Ace American Insurance Co. v. Superior Court CA4/2

Filed 11/6/26 Ace American Insurance Co. v. Superior Court CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION TWO ACE AMERICAN INSURANCE COMPANY, E088415 Petitioner, (Super.Ct.No. CIVSB2200819) v. OPINION THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; MICHELLE GOUIN, Real Party in Interest. ORIGINAL PROCEEDINGS; petition for writ of mandate. Winston Keh, Judge. Petition granted. Clyde & Co US, Lindsay J. Bowman, Shain Wasser, and Yvonne M. Schulte for Petitioner. No response by Respondent. Shernoff Bidart Echeverria, Ricardo Echeverria, Reid Ehrlich; Jeffrey E. Estes and Associates, And Jeffrey E. Estes for Real Party in Interest. 1  Defendant Ace American Insurance Co. (Ace) filed a petition for writ of mandate seeking review of an order denying its motion for summary judgment. We grant the petition. BACKGROUND I. The car rental and collision On February 2, 2016, Theresa Kendall rented a car in California from Avis Rent- a-Car System LLC. The parent company of Avis Rent-a-Car System LLC is Avis Budget Car Rental LLC. We refer to the entities collectively as Avis. As part of the rental, Kendall selected optional insurance coverage from Avis through its additional liability insurance program. Ace provided the additional liability coverage. Kendall drove the rental car while under the influence of alcohol and was involved in a collision with Michael Gouin, causing his death. In November 2016, Kendall was convicted of vehicular manslaughter while intoxicated. II. The wrongful death action In April 2016, Michael’s parents filed a wrongful death action against Kendall and Avis.1 In 2020, Michael’s mother (his father had passed away) secured a default judgment against Kendall in the amount of approximately $1.9 million. Michael’s 1 We refer to the Gouins by their first names to avoid confusion. No disrespect is intended. 2 mother subsequently assigned her rights in the judgment to Michael’s sister, Michelle Gouin. Kendall assigned her rights against Ace and Avis to Michelle.2 III. The insurance coverage action A. The operative pleading In 2022, Michelle filed suit against Ace and Avis. The first amended complaint contained five causes of action: (1) breach of the implied covenant of good faith and fair dealing (as assignee and judgment creditor), (2) breach of contract (as assignee and judgment creditor), and (3) recovery of a judgment under Insurance Code section 11580. The causes of action against Ace are predicated on the allegation that “the ACE Policy provided primary automobile liability insurance to Kendall.” B. The parties’ cross-motions for summary adjudication Ace moved for summary judgment or, in the alternative, summary adjudication on the grounds that the Ace policy contains an intoxication exclusion and such an exclusion is valid in an excess insurance policy (i.e., a policy that provides coverage for damages that exceed the legally required minimum coverage). Michelle filed a cross-motion for summary adjudication as to Ace’s affirmative defense that the intoxication exclusion contained in the Ace policy was enforceable. She argued that the exclusion was 2 In the captions and bodies of the first amended complaint and other filings by both parties in the superior court and in this court, Michelle’s name is spelled “Michelle.” In the agreement in which Kendall assigned her rights to Michelle, Michelle signed the document as “Michele.” We refer to petitioner as Michelle to conform to the spelling used by all sides throughout the proceedings, including in Michelle’s own operative pleading. 3 unenforceable because the Ace policy operated as a primary policy and not an excess policy. C. The rental agreement It is undisputed that Kendall cannot recall the exact version of the rental agreement that Avis gave to her, and she did not retain the agreement. In the first amended complaint, Michelle alleged that the rental agreement containing the terms and conditions that governed Kendall’s rental was the version that Ace had attached to its answer to the original complaint. Ace alleged in its answer that the terms of the Ace policy issued to Kendall “are governed by the Rental Agreement Jacket” that it attached to the answer. For purposes of its summary judgment motion, Ace assumed that Kendall had been provided that version of the rental agreement.3 For simplicity, all further references to the “rental agreement” are to the version attached to Ace’s answer to the original complaint. Paragraph 22 of the rental agreement is entitled “Liability Protection” and provides: “With respect to rentals commencing in California, this agreement does not afford you or any other driver of the car any insurance or protection against liability.” (Boldface & underlining omitted.) The next paragraph is entitled “Additional Liability 3 In its opposition to Michelle’s motion for summary adjudication, Ace submitted a different version of Avis’s rental agreement, which Ace stated that Michelle produced in response to a request for production of documents as the rental agreement that governed Kendall’s rental. Michelle does not deny that she produced that version of the rental agreement, but she contends that her production of that document is irrelevant because Ace admitted in its answer that the other version of the rental agreement was the one actually provided to Kendall. The terms of the rental agreement that Michelle produced in discovery are more favorable to Ace’s claim that its policy is an excess policy. 