Marriage of Bradley and Lind CA4/1 ( 2013 )

Filed 5/23/13 Marriage of Bradley and Lind CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of WILLIAM ROBERT
BRADLEY and BEATRIZ LAURENTINA
LIND.
D059945
WILLIAM ROBERT BRADLEY,
Respondent, (Super. Ct. No. DN131119)
v.
BEATRIZ LAURENTINA LIND,
Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard G.
Cline, Judge. Affirmed.
Kehr, Schiff & Crane and Joe Schiff for Appellant.
Trope & DeCarolis and Patrick DeCarolis, Jr., for Respondent.
This action involves the interpretation of language in paragraph 7.4.1 of a
premarital agreement between appellant Beatriz Laurentine Lind (Laura) and respondent
William Robert Bradley (Robert)1 that detailed the parties' rights regarding certain real
property owned by Robert.
The premarital agreement also provided that Laura would receive $3 million from
Robert shortly after the marriage. Approximately six months after the parties married it
was decided that a house would not be built on the property described in paragraph 7.4.1.
Robert filed an action for martial dissolution in December 2003.
Thereafter, Robert brought a motion for summary adjudication seeking to have the
property located on Camino Sierra del Sur in Rancho Santa Fe (the Rancho Santa Fe
property) declared to not be the joint residence and for a finding that Laura was not
entitled to any money or damages from the sale of property located on Tierra Del Sur in
San Diego (the Tierra Del Sur property). The motion for summary adjudication was
denied and the case was thereafter set for trial.
Prior to the commencement of trial, both parties filed motions in limine regarding
the admissibility of parol evidence to interpret paragraph 7.4.1. Robert sought to prohibit
the use of parol evidence in construing that paragraph. Laura's motion in limine argued
that (1) the disputed provision of the premarital agreement was unclear and ambiguous,
and (2) therefore parol evidence should be admitted.
1 We refer to the parties by their middle names as they do themselves. We intend
no disrespect.
2
The trial court granted Robert's motion in limine, finding that "[t]he agreement is
clear and unambiguous. Extrinsic evidence is barred with regard to the intentions of the
parties expressed in [paragraph] 7.4.1 of the prenuptial agreement."
Once the court ruled on these motions in limine, Laura sought to have the judge
who heard Robert's motion for summary adjudication rule on the motions in limine (the
case had been reassigned for trial). The court denied this request.
On appeal, Laura asserts that (1) parol evidence should have been admitted
consistent with the court's order denying Robert's summary judgment motion; and (2) the
court did not comply with the procedural mandates applicable to reexamination of
Robert's motion for summary judgment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Laura and Robert married on July 30, 1999. Robert filed for dissolution of the
marriage on December 31, 2003.
A. Facts Occurring Prior to Marriage
In May 1998 Robert purchased the Tierra Del Sur property, with title taken in the
name of "Via Del Mar, LLC," a limited liability company formed by Robert for the
purchase.
On July 28, 1999, the parties entered into the premarital agreement. Laura had at
least two different attorneys representing her in connection with drafting of the premarital
agreement and there were "many" drafts of the premarital agreement before it was signed
by the parties.
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The premarital agreement provided that all property acquired prior to or during the
parties' marriage would remain the separate property of the person acquiring it except as
expressly provided otherwise in the premarital agreement. The only exception was
paragraph 7.4.1 which describes the "Joint Residence" as the Tierra Del Sur property and
provides as follows: "Upon the marriage of the Parties, Robert shall transfer into the
joint names of the Parties the real property described in Exhibit D (hereinafter the
'Residence' or 'Joint Residence'). [Laura] shall designate how she will hold title to her
interest in the Residence (however, she may not hold title as a joint tenancy). It is
Robert's and [Laura's] intention that a home will be built on this property in which they
both shall live - although the Parties have looked at and are considering other places to
purchase a home. The Parties will each have input with regard to the operations of the
Residence, and the Parties will consult with one another on all major issues regarding the
residence, but Robert will make the ultimate decisions. [¶] Presently, Robert has invested
$1,035,647.63 in purchasing the real property for the Residence. In the event Robert (or
his estate) exercises any right to acquire [Laura's] interest in the Residence, or upon sale
or other disposition of the Residence, Robert shall either receive a credit against any
payment due to [Laura] or her estate (e.g., in connection with any payments due under
Sections 6.3 of 7.4.3), or shall be reimbursed the amount he has invested [in] said
Property, from any sale proceeds. [Laura] has the right at any time to acquire one-half of
Robert's equity in the land by paying Robert one-half of his investment in the Residence
(e.g., per Exhibit A, $517,824). Except for this limited right of contribution or credit, the
equity in the real property and the residence constructed thereon shall constitute the Joint
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Residence, and shall be community property. To the extend [sic] that Robert uses
separate property funds to pay construction costs he shall not be reimbursed for such
expenditures." (Italics added.)
