*1 Dist., G032371. Fourth Div. Three. June [No. 2006.] CENTER, INC., R & B AUTO Plaintiff and v. Appellant, INC., al., GROUP, FARMERS et Defendants and Respondents.
Counsel Normandin, Dawe, Prenovost, Dawe and Paula M. & Michael G. Bergh Harrelson for Plaintiff and Appellant. Freisleben,
Picker, Todd A. Picker for Alan J. Freisleben and Chow Inc., Truck Underwriters Fanners and Group, Defendants Respondents Association. Litt; Perrochet, Schechter and Eric N.
Horvitz & Lisa Jason R. Hollins Levy, Truck Insurance Exchange. Riezman for Defendant Respondent Opinion
MOORE, J. and used new car might reasonably dealerships assume One lemon added to the car are But when a oranges. dealerships apples mix, Vehicles the lines can become blurred. When the Motor Department brand,” a a of that used (DMV) used vehicle with “title a purchaser classifies law, under lemon bring procedure usually vehicle sometimes suit (See War associated with defective new cars. Consumer Song-Beverly Code, Here, Act, car to sell 1790 et licensed seq.) dealership Civ. ranty § insurance, bid lemon including used cars sent out a law branded” lemon law in connection with sale “title liability arising 1793.23, Code, 1793.24.) It furnished a (See Civ. vehicles. buyback §§ when under the chagrin, lemon law To its sued containing coverage. policy law, the sale of coverage only applied lemon discovered dealership to either defend or The carrier would not agree new vehicles. insurance law suit. in connection lemon indemnify dealership and related parties negligent the insurance carrier sued dealership reformation, faith, contract, bad breach of and intentional misrepresentation, theories. The unfair breach of unfair fiduciary duty competi- competition *6 to halt the deliberate action relief sought purportedly tion cause of injunctive without the sale lemon law to used car coverage dealerships marketing their used sold them was coverage being inapplicable disclosure in of motions limine a on dozens rulings car series operations. Through nonsuit, gutted dealership’s the trial court largely and two motions for carrier a in favor of insurance judgment case. The from dealership appeals and related parties.
The trial court made numerous erroneous rulings essentially deprived of an on its dealership opportunity case. put Although the court contract, of the causes of action properly disposed for breach of bad faith and breach of it fiduciary duty, tossed out the improperly causes of action for negligent and intentional reformation and misrepresentation, unfair competi- tion. We reverse and remand.
In so we doing, caution against wholesale of a case disposition through rulings (See motions in limine. Fatica (2002) v. Court Superior 904].) Cal.App.4th No matter Cal.Rptr.2d how a logical [120 moving sound, party’s motion a may judge should not generally be weighing evidence on a motion in limine. A in judge is the ticklish situation of needing efficient, hand, to be on the one hand, while on the other needing, give their in court parties day and let the jury weigh evidence. While it bemay sense, to look at a tempting case in the macro the devil is in the details. The moving party’s concerns that the other be party may to use evidence trying for an or in a improper purpose be way unduly can be prejudicial instructions, addressed by limiting without taking the other away party’s hallowed right (See a trial. jury Bahl v. Bank America 270].)
We court, also that a express dismay eliminated having the bulk of a party’s evidence limine, through rulings on motions would then grant motions for nonsuit before a had the party to make opportunity an opening statement or evidence to the present trier of fact.
I
FACTS used car Center, R & B Auto dealership (R B), Inc. & for looking insurance for its business It operations. bid prepared request which it itemized the coverage sought, including products deficiency i.e., liability coverage, losses suffered on account of the lemon laws. B specifically that the requested products deficiency liability coverage include liability arising connection with “title branded” lemon law buyback vehicles. Civil Code section 1793.23 requires that the certificate for a vehicle ownership under the reacquired lemon law be “title branded” with the “Lemon inscription Law and that Buyback” purchaser vehicle be notified that it is a lemon law buyback. Civil Code section 1793.24 the form of the notice that specifies must be provided.
William an insurance Westenberger, for the Farmers agent Insurance Group Companies including Insurance and Farmers Exchange, *7 each Farmers sold an Beth advised R that Lopez,1 representative liability that included a deficiency automotive dealers package products dis- law coverage. endorsement lemon providing Westenberger Lopez Dersch, law with Otto Joe coverage cussed the of available lemon scope stated that in a & At his Dersch deposition, R B’s business manager. liability Westenberger requested products deficiency discussion of R & B’s he and addressed Westenberger significance request coverage, “title Dersch branding.” that the for coverage explained policy provide branded DMV with that the term to “titles Westenberger applies [the] back, unknown, salvage According miles title.” lemon law true buy Dersch, automotive dealers having after researched whether the Westenberger, sales, that used car later confirmed would for package provide that would did. stated that confirmed the package Dersch further Lopez title for coverage, branded including provide products deficiency coverage, R & B’s business. that R & B is the DMV
At his Dersch further stated licensed deposition, that a on the of during used vehicles discussion completion sell R stated that & B sold used cars. the insurance he specifically application, statement, Indeed, offered by in a recorded transcript Westenberger’s Westenberger & for summary judgment, R B in to a motion opposition he he sold R & B was aware that at time acknowledged policy, plainly At his Dersch said that that R & B was a used car also dealership. deposition, R B was used car he discussed with the fact that & a specifically Lopez R B was indicated that after he disclosed that & a Dersch further dealership. each him that the used car assured Westenberger Lopez dealership, law R & business. In his would include lemon B’s package declaration, B also said R & relied on those representations Dersch Delozier, Bob president an from Farmers.2 insurance
purchasing policy 1 Westenberger May 2002 declaration that he was “a explained in his precise, To be Companies.” explained: He “Members captive agent Group of the Farmers further Insurance agent have Companies for which I been since Group Farmers Insurance Century Exchange, Mid Insurance Com Group, include Farmers Insurance Truck Insurance Exchange.” Westenberger Exchange also stated pany, Insurance and Fire Insurance Farmers offering agent and that he was a Farmers had told & B that he was Farmers he R addition, Policy transacting the sale of the he said: “At all times when program. insurance Auto, agent as and as an acting scope my I course and duties a Farmers as Westenberger Lopez . .” described agent Exchange deposition, . . At of Truck Insurance trial, “Farmers,” he that she was a field sales and at testified representative” “commercial litigants and the Inc. We that both witnesses Group, underwriter for Farmers observe they to refer and of the various “Farmers” entities intend sometimes fail to articulate which as precise We will be interrelationship between the various entities. to describe entity at issue in each context. identifying particular record allows in “Farmers” 2 declaration, May In at least a handful conversations Dersch stated: “5. In his B would be covered under the Westenberger, he advised me expressly with Bill Deficiency Liability Liability coverage’ ... The Products Deficiency [IQ . 6. ‘Products
335 3 B, R & made the same statement in his declaration. The essentially policy R & B was (Truck issued Truck Insurance purchased actually Exchange Insurance), and the face of that recites that & is page policy engaged omitted.) business of “used auto sales.” (Capitalization 30, 1999, Peralta,
On August John and Renee who had a lemon purchased B, law vehicle buyback from sued R & B for violation of the lemon law Act, (the Code, Consumer Song-Beverly Civ. et On Warranty seq.).4 § 31, 2000, July R & B tendered the defense of the to litigation Truck Insurance and but Truck requested indemnity, Insurance did not to agree B, $17,500 either a provide defense or to R & indemnity. to According paid $49,163.61 settle the Peralta and an additional litigation fees paid attorney in connection with that litigation. 6, 2001,
On R & B February filed a lawsuit against Farmers Inc. Group, (FGI), Truck (Truck Underwriters Underwriters) Association and Truck contract, Insurance. R & B asserted causes of action for breach of tortious contract, breach of negligent misrepresentation, intentional misrepresentation, breach of violation fiduciary duty, of Business and Professions Code section 17200, 3, 2002, and reformation. On Truck April Insurance tendered $77,275.98. R & B checks totaling Insurance stated that the amount $21,437.90 was $55,838.08 equal in defense fees and costs and with to the settlement of claims for and damages fees. It also attorney coverage important was to R & B. . . . I . emphasized importance . . coverage who, Westenberger, Mr. my in response emphasis, requested speak expert that I with an Farmer[s], Ms. Lopez. spoke Beth I Lopez. Lopez Ms. . . . Ms. expressly confirmed that Endorsement, R & B would be covered Deficiency Liability under the Products consistent with request, our bid 7.1 advised Mr. Westenberger [ft] DeLozier of the assurances of both Mr. and Lopez. Farmers, relied, Ms. In making the to purchase decision insurance from personally I relied, my knowledge know from personal that Mr. DeLozier also on the assurance that we obtaining were R B Deficiency for & under the Products Liability Endorsement.” 3 Delozier, declaration, May in his electing purchase stated: “5. In insurance time, from specifically Farmers at the I upon Westenberger relied the fact that William B, Dersch, Lopez Beth had both through assured R & Joe that we would have Products Endorsement, Deficiency coverage under the Deficiency Liability Products 6. After the [ft] Peralta v. R B developed, & lawsuit and after we had tendered our defense of that lawsuit to Farmers, spoke Westenberger. I Westenberger with Mr. Mr. assured me on more than one occasion that acknowledged he that he had assured us that we were covered under the Products Deficiency Liability Endorsement. ... He further he personally stated that felt Farmers provide Insurance should R & B representations, for the Peralta lawsuit due to his underwriter, and those of Lopez, Farmers’ Beth that R & B covered under Products Deficiency Liability Endorsement.” 4 Code, The Song-Beverly Warranty (Civ. seq.) Consumer Act et applies to “cars § remaining sold with a balance warranty on the new . manufacturer’s motor vehicle . . .” America, (Jensen 295].) v. BMW North Inc. 123 [41 The record question remaining does not indicate whether the vehicle in had a balance on warranty purchased when the it. Peraltas at the stated that amount included interest rate of 10 percent. tender.
declined accept limine, After on dozens of motions in the trial dismissed ruling contract, breach breach of causes action for tortious contract Code 17200. The court held violation Business Professions section *9 trial on alter breach and ruled fiduciary duty bench issues of of ego & & had B. Before R B had made an statement or against opening to the of fact in the trial on jury evidence trier presented contemplated action, of motions for nonsuit— remaining causes the court two granted Truck of Truck one in favor FGI and Underwriters and another favor FGI, The in favor Insurance. court entered Insurance judgment Truck Underwriters and appeals.
II
DISCUSSION Introduction:
A. however, R & B raises assertions error. The of its gist grievance, many that being the insurance sold simply agents represented policy B would it with law When a lemon law claim R & lemon provide coverage. R & B and R B found out that the against language later arose plain sales, not car lemon law for new car the used coverage policy provided the lack in which R & B R & B was engaged, aggrieved by promised sales be held many B raises theories as defendants should coverage. why erred, and how the court and in so cites numerous authorities. doing liable However, as to the nature of underlying cites one case nearly point Exchange v. Truck Ins. 1442 us—Butcher before matter Cal.App.4th (Butcher). That case us with the initial provides 521] for framework our analysis. Butcher, 1442, a insured was looking supra, Cal.App.4th prospective He a for malicious coverage prosecution.
to replace policy provided Exchange existing Truck Insurance with a his agent copy provided but coverage, higher and asked the the same agent policy procure insured, (Id. 1447.) at the agent represented limits. p. According a that provided that he had obtained Truck Insurance Exchange policy him did it. but not read the same The insured coverage. policy, purchased (Id. 1448.) he sued malicious prosecution, at When was later p. and did learned not the same as his insured that the policy prior claims. malicious prosecution provide both Truck Insurance Exchange The insured filed lawsuit against (Butcher, 1449.) at The trial court granted supra, agent. Cal.App.4th p. (Id. 1450.) at in favor of both defendants. summary judgment p. appellate reversed, of material fact with court that there was triable issue stating to the causes of action for reformation and negligent misrepresenta (Id. tion, insured 1465.) others. at It also noted that since the among p. “[had] that the of the Truck Exchange] not contended on form appeal [Insurance delivered, malicious breach coverage, policy, provide[d] prosecution [the] (Id. 21.) at fn. of contract cause of action been waived.” p. [had] stated, Butcher As the insurance has an agent ‘obligation “[a]n care, reasonable the insurance diligence, judgment procuring use an insured.’ The law is well established in California requested by [Citation.] failure to deliver the constitute coverage may an agent’s agreed-upon actionable and the of an negligence injury. cause proximate [Citations.]” Moreover, (Butcher, insurer supra, 1461.) be *10 (Desai Ins. v. Farmers held liable for the of the vicariously negligence agent. 1110, 1118, 276].) Exchange (1996) 47 Cal.App.4th the Butcher these that “if the relating court held facts Applying principles, of the Truck are to be as shown purchase Exchange] policy [Insurance insured], related trier of fact could find the misled by [the [insured was] failure to warn that was not by agent’s] coverage sought] negligent [the [the (Butcher, supra, of the among coverages policy.” Hence, 1463.) the court concluded that the insured should have had his case with his opportunity put respect negligent misrepresentation (Id. 1465.) and reformation causes of action. at p. us, to the case before it is clear that the foregoing
Applying principles facts as characterized R & B would causes of action for both support However, B has not and reformation. inasmuch as R & misrepresentation that the of the as issued lemon law argued language policy provided sales, for used car the breach of contract cause of action fails as a matter of law, as the trial court held. Causes Action: Misrepresentation
B. issues Preliminary whether, a The first is We start a few matters. by addressing preliminary matter, in favor & waived the the nonsuit right challenge procedural causes of action. and Truck Underwriters on the FGI misrepresentation failed to affirmed because R & B The second is whether the nonsuits must be R & B to them. The third is whether evidence any opposition present action as to cause of waived the right argue negligent misrepresentation admission a with damages because of all any purported possible party, address to that cause of action had been tendered We these already. issues one one. to nonsuit
(a) Stipulation record contains of a minute order “Counsel copy stating: plaintiff Truck Association Farmers Inc. Group, defendant Underwriters entered into a with counsel for their clients plaintiff dismissing stipulation from the action.” The record does not contain written copies any stipulation formal order more information on Read providing complete point. isolation, order not to be ought the minute make that R might appear Underwriters, able to the nonsuit FGI and having in favor of Truck challenge However, background consented to the same. the reporter’s transcript provides crucial to the of the nature of the understanding information stipulation the order. 20, 2003,
On March when selection was asked progress, parties jury discuss a outside court for opportunity possible stipulation, Then, bit of time counsel took presence jury. quite the court to he the court’s rulings make certain understood checking contract, date. that the bad faith duty, He recited breach of breach of fiduciary had had ruled that alter claims been tossed out and the court ego claim would be for R & B stated his only. reformation Counsel prospective Insurance, were that Truck FGI and Underwriters understanding going *11 that R & to make additional motions in limine to further limit the evidence B if could matters. further said that remaining to He present Underwriters, the motion of and Truck would consider granted they FGI themselves to be out of the case. Counsel for essentially explained circumstances, offer for a B’s reluctant under stipulation qualified want if that was made and and we would to stating, granted, so motion “[a]nd throwing the record that we all motions—we’re not preserve oppose Honor, towel, situation, is that the our view of the your we’re opposing—but, the law of the law and the defense counsels’ view of is court’s view substantially different than ours. We have lost on major issues. [1] And we said, Before, I we ‘gutted.’ see—the court used word that our case organs to vital coming having still had all our vital I think we’re close organs. down, Honor.” going your stated, recess, “Your counsel for FGI and Underwriters
After a Honor, I’ve my prepared move for a nonsuit in favor clients. I would one, which, in a form and that’s a notable is that’s order with one exception Honor, for R & “Your we with the Counsel stated: plaintiff.” acceptable earlier, your as I the record morning motion. But indicated on oppose Honor, of the it is clear that the view of court’s light rulings, plaintiffs law and that the defendants is different. It is clear from several very, very of the court’s that as far as the material from our rulings rulings standpoint law the court more inclined to the defendants’ view of the goes, accept that, we are to—we than our view of the law. So in light prepared oppose this motion. We to the form of the order in form We all agree only. preserve that we’ve offered and to argued your We objections. say everything Honor ... in the we think we’re on the issues that we’ve been right past, on, ruled understand that. And in the of judicial but we interest wrong form, we’re off on this order as a matter of economy, sign prepared all for R & B reiterated that rights “reserving Counsel preserving object.” arise, to make on that we would right any argument agreement might off on this order as to form.” The court then the motion. sign granted the record reflects that R & B entered into a the exact Although stipulation, nature and are unclear. We cannot ascertain from scope stipulation record whether there was a written or a formal order stipulation precisely the nature and describing record does make scope agreement. clear, however, that R & B felt boxed in the trial court’s adverse rulings nonsuit, and was to the form of an order for while willing agree reserving its right substantive error. made to the argue Considering arguments court, trial we do not conclude that R B& waived its right challenge nonsuit favor of FGI and Truck Underwriters on If substantive grounds. there was a written or a formal order to the effect that R & B did stipulation waive this FGI and Truck right, Underwriters the same to the may present trial court on remand.