4 Insurance (ALI) & Exclusions” and provides: “If you elect to purchase ALI, coverage will be provided to you and any authorized driver under an excess automobile policy issued to Avis. ALI provides protection for third party automobile claims for the difference between the minimum financial responsibility limits provided under paragraph 22 above and a maximum combined single limit of liability of $1,000,000 or $2,000,000 of liability depending on the jurisdiction of rental for bodily injury, death, or property damage for each accident. This coverage is provided under a policy of excess liability insurance more fully described in the available brochure and is subject to all of the conditions and limitations described in paragraph 22 above, except that notwithstanding anything contained in this agreement, the terms of the policy will at all times control. ALI does not apply to bodily injury or property damage arising out of any ‘prohibited use of the car’ as described in paragraph 14 of this rental agreement, all of which are exclusions to ALI.” Paragraph 14 of the rental agreement sets forth numerous prohibited uses of the car and states: “A violation of this paragraph, will automatically terminate your rental and is an exclusion to and voids all liability protection and any optional products services that you have accepted, including but not limited to additional liability insurance ....” (Capitalization & boldfacing omitted.) The prohibited uses of the car include driving it “while the driver is under the influence of alcohol or a controlled substance” and using the car “for conduct that could properly be charged as a felony or misdemeanor.” 5  D. The Ace policy The Ace policy that Kendall purchased as additional liability insurance was effective between January 1, 2016, and July 1, 2016. The policy incorporates the coverage exclusions contained in the rental agreement. The declarations page of the Ace policy states that the policy is an “Excess Rental Liability Policy.” (Boldfacing omitted; all further quoted language from the Ace policy omits any boldfacing included in the policy.) The named insured in Item 1 of the declarations page is Avis, with the following individuals also identified as insureds: “[T]hose persons renting an Automobile from the Named Insured who have agreed in writing to accept Liability Insurance Supplement for an additional daily charge as shown in the Rental Agreement.” Item 5 of the declarations page is entitled “Schedule of Underlying Protection” and provides: “Limits of Protection as shown in the Rental Agreement.” (Capitalization omitted.) Item 6 of the declarations page is entitled “Limits of Liability” and includes a subsection for “Bodily Injury and Property Damage Combined Single Limit” that provides: “The difference between the Limits of Protection shown in Rental Agreement in the s[t]ate in which the accident occurs and a combined single limit of $2,000,000 each occurrence for Bodily Injury (including death) and Property Damage.” (Underlining omitted.) The Ace policy provides definitions of the terms “‘Authorized Driver,’” “‘Insured,’” and “‘Underlying Protection.’” “‘Authorized Driver’ means only those persons authorized by the terms of a Rental Agreement to operate the Named Insured’s 6 Automobile.” “‘Insured’” includes anyone defined as an insured in the excess liability coverage section of the insuring agreements. “‘Underlying Protection’” means “a standard policy of automobile liability insurance or an approved program of self- insurance of substantially similar scope, that meets or exceeds minimum motor vehicle liability requirements for a rental vehicle to which this insurance applies.” The “Insuring Agreements” section of the Ace policy includes a section entitled “Excess Liability Coverage,” and it provides: Ace “will pay all sums in excess of those payable under the terms of the Underlying Protection, up to the limit of liability identified in the Declarations, that the insured is legally obligated to pay as damages” arising out of an authorized driver’s use of the covered car. (Capitalization omitted.) An “Insured” is defined in this section as including “[t]he Named Insured described in Item 3 of the Declarations” and “[t]he Authorized Driver of the Automobile.” One provision of the “Limits of Liability” section in the policy provides: “This is excess insurance and only applies to those coverages for which Underlying Protection are shown in the Declarations of this Policy.” Another provision in that section provides: “It is expressly agreed that liability for any loss shall attach to [Ace] only after the Underlying Protection has admitted liability or shall have been held liable to pay the full of amount of its liability and [Ace] shall then be liable to pay only such additional amounts up the applicable Limit of Liability described in Item 6 of the Declarations.” 