The premarital agreement also states in paragraph 2 that: "It is the Parties' desire
that the properties owned by each Party prior to marriage shall remain separate property
and that the other shall acquire no interest in these properties by virtue of their marital
relationship, except as expressly provided for in this Agreement. Thus, each Party
preserves certain assets as his or her separate property to the exclusion of the other and
waives certain property rights that he or she would or might acquire in the property of the
other, and these benefits and waivers, along with the consideration in Sections 7 and 8 for
the consideration for this Agreement."
The only exception regarding what property would be community property is set
forth in paragraph 7.4.1, set forth ante, as "the real property described in Exhibit D
(hereinafter the 'Residence' or 'Joint Residence')."
Paragraph 5.1.8 of the premarital agreement also states, in all capital letters: "IT
IS THE INTENT OF THE PARTIES THAT ABSENT A SPECIFIC WRITTEN
AGREEMENT NO COMMUNITY PROPERTY SHALL RESULT FROM THE
MARRIAGE OF THE PARTIES. TO EMPHASIZE THE IMPORTANCE OF THIS
ENTIRE SECTION 5.1 AND SUBPARTS THEREOF AND THIS SECTION 5.1.8,
THE PARTIES SHALL INITIAL BELOW. FURTHER, BY INITIALLING, THE
PARTIES ACKNOWLEDGE THAT THEY HAVE BEEN ADVISED OF THEIR
RIGHTS RELATING TO COMMUNITY PROPERTY, AND FULLY UNDERSTAND
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THEIR RIGHTS, AND AGREE TO WAIVE THEIR COMMUNITY PROPERTY
RIGHTS."
Paragraph 14.4 states: "The Parties recognize the possibility that they may discuss
from time to time the possibility of altering or amending the terms of this Agreement
(e.g., by acquiring jointly-owned property, or entering into a partnership or joint venture,
etc.). It is specifically agreed that any statements made during those discussions, whether
or not phrased in terms of promises, agreements, representations, or otherwise, shall not
be binding, and shall be null and void, and of no force and effect, and shall be considered
as discussions only, unless and until they are reduced to a written agreement signed by
both Parties. [¶] The Parties recognize the possibility that each Party may, from time to
time, act in such a way and engage in such conduct as to lead the other to believe that he
or she intends to alter or amend the terms of this Agreement. It is specifically agreed that
any such act or conduct by either Party shall not be binding, and shall be null and void,
and of no force and effect, regardless of the inference drawn therefrom by the other Party,
in the absence of a written agreement signed by both Parties setting forth the Parties'
understanding."
Paragraph 14.3 states : "This Agreement may not be amended or terminated
except by an in instrument in writing, signed by each of the Parties. No failure to
exercise and no delay in exercising any right, remedy, or power under this Agreement
shall operate as a waiver thereof. No modification, alteration, or waiver of any term,
covenant, or condition of this Agreement shall be valid unless it is in writing and signed
by each Party. The Parties understand that oral promises or promises inferred from
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conduct, which would modify the terms of this Agreement, will not be binding on either
Party. The Parties have been advised that they should obtain the advice of independent
counsel prior to entering into any future agreement between them."
At the time the parties signed the premarital agreement, Robert had already
entered into escrow to purchase the Rancho Santa Fe property through Anasazi Retreat,
LLC, an entity formed by Robert for the purchase of that property.
B. Events Occurring After Marriage and Prior to Separation
As stated, ante, the parties married on July 30, 1999. The following month, on
August 17, 1999, escrow closed on the Rancho Santa Fe property and the parties moved
in and resided there during their marriage.
In 1999, Robert decided not to pursue developing the Tierra Del Sur property.