(b) Failure to evidence present As to that R & B waived either of the any suggestion right challenge evidence, two nonsuits for failure to we caution that the present procedural must be borne in mind. A look at that posture litigation heavily is most procedural revealing. posture the time the motions for were most of R & B’s
By nonsuit brought, evidence had been eliminated motions in limine and its causes of through *12 contract, had been action for breach of bad faith and unfair competition dismissed. A bench trial was held on the and alter issues fiduciary duty ego and the court the causes of action for ruled R & B. At that against only point, intentional and and reformation remained. negligent Jury misrepresentation commenced selection was with to the trial of those causes of action. about a The issue of a with FGI and Truck Underwriters possible stipulation nonsuit under came while the selection was in rights jury reservation of up record, There was a discussion on the the lengthy highlights process. that, are described ante. R & B felt of it is that and the short long which it, it was been so gutted, its case had rulings against the through many as to FGI and to an order for nonsuit to willing stipulate reluctantly all argue of its to Underwriters, right reservation in form only, express raised. previously points afternoon, Truck Insurance’s thereafter, the court granted same Shortly thereafter Insurance and Truck handling evidence of claims motion to exclude its motion for brought Truck Insurance oral motion for nonsuit. made an any or an statement presented R & B ever made opening nonsuit before motion, the basis of all arguments B R & opposed evidence to jury. made, the motion. and the court granted it had previously nonsuit granting the orders challenging R B now from Is & precluded motions for at the time the to file an offer of proof because of its failure to would be ignore procedural made? To so conclude nonsuit were when the trial made already the errors of this case and compound posture that R & realistic thwarting any possibility entered orders court serially case. have had to its prove may 581c, (a) subdivision permits Procedure section
Code of Civil its has completed opening after the plaintiff to move for nonsuit defendant case, after a statement, trial. In a typical evidence in a jury presented advised to move reopen is well is brought, plaintiff motion for nonsuit cure the in an effort to additional evidence her in order to his or case present al., Civil Trials and Practice Guide: et Cal. defect. (Wegner purported 12:233, 2001).) A (rev. # 2005) 12-45 (The p. Rutter Group Evidence f (Id. at to do so. the right a chance to waives failure to reopen request an offer 12:235, must be 12-45.) accompanied motion Any reopen p. f (Id. 12:235.1, must | 12-46.) The offer of proof specify at p. proof. (Id. 12:236, 12-46.) evidence to be offered. additional f to move R & B was Here, required suggestion disagree any we evidence, an offer accompanied “additional” the case to present “reopen” an to make even had an opportunity & B never For one thing, of proof. It would make statement, to the jury.5 evidence let alone present opening to “reopen” an opportunity request sense to logical require no 5 after, 581c, (a) “Only provides: subdivision of Civil Procedure section Code statement, of his before, presentation or after the opening or her completed has his plaintiff judgment of nonsuit.” for a . . . move by jury, in a the defendant or her evidence trial for nonsuit propriety of the motions nearly the issue of the enough, parties ignore Oddly note of the issue R & B makes given procedural context. statutory provision, under this not had interesting parties other have point, Although it is an reply in its brief. reply brief. it, time in R & B’s for the first as it was raised to address inasmuch opportunity
341 evidence, “additional” when it had never to with or present begin opened Moreover, evidence to the at all. it would have presented any jury certainly made no sense to motion to with an offer of “reopen,” together require Underwriters, in the context of the nonsuit in favor of FGI and Truck proof, nonsuit, since R & B had to order for albeit under a stipulated reluctantly, And, reservation of and as to it form would have been fruitless rights, only. for R & to move to motion to Insurance’s for “reopen” nonsuit, inasmuch as the court had addressed R B’s already proffered evidence and limine. excluded bulk of it on motions in through rulings R & B had nowhere it go, left so said that it reiterated and simply all its That it preserved arguments. means that reiterated and prior preserved its on the exclusion of arguments evidence.
R B& had evidence of before the court managed get misrepresentation in along way, opposition summary judgment, even example, though it did not remind the court of item of evidence every when it opposed addressed, nonsuit motions. It had also to the various motions opposition limine, However, evidence it to be able to hoped the time the present. made, motions for nonsuit were BR & was its appeared though beating head a brick wall in against the court to trying get consider its evidence and there was a at which R & B point realized that resistance was futile. The fact that R & B had been beaten at turn every resorted to finally simply all preserving arguments does not mean that its prior opposition motions for nonsuit should be deemed as a matter of law that inadequate the motions for nonsuit should be deemed because of the failure unopposed 6 to remind the trial court of every of evidence it piece before previously put and every of evidence that piece had been eliminated from presentation through rulings motions in limine. Therefore, (Schubert Reynolds (2002) v. argument. we also do not address the Cal.App.4th 95 100, 285]; 754, Reichardt v. (1997) 108 Cal.Rptr.2d [115 764 [60 Hoffman 770].) 6 certainly general It is rule that put this court cannot consider evidence that was not 180, (See, e.g., Bridge Doers v. etc. Dist. (1979) before the Golden Gate trial court. Cal.3d 837, 1261]; Pulver v. Avco Financial Services Cal.Rptr. fn. 1 P.2d [151 However, 491].) Cal.App.3d Cal.Rptr. is not an in which the instance evidence we consider proffered simply was never to the trial court in context. It is the case that R did not take the time to remind the each of items of court of those individual nonsuit, opposed considering largely evidence at the time it the motions for that the court had limine, gutted through rulings proceeding case on motions in and R & B saw little basis case, rulings. without reversals of peculiar those Under the circumstances of this we see no
reason, assessing parties’ arguments appeal, ignore the evidence that had been raised in the trial court proceedings appellate and is contained in the record.
(c) damages Admission lack of B, on certain rulings R & in an offer of filed in oral response proof limine, R & initial days in stated: after B’s motions “Approximately defense, checks Farmers ‘tendered’ to two unilaterally tender $77,274.98. The amount 100% of the defense costs and totaling represented B, interest, R & with 10% in connection with settlement amount incurred by 28 and Farmers’ letter indicated the Peralta matter. underlying [T.E. 29] Leader, Henry based with former Commercial Team it was ‘discussions upon ” R & referenced trial exhibit No. 28 is letter to B’s counsel Kilinski.’ The Insurance, letterhead, “Enclosed are stating: from Truck albeit on Farmers $77,275.98 (with the checks which interest calculated at together two total $21,437.90 and 10%), rate of which includes in defense fees costs $55,838.08 for fees.” to settle the claims damages attorney
The the offer of can be read mean simply from quoted language proof that R & B intended to describe the of Truck Insurance objective expressed hand, B the it also be to mean that R & in its tender letter. On other can read in tender letter did in cover actuality admitted the amounts enclosed further, amount, interest, there settlement defense costs and plus under were no other conceivable available damages negligent misrepre- latter sentation cause of action. The interpretation supported from “When Farmers additional the offer following language proof: 3, 2002, check it did so of its own sent the on eventually April completely amount, . . . did not to be a accord. The amount sent purport ‘compromised’ claim, rather full of R & B’s initial with interest.” but was the amount time, B’s for also states: “R & claim proof At same offer Farmers throughout remained an ‘claims file’ at open period $77,000 in filed Farmers issued from the time this lawsuit was until checks, later, over of its discharge coverage obligations.” a year purported that R & B have intended The use of the word indicates “purported” did not in fact leave room for that the amounts tendered argument represent also of its pleadings all couched another damages. possible said, brief, “Farmers In trial similarly language. ambiguous $77,000 R&B in excess of tendered a check to unilaterally purporting long Again, for the had disavowed.” indemnity defense pay on whether the amount tendered could be viewed as doubt language casting did indeed meet the coverage obligation. at the level. trial engendered argument offer of language proof filed, filed motion FGI and Truck Underwriters
After the offer of proof 14, 2003 minute order described A February judgment pleadings. offer that the evidence in the the motion contends stating: “Moving party . . . establishes that it has proof defense costs and the settlement paid amount, interest, Peralta action. underlying Moving thus party contends that can’t show responding damages causes action 3-5.” party motion, stated, R & B filed an in which it inter response opposition *15 “The alia: statement set forth in the Offer of as an proof hardly qualifies admission that has been offered all it could plaintiff damages possibly against and FGI.” The trial court with prove agreed [Truck Underwriters] contention, further in the minute order: stating “Responding party correctly argues, statement in the offer of doesn’t establish that proof conclusively evident, these are the entire suffered damages As is by responding party.” R & B maintained at the trial level that its offer of was not intended to proof constitute an admission that all conceivable with damages tendered, negligent cause of action had been misrepresentation and the trial We, too, court agreed with this assertion. do not view the language offer of proof being admission on R & unambiguous B’s that all part damages available under the conceivably cause of negligent misrepresentation action had indeed been tendered already. B,
We observe that R & in its brief on opening reiterates verbatim appeal, and, so, above from the offer of quoted language proof, doing provides a citation to the offer of proof. quoted language, as repeated brief, continues opening to reference the trial exhibit wherein Truck Insurance the nature of the explained tender. The in the does ambiguity quoted language not because the disappear just is restated in R language & B’s brief. opening
We also note that R & B states in its brief that “Track opening [Insurance] moved for a non-suit on the grounds established that Track pleadings had tendered damages which on the equaled damages [Insurance] Peralta matter, the attorneys fees Peralta’s and to paid lawyers R&B’s lawyers the Peralta matter and 10 interest date percent of the tender. R.T. v. 4 769; This 20-770:9.” suffers from the language same as the ambiguity other language, which was first stated offer of and then proof repeated in the brief. opening Did R & B mean to describe the Track merely grounds Insurance or did argued, R & B mean to concede that all damages possible had in fact been tendered The citation to the already? reporter’s transcript be It is a key: citation to the argument of Track Insurance. This is an indication that R & B meant to describe Track Insurance’s activities and arguments, to make a concession. caution, on the
Erring side of and with the a full goal giving litigants merits, and fair trial on the we remand the issues negligent misrepresentation to the trial court for further to the extent that R B has not proceedings & conceded that all under the potential damages negligent misrepresentation cause of action have been tendered.
(2) Substantive issues R & B that it out a bid coverage, including states put request used coverage law for its car sales lemon policy provide requirement It also asserts that each Lopez represented Westenberger operation. dealers included lemon law coverage applicable the automotive package while Westenberger maintains that indicated R & B’s business. further he details of referred that he was not familiar especially policy, B, to R & it According R B to to confirm the coverage points. & Lopez confirmed that the would policy thereafter had contact with who Lopez, agree law business. The lemon B’s provide parties car only. delivered lemon law for new sales actually policy provided accurate, deliv- of the facts is the insurance Assuming this characterization B or ered not the insurance promised clearly requested *16 all and this the case before us is on fours with Westenberger way, Lopez. Butcher, 1442. a could say, potentially 77 That is jury supra, Cal.App.4th FGI and/or Truck agents find that were of Westenberger Lopez to R & B for which FGI they Insurance and that made misrepresentations (Butcher, and/or should be held liable. 77 supra, Cal.App.4th Truck Insurance 1461, 1465.) at pp.