7  E. Avis’s program of self-insurance It is undisputed that Avis “was an authorized self-insurer under the California Compulsory Financial Responsibility Law and was assigned self-insurance #77 pursuant to Section 16053 of the California Vehicle Code for the applicable period.” The Department of Motor Vehicles issued a certificate of self-insurance to Avis for the period between July 1, 2015, and June 30, 2016. In support of its motion, Ace identified as undisputed material facts: (1) The additional liability insurance “coverage purchased by Kendall operated by Avis supplying the underlying primary protection up to the California’s minimum required limits, with the Ace Excess Policy supplying coverage above the primary protection”; and (2) in 2016, its self-insurance provided primary level insurance coverage “to all California renters who purchased ALI.” Ace cited a declaration by Avis’s regional risk manager, Jeanne Motosko, in support of those facts. Automobile claims in California under Avis’s self-insurance were handled by a third-party claims administrator called Sedgwick, and Motosko has oversight responsibility over Sedgwick. She attested that in 2016 Avis’s self-insurance provided primary coverage of $15,000 per person and $30,000 per collision (the legally required minimum) to all California renters who purchased additional liability insurance. Michelle disputed those material facts on the following grounds: “Kendall was never provided any document stating that she was covered by any insurance protection supplied by Avis. She received a Rental Agreement stating that it did not provide any 8 insurance, and the ACE Policy stated that it was excess to the insurance provided in the Rental Agreement.” Michelle also asserted that “Avis never made any payments on Kendall’s behalf—it paid $15,000 to settle its own liability under California Vehicle Code section 17150.”4 In support of the last assertion, Michelle cited both the offer to compromise under Code of Civil Procedure section 998 made by Avis to Michelle’s parents in the underlying wrongful death action and the settlement agreement in that action. It is undisputed that in April 2016 Sedgwick sent two letters to Kendall confirming “that underlying primary protection was available to Kendall from Avis in the amount of $15,000 per person and $30,000 per accident.” Both letters state: “At the time of above referenced accident [on February 16, 2016], you had rented a vehicle from Avis. Under the terms of the rental contract we afford liability bodily injury protection in the amount of $15,000/$30,000 and liability property damage protection in the amount of $5,000.”5 F. Communications with Kendall about coverage for the wrongful death action On April 20, 2018, Sedgwick sent Kendall a letter informing her that with respect to the wrongful death action, Kendall had been denied coverage under the additional 4 Vehicle Code section 17150 provides: “Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.” 5 “Return to sender” is written on the envelope of the first letter. The second letter was sent to Kendall at a different address. 9 liability insurance policy for numerous reasons, including that Kendall operated the car while under the influence of alcohol. That letter also stated: “The only coverage even potentially applicable under these circumstances is the minimum statutory liability coverage underlying the excess policy. [¶] As to that underlying insurance, [Avis] has agreed to pay $15,000.00 to the claimant(s) thereby exhausting its only policy limits by payment of settlement.” It is also undisputed that in that letter “Avis also offered to provide a defense to Kendall pursuant to the underlying primary coverage provided by Avis if Kendall elected to have a defense.” It is undisputed that “Kendall did not open key mail while incarcerated and did not communicate with Avis or ACE, including as to major litigation developments.” G. The Cerda litigation In February 2018, Gina Cerda filed a lawsuit against Kendall for damages allegedly caused by the February 2016 incident. In August 2018, Cerda accepted $15,000 in exchange for a general release of all claims against Kendall and Avis resulting from the February 2016 incident. Sedgwick issued a check to Cerda for $15,000 in September 2018. On April 17, 2018, Michelle’s mother accepted $15,000 in exchange for a general release of claims against Avis arising out of the collision. Michelle contends that Avis made the payment not on Kendall’s behalf but on the basis of Avis’s status as the owner of the car under Vehicle Code section 17150. 