holding insured could not use the theory of estoppel “to create 2 coverage where none otherwise exists—that is, to create an otherwise nonexistent written contract 3 providing lemon law coverage for used car sales, in order to use the newly created contract as the 4 basis for a claim of breach”
How later courts described this case
- holding insured could not use the theory of estoppel “to create 2 coverage where none otherwise exists—that is, to create an otherwise nonexistent written contract 3 providing lemon law coverage for used car sales, in order to use the newly created contract as the 4 basis for a claim of breach”
- “The rule is well established that the doctrine[ ] of implied waiver ..., based upon the conduct or action of the insurer, [is] not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom.”
- internal 26 5 Setting aside Continental’s evidentiary objections to the Mitchell declaration, Mr. Mitchell 27 stated that in February 2018, he notified Ian H. Graham Insurance of the Toda lawsuit and forwarded 1 quotation marks and citation omitted
- conc. opn. of Rylaarsdam, J.
Written by the judges who cited it.
The opinion
RYLAARSDAM, Acting P. J., Concurring.
I have signed the main opinion as I believe it to be the correct resolution of this procedurally mismanaged case. But I write separately to address some of the issues raised in the dissenting opinion. I respectfully disagree with many of the statements made and the conclusions reached by our dissenting colleague.
*371 This case, which is rather simple, has turned into an ungainly monster. The primary issues of fact are whether defendant’s agent negligently or intentionally misrepresented the scope of the insurance coverage provided to plaintiff and whether defendants engaged in a scheme to defraud used car dealers. The other significant issue, a mixed question of law and fact, is whether defendants are liable for the conduct of their agents under the doctrine of respondeat superior.
The complexity into which this essentially simple case was transmogrified results primarily from three circumstances. First, plaintiff managed to throw every conceivable cause of action against the wall hoping that something might stick. Second, defendants successfully litigated the issues largely through motions in limine, a useful procedural tool but one that may not be used to resolve factual issues. Confusion between which arguments were directed at which of the many motions in limine and a conflation of these arguments in the trial court and in the parties’ briefs here did not lighten our burden in analyzing each motion and helps to explain the trial court’s rulings. Finally, by arguing issues pertaining to sufficiency of the evidence, issues not urged by the parties in their briefs, our dissenting colleague has made it necessary to discuss a great deal of evidence that would otherwise be superfluous.
1. Improper Use of Motions in Limine
Because of the increasingly improper use of motions in limine, a few words on that subject. I realize that it is not uncommon to bring motions for judgment on the pleadings, for summary judgment, and for summary adjudication of issues in the guise of motions in limine. But, particularly in the latter cases, this practice removes all the protections afforded by the statute which prescribes the manner in which the court must handle such motions. To have the sufficiency of the pleading or the existence of triable issues of material fact decided in the guise of a motion in limine is a perversion of the process. And to hold, as our dissenting colleague argues, that, based purely on the name given the motion, the court should not consider evidence presented in connection with the previously denied motion for summary judgment is to endorse an unjust result.
Motions in limine are properly used to determine whether specific evidence should be admitted or precluded. “ ‘The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial. . . . Motions in limine serve other purposes as well. They permit more careful consideration of evidentiary issues than *372 would take place in the heat of battle during trial. They minimize side-bar conferences and disruptions during trial, allowing for an uninterrupted flow of evidence.’ ” (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669-670 [ 56 Cal.Rptr.2d 803 ], citations & italics omitted.)
But motions in limine deal with evidence. May this particular document be admitted? May an expert witness testify to certain facts or conclusions? An in limine motion that seeks to exclude all evidence pertaining to part or all of a cause of action based on an argument that plaintiff lacks evidence to support part or all of the cause of action is but a disguised motion for summary adjudication. For example, the court granted defendant Truck Insurance Exchange’s “motion in limine to preclude plaintiff from introducing evidence of waiver or estoppel” (capitalization omitted) and the same defendant’s “motion in limine to preclude plaintiff from arguing that Truck Insurance Exchange breached the subject policy of insurance and/or acted in bad faith.” (Capitalization omitted.) In granting these motions the court summarily adjudicated these issues, and, in doing so, reconsidered the earlier denial of the same motions.
As another example, one of defendant Truck Insurance Exchange’s motions in limine asked the court “to bind plaintiff to the parameters of its pleadings.” (Capitalization omitted.) On its face a meaningless motion because it asked the court not to admit irrelevant evidence, something the court presumably would not do in any event. But this motion was used to dispose of a specific issue raised by plaintiff, in effect, a motion for summary adjudication of issues. This motion would be of the same ilk as one asking the court not to admit hearsay evidence without identifying the specific evidence sought to be excluded. A final example: In its first motion in limine, defendant Truck Insurance Exchange argues that, “if plaintiffs cannot demonstrate that Truck [Insurance Exchange] breached the terms of the subject policy, it cannot prevail on either its first [or second] cause[s] of action.” (Capitalization omitted.) Clearly, this request constituted a motion for summary adjudication, not one relating to the admission of evidence.
2. Use of Earlier Evidence Filed in Opposition to Motion for Summary Judgment
I agree with our dissenting colleague that normally evidence filed in opposition to a previously denied motion for summary judgment or summary adjudication would not be before the court when ruling on pretrial motions. But our colleague misinterprets our consideration of the summary judgment evidence. We are not suggesting the court should at all times be aware of the contents of the court files. But here the critical so-called motions in limine were, in effect, motions for summary adjudication, without being formally *373 supported by the kind of evidence such motions require, and were based on the same arguments supporting the previously denied motions. More accurately, they were motions to reconsider the previously denied motions for summary adjudication. And defendant Truck Insurance Exchange acknowledges this fact in its brief: “The trial court’s hands were not tied by its prior summary judgment ruling. . . . Thus, the trial court had the power to reconsider its prior summary judgment ruling even if no new evidence was presented.” Further, the name of the motion is not controlling. The requirements for a motion for reconsideration “apply to any motion that asks the judge to decide the same matter previously ruled on.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2005) f 9:324.1, p. 9(I)-103.)
Even if we accept the notion expressed by defendant Truck Insurance Exchange that the court could reconsider the earlier ruling on the summary adjudication motion without requiring new evidence, we must conclude that the evidence submitted in opposition to the earlier motion should have been considered. Therefore, it was appropriate for us to consider this evidence in evaluating the trial court’s rulings.
3. Jury Trial for Issues of Damages and Reliance
Our dissenting colleague states in a number of contexts that plaintiff did not sustain damages beyond the amount tendered by defendant Truck Insurance Exchange. I believe we explain adequately why this issue was not waived. Our colleague questions whether evidence of such damages can exist. But it is not for us to speculate on this or any other issue. It is irrelevant that we may deem it unlikely that plaintiff may be able to establish damages in addition to the cost of defending and settling the underlying lawsuit. Whether or not such damages were sustained is another question of fact that should not have been resolved in a motion.
Our dissenting colleague also states that “[n]o reasonable trier of fact could ever have concluded Truck Insurance [Exchange] would provide lemon law coverage for used cars for $25 a year.” But we are not the triers of fact. And what may seem unreasonable to us may not appear so to the average jury. I could make the same statement with respect to new car dealers. The coverage seems extremely cheap. And the fact that, as a new or used car dealer, I would question whether I had actually received the promised coverage for this small price, does not allow me to substitute my own judgment for that of the jury. Defendants may well argue that the price of the coverage precluded reasonable reliance on defendants’ promises. But this argument should be directed to a jury and not to the court.