Preview
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GLADSTONEWEISBERG, ALC
2 Gene A. Weisberg, SBN 91544
gweisberg@gladstoneweisberg.com
3 Anthony DiPietra, SBN 235994
adipietra@gladstoneweisberg.com
4 300 Corporate Pointe, Suite 400
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Culver City, CA 90230
Tel: (310) 821-9000 • Fax: (310) 943-2764
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Attorneys for Defendant
7 California Capital Insurance Company
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SONOMA
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GLADSTONEWEISBERG, ALC
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14 RMB REAL ESTATE ) CASE NO. SCV-267840
15 INVESTMENTS 2, LLC, A ) (Hon. Gary Nadler)
California limited liability company, )
16 )
17 Plaintiff, ) DEFENDANT CALIFORNIA CAPITAL
) INSURANCE COMPANY’S REPLY IN
18 vs. ) SUPPORT OF MOTION FOR ORDER
19 ) SEVERING AND/OR BIFURCATING
CALIFORNIA CAPITAL ) THE TRIAL ON PLAINTIFFS’
20 INSURANCE COMPANY and ) PUNITIVE DAMAGES CLAIM AND
21 DOES 1-7, ) THE LEGAL INTERPRETATION OF
) THE INSURANCE POLICY
22 Defendants. )
) DATE: April 1, 2022
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TIME: 8:30 A.M.
24 DEPT: 19
DATE
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Date Action Filed: February 22, 2021
26 Trial Date: Not Yet Set
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DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION
FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE
DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY
1 1. INTRODUCTION
2 Defendant California Capital Insurance Company’s (“CCIC”) moving papers
3 explained that: (1) Plaintiff RMB Real Investments 2, LLC’s (“Plaintiff”) punitive
4 damages claim must be tried separately, after the trier of fact determines liability, as
5 required by Civil Code § 3295; and (2) that the parties’ dispute over the interpretation of
6 the insurance policy’s provisions concerning the Increased Period of Restoration is a
7 legal issue for the Court, which must be tried before the jury is empaneled. Plaintiff
8 conceded in its opposition that the punitive damages claim must be tried separately. Thus,
9 there is no dispute as to that portion of CCIC’s request.
10 Plaintiff’s limited opposition to CCIC’s motion merely argues that it is entitled to
11 a jury trial on the interpretation of the policy provisions at issue in this case as a matter of
12 right. That is not legally accurate.
GLADSTONEWEISBERG, ALC
13 The moving papers explained that, under Code of Civil Procedure § 592, the Court
14 must determine the fundamental legal issues involved in this case, which involve the
15 interpretation of the insurance policy that CCIC issued to Plaintiff, before submitting the
16 factual issues to a jury. The opposition entirely ignores Code of Civil Procedure § 592, as
17 well as the case law cited in the moving papers. Rather, Plaintiff argues the interpretation
18 of a contract can be resolved by the trier of fact when there is extrinsic evidence of
19 ambiguity and the intent of the parties at the time of the contract’s formation.
20 For the purposes of this motion, California Capital does not dispute these general
21 principles. However, Plaintiff’s arguments that the trier of fact may, under certain
22 circumstances, interpret an agreement based on extrinsic evidence misses the entire point.
23 CCIC seeks an Order that ensures that the mode of trial is properly set. Code of
24 Civil Procedure § 592 is unequivocally clear, and states: “Where in these cases there are
25 issues both of law and fact, the issue of law must be first disposed of.” The extrinsic
26 evidence that Plaintiff argues is relevant to the interpretation of the insurance policy only
27 becomes relevant if the Court finds that the contract is ambiguous. That initial
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DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION
FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE
DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY
1 determination of ambiguity is one for the Court – not the jury – and must be decided
2 before Plaintiff is allowed to present evidence to the jury on the policy’s meaning.
