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.
To begin with, there is a real question whether Transport can even make the argument here, with some authority, including Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252 [75 Cal.Rptr.2d 681], a case cited by Transport, holding it cannot. The order there was an order denying summary judgment, and the court held that "[Code of Civil Procedure s]ection 904.1 specifies those orders and judgments of the superior court from which an appeal may be taken. An order denying summary judgment is not one of these. Section 437c, subdivision [(m)(1)] specifies that the judgment resulting from the granting of a motion for summary judgment is appealable, as is any other judgment. However, the same subdivision provides that the denial of such a motion may only be reviewed by way of a petition for extraordinary writ." (64 Cal.App.4th at p. 1256, italics omitted.) The leading practical treatise states the rule this way: "An order denying summary judgment or granting or denying summary adjudication is reviewable only by a petition for writ of mandamus. [CCP § 437c(m); [citations]] [¶] There is generally no basis for appeal after trial; erroneous denial of summary judgment is generally harmless error after a full trial covering the
same issues. [Citation.]." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 10:385, p. 10-149 (rev. # 1, 2011).)9
Transport's argument also runs afoul of the general rule that denial of their motions may not be challenged here because the parties litigated the same issues at trial. (See California Housing Finance Agency v. Hanover/California Management & Accounting Center, Inc. (2007) 148 Cal.App.4th 682, 688 [56 Cal.Rptr.3d 92]; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 [16 Cal.Rptr.2d 38].) The reason is usually explained this way: "`A decision based on less evidence (i.e., the evidence presented on the summary judgment motion) should not prevail over a decision based on more evidence (i.e., the evidence presented at trial).'" (Gackstetter v. Frawley, supra, 135 Cal.App.4th at p. 1269, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:168.10, p. 8-132.2 (rev. # 1, 2011).) Transport attempts to get around these problems by urging that the principles do not pertain if the trial court applied the wrong law in denying the motions, citing four cases: Lackner v. LaCroix (1979) 25 Cal.3d 747 [159 Cal.Rptr. 693, 602 P.2d 393]; Gackstetter v. Frawley, supra, 135 Cal.App.4th 1257; Coy v. County of Los Angeles (1991) 235 Cal.App.3d 1077, 1082, fn. 2 [1 Cal.Rptr.2d 215]; and Aas v. Avemco Ins. Co. (1976) 55 Cal.App.3d 312, 323 [127 Cal.Rptr. 192]. While Lackner does contain the language on which Transport relies—"An order denying partial summary judgment is a nonappealable order although reviewable on appeal from the final judgment"—the Supreme Court went on to say that it "need not reach the ... issue." (Lackner v. LaCroix, supra, at p. 753). As best we can tell, Gackstetter and Aas did not involve a trial of the issue raised on summary judgment. And Coy expressly noted that plaintiff did not contest the defendant's ability to challenge the pretrial summary judgment ruling on appeal after trial. (Coy v. County of Los Angeles, supra, 235 Cal.App.3d at p. 1082, fn. 2.)
But even if Transport's argument were not barred procedurally, it would fail on the merits.
Embellishing on its argument, Transport asserts that Judge Woolard "was required to grant summary adjudication in Transport's favor if there were no triable issues of material fact as to the statute of limitations defense and Transport was entitled to judgment on that defense as a matter of law." And,
Transport goes on, "had the trial court applied the correct accrual and tolling rules in deciding Transport's motions for summary adjudication, the court would have necessarily determined that Transport's suits were timely as a matter of law."
(6) Assuming without deciding that tolling even applies here,10 we are hard pressed to think of more fact-specific issues than "accrual" and "tolling." Indeed, Transport expressly admits as much where, in connection with its reply argument on tolling, it says that "whether that law ... supports a finding of equitable tolling under the circumstances of this case is a question of fact for the jury (or trial court) to decide on remand. (Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 408-409 [65 Cal.Rptr.3d 903] [`"Equitable tolling is a fact intensive issue and it is determined based upon evidence."'].)" That, of course, is the law. (See Gonzalez v. Kalu (2006) 140 Cal.App.4th 21, 32-33 [43 Cal.Rptr.3d 866]; Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, 128 [211 Cal.Rptr. 271].) The same is true of accrual, which is also a question of fact. "There are no hard and fast rules for determining what facts or circumstances will compel inquiry by the injured party and render him chargeable with knowledge. [Citation.] It is a question for the trier of fact." (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 597 [83 Cal.Rptr. 418, 463 P.2d 770]; accord, E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1320 [64 Cal.Rptr.3d 9], quoting Bastian v. County of San Luis Obispo (1988) 199 Cal.App.3d 520, 527 [245 Cal.Rptr. 78].)