Date: 11-26-2019

Case Style:

Case Number: B297338

Judge: Wiley, J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Dale E. Washington

Defendant's Attorney: Andrew I. Chung

Description: Contracts can allocate risk. When they do, they determine
who will insure against the risk, if insurance there is to be.
The contract in this case allocated risk. It specified that
the company was not responsible for water damage, and that
customers storing property with it did so at their own risk. The
contract offered insurance options to the customer. The
customers here declined this insurance, instead opting for selfinsurance.
Sure enough, water did damage the property. The
customers sued the company, demanding to be paid for their
losses. The trial court rejected this suit. We affirm, because one
may not contract to accept risk, decide to be self-insured, and
then retroactively demand to be paid by the other side after there
is a loss.
I
The customers were David and Shelly Kanovsky: the
Kanovskys. The company was At Your Door Self Stor, or Self
Stor for short.
When moving, the Kanovskys hired Self Stor in 2012. Self
Stor dropped off storage “vaults” at the Kanovskys’ place, which
the Kanovskys filled on their own. Self Stor did not assist and
had no idea what the load was.
The Kanovskys put their washing machine in one of these
vaults. They had been using it before packing it away. Did the
Kanovskys dry out the washer and all connections and tubing
before putting it in the vault? In response to that question,
Shelly Kanovsky testified the washer was “just transported from
the garage” where the Kanovskys had it.
The Kanovskys locked the vaults and notified Self Stor,
which picked them up for storage.
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The terms of storage were formalized in a written storage
agreement a driver gave the Kanovskys when delivering the
vaults. The Kanovskys ended up signing three different, but
identical, copies of this agreement.
David Kanovsky signed the first copy on April 30, 2012.
We describe this document in detail. It is two pages long.
The first page has two sides. The second has one side.
On the back of the first page of the “Storage Agreement”
there is small print. Part of that small print is paragraph four,
which reads like this (with our italics):
“4. RELEASE OF OWNER’S LIABILITY. All
personal property stored within or on the facility by
the Customer shall be at the Customer’s sole risk.
Owner or Owner’s agents shall not be liable to the
Customer for any damage or loss to any personal
property while at storage facility arising from any
causes whatsoever, including but not limited to, theft,
fire, water damage, mysterious disappearance,
rodents, acts of God, or the active or passive acts or
omissions of the Owner or the Owner’s agents. The
Customer agrees that he has read, understands and
agrees to the provisions of this paragraph by placing
his INITIALS here.
David Kanovsky signed his initials next to paragraph four.
Paragraph 18 is in capital letters (with our italics):
18. WATER DAMAGE. THESE SELF STORAGE
UNITS ARE NOT WATERPROOF WHEN AT YOUR
RESIDENCE! IT IS POSSIBLE FOR THE
CONTENTS TO BE WATER DAMAGED IF THERE
IS ANY RAIN. YOU MUST COVER THE UNITS
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WITH PLASTIC TARPS TO PROTECT YOUR
GOODS. AT YOUR DOOR SELF STOR IS NOT
RESPONSIBLE FOR ANY WATER DAMAGE.
There is a “Customer Signature” block two lines below this
clause. David Kanovsky signed there as well.
The first page has a second page attached to it. This
second page is a one-sided “Addendum to Lease or Rental
Agreement,” in two parts. The first part is entitled:
“TENANTS STORE PROPERTY
AT THEIR RISK.”
This heading is in large font and all capital letters. Below
this heading are these words (with our italics):
“I understand this self-storage facility and/or its
management:
“1. Is a landlord renting space, is not a warehouseman, and
does not take custody of my property;
“2. Is not responsible for loss or damage to my property;
“3. Does not provide insurance on my property for me; and
“4. Requires that I provide my own insurance coverage or
be ‘Self-Insured’ (personally assume risk of loss or
damage).”
In the middle of this same page there is another large
capitalized title:
“CHOICE OF
INSURANCE OPTIONS.”
“I have been given a brochure which explains the Customer
Storage Insurance available here. As initialed below, I agree to
obtain insurance coverage on property in my storage space for its
actual cash value or be ‘Self-Insured’ (personally assume risk of
loss or damage).”
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“Please initial only one.”
“[box for initials is empty] Customer Storage Insurance From
Deans & Homer.”
“[box for initials is empty] From my own Insurance Agent.”