10  H. The trial court’s ruling The trial court denied both parties’ motions. It denied Ace’s motion on the grounds that “triable issues of fact exist as to whether or not (1) which rental agreement Kendal[l] signed; (2) whether or not Avis provided any underlying insurance coverage; (3) whether or not the Ace policy was primary or secondary; (4) whether or not the ... [Ace policy’s] drunk driver exclusion was enforceable or prohibited by law; (5) whether or not Avis Certificate of Self-Insurance also provided coverage for Kendall or just provide[d] for coverage for Avis; and (6) whether or not Avis’ settlement in the underlying action was paid on its own behave [sic] pursuant to liability imposed by California Vehicle Code section 17150.” The trial court denied Michelle’s motion for summary adjudication for the same reasons and also because of disputes about “whether or not the Ace policy must ‘drop down’ and render Ace the primary insurer” and “whether or not Ace’s interpretation of its policy would render coverage illusory.” STANDARD OF REVIEW The trial court may grant summary judgment if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(2); Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) A moving defendant must show that one or more elements of the challenged cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 (Aguilar).) 11  Once the moving defendant has carried its initial burden, the burden shifts to the plaintiff to show a triable issue of material fact with respect to the cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) The court must consider all of the evidence and the reasonable inferences from it in the light most favorable to the nonmoving party. (Aguilar, at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850.) We independently review summary judgment orders and apply the same legal standard as the trial court. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) We independently examine the record to determine whether there are triable issues of material fact and whether the moving party is entitled to judgment as a matter of law. (Ibid.) DISCUSSION Ace contends that the trial court erred by denying its motion for summary judgment on the ground that there are disputed issues of material fact as to whether the Ace policy constituted a primary or an excess insurance policy. We agree. Interpretation of an insurance policy is generally “a question of law that is decided under settled rules of contract interpretation.” (State of California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 194 (Continental).) The parties’ mutual intention “at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be 12 inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The ‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a special meaning is given to them by usage’ (id., § 1644), controls judicial interpretation. (Id., § 1638.) Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning.” (AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 821-822.) If the policy “‘language is clear and explicit, it governs.’” (Continental, at p. 195.) “‘A policy provision will be considered ambiguous when it is capable of two or more constructions, both of which are reasonable.’” (Continental, supra, 55 Cal.4th at p. 195.) Language in an insurance policy “‘must be construed in the context of that instrument as a whole, and in the circumstances of that case, and cannot be found to be ambiguous in the abstract.’” (Ibid.) ‘“If an asserted ambiguity is not eliminated by the language and context of the policy, courts then invoke the principle that ambiguities are generally construed against the party who caused the uncertainty to exist (i.e., the insurer) in order to protect the insured’s reasonable expectation of coverage.’” (Ibid.) “Insurance is sometimes procured in a series of layers, with an insured acquiring a primary insurance policy that provides an initial layer of coverage for loss or liability and an excess insurance policy or policies that provide additional coverage in the event the underlying coverage is exhausted.” (Fox Paine & Co., LLC v. Twin City Fire Ins. Co. (July 27, 2026, S287404) __ Cal.5th __ [2026 Cal. LEXIS 3943, *2].) With the primary level of coverage, “‘liability attaches immediately upon the happening of the occurrence 13 that gives rise to liability.’” (Montrose Chemical Corp. of