“The of an insurance is his authority most definitive characteristic agent Cal, (Marsh City his ....’’ & McLennan Inc. v. bind insurer principal, 108, (1976) 796].) 117 Angeles Cal.Rptr. Los Cal.App.3d [132 “[T]he notice, constructive, rule that ‘. . . absence actual or in the general limitations authority, agent may such agent’s general insured any upon acts, that are within agreements representations bind by company him, entrusted to and limits of insurance business scope ordinary his or restrictions are in violation of instructions although they private upon (Troost (1984) Estate DeBoer 155 Cal.App.3d v. authority.’ [Citation.]” insurer, Indeed, as be 47].) a principal, may Cal.Rptr. [202 “[a]n or authorized for the of its if the insurer directed vicariously agent liable torts acts, did not or if it ratifies acts it originally tortious agent perform (Desai Exchange, v. Farmers Ins. supra, Cal.App.4th authorize. [Citation.]” Furthermore, liable 1118-1119.) an insurer be held “may vicariously at pp. by the insurance required to fulfill its basic failing obligation provide from the agent. intended demanded beneficiary [Citation.]” policy’s (Id. 1120.) at p. evidence concerning agency that the had before it the fact
Despite misrepresentations and the Westenberger Lopez, purported status both them, nonsuit to the two motions for as granted made each of the court in FGI It the first motion favor of granted causes of action. misrepresentation in favor of Truck Insurance. and Truck and the second motion Underwriters so, We address these two motions turn.7 In doing we bear in mind that “ ‘A that, defendant is entitled to a nonsuit if the trial court determines as a law, matter of the evidence is insufficient presented by plaintiff permit to find in jury his favor. “In whether determining plaintiff’s [Citation.] sufficient, evidence is the court may weigh evidence or consider the Instead, of witnesses. credibility the evidence most favorable to must plaintiff be true accepted evidence must be conflicting disregarded. The court must ‘to the give evidence plaintiff[’s] all the value to which it is legally entitled, . . . indulging every legitimate inference which be drawn from ” the evidence in favor.’ A mere plaintiff “scintilla of evidence” [s] [Citation.] does not resolution; create a conflict for the jury’s “there must be substantial evidence to create the (Adams v. conflict.” necessary [Citation.]’ [Citations.]” City Fremont 196].) 262-263
(a) FGl/Truck Underwriters motion The judgment recites that the court the motion for granted nonsuit brought FGI and Truck Underwriters light court’s that neither findings FGI nor Truck Underwriters owed R & B a under fiduciary duty a subscrip- tion agreement and that FGI was not the alter of Truck ego Underwriters. We will discuss these However, findings greater detail later in this opinion. suffice it to point, that we do say not see the relevance of these findings misrepresentation causes of action. The fact did subscription agreement not give rise to certain duties and the fiduciary *17 fact that FGI was not found to be the alter ego of Truck Underwriters have no bearing whether either of those entities made to R & B. misrepresentations The cause of action in question, is not misrepresentation, simply predicated on the existence of a fiduciary under duty subscription agreement. Furthermore, inasmuch as evidence was presented showing was a Lopez “Farmers” FGI, commercial sales or a field representative underwriter for and Westenberger was an for the agent Farmers Insurance Group Companies, there ais conceivable basis for holding FGI liable for misrepresentation irrespective whether it is the alter of Truck ego Underwriters. Whether FGI, and Lopez were Westenberger agents of for whose FGI representations liable, should be held determine. (Troost is a v. fact for the question jury DeBoer, Estate supra, 299.) We cannot with Cal.App.3d say, 7 In opening its brief on appeal, R & B states that prejudicial Trial Court committed “[t]he granted error when it a nonsuit on the causes of action for Intentional Misrepresentation ante, Negligent Misrepresentation.” As actually granted separate indicated the court two action, motions for nonsuit. With respect disposition misrepresentation to the of the causes of R & B is not challenge clear as to whether it granting intends to the orders each of the two motions for nonsuit or granting the order one of them. We will assume that R & B intends arguments on misrepresentation apply equally misrepresentation to the causes of action it FGI, pled against each of Truck Underwriters and Truck Insurance. law, insufficient, hold FGI, as a matter evidence was that the Westenberger Lopez. misrepresentations FGI liable for purported to the misrepresenta- in favor of FGI as nonsuit The court erred granting causes of action. tion R & B does another matter. Underwriters is of Truck in favor ruling account of representa- be liable on should Truck why
not state Underwriters fact, at all that no evidence In cites Westenberger Lopez. tions made by made any misrepresenta- Truck Underwriters to find that would permit jury of Truck nonsuit in favor did not err in granting R & B. The court tion to of action. causes as to the misrepresentation Underwriters motion (b) Truck Insurance admits, R & B readily Insurance. As the motion of Truck turn now to
We $77,275.98 than R & B more totaling tendered two checks Truck Insurance Peralta defense of the B had tendered the a half after R & year filed suit after R & had and more than a year Truck Insurance litigation tender, that the time Truck Insurance said Insurance. At the Truck against amount R & B had paid of the checks represented total amount suit, costs R & B fees and attorney the amount of their plus Peraltas to settle suit, together percent in the Peralta incurred in itself defending had tendered nonsuit, said it had already Truck Insurance moving interest. to R & B on a negligent that were available full for all damages payment negligent there was no viable of action and thus cause misrepresentation be tried.8 of action to cause misrepresentation R & B maintains while argument appeal, reiterates
Truck Insurance to consider what court, failed rulings, erroneous evidentiary trial due to cites no portion Truck Insurance R & B had incurred. actual damages tendered represented that the amount that R & B conceded record to show under the negligent be recovered that could possibly full amount of damages Insurance’s granting The order cause of action. misrepresentation cause of action to the negligent misrepresentation for nonsuit as motion *18 reversed. Truck of action.
Next, cause intentional misrepresentation we turn to the brief, B’s trial Insurance, in R & statements contained to two pointing 8 selected, 20, 2003, made its motion Truck Insurance jury had been March after On was of Truck Insurance that the motion on that date states A minute order entered nonsuit. ego.” appear would fiduciary duty and alter This regarding “earlier motion based on R & B’s statement, may have and FGI motion Truck Underwriters however. The an erroneous to be findings had ego, but those fiduciary duty and alter findings concerning been based on 20, 2003 transcript of the March reporter’s Insurance. The nothing to do with Truck significant extent on was based to a motion that the Truck Insurance proceedings indicates to R & B. payment tender of Truck Insurance & B
contends that R has conceded that there was no intentional misrepresen- show, tation. As we shall this is an narrow construction of R & overly B’s statements. brief, stated,
In the R B introduction trial & unaware, and “The Farmers’ were Westenberger agents as Lopez, apparently B, was R & that the fine limited law’ ‘lemon print policy coverage ” (Boldface omitted.) the sale of motor ‘new vehicles.’ Under its topic reformation, said, R & B heading also “both Farmers its (through agents and and R B Lopez Westenberger) & in the mistaken proceeded mutually B belief that R & was ‘Lemon Law’ under the receiving coverage Products Endorsement, Deficiency Liability the fact that it was never a notwithstanding ” seller of ‘new motor vehicles.’ one While could these argue that statements constituted an admission that the insurance two acted agents only negligently, and made, there were no intentional one misrepresentations must consider these statements in their context. argumentative Litigants frequently plead alternative, fact coloring assertions of cause one of action or support Rader Co. v. Stone (See another. Cal.App.3d Cal.Rptr. Here, 806].) the assertion that there was a mutual mistake was intended to action, the reformation cause support but this does not R & B preclude case, from alternative, an effort to making characterize facts of the in the intentional supporting misrepresentation. Furthermore, other trial in the brief R & B language indicates that did not intend to make there any concession that was no intentional misrepresenta- tion. Under bait and “Farmers[, i.e., switch R & B stated: topic heading, Insurance, Truck Underwriters FGI collectively,] intentionally the terms of the when failed misrepresented Farmers to disclose policy agents to R & B the new vehicle limitation R & B with provided the false and which deceptive brochure also failed to disclose marketing limitation.” Under intentional misrepresentation topic heading, stated: “The evidence will show that Farmers created the Automotive Dealers knowing that there package was no for used cars but never distinguished it its brochures or advised its FGI agent Westenberger. employee affirmatively terms. evidence will Lopez misrepresented show that Farmers extensively marketed to used car dealers—Mom policy .... The evidence will Pop organizations show intentional misrepresen- tation of the worst kind: bait and did not switch.” intend to Clearly, concede there no intentional misrepresentation.
On Truck Insurance refers to as its appeal, Westenberger agent evidence, B, concedes in the that the viewed most to R & light favorable reflects that offered sell R Westenberger an automotive dealers *19 Truck Insurance also that the brochure package. marketing concedes for the exhibit, in the as a trial of which is contained record copy package, (i.e., that included lemon product deficiency liability the represented package law) R B to link evidence with evidence of together & wanted coverage. other used Truck of the automotive dealers to marketing package Insurance’s did not have that car but it dealerships, opportunity. it it could for nonsuit that believed & B stated in motion opposition court, the in were it not the fact that intentional
prove misrepresentation limine, on the had excluded R & B’s evidence various motions granting it that Westenberger’s stated that it could show More point. specifically, the automotive dealers to package conduct in connection with the sales of As detail greater other car demonstrated fraud.9 we dealerships explain used in limine post, court when it Truck Insurance’s motion granted erred dealers, car of several used least thereby excluding No. the testimony had received they two were to testify of whom purportedly prepared would that the sold them lemon express representations policies provide remand, On R & B will have an law their used car dealerships. order Truck Insurance’s granting evidence. The opportunity present cause of action is motion for nonsuit as to intentional misrepresentation reversed.
C. Reformation: nonsuit, it disposed
When the court Truck Insurance’s motion for granted action, also reformation of not causes of but misrepresentation does articulate the court’s rationale with cause of action. The judgment However, of the reformation cause of action. respect disposition the court ruled shows that at which reporter’s transcript proceedings causes of action and the focus of was on argument misrepresentation $77,275.98. had tendered the fact that Truck Insurance already payment left that there were no argument damages into appeared buy left to The court no expressed separate collect therefore nothing say. of action. nonsuit to the reformation cause distinct rationale for granting $77,275.98 tender or ruling Whether the court made its based otherwise, of action. nonsuit as to the reformation cause erred granting be available under a For one the full measure of thing, damages not been insurance contract has cause of action for breach of a reformed another, no on the issue of whether finding shown. For there has been (See met. reformation have been elements of a cause of action for predicate 9 Templeton Ralston Co. Cal.2d Feed & Grain v. Purina why We see no reason Insurance, 152], preclude an award of would Cal.Rptr. P.2d cited cause of action. damages misrepresentation intentional punitive *20 Code, 3399;10 516,
Civ. Hess v. Ford Motor Co. Cal.4th 524-525 § 220, Butcher, 1442, 46]; 41 P.3d supra, 77 Cal.App.4th record, 1465.) Based on the information contained in the we cannot that say the evidence of law a was insufficient as a matter to in favor finding support of R & B on a reformation cause of action.
D. Breach Contract:
(1) Waiver Butcher, 1442, As mentioned the court previously, supra, stated that the insured therein had waived its appellant right argue action, breach of contract cause of because the insured had not asserted that the insurer breached the terms of insurance contract as written. (Id. us, 21.) fn. In the case before R & B that the acknowledges insurance contract as written lemon law for new car provides coverage sales Since only. R & B makes no that Truck Insurance its argument breached sales, obligation to lemon law coverage for new car it has its provide waived right that the insurance argue contract as written breached. (2) Procedural issues
This notwithstanding, & B that it claims was denied due when process the court ruled that Track Insurance had not breached the insurance contract as a matter of law. This is a curious assertion given procedural posture the case. Track Insurance filed motion in limine No. 1 in it which requested court to bifurcate the issue of from other issues and to addition, rale on the B, issue of a coverage as matter of law. its own motion in limine No. asserted specifically question whether the had a insurer to defend and duty was a matter of law indemnify that the requested court rale on issue of coverage before submitting course, the remainder of the case Of R B jury. a different sought outcome than did Track Track Insurance. Insurance a as a sought ruling covered, matter of law that the Peralta was not based on clear litigation policy R & B language, whereas a as a a sought ruling matter of law there was duty defend and on indemnify, based not but on policy language waiver. The bottom line is that both the court to make a parties requested ruling law, matter a and the court It did so. ruled that R & B’s claim was not 10 “When, Civil Code provides: through section 3399 fraud mutual mistake or a parties, party, mistake one at the or suspected, which the other time knew a written truly express contract does not the parties, may application the intention revised on the be party aggrieved, of a express as to . . . .” so intention 11 say damages This is not that R & precluded seeking B is from contract, breach of a reformed insurance prevail theory should reformation remand. law, so as a matter of and it was correct in policy covered under the insurance lemon R & B has never asserted that its law ruling. policy provides *21 car never that Truck Insurance used sales and has claimed applicable of the insurance contract issued. insurance policy breached terms no for so it was clear there was no coverage, potential coverage, provided or and the of contract cause of no to either defend breach duty indemnify (1995) 11 (See Truck Inc. Exchange, action was not viable. Waller v. Ins. 1, 370, 19, 619]; Ins. 900 P.2d Ward General Cal.Rptr.2d Cal.4th 37 [44 Services, 548, (2003) Inc. Co. 114 559 v. Fire Ins. Employers Cal.App.4th [7 844].) Cal.Rptr.3d not under the
Once it ruled that R & B’s claim was covered insurance law, as a dismissed the cause of action for breach matter of court policy court cause of dismissing of contract. R & B that the erred in complains However, show, the extent that the court action sua as we shall sponte. have error either in a issuing coverage ruling made a procedural cause in limine the breach of contract dismissing a motion response action, it error. was invited not in motion clearly requested coverage ruling, motion, limine, but oral as well. At a on the hearing in extensive argument R B the evidence was and that the argued undisputed parties agreed had was a legal that the matter before issue. they put R & B’s was an motion for argued summary Insurance motion improper it court itself asked R & B whether would have judgment repeatedly as a adjudica been more to raise the matter motion summary appropriate it At the the court asked what it was to do after tion. also hearing, supposed determination. The made their respective arguments made coverage parties which, we would then be eliminated. Although as to if causes action any, summary the use of motions in limine achieve discourage adjudication, case, relief based of the error in given procedural granting posture R & B’s in limine error. “When a his conduct motion was invited party error, it as a he is from asserting induces commission an estopped Mut. Ins. Co. v. State Farm Auto. (Kardly reversal. ground [Citation.]” 1746, 612].) Cal.Rptr.2d Cal.App.4th [37 Furthermore, be . . . unless reversed judgment may appeal “[a] evidence,’ cause, of the it appears ‘after examination entire including VI, Const., (Cal. 13.) art. When ‘miscarriage § the error caused a of justice.’ unless law does not warrant reversal the error is one of state only, generally error, a more that in the absence of the result there is reasonable probability have reached. favorable to the would been party appealing [Citation.]” 548, (1994) 8 Cal.4th (Soule v. General Motors Corp. no ruled that there was 298].) Inasmuch as the court correctly 882 P.2d law,
coverage as a matter a more favorable would not have result been reached had the court awaited of a filing motion before dismiss- separate the breach contract we ing cause of action. do not see how Consequently, the court’s dismissal order resulted in a miscarriage justice.
(3) Other relief The fact that the breach of contract cause of action was dismissed does not mean, course, that R & B is without a R & B claims to be remedy. aggrieved because insurance agents misrepresented delivered did not conform to the agreement parties. Butcher, Based on supra, it is clear that R & B’s claims *22 stated, sound in and reformation. have As we misrepresentation already R & B may seek relief under those theories.
E. Motion Leave to Amend to Allege Estoppel: Waiver and for
R & B did not either waiver or a identify as basis of a cause estoppel action in its amended third This notwithstanding, & B that complaint. says Insurance, Truck Truck and FGI Underwriters have waived to any defenses their obligation to and provide should be from coverage estopped denying trial, before coverage. Truck Insurance its Shortly filed motion in limine 4, No. in which it a court order R & B requested from either precluding alleging waiver or or estoppel introducing evidence thereof. In its opposition motion, B R & leave to further requested amend to add complaint allegations of waiver and estoppel. also filed Insurance its motion in limine a No. which it sought
court order R & B to binding of its and parameters pleadings prohibiting R & B from evidence introducing outside the of its third amended parameters court in limine and complaint. granted The motion No. 4 motion in limine No. 7. R & B filed then a motion leave to file a fourth amended complaint in which the breach contract cause of action be a would predicated waiver of the to and an right deny to The coverage deny estoppel coverage. court denied the motion.