Robert testified that he lost faith in his ability to develop the property, there were
problems that came to his attention regarding a road that needed to be improved, the City
of San Diego gave him a two-page document of requirements, and there was a wind
problem. In March 2000, while married and living with Robert, Laura filed a lawsuit
against him regarding the Tierra Del Sur property and recorded a lis pendens on the
property. The lawsuit was ultimately dismissed by Laura on February 20, 2001, and the
lis pendens was expunged.
On December 4, 2001, the Tierra Del Sur property was sold to the person from
whom Robert had purchased the property for the same price he had paid for it. Prior to
the property being sold, Laura was presented with an opportunity to purchase the
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property on the terms detailed in the premarital agreement, but she chose not to exercise
that option.
C. Events Occurring After Separation
On December 31, 2003, Robert filed for dissolution of marriage. Laura and
Robert continued to reside at the Rancho Santa Fe property during the separation with
Robert paying all of the expenses.
On December 1, 2006, the Rancho Santa Fe property was sold for $7.9 million.
Laura subsequently claimed that that the Rancho Santa Fe property should be
"substituted" for the Tierra Del Sur property.
D. Motion for Summary Adjudication
On September 28, 2009, Robert filed a motion for summary adjudication
requesting "[t]hat the Court summarily adjudicate and find as follows: [¶] (1) That the
residence [on] Camino Sierra del Sur in Rancho Santa Fe, California, also known as
'Rancho Santa Fe,' is not the joint residence of the parties, as described in paragraph 7.4.1
of the Parties' Premarital Agreement; and (2) That Respondent is entitled to no money or
damages from the sale of the property located [on] Tierra Del Sur in San Diego,
California, also known as 'Via Del Mar.'"
On December 4, 2009, the court (the Honorable Sim Von Kalinowski) denied
Robert's motion, finding that "there are triable issues in this case, including, but not
limited to, the issues of whether or not the Rancho Santa Fe home was a substitute
property and whether or not there were damages for not developing the property at Tiare
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[sic] Del Sur. The Court further finds that parol evidence will need to be presented at the
time of trial." (Italics added.)
E. Motions In Limine
On September 20, 2010, Laura served Robert with a list of exhibits she intended to
introduce at trial, along with copies of the exhibits. Laura sought to introduce various
correspondence relating to the negotiations and execution of the premarital agreement, as
well as various drafts of the premarital agreement.
Thereafter, Robert filed a motion in limine which requested that the court (the
Honorable Richard G. Cline, the matter having been reassigned for trial): (1) order Laura
not to introduce into evidence any documents interpreting the parties' premarital
agreement or concerning the parties' negotiation of it, including drafts of the agreement
and letters relating to its negotiation and preparation; (2) order Laura, her counsel, and all
witnesses to refrain from referring to those documents; (3) order Laura not to introduce
into evidence any documents concerning a hypothetical residence; and (4) order Laura,
her counsel, and all witnesses to refrain from referring to a hypothetical residence.
Laura opposed that motion and also filed a motion in limine, requesting: (1) an
order declaring the language of paragraph 7.4.1 of the premarital agreement was
uncertain, ambiguous and/or unclear as to the meaning and interpretation of its terms
requiring the use of parol evidence (extrinsic evidence) to determine the meaning and
interpretation of paragraph 7.4.1; (2) an order allowing Laura and Robert to introduce
parol evidence, consisting of written documentation and/or witness testimony, to
determine the meaning and interpretation of the terms of paragraph 7.4.1 of the
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premarital agreement to conform to the intent and understanding of the parties; and (3) an
order overruling or denying any objection to or motion in limine by Robert to preclude
the use of parol evidence to determine the meaning and interpretation of paragraph 7.4.1
of the premarital agreement.
Specifically, Laura argued that paragraph 7.4.1 of the premarital agreement (1)
should be interpreted to show that Robert was obligated to build a joint residence on the
Via Del Mar property or, (2) alternatively, that paragraph 7.4.1 should be interpreted to
mean that Robert was obligated to provide a substitute residence and that the substituted
residence was the Rancho Santa Fe residence.
F. Court's Ruling
On January 10, 2011, the court granted Robert's motion in limine and denied
Laura's. In doing so, the court found that the premarital agreement was fully integrated,
not susceptible to the interpretation proposed by Laura, and was clear and unambiguous.
