanted a personal umbrella policy. (Id. at pp. 928-

929; see also Wallman, supra, 200 Cal.App.4th at pp. 1311-1312 [“Plaintiffs’ vague 

requests for insurance that would protect them in the event of ‘any possible lawsuit that 

could happen in the future’ ” were insufficient to apprise the agent that plaintiffs “wanted 

excess insurance for past years or for properties they no longer owned.”].) 

We find Sanchez’s alleged request for “full” 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 undisputed that the agent did not undertake to 

explain what full uninsured and underinsured motorist coverage 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 specific 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 request for maximum coverage” on the Honda 

was “similar to the plaintiff’s coverage 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 appellate court reversed the order of dismissal, holding that 

Desai’s complaint alleged a viable claim against 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 improvements to the property, including increases for 

inflation. (Ibid.) The agent told him that Farmers offered such insurance. She orally 

represented that the policy provided “ ‘100 [percent] coverage for the costs of repairs 

and/or replacement of the improvements to the property including any and 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 pay more than the $158,734 policy limit. (Id. at 

pp. 1114-1115.) 

Desai is easily distinguished. Sanchez’s alleged request for “full coverage” bears 

no resemblance to Desai’s targeted request. Desai demanded a specific type and amount 

of coverage on his property. The agent represented that the policy provided exactly what 

Desai requested. Sanchez, by contrast, made only a vague and conclusory request for 

“full coverage.” The GEICO agent made no representation at all. Sanchez’s reliance on 

Desai is misplaced. 

Sanchez argues that GEICO “failed to offer 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 undisputed that the agent did not undertake to 

explain what full uninsured and underinsured motorist coverage would be. The subject of 

uninsured and underinsured motorist coverage was not even discussed. 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 GEICO “promised and represented . . . that 

maximum coverage would be placed on his Honda motorcycle.” This allegation is 

relevant to his fraud and misrepresentation claims because a false representation is an 

essential element of each claim. (Conroy v. Regents of University 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 Motorist coverage to . . . Sanchez . . . .” and (2) that “by 

promising [to] provide maximum coverage, [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.App.4th 597, 603 (McNeill) and 

Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.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. “Simply 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 insurer. It did so because the plaintiffs presented evidence that 

they specifically asked the agent to obtain a policy that covered liability for personal 
13 

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 issue of material fact that precluded summary judgment. (Id. at 

p. 1465.) 

Unlike in Butcher, Sanchez presented no evidence that raised a triable issue of 

fact. To the extent he argues that the waiver form contained a misrepresentation, we 

reject the contention. The form explained, “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 explanation, 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 selection would apply to renewals unless he notified 

GEICO in writing. On this record, 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 complaint that he and GEICO had an oral contract 

“whereby [GEICO] agreed to increase [his] motorcycle coverage to the maximum 

available.” He further alleged that GEICO breached 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 evidence set forth in the papers, except 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 reasonably be drawn from another fact or group of facts found 

or otherwise established in the action.” (Evid. Code, § 600, subd. (b).) “ ‘When 
14 

opposition to a motion for summary judgment is based on inferences, those inferences 

must be reasonably deducible from the evidence, 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.4th 591, 595-596.) 

In the four-page section of his brief entitled “APPLYING LAW TO CASE 

FACTS,” Sanchez mentions various items of evidence that he asserts raise triable issues 

of fact. GEICO counters that much of this evidence is inadmissible and/or irrelevant and 

that speculative inferences drawn from such evidence cannot be used to manufacture 

disputed issues of material fact. We agree with GEICO. 

One of Sanchez’s assertions is that “[GEICO’s] records admit to an ‘Adjustment 

Customization+’ on 9/12/09 . . . which corroborates [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 cites sheds no light on what the “Adjust 

Customization+” entry might mean. Any suggestion 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 judgment. [Citation.]’ ” (Knapp v. Doherty (2004) 123 Cal.App.4th 

76, 99 (Knapp).) 

Sanchez conclusorily asserts that GEICO “promised to provide its tape recording 

and then failed to produce it” and similarly “failed to produce its Diary notes from 

May 2, 2010 until June 27, 2011 . . . .” To the extent he argues that GEICO 

“intentionally concealed or destroyed evidence” and that we should 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. Sanchez 
15 

acknowledged in deposition that the GEICO agent advised him that “she couldn’t find the 

. . . recordings because they didn’t keep them that long.” GEICO submitted evidence that 

it produced its “ ‘Activity Log’ ” (which Sanchez 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 Sanchez’s suggestion to the contrary. 

Sanchez asserts that “[GEICO] admitted to a ‘glitch’ in its system as an 

explanation for a failure to bind 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 sometime 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 subsequently declared that 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 “must have been” a glitch is speculative on its face. Such 

speculation cannot create a triable 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 coverage” contradicts his prior sworn deposition 

testimony. It is “well-settled” that “ ‘[a] party cannot create an issue of fact by a 

declaration which contradicts his prior [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, disapproved 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 a 
16 

triable issue of fact of coverage.” He does 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 fact. [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 hearsay is not admissible evidence and 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] attorney” 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 declarant in an action 

to which he is a party in either his individual or representative capacity . . . .” (Evid. 

Code, § 1220.) A “ ‘[d]eclarant’ is a person 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 distinguished from the witness who testifies to 

the content of the statement.” (Cal. Law Revision Com. com., 29B pt. 1A West’s Ann. 

Evid. Code (2011 ed.) § 135.) The party admission 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 occurred. When he and 

his insurer-retained lawyer were preparing for deposition in the personal injury action, 

Sanchez “explained” to the lawyer “that [GEICO] had promised me full coverage on my 
17 

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; see 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 this 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 lawyer’s alleged statements are admissible under 

the party admission exception to the hearsay rule. 

Even if he could do so, Sanchez has not provided a foundation to support 

admitting the statements. (Evid. Code, § 403.) “The proponent of the proffered evidence 

has the burden of producing evidence as to the existence of the preliminary fact, and the 

proffered evidence is inadmissible unless the court finds that there is evidence sufficient 

to sustain a finding of the existence of the preliminary fact, when: [¶] . . . [¶] . . . [t]he 

preliminary fact is the personal knowledge of a witness concerning 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 lawyer’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. Allstate 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 denying 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 judgment. Fanucci alleged that his insurer was 

estopped to deny uninsured motorist coverage 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 misrepresented 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 triable issue of fact precluding 

summary judgment. Here by contrast, it was undisputed that the GEICO agent made no 

representations about uninsured and underinsured motorist coverage. It was undisputed 

that the subject was not even mentioned 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.