Filed 6/17/26 Kaay v. Chicago Title Ins. Co. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
ALEXANDER KAAY, 2d Civ. No. B344154
(Super. Ct. No. 22CV02308)
Plaintiff and Appellant, (Santa Barbara County)
v.
CHICAGO TITLE
INSURANCE COMPANY,
Defendant and Respondent.
Alexander Kaay appeals after the trial court granted
summary judgment following a motion by respondent Chicago
Title Insurance Company (Chicago Title). Appellant sued
Chicago Title for breach of contract after it denied his claim
under a title insurance policy. We conclude the trial court
properly granted summary judgment and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2014, appellant purchased a property in Santa
Barbara from Briar Yong for $640,000. On August 27, 2014,
appellant obtained a title insurance policy from Chicago Title.
In August 2017, Santa Barbara County (County)
determined that, pursuant to County ordinance, appellant’s
parcel “was created by an illegal land division in 1967 . . . .” In
May 2018, appellant applied for a conditional certificate of
compliance with the County. In a June 2018 letter, the County
again stated the property was created as an illegal land division
in 1967.
In April 2019, Yong located a 1957 worksheet indicating
the board of supervisors had approved the division. That
worksheet and other documents were submitted to the County.
In May 2019, the County determined the property complied with
the Subdivision Map Act and County ordinances. A certificate of
compliance was recorded.
In October 2019, appellant tendered a claim on the title
insurance policy. In June 2020, Chicago Title denied coverage.
Chicago Title cited Exclusion from Coverage 1(a), which provides
in part:
“The following matters are expressly excluded from the
coverage of this policy and the Company will not pay loss or
damage, costs, attorneys’ fees or expenses which arise by reason
of:
“1. (a) Any law, ordinance or governmental regulation
(including but not limited to building or zoning laws, ordinances,
or regulations) restricting, regulating, prohibiting or relating to
. . . (iii) a separation in ownership or a change in the dimensions
or area of the land or any parcel of which the land is or was a
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part; . . . or the effect of any violation of these laws, ordinances or
governmental regulations, except to the extent that a notice of
the enforcement thereof or a notice of a defect, lien or
encumbrance resulting from a violation or alleged violation
affecting the land has been recorded in the public records at Date
of Policy.” (Italics omitted.)
In June 2022, appellant filed a complaint against Chicago
Title. Appellant subsequently filed the operative second
amended complaint for damages arising from breach of contract
and/or breach of special relationship of insurance.
Chicago Title moved for summary judgment or, in the
alternative, summary adjudication. In support of that motion, it
filed the declaration of Kenneth Dzien. “From 1969 through
2008, [Dzien] was employed with various title, escrow and title
insurance companies” in different roles, including title examiner,
general counsel, divisional claims manager, and chief
underwriter. Since 2008, he had worked as a consultant. Dzien
opined on notice, the effect of an illegal land division or
Subdivision Map Act violation on title and ownership, and
whether appellant had marketable title.
The trial court granted summary judgment and entered
judgment in favor of Chicago Title.
DISCUSSION
Appellant argues the trial court committed errors
regarding Dzien’s declaration. Appellant asserts that the
“granting of summary judgment, with or without the Dzien
declaration, ignored significant, unresolved, and triable legal and
factual issues, and resulted in [appellant’s] loss of his bargain, a
substantially unjust result.” We disagree.
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Summary Judgment Standard
“A trial court properly grants a motion for summary
judgment only if no triable issue exists as to any material fact
and the defendant is entitled to judgment as a matter of law.
[Citations.] ‘The moving party bears the burden of showing the
court that the plaintiff “has not established, and cannot
reasonably expect to establish, a prima facie case . . . .”’
[Citations.] On appeal, we examine the record de novo, viewing
the evidence in the light most favorable to the plaintiff as the
losing party and resolving any evidentiary doubts or ambiguities
in her favor.” (Bailey v. San Francisco Dist. Attorney’s Office
(2024) 16 Cal.5th 611, 620; Code Civ. Proc., § 437c.)
“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.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
Dzien Declaration
Appellant argues the trial court erroneously overruled
appellant’s objection to Dzien’s declaration of qualifications.
Under Evidence Code section 720, a “person is qualified to testify
as an expert if he has special knowledge, skill, experience,
training, or education sufficient to qualify him as an expert on
the subject to which his testimony relates. Against the objection
of a party, such special knowledge, skill, experience, training, or
education must be shown before the witness may testify as an
expert.” (Evid. Code, § 720, subd. (a).)