3 Accordingly, CCIC respectfully requests that the Court grant this motion and issue
4 an Order bifurcating the trial as CCIC requested. The issue of punitive damages must be
5 decided after the jury finds in favor of the Plaintiff. The issue of whether the insurance
6 policy is ambiguous and reasonably susceptible to the meaning that Plaintiff ascribes
7 must be determined by the Court first, before the jury is empaneled.
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2. THE COURT MUST BIFURCATE THE TRIAL SO THAT IT
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DETERMINES THE KEY LEGAL ISSUES SURROUNDING THE
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POLICY’S INCREASED PERIOD OF RESTORATION BEFORE THE
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JURY IS EMPANELED
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GLADSTONEWEISBERG, ALC
The moving papers explained that Code of Civil Procedure § 592 provides for the
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proper order of trial whenever a case involves both issues of law and fact. Code of Civil
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Procedure states that all legal issues must be resolved first – before the jury is empaneled.
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Code Civ. Proc. § 592; Equitable Life Assurance Soc'y v. Berry, 212 Cal. App. 3d 832
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(1989). Plaintiff did not dispute these principles. In fact, the opposition did not address
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either Code of Civil Procedure § 592, or the decision in Equitable Life in making its
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arguments.
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To be clear, CCIC’s motion to bifurcate did not argue that Plaintiff could never
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submit a question of contract interpretation to the jury based on extrinsic evidence.
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CCIC’s motion explained that the Court must first make certain legal determinations
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before the jury is entitled to hear any of the evidence that Plaintiff apparently intends to
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submit. The issue involves the proper order of a trial on these issues, not whether Plaintiff
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may ultimately have a right to submit extrinsic evidence to a jury.
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The opposition does not dispute that insurance policies are contracts, and the
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ordinary rules of contract interpretation apply. Maryland Cas. Co. v. Nationwide Ins. Co.,
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DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION
FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE
DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY
1 65 Cal. App. 4th 21, 28 (1998); see also McMillin Homes Constr., Inc. v. Nat'l Fire &
2 Marine Ins. Co., 35 Cal. App. 5th 1042, 1050 (2019).
3 The opposition only establishes that Plaintiff intends to argue that the insurance
4 policy is ambiguous and, therefore, Plaintiff wishes to submit evidence to the jury on the
5 intent of the parties and how the insurance policy should be interpreted. However,
6 whether an ambiguity exists in a contract is purely an issue of law. Equitable Life, 212
7 Cal. App. 3d at 840; Delgado v. Heritage Life Ins. Co., 157 Cal. App. 3d 262, 270
8 (1989); Blumenfeld v. R.H. Macy & Co., 92 Cal. App. 3d 38, 44 (1979).
9 An issue of law must be tried by the court. Code Civ. Proc. § 591; Equitable Life,
10 212 Cal. App. 3d at 840. Thus, before the trier of fact is entitled to adjudge the credibility
11 of extrinsic evidence, the Court must first determine whether the contract is ambiguous.
12 Equitable Life, 212 Cal. App. 3d at 840.
GLADSTONEWEISBERG, ALC
13 The Court of Appeal in Equitable Life made it clear that the jury is involved only
14 if the court determines that 1) the wording of the instrument is reasonably susceptible of
15 the interpretation contended for by the proponent of the extrinsic evidence, 2) the
16 extrinsic evidence is relevant to prove the proposed meaning, and 3) the credibility of the
17 proponent's parol evidence is disputed. Id.
18 Accordingly, CCIC respectfully requests that the Court enter an Order that the
19 Court will decide the contract interpretation issues involved in the complaint first, as
20 California law requires. The decision in Equitable Life establishes that the Court is
21 required to make certain legal determinations before Plaintiff is entitled to introduce the
22 extrinsic evidence that it clearly stated it intends to submit to the jury. Plaintiff is not
23 allowed to do so until the Court addresses the alleged ambiguities in the contract, outside
24 the presence of the jury.
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DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION
FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE
DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY
1 3. CONCLUSION
2 Based on the foregoing, California Capital respectfully requests that the Court
3 grant this motion and enter an Order bifurcating the trial as set forth in the moving
4 papers.