R & B the trial court asserts abused its discretion denying B’s motions for leave to further its third amend amended to include complaint of waiver and allegations It contends that the evidence shows Truck estoppel. Insurance, Truck Underwriters and FGI not to chose either deliberately deny duty to defend or to duty indemnify, coverage determina- leaving air, tion that the insurer either up despite regulatory requirement 10, 2695.7, defend (See or Code coverage. Regs., (b); Cal. tit. subd. deny § 790.03, This, concludes, Code, (h).) see also Ins. subd. demonstrates § Insurance, the right deny Truck Underwriters and FGI waived that Truck R & B also that coverage. says be coverage, deny should estopped $77,275.98 is for waiver or ground estoppel. ultimate tender of the also Insurance, Truck Underwriters FGI that Truck Finally, R asserts because R B relied its detriment deny coverage should be estopped lemon the policy representations Westenberger Lopez provided car sales. law used v. Blue R & cites Chase arguments, its waiver estoppel support 178].)
Cross (1996) 42 of California Chase had to do an in which the insured asserted plaintiff instance had to invoke the arbitration policy’s the defendant insurer forfeited right (Id. an 1148.) insurer acknowledged clause. at appellate circumstances and remanded could a contractual under certain right lose the insurer had indeed matter the trial court for determination whether of the case. invoke the arbitration clause on facts right forfeited the us, however, 1151, 1158, (Id. 1162.) The case before does involve pp. Rather, it involves the of a contractual under the right policy. forfeiture none to create where use the theories of waiver estoppel is, to written contract otherwise exists—that create otherwise nonexistent sales, for used car in order to use newly lemon law coverage providing breach. The distinction is key. created contract the basis for a claim of *23 ‘ ““ the of waiver ‘The rule is well established that doctrines implied insurer, or are not and of the conduct action upon based estoppel, its the of a risks covered bring coverage policy available within (Manneck v. terms, risks excluded therefrom expressly or [Citation.]” 1294, 1303 Title Ins. Lawyers Corp. (1994) Cal.Rptr.2d 28 Cal.App.4th [33 a motion 771].) how court its discretion denying We cannot see the abused which allegations R B to amend to include upon that would have permitted the of the trial of law. We will affirm ruling R & cannot as matter prevail (Schubert (2002) Reynolds v. is 95 ground court if correct 100, in this 285]) ruling so the Cal.Rptr.2d uphold [115 case. Dealing:
F. Breach
Covenant Good Faith
Fair
of
of
Insurance,
limine
if the
No.
that
argued
Truck
its motion in
law,
be unable
as a matter of
then
would
coverage
found there was no
its
In
of
to succeed on
bad faith cause
action.
support
position,
Inc.,
Exchange,
supra,
v. Truck Ins.
Ins. (1999) 552], Cal.App.4th 1260 have held that an be estoppel may against an insurance applied violates company Code of Insurance et provisions section 790 seq. regulations promul- thereunder, gated those cases are one distinguishable from the before us because in each of them there was a for coverage under potential However, when respective policy. there is no a cause coverage, potential of action bad faith in the claim will not investigation processing (San Diego Housing Com. v. Co. lie. Indemnity Industrial *24 526, case, 393].) 544-545 That Cal.App.4th Cal.Rptr.2d being [80 trial court in this matter did not err in the bad faith cause of action dismissing it extent be based on a violation may of Insurance Code section 790 et or the seq. regulations thereunder. promulgated
That is not the end of B quite our however. R & inquiry, attempts a bad faith cause of action on of its piggyback reformation cause top action. That is to that an insurance contract can be say, argues reformed to a retroactive insurance but also provide coverage, it, retroactive basis for a bad faith claim. As R & B sees even there though was no for at time coverage Truck Insurance potential processed claim, lemon law Truck Insurance be bad nonetheless should held liable for 354 lemon law if insurance contract is reformed
faith in the future the provide a disagrees. car Truck Insurance Neither cites coverage party for used sales. case on point.
However, can be found to have we observe that “before an insurer or (i.e., faith), bad for its denial in delay payment acted tortiously benefits, unreasonably be that the insurer acted it must shown policy (Chateau Assn. v. Chamberay Homeowners without cause. proper [Citations.]” 335, (2001) Cal.Rptr.2d Internal Co. 90 347 Cal.App.4th Associated Ins. [108 776].) “the of the insurer’s decisions and reasonableness Generally speaking, time that were made .... they must be evaluated as of the actions Industries, (Ibid.; accord, (1999) Inc. Sun Ins. Co. v. Flippo [Citation.]” 881].) an a When insured submits Cal.Rptr.2d Cal.App.4th [88 there no for of that claim under coverage claim to an insurer and is potential deny no to defend and duty may reasonably insurer has policy, Inc., 36.) Cal.4th at Since (Waller Exchange, Truck Ins. supra, claim. v. time, later reformed to the claim the if it is reasonable to deny policy held bad faith the insurer not be liable for coverage, retroactive provide would be reformed.12 to know that foresight policy have failing us, a claim with In the case before R B submitted lemon law respect with coverage lemon law clearly provided used car sale when the policy evaluated the to new car sales At the time Truck Insurance only. remand, claim, If, it. the court should reform the it was reasonable to deny sales, law car this does not mean lemon used policy provide be have acted in bad faith retroactively. that Truck Insurance will deemed to err the bad faith cause of action. dismissing The court did not 17200: Violation Business and Code section G. Professions (1) coverage ruling Effect of B a cause of action for third amended R & asserted complaint, 17200.13R & stated and Professions Code section
violation of Business 12 clear, any suggestion that disagree previously As made we this court has be can never considered in has made its decision opinions rendered after insurer (Morris bad v. Paul Revere Ins. Co. determining acted in faith. whether insurer Life However, 718].) inequitable to use a it would be particular faith claim in the a retroactive basis for bad judgment provide of reformation to us. context before 13 *25 this unfair provides: chapter, “As used in and Code section 17200 Business Professions unlawful, practice act or any unfair or fraudulent business competition shall mean and include unfair, by Chapter 1 misleading advertising any prohibited and act deceptive, untrue or 17500) and Professions Part of Division of Business (commencing with Section of by provides: Proposition amended Code section as Code.” Business and Professions
FGI, Insurance, and Truck Underwriters “have in unfair and engaged unlawful business insurance in which the practices by selling policies policy cars, states that it to new to car coverage applies dealerships engaged solely in the business of used Based on selling cars. insurance companies’] [the were representations, they believed that covered dealerships believes, aforementioned Plaintiff informed and thereon [policies]. alleges insurance sold intent these with the of companies] policies [the to the used car on subsequently denying coverage dealers the basis only to new & B policies cars.” R the insurance applied sought enjoin from unlawful companies continuing allegedly It also practice. requested that the insurance be their companies disgorge wrongfully ob- required tained and that R & B be awarded fees Code profits attorney of pursuant Civil Procedure 1021.5. section
Curiously, court of the unfair disposed cause of action competition when ruling motions first in limine filed each of Truck Insurance B, and R & those a seeking as existence of ruling as matter coverage limine, of law. At the on the in hearing motions the court asked Truck Insurance how seven causes of many action would be if the eliminated court determined as a matter of was law there no coverage. Truck Insurance that such a responded ruling would eliminate the breach of contract, faith, bad unfair causes of action. competition that, limine,
Truck Insurance at the on the says hearing motions in “R & B never suggested its unfair was competition [argument] of its independent arguments.” This implies that was in towel on throwing the unfair argument in the event the ruled it competition court on the against However, coverage argument. this is not the At the case. hearing, stated, “even if one to . . reach . the conclusion that the naked [were] provisions alone policy provide coverage, [did] [would not] words, dispose any issues in case.” In other R & B did not concede that the unfair cause of action was in event of competition insupportable an adverse ruling coverage.
After the trial court ruled on the motions in there limine held that law, no as a matter it also dismissed the three causes action “Any person engages, engaged, may who has or proposes engage competition unfair be enjoined any competent jurisdiction. judgments, court of may make such orders or receiver, including appointment bemay necessary employment prevent use or by any any person practice which unfair competition, chapter, constitutes as defined in this may necessary any or as be person money to restore to real property, interest or or personal, acquired by Any which competition. person have been means of such unfair may pursue representative claims relief on behalf of others if the claimant meets the standing requirements complies of Section 17204 and with Section of the Code Civil . . Procedure . .” *26 contract, and of bad faith Truck Insurance—those for breach by suggested We a that the insurance contract why ruling unfair cannot see competition. claim translate into no for the Peralta should coverage litigation provided & of action unfair seeking enjoin that R B cannot state cause ruling law the contract for lemon provided Whether insurance business practices. the court readily car was a of law that coverage question for used sales the fact that the insurance contract that contract. But reviewing answered that Truck new car sales hardly proves limited lemon law coverage the in unfair in sale its new practices Insurance does not business engage The erred in lemon law to used car coverage dealerships. disposing car action because it held that the the cause of practices just unfair business for tire Peralta coverage litigation. contract did not provide insurance in limine No. Evidence/Truck Insurance’s motion (2) in the court nonetheless ruled Truck Insurance contends that properly action, R no cause because & B offered the unfair dismissing competition continuing of were at evidence that the business practices complained However, not its evidence time of trial. R permitted present Insurance’s ruling due to an adverse on Truck unfair business practices, in limine No. 14. motion witnesses, of three
R & B states that it was offer prepared testimony Rusich, Fena, Sweet, would have the cause that supported Messrs. Indeed, on Truck Insurance’s motion limine No. hearing action. at were car dealers each of whom that the three individuals used R & asserted law as had had lemon been sold same inapplicable purportedly of the three were R B further asserted that at least two been sold to & B. & had received testify they express representations prepared car for their lemon law used policies provide dealerships. would However, in its in limine No. Truck Insurance sought motion not identified during of witnesses who had been testimony exclusion of Fena, and Sweet were agree The Rusich discovery process. parties in limine cited The motion during discovery process. identified 276], Thoren v. Johnston Washer Cal.Rptr. Cal.App.3d Thoren, court stated: “One of the principal of its in support request. is do ‘the theory discovery away sporting of civil purposes accom purpose the trial.’ surprise litigation—namely, [Citation.] truth parties ascertaining assistance to ‘greater plished by giving ‘an effective means checking providing and preventing perjury,’ false, claims and defenses.’ fraudulent and sham detecting exposing the names of served with an interrogatory asking Where the party [Citation.] of that adversary then known to him his deprives to an occurrence witnesses *27 information false he the to unfair by willfully response, subjects adversary (Id. 274.) at trial.” at “An court also stated: order which bars surprise p. the aof witness whose name was in an testimony deliberately excluded answer to an seeking the names of witnesses the interrogatory protects interrogating from the otherwise answer.” party flowing from the oppression (Ibid.) limine, in
In to the motion R & B opposition stated that did not discover the in three witnesses until question after the cutoff date.14 other discovery words, witnesses, there no was deliberate concealment of the identity the Washer, case in Thoren v. Johnston & 29 supra, as the 270. Cal.App.3d distinction, Because of this the of the argued testimony witnesses should not be excluded. R & B’s the
Despite arguments, court Truck Insurance’s motion in granted Washer, limine No. 14. This was error. “Thoren Johnston & supra, 29 [v. . . Cal.App.3d 270 . does not stand for the that be proposition may evidence excluded based the mere failure to or amend an supplement interrogatory (Biles v. Exxon Mobil that answer was truthful when served.”15 originally Corp. 1315, (2004) 124 282].) 1325 Cal.App.4th The court Cal.Rptr.3d [22 witnesses, abused its discretion in excluding three testimony these 14 Although we do not see a supporting declaration were statement that witnesses date, discovery discovered until after cutoff Track Insurance does not raise issue as to an the lack of evidentiary support for Consequently, the statement. see we no reason concern ourselves with the at juncture. matter this This particularly considering “[a]ttomeys true that ancient, are of an deservingly ‘member[s] honorable and profession.’ honored We [Citation.] call them ‘officers practice court.’ what preach [Citation.] Let’s we and treat them with they recently have earned. As we stated in DCH Corp. Health Services v. Waite 829, (2002) 847], Cal.App.4th 95 Cal.Rptr.2d 834 ‘the court should start [115 ” that, otherwise, presumption proven unless lawyers will in an behave ethical manner.’ (Frazier 23, Superior (2002) v. 129].) Court Cal.App.4th Cal.Rptr.2d 36 97 For the [118 purposes of appeal, presume we that R can provide evidentiary support its remand, statement. If the may require matter becomes an issue on the court the submission of evidentiary making such support ruling before its ultimate on the issue. 15 Washer, 270, supra, Thoren v. & Cal.App.3d argued Johnston case parties court, 2034, before trial relied part in on former Code of Civil Procedure section (d) 1968, 3, 477-479, amended, (Stats. 188, 1986, pp. subdivision ch. repealed by § as Stats. 1334, 1, Washer, (Thoren 4700). 274.) p. supra, ch. Cal.App.3d § v. Johnston & at p. That “ provided party willfully subdivision ‘. . . if a . . serve . fails to and file answers to code, interrogatories submitted under Section 2030 of this ... the court on motion notice may any strike out all part any pleading party, or or proceeding dismiss action or thereof, any part or judgment by against or enter a party, impose default such other ” Washer, (Thoren penalties may of a just. lesser nature the court deem . . .’ v. Johnston 2023, supra, 274.) Cal.App.3d Civil Former Code of Procedure section subdivi (b)(3), 2002, provided: sion effect when Track No. 14 Insurance filed its motion limine “The court impose prohibiting party engaging evidence sanction an order in the discovery designated process introducing (Repealed misuse from matters in evidence.” Proc., 2023.030, 22; (c) Stats. ch. § see now Code Civ. subd. § [evidence the alleged would have shown all of the evidence that excluding nearly thus Ranches, (Tudor claim. the unfair competition pattern underlying practice 1422, 1431-1432 Fund Comp. Inc. v. State Ins. motion 574].) granting The trial erred in Truck Insurance’s 14. in limine No.