California v. Superior Court (2020) 9 Cal.5th 215, 222.) “Liability under an excess policy attaches only after all primary coverage has been exhausted.” (North River Ins. Co. v. American Home Assurance Co. (1989) 210 Cal.App.3d 108, 112.) Vehicle Code section 16056 requires minimum automobile liability coverage of at least $15,000 for bodily injury or death to one person and $30,000 for bodily injury or death to two or more persons. (Id., § 16056, subd. (a); former Veh. Code, § 16056, subd. (a).) Insurance Code section 11580.1 contains an exhaustive list of the exclusions that are permitted in a primary automobile insurance policy. (Ins. Code, § 11580.1, subd. (c); Hertz Corp. v. Home Ins. Co. (1993) 14 Cal.App.4th 1071, 1078 (Hertz).) The list of exclusions does not include driving while under the influence of alcohol or a controlled substance. (Ins. Code, § 11580.1, subd. (c).) An excess insurance policy is not subject to those same “limitations on permissible exclusions if the excess policy contains a requirement for ‘underlying insurance’ or a retained limit of self-insurance equal to or greater than the limits specified in Vehicle Code section 16056.” (Hertz, at p. 1078.) The trial court erred by denying Ace’s motion for summary judgment on the ground that there were disputed issues of material fact. All but one of the purported factual disputes identified by the trial court are issues of policy interpretation and hence are pure questions of law, e.g., whether the Ace policy operates as a primary or excess policy or whether the exclusion for driving while intoxicated is enforceable. 14  Of the putatively factual issues identified by the trial court as grounds for denying Ace’s motion, only one is actually factual, namely, the issue of “which rental agreement Kendal[l] signed.” But that issue was not disputed, because Ace assumed for the purposes of its motion that the operative rental agreement is the version attached to Ace’s answer. The trial court therefore erred by denying Ace’s motion on the ground that there were disputed issues of material fact. (Code Civ. Proc., § 437c, subds. (c), (f)(2).) The disputed issues presented by Ace’s motion were legal. The error was prejudicial, because Ace was right about the dispositive legal issues. It is undisputed that the Ace policy contains an exclusion that prohibits driving under the influence of alcohol and that the exclusion is enforceable if and only if the Ace policy is an excess policy. It is also undisputed that the $1.9 million judgment is based on damages that Kendall caused by driving the rental car while under the influence of alcohol. Thus, if the Ace policy is an excess policy, then the intoxication exclusion would preclude coverage for the $1.9 million judgment. (Hertz, supra, 14 Cal.App.4th at p. 1078; Harbor Ins. Co. v. KSCH, Inc. (1989) 208 Cal.App.3d 965, 968.) To determine whether the Ace policy is a primary or excess policy, we analyze the policy’s plain language. The policy is entitled, “Excess Rental Liability Policy.” The terms of the policy show that the title is accurate. The insuring agreement provides, in a section with the heading “excess liability coverage,” that Ace “will pay all sums in excess of those payable under the terms of the Underlying Protection up to the limit of liability identified in the Declarations.” (Italics added & capitalization omitted.) The limits of 15 liability section in the policy likewise provides: “This is excess insurance and only applies to those coverages for which Underlying Protection are shown in the Declarations of this Policy.” (Italics added.) That section also provides that the parties expressly agree that “any loss shall attach to [Ace] only after the Underlying Protection has admitted liability or shall have been held to pay the full amount of its liability.” (Italics added.) The policy defines “‘Underlying Protection’” as including “a standard policy of automobile liability insurance or an approved program of self-insurance of substantially similar scope, that meets or exceeds minimum motor vehicle liability requirements for a rental vehicle to which this insurance applies.” (Italics added.) Under the plain language of those provisions, the Ace policy provides an excess layer of coverage that attaches only after the underlying protection has been exhausted. Thus, according to the policy’s plain language, the Ace policy covers only damages that exceed the coverage of the primary insurance, i.e., the “Underlying Protection.” The policy defines “Underlying Protection” as including qualifying programs of self- insurance. In sum, the plain language of the Ace policy thus establishes that it provides coverage in excess of primary coverage, which may be provided by self-insurance. And it is undisputed that Avis had an approved program of self-insurance. Michelle argues