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6 DATED: March 24, 2022 GLADSTONEWEISBERG, ALC
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By:
9 GENE A. WEISBERG
10 ANTHONY DIPIETRA
Attorneys for Defendant California Capital
11 Insurance Company
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GLADSTONEWEISBERG, ALC
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DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION
FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE
DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY
1
AFFIDAVIT AND DECLARATION OF PROOF OF SERVICE
2 I am over the age of eighteen years and not a party to the within action. I am
employed by GladstoneWeisberg, ALC, whose business address is: 300 Corporate
3 Pointe, Suite 400, Culver City, CA 90230.
4
On March 24, 2022, I filed electronically the following document:
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DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN
6 SUPPORT OF MOTION FOR ORDER SEVERING AND/OR BIFURCATING THE
7 TRIAL ON PLAINTIFFS’ PUNITIVE DAMAGES CLAIM AND THE LEGAL
INTERPRETATION OF THE INSURANCE POLICY
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9 A copy of this filing will be sent to the following parties by operation of the
Court’s electronic filing system:
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Russell F. Rowen, Esq. Attorneys for Plaintiff
12 Eric D. McFarland, Esq.
GLADSTONEWEISBERG, ALC
Alexandra Peery, Esq.
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THOMPSON, WELCH, SOROKO &
14 GILBERT, LLP
3950 Civic Center Drive, Suite 300
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San Rafael, CA 94903
16 Tel: 415/448-5000
Fax: 415/448-5010
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russ@twsglaw.com
18 eric@twsglaw.com
alex@twsglaw.com
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20 For EService Use:
service@twsglaw.com
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(State) I declare under penalty of perjury under the laws of the State of California
23 that the foregoing is true and correct.
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Executed on March 24, 2022, at Los Angeles, California.
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27 STEPHANIE ROSSI
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DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION
FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE
DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY
Preview
1 GLADSTONEWEISBERG, ALC 2 Gene A. Weisberg, SBN 91544 gweisberg@gladstoneweisberg.com 3 Anthony DiPietra, SBN 235994 adipietra@gladstoneweisberg.com 4 300 Corporate Pointe, Suite 400 5 Culver City, CA 90230 Tel: (310) 821-9000 • Fax: (310) 943-2764 6 Attorneys for Defendant 7 California Capital Insurance Company 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SONOMA 12 GLADSTONEWEISBERG, ALC 13 14 RMB REAL ESTATE ) CASE NO. SCV-267840 15 INVESTMENTS 2, LLC, A ) (Hon. Gary Nadler) California limited liability company, ) 16 ) 17 Plaintiff, ) DEFENDANT CALIFORNIA CAPITAL ) INSURANCE COMPANY’S REPLY IN 18 vs. ) SUPPORT OF MOTION FOR ORDER 19 ) SEVERING AND/OR BIFURCATING CALIFORNIA CAPITAL ) THE TRIAL ON PLAINTIFFS’ 20 INSURANCE COMPANY and ) PUNITIVE DAMAGES CLAIM AND 21 DOES 1-7, ) THE LEGAL INTERPRETATION OF ) THE INSURANCE POLICY 22 Defendants. ) ) DATE: April 1, 2022 23 TIME: 8:30 A.M. 24 DEPT: 19 DATE 25 Date Action Filed: February 22, 2021 26 Trial Date: Not Yet Set 27 28 1 DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY 1 1. INTRODUCTION 2 Defendant California Capital Insurance Company’s (“CCIC”) moving papers 3 explained that: (1) Plaintiff RMB Real Investments 2, LLC’s (“Plaintiff”) punitive 4 damages claim must be tried separately, after the trier of fact determines liability, as 5 required by Civil Code § 3295; and (2) that the parties’ dispute over the interpretation of 6 the insurance policy’s provisions concerning the Increased Period of Restoration is a 7 legal issue for the Court, which must be tried before the jury is empaneled. Plaintiff 8 conceded in its opposition that the punitive damages claim must be tried separately. Thus, 9 there is no dispute as to that portion of CCIC’s request. 