(3) Related motions in limine motion in limine rulings affecting In its discussion opening *28 action, R & not cause of B mentions its unfair ability competition pursue 14, in limine but also Truck Insurance’s Truck Insurance’s motion No. only 18, 3 well as FGI and Truck Underwriter’s in limine Nos. as motions Insurance, its in limine 8. Truck in motion in limine Nos. motions 3, during of documents not previously produced No. the exclusion requested 18, the its limine Truck Insurance requested In motion in No. discovery. the or any existence of concerning prior of evidence preclusion argument 4,No. FGI motion in limine lawsuits or claims it. their against subsequent made of evidence of claims the exclusion Underwriters requested 8, FGI and Truck Underwriters In their motion in limine No. third by parties. to R & B’s unfair competi- the of evidence pertaining exclusion sought each motion. tion claim. The court granted four in limine as precluding & B the orders on these motions
R construes Sweet, Pena, as well as other evidence excluding of Rusich and the testimony of unfair cause action.16 the establishment of its competition relevant and Truck in limine No. 8 of FGI of the motion Certainly, granting the exclude all did That order alone served to Underwriters that. one just may potentially of action. The other orders to the cause pertaining evidence have had the same effect. trial of grant we the court’s
“Under the record conclude presented, the unfair the motions in limine was tantamount to a nonsuit competi [as court. rules as the trial We are bound the same cause of tion action]. Therefore, most favorably we view the evidence must appeal favor, and doubts in all inferences presumptions, resolving [its] appellant[], as if it a matter required was judgment respondents and uphold (1997) 53 (Edwards Corp. v. Centex Real Estate of law. [Citations.]” to disclose the names discovery We do see how a failure process].) of sanction misuse discovery date could constitute cutoff were unknown to R before of witnesses who discovery process. misuse of the 16 fiduciary duty causes its bad faith and relevant R & B also states that evidence was dismissed, herein, so properly were of action of As conclude elsewhere those causes action. we in limine were erroneous orders the motions we do not concern ourselves whether action. vis-a-vis those causes of 518].) If the witnesses in were to Cal.App.4th Cal.Rptr.2d question [61 used were car dealers who had the same or a testify they purchased B, similar automotive had R based dealers as on the package representation sales, that the lemon law contained therein car used applied trier of fact could find that Truck Insurance unfair potentially engaged business “A oral made misleading representations, practices. pattern defendant’s an unfair agents, may business qualify practice. [Citation.]” (Wilner v. Sunset Ins. Co. Life that, 413].) We cannot all inferences and say resolving doubts presumptions, B, in favor R B & on the unfair judgment against cause competition action as a matter law. required The trial court erred in causing wholesale disposition unfair competition cause action through granting the aforementioned motions in limine without to balance tailoring ruling the competing concerns of parties of & B to evidence moving against right present to establish its action. cause of Inasmuch as we have held that erred action, dismissing unfair cause of competition evidence supporting remand, cause action remains issue this matter. On the court *29 shall reconsider each the four aforementioned motions in limine light the Insurance, fact that the cause of action was dismissed. Truck erroneously FGI three, and Truck Underwriters do not for a Of argue different result. the all, Truck Insurance addresses the motions in limine at stating simply that if this court that the concludes trial court erred in the dismissing various action, causes of the trial court will to have revisit its evidentiary rulings on remand. Truck is Insurance correct on this point.
(4) 64 Proposition Effect of We one have more to with issue address to unfair competition the cause of action. While this the electorate appeal pending, approved 64. The Proposition became effective the after proposition day its approval by Const., 10, II, the (Cal. electorate. art. (a).) subd. The contains proposition § certain amendments to Business and Code 17203 and Professions sections 17204 the concerning standing to an unfair action bring competition seeking or relief the injunctive restitutionary and with Code of requirement comply Civil Procedure section 382 when an unfair claim on bringing competition behalf of others.
We invited the to file briefs on the parties retroactivity supplemental 64 and effect of Proposition retroactive on the case before application retroactive, us. The all that the this court’s parties agreed citing proposition in Benson Kwikset opinion Corp. v. 126 887 [24 683], 27, 2005, review S132443. granted April Supreme Benson, and review of several other cases granted addressing Court 64, briefs after letter retroactivity filing of Proposition supplemental us. in the matter before of retroactivity, a Court decision on
Pending Supreme question amendments statutory the trial court is directed to apply Proposition normally case. construe statutes “Although operate prospec courts a hold under the common law when correlatively courts tively, basis, when no have rights action rests on a statutory pending solely statute, a clause ‘a of such a statute without saving vested under repeal (Governing thereon.’ will terminate all actions based pending [Citation.]” 526, 819, 1].) Board v. Mann (1977) 18 P.2d Cal.3d Cal.Rptr. “ are statutory ‘The for this rule is all remedies justification pursued recover at any that the abolish right full realization legislature {Ibid.) time.’ [Citation.]” action, then, R & B unfair cause of
In order to with its proceed competition it can of Business satisfy requirements will need demonstrate that 64. and 17204 as amended by Proposition Professions Code sections 17203 words, in fact has lost In other it must show that it “has suffered injury (Bus. or as result of unfair money alleged] competition” property [the Code, 17204, and, amended)17 as in order to the cause of action press Prof. § need to with Code of Civil on behalf will general public, comply Code, amended). (Bus. Procedure & Prof. as section § that R & lacks under Business says standing, Insurance the unfair cause competition Professions Code section maintain “lost money property action it has it has alleged because *30 assertion, With we certainly disagree. of . . . competition.” result unfair it make and had to illusory R & B that it alleges paid premiums law it not had to had pay lemon claim that would have payment This is say. what was represented Truck Insurance said policy concerning caused misrepresentations of loss allegation by purported met. The standing of scope coverage. requirement Next, R & B cannot seek Truck that emphasizes injunctive Insurance Code it meets the of relief on of the unless general requirements behalf public 382, to class actions. “Code of Civil section with reference of Civil Procedure of a class ‘when the is one section 382 authorizes actions question Procedure 17 64, 17204, by Proposition provides in section as amended Business and Professions Code exclusively any chapter prosecuted shall be part: pursuant relief to this pertinent “Actions or Attorney attorney district ... jurisdiction of General competent money or as a of such injury property in fact and lost result any person who has suffered has competition.” unfair interest,
common or general or when the many are persons, parties numerous, and it is them all before the court. . . .’ impracticable bring The party seeking certification has the burden to establish existence of both an ascertainable class and a well-defined of interest community class among members. ‘community interest’ embodies three requirement [Citation.] (1) fact; factors: common predominant (2) of law or questions class represen- class; tatives with claims or (3) defenses and typical class representa- tives who can (Sav-On Drug the class. adequately represent [Citation.]” Stores, Inc. v. Superior Court 906, (2004) 34 Cal.4th 194].) 96 P.3d Truck Insurance that R states & B seek class action only injunctive relief if it can demonstrate with these compliance requirements. However, Truck Insurance does not assert that R & B cannot do so.
R & B contends that it can meet the class certification and requirements us to points its offer of proof anticipated testimony Fena, Rusich and Sweet. R & B that this court requests remand the matter so that it will have an to show that it can opportunity satisfy requirements Code of Civil Procedure section 382. It is fair to grant this since request, at the time R & B filed its third amended it was complaint required with Code comply of Civil Procedure section 382.
H. Breach Fiduciary and Duty Alter Ego: Introduction
In its third amended complaint, alleged Truck and Underwriters FGI, as attomeys-in-fact, owed a to R & B fiduciary duty as a subscriber under a subscription agreement. alleged Truck Underwriters and FGI had breached their duties to obtain fiduciary consistent with express instructions and the express and representations Westenberger and to Lopez, provide prompt claims competent investigation, processing Insurance, settlement. It also alleged Truck Underwriters and FGI were all alter of each other. egos
After it had contract, dismissed the causes of action for breach of breach of duty faith and fair good dealing, violation of Business and Professions Code section the court conducted a bench trial on the breach of fiduciary duty alter issues. It held that ego neither Truck *31 Underwriters nor FGI owed R & B a a fiduciary duty pursuant subscription agreement and that FGI was not the alter ego of Truck Underwriters. Judgment thereafter entered in favor of Truck Underwriters and FGI. On (1) R & B appeal, argues: the court erred in that Truck finding B; Underwriters did not owe a (2) to R & the court erred in fiduciary duty a owing fiduciary facto attomey-in-fact” that FGI was a “de to find failing not the alter B; ego that FGI is (3) finding the court’s to R & and duty evidence. We address substantial by is not supported Truck Underwriters in turn. these issues
(2) Background raises, first some R & B we provide understand the issues To better various the nature and interrelationship information on background and holding company. is a management involved. FGI companies is the Truck Underwriters owned FGI. subsidiary is a wholly Underwriters Insurance, a to the terms of subscription pursuant of Truck attomey-in-fact R & B or interinsurance exchange. is a Tmck Insurance reciprocal agreement. agreement. under the subscription is subscriber insurers, known as also “reciprocal of further By way explanation, section 1280 ... are exchanges governed Code] interinsurance [Insurance business organization is an exchange unincorporated An interinsurance et seq. The exchange attomey-in-fact. managed by made of subscribers up execute The subscribers are the insureds. insurer and the subscribers on their behalf. to act attomey-in-fact attorney appointing powers contracts. insurance exchange’s [Citations.]” executes attomey-in-fact 1202, 1210 Inc. (Tran Cal.App.4th v. Farmers Group, (Tran).) Cal.Rptr.2d 728] Truck Underwriters
(3) Fiduciary duty of lemon law
(a) Duty provide Tran, court erred in B, says Cal.App.4th citing supra, R & R & B B a fiduciary duty. did not owe R & Underwriters Tmck finding its to execute on it a fiduciary duty owed insists that Tmck Underwriters for used car law coverage lemon an insurance contract providing behalf only sales. notes, insurer’s that the reciprocal Tran court stated correctly
As authority deriving managerial agent, “acts as the insurer’s attomey-in-fact We hold insured. executed of attorney [Citations.] from power under the power fiduciary duty the insured a limited owes the attomey-in-fact 1206.) argues (Tran, supra, of attorney.” and that this before us facts of the case facts of Tran closely parallel to it fiduciary duty did owe a Tmck Underwriters the conclusion that compels reversed. must be Tmck Underwriters in favor of therefore the judgment at Tran. we take a closer look To answer question,
363 Tran, The supra, in 104 plaintiff 1202 Cal.App.4th insurance purchased for her coverage store from an grocery agent Farmers Insurance Group. (Id. at 1207.) She did not receive a p. immediately of the Her copy policy. store was set afire an arsonist and by When she severely damaged. later received a of the issued copy Truck Insurance policy, by Exchange, reflected a retroactive decrease in both her amount and her premium coverage (Id. limits. at 1207-1208.) This had the pp. effect of reducing plaintiff’s to less than half of 1208.) her actual losses. at p. {Id. Inc., The sued Farmers plaintiff Truck Underwriters Group, Association and Fire Insurance (Tran, supra, Exchange. 1206.) 104 at Cal.App.4th p. Truck Underwriters Association that it was the represented attomey-in-fact (Id. 1207, Tmck Insurance at Exchange. 3.) fn. The p. causes of plaintiff’s action included breach of fiduciary The defendants filed duty. a demurrer to the cause of action and the trial court sustained the demurrer without leave (Id. amend. 1208.) at The p. court held the in appellate mling was error. (Id. 1215.) at p. Tran, court in supra, stated: Cal.App.4th “Farmers or Group Association,
Track both, Underwriters are her perhaps attomey-in-fact, as such owe her a fiduciary duty regard the insurance contract or contracts executed (Id. at they on her behalf. 1213.) The court p. [Citations.]” further said: “We believe respondents, chosen to having conduct their insur ance business through interinsurance exchanges require appointment of attomeys-in-fact to execute subscriber/insureds, contracts on behalf of are bound rale that ordinary is an attomey-in-fact agent owing (Ibid.) fiduciary duty to the principal. [Citations.]” Tran, it, In the case before the court supra, Cal.App.4th observed that the record did not include a copy power attorney However, executed plaintiff. the court stated that statute the “by instrument must include the to execute the authority insurance contract on 1305.)” (Tran, ([Ins. Code,] behalf. plaintiff’s] supra, [the § Cal.App.4th 1214.) at Inasmuch as the p. had plaintiff alleged defendants mishandled the execution of her insurance contract when issued her less they coverage than she had the court held that requested, she had sufficiently stated a cause of action for breach of fiduciary duty execution of her insurance contract. 1214-1215.) at The court stated: pp. {Id. “We conclude that the facts stated by in her plaintiff] complaint support [the cause of action ... for breach of the fiduciary duty owed to the insured by (Id. of a attomey-in-fact 1215.) insurer.” reciprocal Tran,
R & B contends that as the supra, just plaintiff 1202, received less insurance than she had it also had requested, *33 is less than had That to received say, received it requested. that, & B asserts coverage. lemon law R lacked applicable policy insurer, the reciprocal Truck Underwriters was the attorney-in-fact because Insurance, in fiduciary B a duty Truck Truck Underwriters owed of the insurance contract. What R connection with the execution fiduciary is the extent duty. overlooks Tran, clear, the 1202 made
As the court in supra, (Id. of an 1206.) one. “The is a “limited” fiduciary duty scope in case on the terms each fiduciary attorney-in-fact’s responsibilities depends the nature of the functions attorney performed by of the and power (Id. 1215.) we at p. Accordingly, on behalf of the insured.” attorney-in-fact to determine the attorney examine the itself scope must power limited fiduciary responsibility.
The states in the subscriber agreement “appoints subscription part subscriber, for to granting to be attorney-in-fact [Truck Underwriters] . . . or do . . . ... to do all which the subscriber could things might power issued, . . to the all . and all other acts incidental with reference to policies . . . .” R & B the broad authoriza- of the management Exchange emphasizes do and “acts incidental to the management tion “to all to things” engage However, R & B does not how explain language of the Exchange.”18 Underwriters, to of Truck as execute attorney-in-fact, limits authority behalf, subscriber, contract lemon containing R & B’s as insurance car sales. law to used
Nonetheless, which is printed we note that the insurance application, following language contains the agreement, same as page subscription “3. for is of the Insurance coverage: applied about insurance scope insurance, [x], on the reverse entry indicated a limit of or premium for insurance is not which be so indicated and which side. Coverages may for, are be from any way changed or which coverages applied side, Beth reverse are listed as follows: See on the specifications appearing omitted.) At the bottom the page, (Capitalization Lopez revisions[.]” 18 agrees agreement more Subscriber covenants and fully: states subscription “[T]he attorney-in- through their each of their Exchange and other thereto with the subscribers , exchange fact, Exchange . . . Insurance the Truck Association for Underwriters . terms . . therein containing of insurance . . . such policies with all other subscribers’ [sic] or its the Board of Governors specified by attorney-in-fact approved be said designates . against, hereby . . said any insured and subscriber Executive Committee for loss subscriber, power to it to substitute another attorney-in-fact granting Association be or do which subscriber subscribers things name ... all place, in subscriber’s [its] issued, including severally policies with reference all might jointly or could do [thereof], Exchange . . and all monies due the . receipt collection and cancellation . . and all other acts incidental expense payments, loss and . disbursement of all Exchange . . management of the . .” forms, the words: “I
appear declare the facts stated in the hereby from survey which the on the reverse side was to be true quotation prepared, request to issue the Exchange insurance described in said quotation subject noted in Item 3 above and further exceptions to all the terms and subject conditions of such insurance.”