The court found "[e]xtrinsic evidence is barred with regard to the intentions of the parties
expressed in [paragraph] 7.4.1 of the prenuptial agreement. Further, [Robert's] Motion in
Limine to exclude evidence of the 'Hypothetical Residence' is granted."
Trial was held in January 2011.
On January 25, 2011, the court granted Robert's motion for judgment pursuant to
Code of Civil Procedure section 631.8 and found in favor of Robert and against Laura.
On March 1, 2011, the court issued a statement of decision making the following
findings: "1. At relevant times, [Robert] never had a legal obligation to build a residence
on the property located [on] Tierra Del Sur San Diego California. [¶] 2. At the relevant
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times, [Robert] had no obligation to provide a substitute residence in lieu of the Tierra
Del Sur residence. [¶] 3. [Laura] is not entitled to any funds from the sale of the Tierra
Del Sur residence in light of her failure to exercise her right-of-first refusal. Further,
[Robert] engaged in an arm's length transaction with the former owner of the property in
connection with the sale by him of the Via Del Mar property. [¶] 4. The Rancho Santa
Fe property is not a substitute residence for the joint residence set forth in paragraph 7.4.1
of the premarital agreement. [Laura] is not entitled to any share of the proceeds of that
residence or any other alleged substitute residence. [¶] 5. All monies held in a trust in an
account that [Robert] established per court order in this action are the property of and
shall be released to [Robert]. [¶] 6. [Laura] has failed to establish her defenses to the
petition. [¶] 7. [Robert] is entitled to judgment and to his costs as set forth."
On March 23, 2011, judgment was entered in Robert's favor consistent with the
court's decision.
This timely appeal follows.
DISCUSSION
I. STANDARD OF REVIEW
The determination of whether the parol evidence rule applies so as to preclude
extrinsic evidence concerning the mutual intention of the parties is a question of law
subject to de novo review. (Parsons v. Bristol Development Co. (1965) 62 Cal. 2d 861,
865; Fischer v. First Internat. Bank (2003) 109 Cal. App. 4th 1433, 1443.)
11
I. ANALYSIS
A. The Parol Evidence Rule
The parol evidence rule is codified in Code of Civil Procedure section 1856 which
provides that the "[t]erms set forth in a writing intended by the parties as a final
expression of their agreement with respect to such terms as are included therein may not
be contradicted by evidence of any prior agreement or of a contemporaneous oral
agreement." Further, Civil Code section 1625 states that "[t]he execution of a contract in
writing, whether the law requires it to be written or not, supersedes all the negotiations or
stipulations concerning its matter which preceded or accompanied the execution of the
instrument."
"Although the parol evidence rule results in the exclusion of evidence, it is not a
rule of evidence but one of substantive law. [Citation.] It is founded on the principle that
when the parties put all the terms of their agreement in writing, the writing itself becomes
the agreement. The written terms supersede statements made during the negotiations.
Extrinsic evidence of the agreement's terms is thus irrelevant, and cannot be relied upon.
[Citation.] '[T]he parol evidence rule, unlike the statute of frauds, does not merely serve
an evidentiary purpose; it determines the enforceable and incontrovertible terms of an
integrated written agreement. [Citations.] The purpose of the rule is to ensure that the
parties' final understanding, deliberately expressed in writing, is not subject to change."
(Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55
Cal. 4th 1169, 1174 (Riverisland).)
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Application of the parol evidence rule involves a two-step analysis: (1) "[W]as the
writing intended to be an integration, i.e., a complete and final expression of the parties'
agreement, precluding any evidence of collateral agreements?" (2) "[I]s the agreement
susceptible of the meaning contended for by the party offering the evidence?" (Gerdlund
v. Electronic Dispensers International (1987) 190 Cal. App. 3d 263, 270.)
B. Integration
Laura does not dispute that the marital settlement agreement is a fully integrated
agreement. Therefore, we need only address the second step of the parol evidence
analysis.
C. The Court's Exclusion of Extrinsic Evidence
Under the second step of our analysis we determine whether the extrinsic evidence
offered by Laura serves to prove a meaning to which the language of the instrument is
reasonably susceptible. However, in this case, Laura sought to introduce evidence that
would alter the terms of paragraph 7.4.1 of the premarital agreement. Laura sought to
change the word "intention" to "obligation." Laura also sought to insert a new clause in
the agreement requiring Robert to provide a substitute residence. Therefore, the court
properly excluded Laura's proffered extrinsic evidence.
