M&F Fishing v. Sea-Pac Ins. Managers CA4/1 ( 2016 )

Filed 7/7/16 M&F Fishing v. Sea-Pac Ins. Managers CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
M&F FISHING, INC. et al., D067804
Plaintiffs and Appellants,
v. (Super. Ct. No. GIC826796)
SEA-PAC INSURANCE MANAGERS, INC.
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Ronald L.
Styn, Judge. Affirmed.
Webb & Carey and Patrick D. Webb for Plaintiffs and Appellants.
Sheppard, Mullin, Richter & Hampton, Matthew W. Holder, Travis J. Anderson
and Karin Dougan Vogel for Defendants and Respondents.
This case is before this court for a third time. In 2012, we reversed a $3.5 million
restitution judgment in M&F Fishing, Inc. v. Sea-Pac Insurance Managers, Inc. (2012)
202 Cal. App. 4th 1509 (M&F Fishing) and unambiguously limited the right of plaintiffs
M&F Fishing, Inc. (M&F) and C&F Fishing, Inc. (C&F) (together plaintiffs) to obtain
restitution, if any, from defendants Sea-Pac Insurance Managers, Inc. dba Sea-Pac
Insurance Services, Raleigh, Schwartz & Powell, Inc., Brown & Brown of Washington,
Inc. (B&B Washington), a subsidiary wholly owned by Brown & Brown, Inc. (B&B) and
Sharon Edmondson (Edmondson) (together defendants) in connection with the placement
of marine insurance by defendants.
Rather than retry their claim under California's Unfair Competition Law (Bus. &
Prof. Code, § 17299 et seq.), plaintiffs on remand instead unsuccessfully attempted to
avoid the law of the case. For example, plaintiffs took the position that our reversal in
M&F Fishing allegedly was unqualified, giving them the right to start anew. Thus,
plaintiffs twice sought to amend their complaint following remand, including with a
proposed 100-page first amended complaint (FAC) in which they asserted no less than 11
causes of action against defendants. When the court properly denied plaintiffs leave to
amend on both occasions, plaintiffs next voluntarily dismissed their UCL claim without
prejudice and then argued they could retry the case on their "damage" claims, despite the
lack of any such active claims in their complaint. After more than 12 years of litigation,
it is time for this case to end.
As we discuss, we independently conclude plaintiffs' complaint had no remaining
viable causes of action once they voluntarily dismissed their UCL claim. As such, we
affirm the judgment in favor of defendants.
2
FACTUAL AND PROCEDURAL OVERVIEW1
In their complaint, plaintiffs asserted a UCL claim on their own behalf and on
behalf of all others similarly situated based on defendants' alleged violations of various
provisions of the Insurance Code. Plaintiffs also asserted causes of action for negligence
per se2 and declaratory relief.
In particular, plaintiffs alleged that defendants violated various Insurance Code
provisions because they sold plaintiffs commercial marine insurance by a nonadmitted
insurer without the required special lines' surplus lines broker license. As we previously
explained in M&F Fishing, an insurer seeking to transact insurance business in California
generally must be "admitted" for that purpose (Ins. Code, § 24). (M&F Fishing, supra,
202 Cal.App.4th at p. 1514.) To become admitted, an insurer must obtain a "certificate
of authority" from the Insurance Commissioner (Ins. Code, § 700, subd. (a)). (M&F
Fishing, at p. 1514.)
As we noted in M&F Fishing, most marine insurance was placed by
"nonadmitted" insurers. (M&F Fishing, supra, 202 Cal.App.4th at p. 1515.) Because
nonadmitted insurers do not have a license to transact insurance business in California
(Ins. Code, § 1776), placements by nonadmitted carriers are effected by a class of
1 Portions of this factual and procedural summary are derived from our previous
opinion in this case.
2 Defendants contend negligence per se is not a separate cause of action but rather is
an evidentiary doctrine that creates a presumption of negligence based on a statutory
violation. (See, e.g., Evid. Code, § 669, subd. (a).) We agree.
3
specially licensed insurance brokers who are regulated by California's surplus line law
(Ins. Code, § 1761, subd. (a)). (M&F Fishing, at p. 1515.)
Edmondson placed marine insurance for plaintiffs from 1996 to 2003. Because
that insurance included nonadmitted carriers, Edmondson also was required to have a
special lines' surplus lines license (Ins. Code, § 1760.5). However, neither Edmondson
nor the brokerage firms where she worked possessed such a license during most times
relevant in this case.
