|
|
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].)
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].)
|
|