"Under the parol evidence rule, extrinsic evidence is not admissible to contradict
express terms in a written contract or to explain what the agreement was." (Sunniland
Fruit, Inc. v. Verni (1991) 233 Cal. App. 3d 892, 898.) "The agreement is the writing
itself." (Ibid.) "Parol evidence cannot . . . be admitted to show intention independent of
an unambiguous written instrument." (Ibid.)
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Laura contends that the court should have admitted her parol evidence for the
limited purpose of determining whether an ambiguity existed in the premarital agreement.
However, the court found that the premarital agreement was completely integrated,
unambiguous, and not reasonably susceptible to the interpretation proffered by Laura.
Thus, the court was not required to admit Laura's parol evidence.
By way of example, in Malstrom v. Kaiser Aluminum & Chemical Corp. (1986)
187 Cal. App. 3d 299, the Court of Appeal held that when a contract was integrated and
provided that it superseded all prior agreements, evidence of an implied agreement which
contradicted the terms of the written agreement was not admissible, stating: "'[I]f the
court decides in light of this extrinsic evidence that the contract is not reasonably
susceptible to the offered interpretation, then the evidence is irrelevant and inadmissible
to interpret the contract.'" (Id. at p. 316.)
Laura also asserts that the court erred in giving a "precatory" meaning to the word
"intention," in paragraph 7.4.1 and should have looked at the entire clause of paragraph
7.4.1. However, the court did not just focus on the word "intention." Rather, in its
statement of decision the court stated: "Following are some, but not all of the factors
supporting the court's decision regarding interpretation of paragraph 7.4.1 of the
premarital agreement. The separate property of each of the parties is clearly described in
the agreement. This includes the Rancho Santa Fe property. Any claim of [Laura] to this
property necessarily involves a transmutation. The contract includes a complete
integration clause. The various obligations of the parties are clearly set forth in
mandatory language. The disputed language in paragraph 7.4.1 clearly is not mandatory
14
in nature. The word 'intention' by definition does not connote an 'obligation.' The
limitations on [Laura's] right to community property are clearly set out. Her right to a
community property interest in Via Del Mar, on the other hand, is clearly spelled out and
is limited. In several places the premarital agreement clearly specifies the limits upon
transmutation of separate property into community property; transmutation cannot occur
by acts [or] words alone; transmutation will occur only by a writing and only by the
construction of a residence on the Via Del Mar property. Use of the word 'intention' is
consistent with [the] remainder of the sentence and the paragraph: there is no obligation
to build on Via Del Mar and other property is being considered for a residence. The
paragraph contains an expression of current intention, not a future obligation." (Italics
added.)
Laura's reliance on Holmes v. Lerner (1999) 74 Cal. App. 4th 442 is also
unavailing. Holmes dealt with the enforceability of an oral agreement, specifically an
oral partnership agreement, not a fully integrated written agreement as we have in this
case. Further, Holmes did not address intent, but an actual verbal agreement. As the
Court of Appeal in Holmes stated: "Holmes was not seeking specific enforcement of a
single vague term of the agreement. She was frozen out of the business altogether, and
her agreement with Lerner was completely renounced. The agreement that was made and
the subsequent acts of the parties supply sufficient certainty to determine the existence of
a breach and a remedy." (Id. at p. 459, fn. omitted.)
Laura's reliance on Weddington Productions, Inc. v. Flick (1998) 60 Cal. App. 4th
793 also does not support her position. As Laura states in her opening brief, Weddington
15
merely stands for the proposition that an agreement is formed if the parties agreed on the
"same thing in the same sense." (Id. at p. 811.) In this case the premarital agreement
clearly states the parties' mutual intent.
The two other cases cited by Laura also do not support her position. Laura cites
Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal. App. 4th 547 and Magpali v.