that despite the unambiguous language of those provisions of the policy, the Ace policy is not an excess policy because (1) the policy “purports to be excess to the insurance provided in the” rental agreement, and (2) the rental agreement “does not provide any insurance.” According to Michelle, the Ace policy therefore “must 16 ... be treated as a primary policy,” because otherwise “the coverage Kendall purchased and paid for would be a nullity.” We are not persuaded. It is true that the rental agreement states that it does not provide insurance. But that does not end the analysis. Contrary to Michelle’s argument, the Ace policy does not identify the rental agreement as the primary policy to which the Ace policy provides excess coverage. Rather, the Ace policy states that it provides coverage that is excess to the “Underlying Protection,” which may be an approved program of self-insurance. And it is undisputed that Avis had an approved program of self-insurance. Michelle’s arguments to the contrary are unavailing. To support her contention that the Ace policy purports to be excess only to primary coverage provided by the rental agreement, she points out that the limits of liability section in the Ace policy states that it is an excess policy that “only applies to those coverages for which Underlying Protection are shown in the Declarations of this Policy.” Michelle then points to items 5 and 6 in the declarations page that respectively provide that the schedule of underlying protection is the “[l]imits of protection as shown in the Rental Agreement” and that the limit of liability for each accident is “[t]he difference between the Limits of Protection shown in the Rental Agreement in the s[t]ate in which the accident occurs and a combined single limit of $2,000,000.” (Underlining omitted.) But because “there are no ‘Limits of Protection’ shown in the” rental agreement, Michelle concludes that “the only insurance provided to Kendall through the [r]ental [a]greement was the” Ace policy itself. 17  The argument lacks merit. Item 6 of the declarations states that the limit of liability under the Ace policy is the difference between the limit of protection in the rental agreement and $2,000,000. If there is no protection provided in the rental agreement, then it follows that the Ace policy limit is $2,000,000. That establishes only what the Ace policy limit is. It does not establish that the Ace policy is “excess to nothing” and therefore must be treated as primary. Rather, other provisions of the Ace policy establish that the Ace policy is excess to the “Underlying Protection,” which may be provided by an approved program of self-insurance, which Avis undisputedly had. The reference in item 5 of the declarations to the “[l]imits of protection as shown in the Rental Agreement” is difficult to interpret, given that the rental agreement states that it does not provide any insurance. But whatever it might mean, the language in item 5 does not change the fact that the Ace policy provides for liability coverage in excess of the “Underlying Protection,” which is defined as including an approved program of self- insurance. In sum, the Ace policy provides that its excess liability coverage attaches after the “Underlying Protection” has admitted liability or has been held liable to pay the limits of its policy, and “Underlying Protection” is defined as including qualifying self-insurance. Viewing the language of the Ace policy “‘“in the context of that instrument as a whole,”’” we conclude that the policy provides liability coverage for damages in excess of those covered by primary coverage that may be provided by an approved program of self-insurance. (Continental, supra, 55 Cal.4th at p. 195.) 18  Avis’s approved program of self-insurance provided primary coverage, so the Ace policy was indeed an excess policy; it was not “excess to nothing.” And because it was an excess policy, the intoxicated driver exclusion is enforceable. (Hertz, supra, 14 Cal.App.4th at p. 1078.) Kendall and Michelle as her assignee consequently were not covered under Ace’s excess policy for any claims arising from the February 2016 collision. Because all of Michelle’s claims are based on the allegation that Kendall was covered by the Ace policy, the trial court erred by denying Ace’s motion for summary judgment. DISPOSITION The amended petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing the trial court to vacate the order denying Ace’s motion for summary judgment, to issue an order granting Ace’s motion for summary judgment, and to enter judgment in favor of Ace. Ace shall recover its costs of this original proceeding. (Cal. Rules of Court, rule 8.493(a)(1)(A).) The stay of proceedings in the trial court is lifted. NOT TO BE PUBLISHED IN OFFICIAL REPORTS MENETREZ J. We concur: MILLER Acting P. J. CODRINGTON J. 19