“[box for initials has David Kanovsky’s initials] Be ‘Self-Insured.’”
David Kanovsky declined JBL’s selection of insurance and
elected to “Be Self-Insured.” He initialed the “Be Self-Insured”
box and signed the Addendum at the bottom of the page.
Shelly Kanovsky signed a second copy of this document,
with identical terms and with initials in the same places, on May
3, 2012. David Kanovsky signed and initialed a third identical
copy on May 7, 2012.
The Kanovskys opened the vaults in July 2016 and claimed
there was water damage. Neither the Kanovskys nor Self Stor
knew when or how the damage might have occurred. Neither did
any of these people know of any incidents that might have caused
the damage.
The Kanovskys sued Self Stor on four theories: breach of
contract; tortious breach of covenant; negligence; and violation of
the Consumer Legal Remedies Act, Civil Code section 1750.
IAT Insurance Group intervened as Self Stor’s insurer and
moved for summary judgment. The trial court granted the
motion in a 20-page single spaced minute order.
II
We independently review summary judgment rulings.
(Conroy v. Regents of University of California (2009) 45 Cal.4th
1244, 1249.) Summary judgment motions are desirable because
they can determine a case’s merit without the cost and
inconvenience of a trial. (See Perry v. Bakewell Hawthorne, LLC
(2017) 2 Cal.5th 536, 542.) The court’s ruling often gives parties
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extremely helpful information about the true value of the case,
which can facilitate settlement. Familiar rules govern this
process. (See, e.g., Code Civ. Proc., § 437c, subds. (c) & (p)(2).)
The court’s ruling was correct. The contract put the risk of
water damage on the Kanovskys. They refused insurance and
avoided its cost. But you cannot waive insurance, save yourself
the premium, and then sue later when there is a loss after all.
Consumers want insurance markets to be active and competitive,
but these markets will not fare well if firms must pay insurance
losses without collecting insurance premiums. Nor is retroactive
insurance a viable notion.
Allowing parties to allocate risk for mutual benefit has
advantages. Sometimes people may store relatively durable
things like gravel or bricks that resist damage. Those people may
prefer to avoid the cost of insurance to get the cheapest possible
storage rate. Other situations will differ. It is a big wide world
out there. A one-size-fits-all policy about risk allocation denies
parties the ability to tailor the deal to their individual
circumstances. Yet that is the result the Kanovskys demand:
one-size-fits-all, by always making the company bear the risk.
We review the two invalid causes of action the Kanovskys
discuss in their opening papers: breach of contract and the
Consumer Legal Remedies Act. The Kanovskys do not mention
their other causes of action (for negligence and for tortious breach
of the covenant of good faith and fair dealing) and have forfeited
those issues.
A
The Kanovskys devote the bulk of their briefing to their
breach of contract theory. Self Stor did not breach the contract,
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however, because the contract specified Self Stor was not liable
for water damage.
The Kanovskys say we must revise the contractual
language and reallocate risk to Self Stor. Legal authority is to
the contrary. (Cregg v. Ministor Ventures (1983) 148 Cal.App.3d
1107, 1109–1112 [enforcing liability limitation in storage
contract] (Cregg); accord, Sackett v. Public Storage Management
(1990) 222 Cal.App.3d 1088, 1090, 1092–1093 (Sackett).)
The Kanovskys have no effective response to the sound
legal authority of Cregg and Sackett. They attempt to distinguish
these cases by saying the storage sites there were fixed rather
than moveable, but this is a distinction without a difference.
The Kanovskys cite two inapplicable statutes. The first is
the Self Service Storage Act, Business and Professions Code
section 21701.1, which the Kanovskys concede creates no private
right of action. This statute does not invalidate or affect the
contract between the Kanovskys and Self Stor. The statute does
have a list of requirements, but their sole relevance is to
determine whether activity is or is not subject to regulation by
the Public Utilities Commission. (See Bus. & Prof. Code, §
21701.1, subd. (a).) That issue is not pertinent to this case.
The second inapplicable statute is the Household Goods
Carrier Act, which begins at section 5101 of the Public Utilities
Code. Self Stor points out this statute too lacks a private right of
action. (See former Pub. Util. Code, § 5317.5; Julian v. Mission
Community Hospital (2017) 11 Cal.App.5th 360, 381–382.) The
Kanovskys’ reply effectively concedes this point by omitting
contrary authority.
The Kanovskys cite many inapposite cases, as follows.