This language describing authorization of the scope *34 attorney-in-fact with to the issuance of R & B’s respect requested policy. authorization, order to know whether the attomey-in-fact breached that we would need to see the reverse side of the and also know page meaning However, comment “See Beth Lopez revisions.” our record does not contain a of the reverse side of the copy which the page, upon particulars addressed, the insurance were be to and R & B supposed us with no provides information on the of the reference to the meaning Beth revisions. Lopez
It Here, is burden appellant’s B, to show error. R & contends appellant, court, that the trial at the issue, conclusion of a bench trial on the erred in that Truck ruling did Underwriters not owe a to R & B. R & B fiduciary duty Tran, that, insists under 1202, the rule of supra, 104 Truck Cal.App.4th Underwriters owed it a fiduciary with to duty respect insurance contract However, case, execution. in this R & B has not demonstrated what the scope of that fiduciary would have been duty under the documents before us. We must indulge all intendments and presumptions support judgment (In re Marriage Zimmerman (1993) 16 561 Cal.App.4th [20 132]), and we construe to mean ruling that Truck Underwriters did not owe R & B a that fiduciary duty would have supported words, & B’s cause of action. In other we construe the trial court’s ruling that meaning only limited any that Truck fiduciary duty Underwriters owed Tran, under supra, 1202 did not Cal.App.4th Truck Underwriters require to issue a policy providing lemon law coverage for used car sales.19 R & B has not shown us that this is ruling erroneous. with
(b) Duty to claims respect handling ante, As set forth R & B argues agreement subscription imposes Truck upon Underwriters a fiduciary to execute on its behalf duty an only insurance contract lemon law providing used car sales. It is 19 Because we hold that R & B did not fiduciary duty show that limited Truck Tran, Underwriters supra, have owed under required sales, policy providing Underwriters issue an insurance lemon law car for used we argument need not address Truck wrongly Underwriters’s that Tran was decided. maintain, addition, argument in unclear to us whether B means duty also rise to a agreement gives fiduciary the subscription third B framed the issue in its amended claims While R & handling.20 it to the issue on barely appeal. alludes complaint, brief delegation in a footnote in its opening states “[t]he clearly from R fiduciary Underwriters] responsibility [Truck and issu- underwriting[,] It drafting[,] includes comprehensive. also all of claims [handling]. ance of insurance but policies, aspects [Cita- Inc. v. discussion, Group, Delos Farmers With cites little tions.]” The court this assertion. Cal.App.3d Cal.Rptr. support 843] Delos, insurance whether an for a addressing attomey-in-fact reciprocal covenant of good could be held liable for breach of exchange implied some discussion nature dealing, faith and fair provided general It stated that an for a attomey-in-fact recipro- insurance exchanges. reciprocal exercise exchange generally by agreement cal insurance empowered rates, insurer, the establishment of settlement including all functions of an *35 (Id. losses, 652.) at of of claims and cancellation contracts. compromise p. fiduciary language attomey-in-fact’s possible More specific regarding Tran, supra, with can be found in handling claims duty respect Tran As the first amended complaint 1202. noted Cal.App.4th previously, The court a of for breach of trial fiduciary duty. contained cause action to that cause without leave to amend the demurrer attomey-in-fact’s sustained (Id. (Id. at 1208.) The court reversed. of action. at p. appellate pp. First, a that did not contain 1220.) court out the record appeal the pointed issue, the fiduciary duty of the of at that power attorney emphasized copy no than terms of the of the could “extend further attomey-in-fact power (Id. 1214—1215.) . “Whether respon- . . .” at stated: attorney pp. adjustment also extend to obligations [appellant’s] dent’s fiduciary demurrer, . . . For claim is to be determined. yet purposes [appellant] regard a action breach of fiduciary duty has stated cause of for sufficiently would extend to her fiduciary duty to the execution of policy. Respondents’ for if assumed some they responsibility [appellant’s] claims processing (Id. 1215, citation executed her.” claim under the attorney power 20 extent, as, appeal. briefing it is framed in the We will address the issue and to whether, However, fiduciary assuming even a parties we do not raise the issue of note that exists, duty fiduciary handling of action for breach of duty respect with to claims cause words, policy. under the other potential be maintained when there is no for Inc., supra, Exchange, 11 Cal.4th they whether the of Waller v. Truck Ins. do not address rule potential when there is no for the effect no bad faith cause of action lies duty fiduciary analogy to bar cause of action for breach policy, apply should under coverage. We need not resolve handling potential there is respect claims when no with issue, however, ruling that was no did not there hold trial court err inasmuch we fiduciary duty.
omitted.) The court concluded that the facts stated in the were complaint (Ibid.) sufficient to a cause of action for breach of support fiduciary duty. Tran, Thus, supra, Cal.App.4th provides support argu- ment that an be held liable for breach of attomey-in-fact may fiduciary duty with to claims on the terms of the respect handling, depending power However, as contained in the B attorney R & does agreement. subscription not address the Tran with the of a portion dealing fiduciary duty possibility Rather, B, with to claims R & on the same of its respect handling. page footnote, brief as the mentions the broad of the opening language subscription agreement “to do all with concerning attomey-in-fact’s power things” to the that the respect subscriber could do and to take “acts incidental policies . . . .” infer that management Exchange We interprets as a language commitment to claims provide handling services. time, however,
At the same we observe that & B concedes that claims for Track Insurance is handling Farmers Insurance performed by Exchange. R & B does not Track explain why Underwriters should be held responsible for breach of a duty with to claims fiduciary respect handling performed by Farmers Insurance This becomes even Exchange. more question puzzling when into consideration the taking fact that R & B did not name Farmers is, Insurance as a defendant in Exchange its third amended It complaint. for these reasons that R & B perhaps, does not with vigor pursue argument Track concerning Underwriters’s with fiduciary duty respect claims handling. On facts and particular we decline arguments presented, Tran, to extend 1202 to conclude supra, attomey-in- fact in the case before us owed the subscriber a fiduciary duty *36 claims handling.
(4) Fiduciary duty FGI of Underwriters, FGI, R & B Although Track not as its appointed attomey-in- fact under the R & B seeks to have FGI construed as subscription agreement, a “de facto to a to R & B. R & B attomey-in-fact” owing fiduciary duty that “there was no complains substantial evidence to the trial court’s support that FGI is not the de finding facto in fact.” attorney (Capitalization omitted.) italics assertion,
R & B the court’s to R & misinterprets findings. Contrary B’s Rather, contains no on “de judgment finding facto status. attomey-in-fact” “[tjhat states defendant did judgment Farmers Inc. not owe simply Group, executed plaintiff fiduciary duty pursuant agreement subscription omitted.) plaintiff.” As indicated we (Capitalization previously, interpret to mean language that the court found FGI did not owe judgment R & B that would the cause of action R & any duty fiduciary support (In Zimmerman, framed FGI. re at against Marriage supra, court all intendments and indulges support [appellate presumptions the judgment].) observe & B does in duty
We that R not discuss basis fiduciary of its on R & B assertion error. It focuses other issues instead. support the “de under attorney-in-fact” believes FGI is facto length why explains However, we need its arguments not address subscription agreement. the “de facto under assuming attorney-in-fact” this Even FGI were point. it would make no difference in the outcome. As subscription agreement, ante, did in we have the court not err ruling ¿ready explained did to a would duty rise subscription agreement give fiduciary Thus, cause of of action breach of B’s action. cause support lie facto would not FGI even if it were “de fiduciary duty against attorney-in-fact.”
(5) Alter ego to be Truck even if FGI were found the alter Similarly, ego Underwriters, of action FGI for breach fiduciary no cause would lie against because trial court ruled that Truck Underwriters owed no duty, correctly & B’s breach cause of duty fiduciary duty that would fiduciary support Therefore, ruled that FGI was not the alter correctly action. whether court of Truck Underwriters moot. ego
I. Motions in Limine: Miscellaneous Introduction discussed, limine in
In addition to the orders the motions previously motions limine. several additional orders other granting challenges if court we have Insurance concedes that already, As noted action, causes trial court the various dismissing determines that the erred on remand. evidentiary rulings the trial will need reconsider have Neither FGI Truck Underwriters makes contention. We any contrary nor several causes of dismissing indeed that the trial court erred determined *37 the trial will need to readdress action. court pertinent Consequently, motions limine. Code provisions Insurance “an order
In its in limine No. Truck Insurance requested motion of, to, reference and/or Insurance questions regarding” evidence excluding Code section et Track Insurance that Insurance Code seq. argued section did 790.03 not create a cause of action for bad faith and private that the mere suggestion that Track Insurance have violated a might provision Insurance Code would cause the to lose its jury FGI and Track objectivity. motion, Underwriters filed a similar their motion in limine No. pertaining to violations of Insurance Code section 790.03. motions,
R & B opposed were stating they overbroad. It asserted that failure to comply statutory showed unfair requirements claims practices faith, and bad and was relevant to show waiver and well. estoppel court both granted motions.
As we have discussed the court already, dismissed the bad faith properly cause of action and denied R & B’s motions properly for leave to amend to allege waiver and The court estoppel. did not err in evidence that excluding would However, those theories alone. support we agree that the orders may have been overbroad nonetheless.
As we have said the court previously, erred in the unfair dismissing competition cause of action. To the extent that the orders on the motions in limine may R & B from preclude evidence introducing relevant to the unfair action, competition cause of the orders are overbroad. The court is directed to withdraw its orders reevaluate the motions in light of the parameters herein. The expressed on the rulings motions in limine must be closely tailored to address the moving concerns without parties’ completely prevent- ing from on its case. The putting invite the parties submit limiting instructions to address the parties’ concerns. competing
(3) Evidence claims handling Track Insurance made an oral motion in limine to exclude any evidence of claims handling, the court granted the motion. R & B that the court says erred in so doing. contends the claims evidence is handling contract, relevant faith, bad establishing unfair claims and competition intentional claims. It further misrepresentation states that the “evidence is fraud, also ratification, relevant willfulness, show pattern practice, and malice oppression to recover under Cal. required punitive damages Civ. Code 3294 in connection with” the intentional § and breach misrepresentation of fiduciary causes of action. duty
As we have stated the court already, dismissed the breach of properly contract, However, bad faith and breach of fiduciary duty causes action. the court erred in dismissing unfair competition misrepresentation that, remand, causes of action. To the extent B & can show that certain *38 action, remaining relevant to those causes handling evidence of claims order tailored to the must its order and issue new the court withdraw limine be crafted carefully on the motion in must Again, ruling situation. as address concerns without moving completely preventing so parties’ to submit R & on its case. The court invite parties B from putting concerns. competing instructions to address limiting parties’ unit exchange Suits against In No. Truck Insurance order sought precluding its motion in limine unit. As exchange R & B from reference the suits making against FGI, an officer of and counsel explained Christopher Pflug, corporate Insurance, Insurance his bad faith Farmers litigation deposition, the suits other Farmers entities was certain Exchange supervised The was staffed Farmers Insurance Exchange unit. unit against exchange employees. against to the suits any
Truck Insurance evidence argued pertaining unit be irrelevant. highly prejudicial opposition would exchange motion, court granted that the motion was overbroad. The B asserted the motion. remand, B can demonstrate that evidence
On the extent the remaining unit is relevant against exchange suits regarding interests court shall reevaluate the litigation, issues in trial competing what R & B to whether and to extent determining permit parties the evidence in question. present
Ill
DISPOSITION The matter is remanded for further proceedings is reversed. judgment R & B shall recover its costs with the views herein. consistent expressed appeal. J.,P. concurred.
Rylaarsdam, Acting main opinion RYLAARSDAM, have Acting P. J., Concurring. signed I mismanaged of this I it to be the correct resolution procedurally believe in the the issues raised to address some of case. But I write separately of the statements made disagree many I dissenting respectfully opinion. our dissenting colleague. and the conclusions reached by *39 case, This which is rather has turned into an simple, monster. The ungainly primary issues of fact are whether defendant’s agent or intention- negligently ally of the misrepresented insurance scope provided plaintiff and whether defendants in a engaged scheme to defraud used car dealers. The issue, other significant fact, a mixed of law and question is whether defend- ants are liable for the conduct of their under the agents doctrine of respondeat superior. into which complexity this essentially case was simple transmogrified
results First, from three primarily circumstances. to throw plaintiff managed conceivable every cause of action the wall against hoping something Second, stick. might defendants the issues successfully litigated largely limine, through motions in a useful tool but one that procedural not be used to resolve factual issues. Confusion between which were arguments directed at which of the motions in limine many and a conflation of these in the arguments trial court and in the briefs here did not parties’ our lighten burden in each analyzing motion and the trial helps explain court’s rulings. Finally, by issues arguing evidence, pertaining of the sufficiency issues not urged briefs, by their parties our dissenting colleague has made it necessary discuss a great deal of evidence that would otherwise be superfluous.
1. Use Improper Motions in Limine
Because of the limine, increasingly use of improper motions in a few words on that I realize subject. that it is not uncommon to motions for bring on the judgment pleadings, summary judgment, for summary adjudi- cation of issues in the guise But, of motions in limine. in the particularly cases, latter removes all practice afforded the statute protections which prescribes manner in which the court must handle such motions. To have the of the sufficiency or the existence of pleading triable issues of material fact decided in the guise of a motion in limine is a perversion hold, And process. as that, our dissenting colleague argues, based purely motion, the name given the the court should not consider evidence presented in connection with the denied previously motion for is to summary judgment endorse an result. unjust Motions in limine are used to properly determine whether evidence specific “
should be admitted ‘The usual precluded. of motions in limine is purpose preclude of evidence presentation deemed inadmissible and prejudicial A moving order in party. typical limine excludes the challenged counsel, evidence and directs parties, witnesses not to refer excluded matters trial. . . . during Motions in limine serve other purposes well. more They careful permit consideration of issues than evidentiary the heat battle trial. minimize side-bar during They would take place trial, flow of allowing conferences and during uninterrupted disruptions ” Federal (Kelly Savings v. New West evidence.’ 803], omitted.) italics citations & 669-670 *40 in limine deal with evidence. document be But this May motions particular An in admitted? an witness to certain facts or conclusions? May testify expert to all to or all a part limine motion that seeks exclude evidence pertaining evidence cause lacks to argument support of action based plaintiff motion summary all of the cause of action is but a for disguised or part For court Truck Insurance defendant adjudication. example, granted evidence in limine from introducing “motion to Exchange’s preclude plaintiff omitted) defendant’s of waiver or same (capitalization estoppel” from that Truck Insurance arguing “motion in limine to preclude plaintiff acted in bad faith.” breached the insurance and/or Exchange subject policy omitted.) In motions the court summarily these (Capitalization granting issues, and, so, reconsidered the earlier denial of doing these in adjudicated the same motions. mo- Exchange’s
As another one of defendant Truck Insurance example, of its tions in limine the court “to bind to parameters asked plaintiff omitted.) a motion be- meaningless On its face pleadings.” (Capitalization evidence, the court cause it asked the court not to admit irrelevant something do in event. this was used to dispose would not But motion any presumably effect, of a raised in a motion for summary issue by plaintiff, specific ilk one asking This motion would be the same adjudication issues. to evidence without identifying specific the court not admit hearsay limine, excluded. A final its first motion sought evidence to be example: that, demon- argues Truck “if cannot Exchange defendant Insurance plaintiffs terms the subject strate breached the Exchange] [Insurance its of action.” it cannot on either first policy, prevail [or second] cause[s] for sum- omitted.) constituted motion (Capitalization Clearly, request evidence. not one the admission of mary relating adjudication, Summary Earlier Evidence Filed in Motion Opposition Use 2. for Judgment filed in evidence colleague normally
I our agree dissenting summary motion for summary judgment denied previously opposition motions. be the court when ruling pretrial would not before adjudication judgment our consideration of the colleague summary But our misinterprets at all times be aware We are the court should suggesting evidence. not motions in limine files. But here the critical so-called contents of court were, effect, being formally for without summary motions adjudication, the kind of
supported by evidence such motions were based on require, the same denied motions. More accu- arguments supporting previously were motions to reconsider denied rately, they motions previously And defendant Truck Insurance acknowl- summary adjudication. Exchange this fact its “The edges brief: trial court’s hands were tied its prior Thus, . . . the trial had the summary judgment ruling. power reconsider even if no new evidence prior summary judgment ruling Further, the name of motion presented.” is not controlling. require- ments for a motion reconsideration motion that asks the “apply same matter Brown, judge (Weil decide ruled on.” Cal. previously Practice (The Guide: Civil Trial 2005) Procedure Before Rutter Group 9:324.1, 9(I)-103.) f
Even if we notion accept expressed defendant Truck Insurance *41 that the court Exchange could reconsider the earlier on the ruling summary evidence, new motion without adjudication we must conclude that requiring the evidence submitted in to the earlier motion should have been opposition Therefore, considered. it was for us to consider this evidence in appropriate evaluating the trial court’s rulings. Jury Trial Issues
3. and Damages Reliance for of Our dissenting colleague states in number of that contexts did plaintiff not sustain damages the beyond amount tendered defendant Truck Insur- ance I believe we Exchange. this issue was not explain adequately why waived. Our colleague questions whether evidence of such damages can exist. But it is not us to for on this or It speculate any other issue. is irrelevant that we deem may that be able unlikely may to establish plaintiff damages addition to the cost of and defending settling lawsuit. Whether underlying or not such damages were sustained is another of fact that should question not have been resolved in a motion.