“[A]n expert’s qualifications can be established in any
number of different ways, including ‘a showing that the expert
has the requisite knowledge of, or was familiar with, or was
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involved in, a sufficient number of transactions involving the
subject matter of the opinion.’” (ABM Industries Overtime Cases
(2017) 19 Cal.App.5th 277, 294.)
Here, Dzien’s declaration established he had handled
numerous title claims. He “received formal training in search
and examination of land title.” In his decades-long career, he
served in multiple relevant roles, including title examiner and
chief underwriter. Under any standard of review, the court did
not err in determining Dzien qualified as an expert.
Appellant contends the trial court erred in allowing Dzien
to render legal conclusions. Even assuming the declaration
strayed into offering legal conclusions related to the
marketability of title (¶ 8.C-8.E), any error was harmless. (See
Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210
Cal.App.4th 1435, 1449.) As the trial court found and as we
explain further below, summary judgment was proper because
appellant’s claim was excluded from coverage based on the
policy’s unambiguous language. This determination does not
depend on any of Dzien’s purported legal conclusions. Thus,
exclusion of those purported conclusions would not change the
outcome of the summary judgment motion. (See Huntsman-West
Foundation v. Smith (2024) 104 Cal.App.5th 1117, 1130-1132.)
Moreover, the trial court did not improperly delegate
interpretation of the insurance contract to Dzien. Rather, the
court’s considered ruling demonstrates that it undertook its own
analysis of the policy.
Grant of Summary Judgment
The trial court properly granted summary judgment
because Chicago Title showed it appropriately denied appellant’s
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claim and had no duty to defend based on the insurance policy’s
exclusions from coverage.
“Title insurance, as opposed to other types of insurance,
does not insure against future events. . . . The policy does not
guarantee the state of the title. Instead, it agrees to indemnify
the insured for losses incurred as a result of defects in or
encumbrances on the title.” (Quelimane Co. v. Stewart Title
Guaranty Co. (1998) 19 Cal.4th 26, 41.)
“A title insurance policy is interpreted under ‘the well-
established rules on interpretation of insurance agreements.’
[Citation.] ‘In general, interpretation of an insurance policy is a
question of law and is reviewed de novo under settled rules of
contract interpretation.’” (Dollinger DeAnza Associates v.
Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1145.)
“‘The fundamental rules of contract interpretation are
based on the premise that the interpretation of a contract must
give effect to the “mutual intention” of the parties. “Under
statutory rules of contract interpretation, the mutual intention of
the parties at the time the contract is formed governs
interpretation. (Civ. Code, § 1636.) Such intent is to be 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.)”’” (Ameron Internat. Corp. v. Insurance Co. of State of
Pennsylvania (2010) 50 Cal.4th 1370, 1378.)
A reasonable trier of fact could not find even the potential
for coverage under appellant’s insurance policy. (See Total Call
Internat., Inc. v. Peerless Ins. Co. (2010) 181 Cal.App.4th 161, 167
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[“The absence of a duty to defend is established when the insurer
shows that ‘the underlying claim [could not] come within the
policy coverage by virtue of the scope of the insuring clause or the
breadth of an exclusion.’”].) The policy unambiguously excludes
“loss or damage, costs, attorneys’ fees or expenses” due to “[a]ny
law, ordinance or governmental regulation . . . relating to . . . a
separation in ownership or a change in the dimensions or area of
the land or any parcel of which the land is or was a part . . . .”
Appellant’s losses, which stemmed from the County’s
interpretation of its ordinances and the Subdivision Map Act, fall
squarely within this exclusion. The exclusion would not apply
had certain notice been “recorded in the public records at Date of
Policy.” However, no such notice was recorded by that date.
Thus, the trial court properly granted summary judgment.
DISPOSITION
The judgment is affirmed. Respondent shall recover its
costs on appeal.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
YEGAN, Acting P. J. McKAIG, J.*
* Judge of the Superior Court for Ventura, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Colleen K. Sterne, Judge
Superior Court County of Santa Barbara
_________________________________
Law Offices of E. Patrick Morris, E. Patrick Morris for
Plaintiff and Appellant.
Fidelity National Law Group, Christopher D. Greinke for
Defendant and Respondent.
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