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They cite Tunkl v. Regents of University of California
(1963) 60 Cal.2d 92 (Tunkl), where a patient signed a hospital
release. The patient “at the time of signing the release was in
great pain, under sedation, and probably unable to read.” (Id. at
p. 95, fn. 1; see also id. at p. 102 [“The admission room of a
hospital contains no bargaining table where, as in a private
business transaction, the parties can debate the terms of their
contract.”].) Cregg concisely and correctly distinguished Tunkl.
(See Cregg, supra, 148 Cal.App.3d at p. 1111.) The Kanovskys
incorrectly dismiss Cregg’s trenchant analysis as dictum.
The Kanovskys cite the memorable decision in Gordon H.
Ball, Inc. v. Parreira (1963) 214 Cal.App.2d 697 (Ball), which is
the “you keep crashing on my oats but never pay me” case. A
plane landed in an oat field near an airport. The uninjured pilot
left without speaking to farm folk. The farmer apparently was
already irked about past crash landings that caused him
uncompensated crop damage. People came for the plane. The
farmer told them to pay up, which led to a fist fight. The farmer
ordered them off his land. Later there was reconciliation and a
team returned for the plane, but by then persons unknown had
looted it. The farmer was liable for the looting because he held
the plane pending payment. (Ball, supra, 214 Cal.App.2d at pp.
703–705.)
Ball is engaging, correct, and different from this case. If by
main force you take property hostage, you better safeguard it.
There is nothing like that here. No one in Ball contracted in
writing about risk allocation. No one offered insurance options to
the other side. Ball has no relevance.
Similarly irrelevant is the criminal law holding in People v.
Gonzales (1960) 182 Cal.App.2d 276.
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Also immaterial is Mehesy v. Mission Garage (1922) 60
Cal.App. 275, 277–278, where a parking garage broke its promise
to bar unauthorized people from driving a car in the garage. The
garage was liable when it allowed an unauthorized person to
drive and to damage the car. Here Self Stor is not liable because
it did not break its promise. Different facts mean different
results.
Wilson v. Crown Transfer & Storage Co. (1927) 201 Cal.
701, 714 supports the trial court’s ruling. Long ago, the Supreme
Court acknowledged the right of warehouse owners to limit their
liability.
Similarly, Justice Traynor enforced a contractual allocation
of risk in George v. Bekins Van & Storage Co. (1949) 33 Cal.2d
834, 845–850 (George), which supports our analysis. The
Kanovskys cite England v. Lyon Fireproof Storage Co. (1928) 94
Cal.App. 562, but George disapproved that decision. (George,
supra, 33 Cal.2d at p. 848.)
Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057,
1065–1069, does not assist the Kanovskys because the risk
allocation in that contract was equivocal where the risk allocation
in this case was not.
The Kanovskys cite Gardner v. Downtown Porsche Audi
(1986) 180 Cal.App.3d 713, 717 and 719, footnote 6, where the
company made no provision for a purchaser to pay additional fees
and obtain insurance against loss. This case differs from this
one, where the Kanovskys needed merely to check a box and pay
the rate to opt into a convenient insurance program.
In sum, the trial court rightly rejected the Kanovskys’
breach of contract claim.
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B
The other argument on appeal concerns the Consumer
Legal Remedies Act, which begins with section 1750 of the Civil
Code. The Kanovskys treat this as an afterthought. They devote
a single sentence to their unsupported and incorrect assertion
that Self Stor acted unconscionably by specifying it was not liable
for water damage.
In a different argument about the Consumer Legal
Remedies Act, the Kanovskys devote but two sentences to their
assertion Self Stor engaged in false advertising by claiming its
facilities were “climate controlled” and “weatherproof.” The
Kanovskys ignore the trial court’s ruling that this new allegation
was not in their complaint and thus was improperly beyond the
pleadings. The trial court correctly cited case law for the familiar
rule that the pleadings delimit issues to be considered on a
motion for summary judgment. Defendants moving for summary
judgment need address only the issues raised by the complaint,
and plaintiffs may not bring up new issues in their opposing
papers. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242,
1253.) The Kanovskys do not address this decisive point and
have forfeited this argument.

Outcome: The judgment is affirmed. Costs to Self Stor.

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Defendant's Experts:

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