Our also dissenting colleague states reasonable trier of fact could “[n]o ever have concluded Truck Insurance would lemon law [Exchange] provide $25 for cars for coverage used But we are triers of year.” not the fact. And what seem unreasonable not may may to us so to I appear average jury. could make the statement same to new car dealers. The coverage that, dealer, seems And the fact as a new or used car I extremely cheap. would whether I had question actually received the for promised this small does not allow me to substitute own for that of price, my judgment Defendants well that the jury. argue price coverage precluded reasonable reliance defendants’ But should be argument promises. directed to a and not to the court. jury I concur affir-
FYBEL, J., majority’s Concurring Dissenting. causes of in favor of defendants mance of the trial court’s decisions contract, faith good breach of covenant implied action for breach I dissent from the duty. and fair and breach fiduciary respectfully dealing, Thus, the and I the contract agree of the majority majority remainder opinion. cars, for new not these two businesses insurance provided between is liable violation used We also insurer not agree cars. I We because fiduciary part company covenant or breach duty. implied also the trial court’s other decisions were correct supported believe and the law. evidentiary record rules general one of the fundamental of appellate The violates majority erred, the trial court considering appellate whether review—on appeal, (Doers not the trial court. v. evidence that was before court cannot consider 180, 184, Cal.Rptr. etc. fn. Golden Gate Dist. Cal.3d Bridge [151 1261]; (1986) 182 Cal.App.3d P.2d v.AvcoFinancial Services Pulver 491].) In that the trial court the conclusion Cal.Rptr. support of R & B Auto the nonsuit on the claims grant misrepresentation could from, Center, (R B), cites relies exclu- extensively Inc. & the majority on, and declarations from B’s business testimony sively deposition and transcribed recorded testimony and the president, manager deposition for Truck Insurance Westenberger, agent insurance statement William Insurance). analysis with the (Truck majority’s fatal problem Exchange it relies the trial court all of the evidence on which was presented filed in judgment motions for summary in connection with earlier parties’ *42 later in the for nonsuit months not in connection with motions May the for this justification majority gives March 2003. The only unprecedented is to the circumstances say evidence outside the trial record consideration of ante, 6.) fn. (Maj. of this case are “peculiar.” opn., on motions to in the ruling evidence did the trial court have consider What filed, not the nonsuit were R & did offer for When motions for nonsuit? to file an offer and not an any request opportunity evidence in did opposition, was sub- referred in the (The majority opinion offer of proof. proof trial court to revisit its get mitted R B in connection with by attempt on the later in limine. It was not offer proof its on the motions rulings Farmers by Group, In to the nonsuit motion filed motions.) responding nonsuit Underwriters), (Truck (Farmers), Inc. and Truck Underwriters Association said, . We all this . . R “we motion. preserve & B’s counsel oppose argued your we’ve offered and objections. say everything We we honor, length—and at tremendous appreciate and honor has reviewed your ruled issues that we’ve been we think we’re right that—in past, on, in interest of judicial economy, understand that. And but we wrong form, order as a matter preserv- off sign we’re prepared filed nonsuit motion separate all ing rights object.” opposing Insurance, said, R by & B’s the motion on all attorney oppose “[w]e case, and reasons ever filed everything we in this if that’s incorporate okay.”
The trial court the motions for The did not granted nonsuit. court state it consider agreed to all of R & B’s evidence and argument throughout case ruling when on the motions nonsuit. cannot refer Certainly, party generally every document filed the trial court record previously over even months or without years, any its specification, satisfy obligations effect, a motion for in the opposing nonsuit trial court. In the majority says that the court trial abused its discretion its to the limiting review evidence motions actual before the court in trial. holds that a majority a motion party for nonsuit opposing case, by reference all incorporate prior in the and that it is filings reversible it, error for the trial court to decide the case on evidence before rather than back the record to dig through locate evidence unspecified party. The majority’s in its be holding breathtaking novelty, it will devastat- ing to the our daily operation of trial and to the courts normal processes court, review. appellate As an we cannot reverse a trial appellate correct court decision, based on evidence that was not before the trial when it court made its decision. second,
As a reason independent showing erroneous analysis by the issues on which the majority, majority bases conclusions connection with the claims are misrepresentation before R us because & B properly has waived them on under basic appeal rules review. In its appellate brief, R & B never opening appellate addresses the motion for nonsuit filed by Farmers Truck Underwriters. to that Any arguments issue regard (Katelaris should be deemed County to be waived. Orange v. 1211, 1216, 556].) fn. With to Truck nonsuit, motion Insurance’s argued issue trial brief, B’s lack of In its any damages. does not opening appellate (much address the issue of issue damages less the existence or regarding nonexistence of a misrepresentation). When addresses whether majority *43 R & B waived issues on it the appeal, addresses issue—whether wrong R motions, & B waived its rights to the of by stipulating granting the nonsuit Yes, and to offer by failing evidence to counter those these are motions. serious for R on but not as as problems serious a appeal, problem failure to on challenge failure which I believe damages appeal—a forecloses R & B from a on raising challenge nonsuit appeal.
Thus, R & B failed to address the issue on which the motion for specific decided, nonsuit had been based was the absence of namely, damages. Truck Insurance in its brief R & B could argued respondent’s appellate and its claims were therefore misrepresentation prop- not recover damages, brief, to point in its R & makes no reply attempt dismissed. Even erly actual, & B has waived damages. repeatedly evidence of R compensatory any on the issue is not the issue of damages misrepresentation appeal, before this court. properly motions in the trial court for its on broadly rulings
The criticizes majority issue, Yet, in in the trial court there are two motions limine really limine. key both, the with the on one of two. agrees ruling was the right majority First, on the the insurance the trial court decided one motion in limine ground cars. with this majority agrees for new The coverage contract did provide Second, the excluding trial court a motion limine ruling. granted the R & B in witnesses who were not identified by of three testimony nonparty discretion, based on This was well within the trial court’s ruling discovery. the record before it. History
Procedural of the of this case and history I set forth here a short summary procedural it making those on which I with the while agree majority, issues highlight First, limine in the trial court a motion in granted clear where we disagree. law, concluded, as matter the insurance did not provide which a of policy claim, B’s and therefore dismissed R B’s coverage- for & contract agrees interpretation related claims. The issue majority a with two granted one and motion was legal properly covenant.1 I contract and breach of implied the claims—for breach of however, I with regard. disagree, conclusion agree majority’s resolved the unfair competition the conclusion that trial court improperly claim, several other motions granted detailed The trial also post. as dicta, these an incorrect rulings using reverses majority limine. In of review. standard
Next, a fiduciary trial the existence of trial court conducted a bench trial, court found At ego. and on the issue of alter the conclusion duty 1 package coverages by Truck Insurance. The purchased package written provided endorsement. The endorsement products deficiency liability contained a “Subject of a car. Limits arising law claims out of sale new for lemon above, legal b. the satisfaction Liability expenses; we a. all fees and pay: [][] shown will []Q which cost of ‘new motor vehicle’ judgments; repair replacement [f] c. the all [f] damages alleging the legally obligated because of a ‘suit’ pay the ‘insured’ becomes ‘nonconformity’ inability in a ‘new motor vehicle’ conform repair to service or ‘insured’s’ laws the state in which ‘insured’ express prescribed warranties as applicable as “a new untitled defined “new motor vehicle” policy endorsement operations.” conducts personal, family or household primarily for use and used for recently purchased vehicle motor *44 any vehicle.” type does include . . . resale purposes. A ‘new motor vehicle’ B,
there fiduciary duty was no owed to and the concludes there majority trial substantial evidence court’s support finding fiduciary duty. I agree on this The then majority concludes it point. majority moot trial whether the court ruled that was not the correctly ego Farmers alter of Truck I Underwriters. understand on this issue majority’s opinion of the alter issue in finally favor of Farmers and Truck dispose ego Underwriters. I would there state was substantial evidence expressly none trial court’s of the was the alter support finding parties ego the others.
It was at in the that Farmers and Truck point proceedings Underwrit- ers, and Truck Insurance moved for nonsuit on the separately remaining claims of negligent intentional and reformation. I misrepresentation agree with the conclusion that trial court majority’s granted Truck properly motion, Underwriters’s but the conclusion that the trial majority’s court erred by granting the motions for nonsuit Farmers and Truck Insurance is post. wrong, as described
R B Any & Waived Order Challenge Granting Farmers and Truck Underwriters ’s Motion Nonsuit. for court, In first, the trial two motions nonsuit for were filed. Farmers and Truck Underwriters nonsuit on the sought remaining causes of action briefs, against them. The court that motion. In its granted appellate R & B never the trial erred argues court Farmers Truck granting Underwriters’s motion for nonsuit. This issue should have been deemed be (Katelaris v. County Orange, supra, 92 Cal.App.4th 1216, 1211, waived. Nevertheless, 4.) fn. discussion would following to Farmers equally apply ante, and (As Underwriters’s motion. noted not the this is same waiver ante, issue addressed in the 337-341.) majority’s opinion, pp.
Truck Insurance’s Motion Nonsuit Claims Misrepresentation Was Granted. Properly The motion for nonsuit on the claims was misrepresentation properly granted. elements of a claim for intentional are misrepresentation made with misrepresentation, knowledge of its and with an intent falsity reliance, reliance, defraud or induce justifiable resulting damage. Witkin, (5 Torts, A Summary (10th 2005) 1121.) of Cal. Law ed. p. § claim each negligent of the misrepresentation requires proof foregoing elements for knowledge of the honest except falsity representation; statement, belief in the truth of the without a reasonable for that ground (Id., belief, 1181.) is sufficient. §
The absence of one of elements warranted granting these nonsuit motion. The trial concluded R & B no correctly damages suffered *45 378 the In of damages, its on that addition absence ground.
based decision and all of the other could have been as each granted nonsuit motion as elements well. or negligent not have claim for intentional
R&B could proved R&B was limited to damages. because it suffered no misrepresentation Feed Ralston Purina & Grain v. recovering damages. (Templeton economic 344, 461, 152].) 446 P.2d Co. Cal.2d 468 Cal.Rptr. [72 of the alleged R&B have suffered as a result economic could damages underwriter) (a Farmers field by Westenberger Lopez misrepresentations law the lemon against settling were the in defending costs expenses the case. Truck Insurance present lawsuit filed R&B which against spawned and settlement costs to R & B for all its litigation expenses tendered payment Therefore, R&B suffered no loss.2 incurred in the Peralta litigation. throughout it on occasions damages R&B admitted suffered no multiple on the the issue on its brief opening appeal, waived litigation appeal. ruling did trial to reconsider its asking as it the court acknowledges, R&B tender after R&B’s initial days on the in limine: “Approximately motions defense, totaling ‘tendered’ to R&B two checks Farmers unilaterally $77,27[5].98. of the defense costs and settle- The amount 100% represented interest, R&B, in connection with ment amount incurred with 10% sent the check Peralta matter. When Farmers eventually underlying ...[][] 3, 2002, had been no on so of its own accord. There did April completely sent did not to its tender. The amount negotiations leading up request amount, rather was the full amount to be a but purport ‘compromised’ claim, also initial with interest.” R&B acknowledges appeal R&B’s “on the established grounds pleadings Truck Insurance moved for nonsuit which on the Peralta damages that Truck had tendered equaled damages 2 not recoverable attorney against lawsuit Truck Insurance were R & B’s fees incurred good duty breach of the damages. When an insured sues its insurer for an element of its insurer, unreasonably by the dealing policy benefits withheld faith and fair secure (Brandt (1985) 37 Cal.3d Superior v. Court attorney fees. insured can recover its reasonably 796].) compels P.2d “When an insurer’s tortious conduct Cal.Rptr. policy, under a insurer to obtain due it follows attorney insured to retain benefits attorney’s are an economic expense. The fees should be liable in a tort action for that added.) {Ibid., tort.” italics loss—damages—proximately caused Superior Court could be extended claim of Brandt v. holding if Even policy benefits. Brandt only where the insured must sue obtain misrepresentation, applies Here, to be withheld— policy there were no benefits properly concluded trial litigation under for the Peralta unreasonably or otherwise—because there no policy. written insurance
matter, the fees and to attorneys Peralta’s R&B’s paid lawyers lawyers the Peralta matter and 10 interest to date of tender.”3 percent
R waived on right & B the as a argue damages suffered appeal any result alleged of defendants’ The issue before the trial misrepresentations. court on motion for nonsuit Insurance’s B’s lack of any brief, In its R not damages. & B does address the issue of opening appellate Instead, BR & the trial damages. argues totality of the court’s earlier rulings claims, claim, claim, on the the contract the unfair fiduciary duty competition limine the motions in was “a of series errors” and once prejudicial reversed, those were the “Trial the prior rulings Court’s decision on inten- tional and negligent fall as well.” misrepresentation Truck Insurance [would] its argues in & B brief that R could not recover respondent’s appellate and its damages, claims were therefore misrepresentation dismissed. properly brief, In actual, its R does not of reply identify any evidence compensa- tory damages. On R & B has waived the appeal, repeatedly issue damages for the misrepresentation, and issue is not before this court. properly
So the law are, tells us what the outer limits of R & B’s recovery R & B admits on that Truck Insurance appeal had tendered the full amount of its This potential damages. should be the end of it. How does the majority address the issue? It R & B says did not really make concession that any ante, Truck Insurance tendered the total damages. at potential (Maj. opn., 342-343.) The pp. then concludes majority with the following: “Erring caution, side of with a fair goal giving full and trial on litigants merits, we remand the negligent issues to the trial court misrepresentation for further to the extent that R & B not proceedings has conceded that all potential damages under cause action negligent misrepresentation have (Id. been 343.) fails, however, tendered.” The p. majority to address the fact, evidence before the trial court, given not could prove a damages, element of its necessary intentional and negligent misrepresenta- tion claims.