10 Plaintiff’s limited opposition to CCIC’s motion merely argues that it is entitled to 11 a jury trial on the interpretation of the policy provisions at issue in this case as a matter of 12 right. That is not legally accurate. GLADSTONEWEISBERG, ALC 13 The moving papers explained that, under Code of Civil Procedure § 592, the Court 14 must determine the fundamental legal issues involved in this case, which involve the 15 interpretation of the insurance policy that CCIC issued to Plaintiff, before submitting the 16 factual issues to a jury. The opposition entirely ignores Code of Civil Procedure § 592, as 17 well as the case law cited in the moving papers. Rather, Plaintiff argues the interpretation 18 of a contract can be resolved by the trier of fact when there is extrinsic evidence of 19 ambiguity and the intent of the parties at the time of the contract’s formation. 20 For the purposes of this motion, California Capital does not dispute these general 21 principles. However, Plaintiff’s arguments that the trier of fact may, under certain 22 circumstances, interpret an agreement based on extrinsic evidence misses the entire point. 23 CCIC seeks an Order that ensures that the mode of trial is properly set. Code of 24 Civil Procedure § 592 is unequivocally clear, and states: “Where in these cases there are 25 issues both of law and fact, the issue of law must be first disposed of.” The extrinsic 26 evidence that Plaintiff argues is relevant to the interpretation of the insurance policy only 27 becomes relevant if the Court finds that the contract is ambiguous. That initial 28 2 DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY 1 determination of ambiguity is one for the Court – not the jury – and must be decided 2 before Plaintiff is allowed to present evidence to the jury on the policy’s meaning. 3 Accordingly, CCIC respectfully requests that the Court grant this motion and issue 4 an Order bifurcating the trial as CCIC requested. The issue of punitive damages must be 5 decided after the jury finds in favor of the Plaintiff. The issue of whether the insurance 6 policy is ambiguous and reasonably susceptible to the meaning that Plaintiff ascribes 7 must be determined by the Court first, before the jury is empaneled. 8 2. THE COURT MUST BIFURCATE THE TRIAL SO THAT IT 9 DETERMINES THE KEY LEGAL ISSUES SURROUNDING THE 10 POLICY’S INCREASED PERIOD OF RESTORATION BEFORE THE 11 JURY IS EMPANELED 12 GLADSTONEWEISBERG, ALC The moving papers explained that Code of Civil Procedure § 592 provides for the 13 proper order of trial whenever a case involves both issues of law and fact. Code of Civil 14 Procedure states that all legal issues must be resolved first – before the jury is empaneled. 15 Code Civ. Proc. § 592; Equitable Life Assurance Soc'y v. Berry, 212 Cal. App. 3d 832 16 (1989). Plaintiff did not dispute these principles. In fact, the opposition did not address 17 either Code of Civil Procedure § 592, or the decision in Equitable Life in making its 18 arguments. 19 To be clear, CCIC’s motion to bifurcate did not argue that Plaintiff could never 20 submit a question of contract interpretation to the jury based on extrinsic evidence. 21 CCIC’s motion explained that the Court must first make certain legal determinations 22 before the jury is entitled to hear any of the evidence that Plaintiff apparently intends to 23 submit. The issue involves the proper order of a trial on these issues, not whether Plaintiff 24 may ultimately have a right to submit extrinsic evidence to a jury. 25 The opposition does not dispute that insurance policies are contracts, and the 26 ordinary rules of contract interpretation apply. Maryland Cas. Co. v. Nationwide Ins. Co., 27 28 3 DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY 1 65 Cal. App. 4th 21, 28 (1998); see also McMillin Homes Constr., Inc. v. Nat'l Fire & 2 Marine Ins. Co., 35 Cal. App. 5th 1042, 1050 (2019). 