Farmers Group Inc. (1996) 48 Cal. App. 4th 471 for the proposition that "statements of
intention to act . . . are in the nature of promises." However, in Yield, supra, 154
Cal.App.4th at page 575, the Court of Appeal stated that in order to prevail on a claim of
fraud, a party has to "introduce evidence sufficient to persuade the trial court that at the
time defendants entered into the asset transfer agreement, they lacked the intention to
perform their undertakings." (See 5 Witkin, Summary of Cal. Law 10th ed. 2005) Torts,
§ 781, p. 1132 ["A declaration of intent, although in the nature of a promise, made in
good faith, without intention to deceive, and in the honest expectation that it will be
fulfilled, does not constitute fraud, even though it is not carried out.".) Magpali, supra,
48 Cal.App.4th at page 481 stands for the same proposition. However, in this case, the
court found that Laura failed to establish her claim of fraudulent misrepresentation.
Laura next asserts that paragraph 7.4.1 is reasonably susceptible to the meaning
she seeks to ascribe to it. In her opening brief, Laura recites all of the parol evidence she
sought to admit in support of her position. However, this evidence is not admissible if
the court has determined that the document at issue is fully integrated and not reasonably
susceptible to the meaning offered by Laura, which is what the court found in this case.
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Laura contends that the court did not comply with applicable "procedural
mandates" in ruling on the motions in limine, which amounted to a "reconsideration" of
Robert's motion for summary adjudication. However, Robert and Laura both filed
motions in limine, placing the issue of admissibility of parol evidence before the court.
Moreover, as the California Supreme Court stated in Le Francois v. Goel (2005)
35 Cal. 4th 1094, 1104-1105 (Goel), a restriction on a court's ability to sua sponte
reconsider its own rulings "would directly and materially impair and defeat the court's
most basic functions, exercising its discretion to rule upon controversies between the
parties and ensuring the orderly administration of justice. Courts are empowered to
decide controversies, a power derived from the state constitution. We are hard pressed to
conceive of a restriction that goes more directly to the heart of a court's constitutionally
mandated functions." Although the high court agreed there could be limits on a party's
ability to file repetitive motions, it did not limit a court's ability to reconsider a prior
ruling. (Id. at p. 1107.)
In Goel, the defendants moved for summary judgment. The court denied the
motion, finding that the plaintiffs had raised a triable issue of fact. Thereafter, the
defendants again moved for summary judgment on the same grounds. The motion was
originally scheduled to be heard by the judge who had heard the first motion, but
thereafter, was transferred to a second judge, who granted the motion. (Goel, supra, 35
Cal.4th at p. 1097.)
The plaintiffs appealed, asserting that the court's reconsideration of the motion for
summary judgment was improper. The Court of Appeal affirmed, holding that the trial
17
court "had inherent power derived from the California Constitution to consider the
second motion." (Goel, supra, 35 Cal.4th at p. 1096.) The California Supreme Court
affirmed the Court of Appeal's decision, holding that while a party may not make
renewed motions not based upon new facts or law, nothing "limit[s] a court's ability to
reconsider its previous interim orders on it own motion, as long as it gives the parties
notice that it may do so and a reasonable opportunity to litigate the question." (Id. at pp.
1096-1097.)
Laura's assertion that the trial court did not provide her with adequate notice and
an opportunity to be heard is also misplaced. Laura herself filed a motion in limine
putting the issue squarely before the court. In her motion in limine, Laura also asked that
the trial court "consider all opposition pleadings, declarations and exhibits and legal
authority filed by [Laura] in connection with the Motion for Summary Judgment as
further support of [the] Motion in Limine." In addition, Laura filed a response to Robert's
motion in limine on the same issue and addressed it in her reply memorandum of points
and authorities.
Laura's argument that the motions in limine should have been heard by the judge
who heard the motion for summary adjudication is also unavailing. The case was
assigned to Judge Cline for trial. However, Laura did not request that the case be
transferred back to the judge who denied the motion for summary in her motion in limine,
or opposition to Robert's motion in limine. Rather, Laura did not make this request until
after the trial court had ruled against her motion in limine. The fact that Laura did not
object to Judge Cline hearing her motion until after Judge Cline ruled on her motion
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prevents her from now arguing that the motion should have transferred back to the judge
who had previously heard the motion for summary adjudication.
Laura also argues that Judge Cline was not allowed to "overrule" the decision of a
different judge in the same case. However, Judge Cline was not ruling on another motion
for summary adjudication, but on motions in limine that were presented to him by both
parties. An order denying summary adjudication "simply establishes the existence of a
triable fact when the order was made." (Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2012) ¶ 10:364, p. 10:143.) It "does not
establish the merits or legal sufficiency of either party's case. Thus, the judge at trial may
direct a verdict in favor of the moving party despite the earlier denial of summary
[adjudication]." (Ibid., italics omitted.)