There was also no evidence before trial court on the motions for nonsuit of that the misrepresentation products deficiency liability endorse- ment new cars would cover used cars. Without such a representation, fails, R&B’s case as the trial court The correctly understood. evidence cited majority was taken from the in connec- entirely submissions parties’ tion with motions for summary filed months earlier. The judgment majority cite does not evidence any trial court connection presented nonsuit, motions for because there was none. 3 acknowledgement prove damages highlighted R & B’s that it any could not is further brief, appellate reply argues damages
its prayer punitive in which R & B was not dependent showing compensatory damages. nonsuit, In to a motion for response makes an offer plaintiff normally case, & B did not do so. “The offer proof. must be proof forth setting the actual evidence to be specific, facts produced, merely (In to be issues addressed re Tamika T. argued.” 97 Cal.App.4th 873].) A defeat a motion plaintiff attempting for nonsuit the use through offer of bears the burden of proof al., (See the additional to be adequately specifying offered. et proof Wegner Cal. Practice (The 2005) Guide: Civil Trials and Evidence Rutter Group 12:236, (rev. 2001).) 12-46 # failure to do so results in properly of the motion. “In the absence granting of more offer of precise proof, however, we are in no to arrive at conclusions position about these subjects favorable to who must bear the of all plaintiff], defects and consequences [the *47 Anderson, (S. in its offer.” ambiguities (1994) C. Inc. v. Bank America 24 of 529, 540 286].) Cal.App.4th Cal.Rptr.2d [30 On the must show appeal, how the evidence in the offer of plaintiff proof would (Abreu have remedied the defects in the cause of action. v. Svenhard’s 1446, (1989) Swedish Bakery 26]; 208 1457 Cal.App.3d Cal.Rptr. [257 261, (1974) v. Elliott Cacciaguidi 93]; 39 265-266 Cal.App.3d Cal.Rptr. [114 Atchison, (1953) Greene v. T. & S. F. Co. Ry. Cal.App.2d [260 cannot, 834].) P.2d If the does not or the plaintiff court is not in a appellate to reverse the trial court’s order position the motion for nonsuit. To granting reference all material in the case file simply incorporate by and all arguments made counsel in a nonsuit motion previously does not opposing satisfy of an offer of This requirements proof. procedure deprives moving party of due and both the trial court and the court in process, puts appellate aAs Court of we should not such impossible positions. resurrect Appeal, causes of action based on evidence that was not trial before the court in connection with the motion in question.4
Also, there was no evidence of of or of intent on the knowledge falsity, intentional claim. R & B admitted and misrepresentation Westenberger Lopez were unaware the deficiency to new products liability coverage only applied True, cars when they confirmed R & B would have lemon law coverage. action, alternative causes of parties may, throughout litigation, plead R & B’s evidence its claim for reformation based on mistake does supporting not the existence of evidence of of a necessarily preclude knowledge falsity. But R & B did not the trial court with evidence that provide Westenberger knew of their statements Lopez any B’s regarding products 4 arguing permit handling, incorporated its own motion to evidence of claims proof rulings offer of when it the trial submitted asked court to reconsider its on the motions nonsuit, part opposition limine. Even if this were a of R & B’s to the motion for it would requirements specific proof setting argued, not meet the of a offer of the evidence to be as forth discussed ante. were
deficiency liability coverage false. Proof on material is not in point brief, the trial the offer of or else. proof, reporter’s transcript, anywhere brief, Even the statements from trial unsupported quoted by majority, not do show of their Westenberger’s Lopez’s knowledge any falsity statements, Insurance, such on the any Truck or knowledge part any intent defraud & B.
The majority relies on Butcher Truck Ins. Exchange v. primarily 521], Cal.App.4th its conclusion that R & B support should have had the opportunity misrepresentation reforma- present ante, tion claims at jury. (Maj. 336-337.) But Butcher not opn., does pp. support court’s majority. key holding in Butcher is appellate that, cases cited and discussed above demonstrate relating “[t]he if facts purchase the Truck are policy shown to be as related [the insured], the trier of could fact find the were insureds misled by agent]’s [the failure to negligent warn not personal injury among coverages (Butcher policy.” v. Ins. supra, 77 Exchange, When, here, added.) italics offer does not facts or plaintiff court, evidence to the Butcher & B. does Rhelp world, In the real products deficiency does not liability coverage exist used cars. No trier fact reasonable could ever have concluded Truck Insurance would lemon provide $25 law for used cars *48 year statement, R B could on a reasonably rely much own less its unexpressed, belief, secret that Truck Insurance would do so. Could a of a car buyer used not, obtain an extended $25? for Of warranty course and who know would that better a than car dealer?
The remand, majority states in effect that R opinion be may entitled to recover on the punitive damages claims. As forth remaining set ante, all, I do not believe BR & is entitled to case on remand at retry it certainly cannot the elements of its claim for prove intentional misrepresen- tation, in connection with which damages be punitive might theoretically available.
The Trial Court Granted the the Properly Nonsuit Motion Regarding Claim for Reformation.
The trial majority asserts the court erred in granting Truck Insurance’s nonsuit (1) motion & B’s claim B regarding reformation because R & did not have the to evidence of of a opportunity present breach damages contract, reformed (2) did not have an to the opportunity establish ante, 348-349.) elements of a reformation case. (Maj. opn., pp. On the the issue the nonexistence of there was coverage, agrees majority when no the trial court decided the issue a miscarriage justice through 382 limine, one the court to decide and its because the issue was
motion in here. The same to analysis ought apply ultimate conclusion was correct. The court, that the for the and the court’s conclusion issue of reformation was contract could not be reformed correct. insurance is a contract the truly express “The of reformation to make written purpose to intention’ entertained This refers ‘a language single intention of the parties. revise written ‘Although equity may both by parties. [Citation.] it has no make make it conform the real agreement, power instrument be mutual or unilateral a new contract for the whether mistake parties, Indemnity Co. (American Ins. Co. v. Travelers Home [citation].’ [Citation.]” Witkin, 951, 826]; 1 see (1981) Summary 963 Cal.App.3d Cal.Rptr. [175 Contracts, 276, Law, come supra, 306-307 parties of Cal. pp. § [“Where fraud) instrument does not (or an but mistake the written agreement, express application their agreement correctly, party aggrieved . ... [1] ... be reformed HQ Reformation or revised on the to correct a the contract from writing is reducing clearly distinguishable mistake in rescission, not have been entered is where the contract would granted which into at all fraud”].) or A written contract is presumed for the mistake save intention, seeking and the reformation bears party actual express parties’ clear evidence to overcome that convincing presumption. the burden (Nat. Cas. Co. v. Ind. Acc. Com. (1949) Cal.2d P.2d Auto. & [206 Simon, Dictor v. David & Inc. 841]; 588].) not whether the contract expressed issue in this case is remaining I no contract majority agree provides
intentions of parties; Instead, agents misinformed new cars. the issue whether coverage for deficiency liability was covered by what regarding products mistake, claimed reformation was endorsement. Given the nature of an due to agent ignorance here. remedy “Representations appropriate thereof do not misunderstanding of the effect the terms of policy *49 no where there was to conform to the representations, warrant reformation contained in the deliver a different contract from that intention of the agent (rev. ed. Law and Practice (13A form.” Insurance Appleman, usual policy 7609, the must be in 1976) 323-324.) “To reformation mistake pp. justify § the which it in the contract making the of the instrument not drafting 7608, (Id., 309-310.) R & B was given opportunity evidences.” pp. § nonsuit were case when the motions for argue make an offer of its proof of the to the court’s consideration If R & B had evidence relevant any heard. action, it. the time to cause of present reformation brief, “[bjoiled it in its succinctly respondent’s As Truck Insurance puts that, essence, turns on the notion B’s against down to its appeal court could have while the as issued never policy coverage, provided it, reformed and if initial Truck’s denial of benefits equitably happened, not would owed be transformed a bad denial of retroactively into faith owed benefits under the reformed This is not how bad subsequently policy. faith law works. A bad faith claim must be based on unreasonable [][] withholding of benefits owed under the contract between the parties. [Cita- be Logically, reasonableness of conduct must measured against tion.] time, contract force at against the chance that a court may someday exercise equitable discretion to If reform contract. elements of are reformation proved, equitable remedies for that claim— not the tort remedies for bad contract-dependent faith—would be And owed. here, Truck tendered long ago an amount sufficient to cover award under any theory reformation based on in the sale of the The negligence policy.” trial court it and its got as right, ruling granting nonsuit motion reformation claim should be affirmed.
Dismissal Claim Competition Should Be Unfair Affirmed. The determined majority concludes trial court there was no correctly under the insurance Peralta policy litigation as a matter of law, and therefore dismissed the correctly breach of contract and breach covenant claims.5 implied
The trial court dismissed R & B’s unfair claim with the competition along claims for breach of contract and breach of the covenant. Another of implied the fundamental rules review is appellate that we affirm a or judgment order that is correct any if the theory, even trial court’s stated reasoning is incorrect. (Davey v. Southern Co. Cal. P. 329-330 [48 Pacific 117].) briefs,
As the parties in their agree and as the supplemental *50 had, has, continuing indemnify As a result and duty FARMERS and R & B. defend Notwithstanding duty indemnify, its defend and FARMERS has failed and refused to Farmers, any (In provide complaint, whatsoever.” its R & B referred to Truck Insurance, FARMERS.) collectively Truck Underwriters Insurance, Underwriters, Farmers; Truck Truck unfair competition behalf of on disgorgement R B a permanent injunction profits & sought rulings to revisit its asking In its of court offer general public. proof limine, due to B reiterated it had not lost any money on the motions is a monetary recovery “Plaintiff not seeking unfair alleged competition: claim, Fanners injunctive on but relief prevent from Farmers this (Fn. conduct.” current course of unfair deceptive from its continuing omitted.) of damages, and never any damages, sought recovery & B did not suffer
R Therefore, R & B unfair cannot in connection with its claim for competition. claim, of that claim should be and the trial court’s dismissal assert such a affirmed. Finding, the Trial Court’s Supporting
There Evidence Was Substantial Trial, Not the Alter Ego a Bench That Farmers Was After Underwriters. ruled is whether the trial court correctly
The concludes it moot majority the fiduciary Truck Underwriters vis-a-vis that Farmers was not the alter ego claim, did ruled that Truck Underwriters itself because the court duty correctly trial, the found a bench duty. not owe R & B a fiduciary Following of Truck There substantial Farmers was not the alter Underwriters. ego reach the directly this and I would finding, evidence in the record supporting trial decision. issue and affirm the court’s
Motions in Limine on several rulings concludes the trial court must revisit The majority the claims for resurrects majority motions in limine because opinion a reversal of No party disputes unfair competition misrepresentation. would a reassessment court’s judgment require substantive part discussion as how the motions in limine. The majority’s several is dicta. to have been decided motions in limine ought court’s ruling trial analysis I disagree majority’s specifically the testimony No. which motion in limine precluded Truck Insurance’s ante, in discovery. (Maj. had not been disclosed opn., of three witnesses who were three witnesses 356-358.) that these appeal at R argues pp. served. majority were discovery responses unknown to it when assertion, finds yet in the record to admits there is no evidence support evidence such just assuming abused its discretion the trial court concludes, do a failure to disclose not see how The majority existed. “[w]e discovery who were unknown to & before the names of witnesses (Id. discovery process.” date could constitute misuse cutoff
385 357, 15.) fn. Without evidence in p. the record about R & B’s knowledge, the has itself into majority injected the trial court’s improperly discretionary a based the evidence decisionmaking province presumption Did the exists. trial court abuse its discretion based on it? the record before No. with the majority’s citation to Edwards Real v. Centex Estate
I also disagree Corp. (Edwards), (1997) 26-28 Cal.App.4th Cal.Rptr.2d [61 518] the standard of review for of the appropriate many motions in limine. The court’s orders on motions in limine are reviewed for abuse of discretion (Piedra Dugan v. 36]), Cal.App.4th where the of a motion except grant in limine excludes all the evidence relevant to a claim and particular thereby of an entire cause disposes situation, action. In that the court should appellate the standard apply to a motion applicable for nonsuit—whether the evidence the presented by was insufficient plaintiff a to find in permit jury the favor. plaintiff’s (Edwards, Edwards, supra, 28.) at the the p. sued plaintiffs defendants for fraud in connection with the defendants’ procurement (Id. release agreements 25.) from at plaintiffs. The trial granted p. motion in limine exclude all communications prelitigation defend by ants agents and their regarding underlying claims and their resolution. (Id. 25-26.) at That pp. ruling from prevented plaintiffs introducing (Id. statements, alleged fraudulent gutting 26.) case. plaintiffs’ The rule of Edwards would if here the court had apply granted motion limine B& from precluding offering evidence of Westenberger’s Lopez’s statements. It did apply majority’s analysis issue, which was decided a motion in limine. But does not apply remainder of the motions limine. should be decided under the abuse They of discretion standard. Court,
Costs Under Rules 27{a) Rule California matter, as a Finally, it is procedural award improper majority costs on to R & B. appeal On several key majority correctly points, B, affirms the trial court’s rulings R & so in the interests of all against justice, should bear their own costs on parties appeal.
Response Concurring Opinion I wish to briefly, to a few comments made respectfully, respond by my First, concurring colleague. concurrence about the granting complains motions in limine that were very majority says granted properly legal because raised no they issues can be created (e.g., *52 ante, 351-352); the insurance contract at (maj. pp. waiver or opn., estoppel (id. existed, 349-351); because no coverage at pp. does not provide (id. covenant of faith of the implied good there could be no breach Second, issues raised by that the 352-354)). complains the concurrence pp. to deal with the evidence. R the majority this dissenting required opinion nonsuit; standard of of a motion for grant appropriate challenged Third, to examine the evidence. review on this requires appeal on the “name” I want to decide this case based concurrence says Instead, makes that argument. This never dissenting motion. opinion nonsuit, the trial court on a motion ruling says dissenting opinion in connection with pretrial is not to consider evidence presented required to the trial in the case when none is directed that evidence motions earlier the time the nonsuit motion offer of or otherwise at court’s attention proof view, not err failing the trial court did consideration. In my under consider evidence not before it. 5, 2006, to read as above. printed was modified
On July opinion notes majority ante, (maj. 359-361), opn., following the enactment of pp. Proposition order with a claim proceed for unfair R & B must show it competition, “has suffered in fact and has injury lost as a result of such money property Code, unfair (Bus. & Prof. competition.” 17204.) R & B’s third amended § does not allege suffered a result complaint damages alleged of the 5 majority states that & B did not claim Truck breached Insurance the terms (which contract insurance as written. R & amended complaint operative B’s third is the case) complaint alleges: for this Complaint allegations “The Peralta of covered contains product deficiency. provides The policy indemnity product deficiency. defense and