In Myasnyankin v. Nationwide Mut. Ins. Co., 99 Cal.App.5th 283 (January 30, 2024), the California First District Court of Appeal affirmed the trial court’s entry of judgment in favor of Vladimir Myasnyankin with respect to a complaint seeking a declaration of Myasnyankin’s right to video record all other parties to an examination under oath required by Nationwide in connection with a property claim.

The parties’ dispute arose out of a claim for water damage sustained by plaintiff Myasnyankin’s home tendered to Nationwide Mutual Insurance Company (“Nationwide”) under a homeowners policy. Pursuant to the policy terms and Insurance Code section 2071, Nationwide demanded that Myasnyankin submit to an examination under oath addressing his claim. In response, pursuant to subpart 2071(a)(4), Myasnyankin sought to video record all the participants in the EUO, including Nationwide’s attorneys and claim representatives. Nationwide objected to such recording and asserted that section (a)(4) only entitled Myasnyankin to record himself as the insured participating in the EUO. Nationwide also threatened to deny the claim unless Myasnyankin submitted to an EUO with video recording limited to himself only. At that point, Myasnyankin filed a declaratory relief action seeking a declaration from the court that he was entitled to video record all the participants in the EUO.

Nationwide filed a demurrer to Myasnyankin’s action, arguing that Insurance Code section 2071(a)(4) was limited to video recording the insured only in an EUO. The trial court found in favor of Myasnyankin and interpreted the language of the section 2071(a)(4) as allowing the video recording of all participants to an EUO, including the insurer’s counsel and claims representatives. However, it denied Myasnyankin’s request for attorneys’ fees in connection with prosecuting the declaratory relief action.

In affirming the trial court’s entry of judgment in favor of Myasnyankin, the Court of Appeal explained the purpose of an EUO as follows:

“‘An insured’s compliance with a policy requirement to submit to an examination under oath is a prerequisite to the right to receive benefits under the policy.”‘ (Abdelhamid v. Fire Ins. Exchange (2010) 182 Cal.App.4th 990, 1001 (106 Cal. Rptr. 3d 261 (Abdelhamid).) “Examinations under oath are frequently conducted under circumstances where the loss is undocumented or suspect.” (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2023) ¶ 6:289.3.) “The purpose of the examination under oath is to enable the insurer to obtain the information necessary to process the claim: “As the facts with respect to the amount and circumstances of a loss are almost entirely within the sole knowledge of the insured, … it is necessary that it [the insurer] have some means of cross-examining, as it were, upon the written statement and proofs of the insured, for the purpose of getting at the exact facts before paying the sum claimed of it.” (Brizuela v. CalFarm Ins. Co. (2004) 116 Cal.App4th 578. 591-592 [10 Cal.Rptr.3d 661] (Brizuela).) “The examination is normally conducted orally before a court reporter who administers the oath and transcribes the proceeding.” (Croskey, supra 6.289.)

Section 2071.1, subdivision (a), applies to “any policy that insures property and contains a provision for examining an insured under oath,” and enumerates a nonexclusive list of “rights of each insured who is requested to submit to an examination under oath.” One such right is to “record the examination proceedings in their entirety.” (§ 2071.1(a)(4).)

The Court of Appeal interpreted the language of section (a)(4) to encompass the right of an insured to video record all the participants in an EUO. The Court of Appeal reasoned as follows:

We begin with the plain language. Section 2071.1 provides that “each insured who is requested to submit to an examination under oath may be represented by counsel and may record the examination proceedings in their entirety.” (§2071.1(a)(4), italics added.) “Entirety” is defined as “the state of being entire or complete;” “entire,” in turn, is defined as “with no element or part excepted.” (Merriam- Webster’s Unabridged Dict. Online, https://unabridqed.merriam-webster.com/unabridged/entirety [as of Jan. 30, 2024], italics added; see also Oxford English Dict. Online (2024) [as of Jan. 30, 2024] [phrase “in its entirety” means “in its complete form, as a whole”].) The plain language thus provides an insured may record every element and part of the examination proceeding.

“Examination proceeding” is also a broad term. A different subdivision of section 2071.1 uses the term “testimony” to denote the insured’s answers to questions. (§ 2071.1. subd. (a)(5) [“An insured may make sworn corrections to the transcript so it accurately reflects the testimony under oath.” (italics added)].) “[W]hen different words are used in contemporaneously enacted, adjoining subdivisions of a statute, the inference is compelling that a difference in meaning was intended.” (Kleffman v. Vonage Holdings Corp. (2010) 49 Cal.4th 334, 343 (110 Cal. Rptr. 3d 628. 232 P.3d 6251.) Thus, the use of “testimony” elsewhere in the same statute suggests that the Legislature intended the term “examination proceedings” to include more than just the insured’s responses to questions. Indeed, as plaintiff notes, a statute governing depositions expressly limits recording rights to “testimony.” (See Code Civ. Proc., § 2025.330, subd. (c) [party noticing deposition “may … record the testimony by audio or video technology” (italics added)].) The insurer’s representatives at an EUO are an element or part of the examination proceeding, and therefore fall within the scope of the plain language. This construction is supported by the statutory framework. Section 2071.1, subdivision (a) provides a nonexclusive list of rights of insureds, indicating an obvious purpose to protect those subject to EUOs.

The Court of Appeal also found that the legislative history for Insurance Code Section 2071.1 supported an interpretation of subpart (a)(4) as encompassing the insured’s right to video record all the participants to an EUO.

In an unpublished portion of the decision, the Court of Appeal reversed the trial court’s order denying plaintiff’s application for attorneys’ fees and remanded to the trial court the determination of the amount of fees for purposes of an award.