In fact, in her motion in limine, counsel for Laura specifically requested that Judge
Cline consider "all the opposition pleadings, declarations and exhibits and legal authority
filed by [Laura] in connection with the Motion for Summary Judgment as further support
of this Motion in Limine," thereby inviting Judge Cline to review Judge Von
Kalinowski's ruling denying Robert's motion for summary judgment. Also, as noted by
the court, Laura, by presenting Judge Cline with her motion in limine to introduce parol
evidence, was estopped from requesting that the issue be referred back to Judge Von
Kalinowski.2
2 Although the court stated in its ruling that it could and would reconsider the ruling
denying the motion for summary judgment, it only actually was presented with and ruled
on the motions in limine presented by both parties. We express no opinion on when or
19
Laura's reliance on In re Marriage of Herr (2009) 174 Cal. App. 4th 1463 is also
unavailing. In In re Marriage of Herr, an untimely motion for reconsideration was filed
after a two-day trial. The trial court, on its own motion, granted reconsideration and
announced that all of the issues previously addressed during the trial would be revisited.
(Id. at p. 1465.) The Court of Appeal held this amounted to a new trial which the court
did not have authority to grant. (Ibid.)
Kerns v. CSE Ins. Group (2003) 106 Cal. App. 4th 368, 372 also does not assist our
analysis. There, the Court of Appeal held the trial court erred when it granted a motion
for summary judgment when a different judge had previously denied the identical
motion.
Here, the court did not rule on a motion for reconsideration or attempt to retry
issues previously heard. It did not grant a request for summary judgment that had been
previously denied. Rather, it only ruled on motions in limine regarding the issue of parol
evidence that had been properly placed before it by both parties.
D. Supplemental Briefing Re Fraud
On February 22, 2013, we granted [Laura's] request to file a letter brief addressing
the California Supreme Court's recent decision in Riverisland, supra, 55 Cal. 4th 1169.
At issue in Riverisland was the admissibility of parol evidence to prove fraud. (Id. at p.
1177.)
under what circumstances one judge may reconsider a ruling by another judge. (Goel,
supra, 35 Cal.4th at p. 1097, fn. 2.)
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In Riverisland, the plaintiffs alleged they negotiated an agreement to restructure
their debt to a production credit association. They alleged that the representative of the
credit association told them that their loan would be extended for two years in exchange
for additional collateral consisting of two ranches. These assurances were repeated when
they signed the restructuring agreement, which they signed where tabbed for their
signatures without reading it. But the agreement actually provided for only three months
forbearance and identified eight parcels as additional collateral. (Riverisland, supra, 55
Cal.4th at p. 1173.) The plaintiffs sued for fraud, negligent misrepresentation, rescission
and reformation of the restructuring agreement. The trial court granted summary
judgment on the ground that the fraud exception to the parol evidence rule did not allow
admission of promises at odds with the terms of a written agreement. (Ibid.)
The Court of Appeal reversed, and the California Supreme Court affirmed, that
decision. In doing so, the Supreme Court overruled Bank of America etc. Assn. v.
Pendergrass (1935) 4 Cal. 2d 258. Pendergrass had limited the fraud exception to the
parol evidence rule by requiring that evidence offered to prove fraud "must tend to
establish some independent fact or representation, some fraud in the procurement of the
instrument or some breach of confidence concerning its use, and not a promise directly at
variance with the promise of the writing." (Id. at p. 263, italics added.) Characterizing
Pendergrass as "an aberration," the Supreme Court "reaffirm[ed] the venerable maxim
stated in Ferguson v. Koch [(1928)] 204 Cal. [342,] 347: '[I]t was never intended that the
parol evidence rule should be used as a shield to prevent the proof of fraud.'"
(Riverisland, supra, 55 Cal.4th at p. 1182.)
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However, in this case, both below and on appeal, [Laura] is not seeking to set
aside the premarital agreement based upon fraud. Rather, she seeks to introduce parol
evidence to ascribe a meaning to paragraph 7.4.1 that is, as we have discussed,
inconsistent with the plain and unambiguous language of the clause. Thus, the
RiverIsland case has no bearing on our resolution of this appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
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