3 The opposition only establishes that Plaintiff intends to argue that the insurance 4 policy is ambiguous and, therefore, Plaintiff wishes to submit evidence to the jury on the 5 intent of the parties and how the insurance policy should be interpreted. However, 6 whether an ambiguity exists in a contract is purely an issue of law. Equitable Life, 212 7 Cal. App. 3d at 840; Delgado v. Heritage Life Ins. Co., 157 Cal. App. 3d 262, 270 8 (1989); Blumenfeld v. R.H. Macy & Co., 92 Cal. App. 3d 38, 44 (1979). 9 An issue of law must be tried by the court. Code Civ. Proc. § 591; Equitable Life, 10 212 Cal. App. 3d at 840. Thus, before the trier of fact is entitled to adjudge the credibility 11 of extrinsic evidence, the Court must first determine whether the contract is ambiguous. 12 Equitable Life, 212 Cal. App. 3d at 840. GLADSTONEWEISBERG, ALC 13 The Court of Appeal in Equitable Life made it clear that the jury is involved only 14 if the court determines that 1) the wording of the instrument is reasonably susceptible of 15 the interpretation contended for by the proponent of the extrinsic evidence, 2) the 16 extrinsic evidence is relevant to prove the proposed meaning, and 3) the credibility of the 17 proponent's parol evidence is disputed. Id. 18 Accordingly, CCIC respectfully requests that the Court enter an Order that the 19 Court will decide the contract interpretation issues involved in the complaint first, as 20 California law requires. The decision in Equitable Life establishes that the Court is 21 required to make certain legal determinations before Plaintiff is entitled to introduce the 22 extrinsic evidence that it clearly stated it intends to submit to the jury. Plaintiff is not 23 allowed to do so until the Court addresses the alleged ambiguities in the contract, outside 24 the presence of the jury. 25 26 27 28 4 DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY 1 3. CONCLUSION 2 Based on the foregoing, California Capital respectfully requests that the Court 3 grant this motion and enter an Order bifurcating the trial as set forth in the moving 4 papers. 5 6 DATED: March 24, 2022 GLADSTONEWEISBERG, ALC 7 8 By: 9 GENE A. WEISBERG 10 ANTHONY DIPIETRA Attorneys for Defendant California Capital 11 Insurance Company 12 GLADSTONEWEISBERG, ALC 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY 1 AFFIDAVIT AND DECLARATION OF PROOF OF SERVICE 2 I am over the age of eighteen years and not a party to the within action. I am employed by GladstoneWeisberg, ALC, whose business address is: 300 Corporate 3 Pointe, Suite 400, Culver City, CA 90230. 4 On March 24, 2022, I filed electronically the following document: 5 DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN 6 SUPPORT OF MOTION FOR ORDER SEVERING AND/OR BIFURCATING THE 7 TRIAL ON PLAINTIFFS’ PUNITIVE DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY 8 9 A copy of this filing will be sent to the following parties by operation of the Court’s electronic filing system: 10 11 Russell F. Rowen, Esq. Attorneys for Plaintiff 12 Eric D. McFarland, Esq. GLADSTONEWEISBERG, ALC Alexandra Peery, Esq. 13 THOMPSON, WELCH, SOROKO & 14 GILBERT, LLP 3950 Civic Center Drive, Suite 300 15 San Rafael, CA 94903 16 Tel: 415/448-5000 Fax: 415/448-5010 17 russ@twsglaw.com 18 eric@twsglaw.com alex@twsglaw.com 19 20 For EService Use: service@twsglaw.com 21 22 (State) I declare under penalty of perjury under the laws of the State of California 23 that the foregoing is true and correct. 24 Executed on March 24, 2022, at Los Angeles, California. 25 26 27 STEPHANIE ROSSI 28 6 DEFENDANT CALIFORNIA CAPITAL INSURANCE COMPANY’S REPLY IN SUPPORT OF MOTION FOR ORDER SEVERING AND/OR BIFURCATING THE TRIAL ON PLAINTIFFS’ PUNITIVE DAMAGES CLAIM AND THE LEGAL INTERPRETATION OF THE INSURANCE POLICY