TRANSPORT INS. CO. v. TIG INS. CO.
202 Cal.App.4th 984 (2012)
Court of Appeals of California, First District, Division Two.
January 13, 2012.
We have described the doctrine this way: it is "`an "application of the estoppel principle": "Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal" on appeal. [Citation.] ... At bottom, the doctrine rests on the purpose of the principle, which is to prevent a party from misleading the trial court and then profiting therefrom in the appellate court. [Citations.] ....'" (Munoz v. City of Union City (2007) 148 Cal.App.4th 173, 178 [55 Cal.Rptr.3d 393].) It has been said that the invited error doctrine "applies `with particular force in the area of jury instructions....'" (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653 [57 Cal.Rptr.2d 525]), and numerous cases have held that a party who requests, or acquiesces in, a particular jury instruction cannot appeal the giving of that instruction. (See, e.g., Nevis v. Pacific Gas & Electric Co. (1954) 43 Cal.2d 626, 629-630 [275 P.2d 761]; Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 856-857 [176 Cal.Rptr. 239] and cases cited; Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567 [140 Cal.Rptr. 330] [jointly-proposed instruction].) Claiming to describe what occurred before Judge Woolard, Transport's brief asserts that "[p]rior to closing arguments, the court and counsel discussed the various jury instructions the parties had submitted. [Citation.] Seaton's trial counsel submitted a statute of limitations instruction (on its own caption) which tracked the trial court's prior ruling on the summary adjudication motions. [Citations.] The court accepted this and instructed the jury."
Transport's description as to the origin of the instruction is less than candid: it had as much to do with the instruction, if not more, than did Seaton.The instruction was the subject of lengthy argument below, 10 pages to be exact. It arose in the context of, as Judge Woolard described it, "Jury Instructions Disputed by Transport," and specifically in Transport's argument that TIG had "agreed" to a different instruction than the one it proposed. The claimed "agreed" to instruction was the one to which Transport and Seaton had agreed—the instruction Transport now complains of here.
So, to set the stage for that discussion, counsel for Seaton advised Judge Woolard that "[a]lthough [the instructions] are on my caption, ... [t]hey are basically there because they are the result of our conference. And we have retyped some of them and some of these have mine on the side because they basically are on my letterhead, but not necessarily proposed by me." (Italics added.) Judge Woolard thanked Seaton's counsel for being "kind enough to take the laboring oar on having all of this produced so that we could address it in a reasonable fashion," and then went to the argument: "The first one is Special Instruction Number 2, Affirmative Defense Statute of Limitations."
The next person to talk was counsel for Transport, who asserted that TIG's proposed instruction "does not track the Court's ruling or the case law in Stronghold. And, in fact, we have an agreed instruction, ... if you look at the last document, there is an agreed instruction on an affirmative defense statute of limitations which specifically tracks the court's ruling. That's why it's agreed. This one [(the instruction proposed by TIG)] does not and should not be given."
1. Ario v. Underwriting Members of Lloyd's of London (Pa.Commw.Ct. 2010) 996 A.2d 588, 597, the case cited to us by Transport after the briefing was closed, describes Stronghold similarly: "In Continental Casualty, where the policy established that loss covered under the policy must be reported to the reinsurer `as soon as practicable,' the court concluded that the insurer's cause of action for payment did not arise until notice of loss was provided to the reinsurer and the reinsurer was afforded a reasonable time in which to decide whether and how much it would pay."
2. In fact, the claimed reasons for Transport's overlength reply brief are that the reinsurers' respondent's briefs do not accurately recite the evidence and cite "irrelevances," and that because the primary issue is "whether the trial court committed instructional error, Transport is entitled to view and present the trial evidence in the light most favorable to the claim of instructional error."
3. At trial, Nalepa testified as follows: "I, quite frankly, to this day don't know what Transport was doing with [its collection efforts] and who had the responsibility at their end."
4. Seaton requests judicial notice of material it asserts might be germane, and TIG's brief also mentions this. We deny the request for judicial notice.
5. According to Transport, this and the earlier draft complaint are of no significance because they were for declaratory relief only and did not contain a cause of action for breach of contract.
6. Focusing on Judge Woolard's comments in her tentative ruling, and that her subsequent order did not contain what she said, Transport's brief says things such as this: "[T]he trial court did not expressly address the equitable tolling issue in its written rulings, but clearly ruled against Transport on this issue because it did not include equitable tolling in the rule it ultimately adopted, despite Transport's detailed argument on this point in its moving papers. [Citations.] ... Given that, in its tentative ruling, the trial court indicated it would apply equitable tolling [citation] but, after hearing TIG's arguments on this issue [citations], it excluded equitable tolling from its written ruling, we would ... argue that the trial court unquestionably `determined that equitable tolling should not apply.'" As will be shown, this is an overstatement.
7. TIG's proposed instruction would have told the jury: "TIG contends that Transport filed this lawsuit too late. To establish this defense, TIG must prove that this action was not commenced within four years of the date on which the claim sued on arose. You must decide when the claim arose, that is when TIG failed to pay the amounts allegedly due under the terms and conditions of [policies] FR 297 and FR 298. If TIG's failure to pay the alleged amounts due took place before January 26, 2002, Transport's lawsuit was filed too late and is barred by the statute of limitations."
8. As indicated, Transport's opening brief referred to its reply in support of its new trial motion, which contained an argument that Judge Woolard's ruling was "law of the case." TIG took issue with this, and Transport's reply brief concedes that law of the case could not pertain, as the doctrine "has no application in trial court proceedings without an appellate decision. (People v. Barragan (2004) 32 Cal.4th 236, 246 [9 Cal.Rptr.3d 76, 83 P.3d 480].)"
9. The treatise goes on to note that "review on appeal from the final judgment has been allowed in exceptional cases," citing Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1269 [38 Cal.Rptr.3d 333]. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 10:385, pp. 10-149 to 10-150 (rev. # 1, 2011).) Gackstetter is one of the cases Transport relies on here.
10. This may be problematic, in light of the lengthy statute of limitations involved. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 380 [2 Cal.Rptr.3d 655, 73 P.3d 517] ["Because plaintiffs had three or four years after discovery, and up to ten years after the project's completion, to bring their suits for latent construction defects, many of the concerns that might warrant equitable tolling are ameliorated."]. Cf. Flintkote v. General Accident Assurance Co. of Canada (N.D.Cal. 2007) 480 F.Supp.2d 1167, 1179-1180 [holding equitable tolling could apply to four-year statute of limitations in asbestos case].)