For years during the relevant time period, Edmondson without incident placed
marine insurance for plaintiffs with both admitted and nonadmitted carriers. However,
when one of the nonadmitted insurers became insolvent and stopped paying claims,
plaintiffs were sued by two seamen who had been injured in separate incidents while
working on plaintiffs' fishing boats. In response, each plaintiff filed a separate but related
lawsuit against defendants seeking damages (as opposed to restitution, which plaintiffs
sought in their UCL claim). (See M&F Fishing, Inc. v. Sea-Pac. Ins. Managers, Inc.
(Super. Ct. San Diego County, No. GIC 826767); see also C&F Fishing Ltd. v. Sea-Pac
Ins. Managers, Inc. (Super. Ct. San Diego County, No. GIC 826768).) Ultimately, both
cases were settled for more than $6 million by the errors and omissions carrier for B&B
Washington, with a carve out in the releases for the "claims, causes of action and
damages alleged [in the instant case]."
4
The record shows plaintiffs in 2007 voluntarily dismissed their second cause of
action for negligence, after defendants moved for summary adjudication based on the
releases in case Nos. GIC 826767 and GIC 826768.
In 2008, plaintiffs moved to amend their complaint to add 84 new plaintiffs and 82
"nominal [d]efendants," and to assert new claims based on defendants' alleged "fraud" in
connection with the settlement of case No. GIC 826767. The court denied plaintiffs'
motion, ruling the trial date was then "rapidly approaching" and it was not procedurally
appropriate for plaintiffs to assert new claims in this case based on fraud in connection
with the settlement of another case.
At about the same time the court denied their motion for leave to amend their
complaint in the instant case, plaintiff M&F filed a motion to set aside the dismissal in
case No. GIC 826767. Plaintiffs argued the dismissal was invalid because defendants
fraudulently induced them to settle. However, M&F withdrew its motion before the
hearing.
A few months later, M&F filed a "new action" against defendants and others that
included a fraud-based claim in connection with their dismissal of case No. GIC 826767.
(M&F Fishing, Inc. v. Sea-Pac Insurance Managers, Inc. (Super. Ct. San Diego County,
case No. 37-2008-00098694).) In October 2010, defendants filed an anti-SLAPP motion
to plaintiff's fifth amended complaint in the "new" action. Defendants alleged Code of
Civil Procedure section 425.16, the anti-SLAPP statute, applied because the wrongful
conduct that gave rise to the operative complaint involved allegedly false verifications
5
submitted in response to a request for documents in a civil action (i.e., petitioning
activity).
Rather than oppose the defendants' anti-SLAPP motion, M&F voluntarily
dismissed its fifth amended complaint. The record shows M&F then subsequently moved
to set aside that dismissal under Code of Civil Procedure section 473 "based upon the
client's mistaken attempt to reinstate the claims of the Second Amended Complaint" in
the "new" action (i.e., case No. 37-2008-00098694). (Italics added.)
In denying plaintiffs' motion to set aside the dismissal in that case, the court found
the " 'misconception' that dismissing the operative amended complaint would
'revive/'reinstate' a superseded, previously-filed amended complaint was not reasonable."
The court therefore entered judgment in favor of defendants and awarded them attorney
fees. Plaintiffs appealed that judgment to this court but subsequently dismissed the
appeal before briefing commenced.
All of which brings us to M&F Fishing. In 2009, plaintiffs tried their UCL claim
in an 11-day bench trial. As noted, the court awarded plaintiffs $3.5 million in
restitution.
On appeal, we held that plaintiffs were not entitled to restitution of premiums or
commissions paid for admitted coverage lawfully placed by defendants; that plaintiffs
also were not entitled to restitution of premiums for nonadmitted coverage; that the court
erred in not granting B&B's motion for nonsuit; and that, in connection with the cross-
appeal, the court properly exercised its discretion when it denied the motion(s) of
6
plaintiffs seeking leave to amend their operative complaint shortly before trial. (M&F
Fishing, supra, 202 Cal.App.4th at pp. 1513-1514.)
Particularly relevant to the issues in the instant appeal, we further held that on
remand, plaintiffs may be entitled to a return of commissions/broker fees defendants
received when placing marine insurance with nonadmitted carriers. We reiterated that
plaintiffs may be entitled to restitution of such commissions/broker fees "because on
remand the trial court must decide the threshold issue of whether [plaintiffs] released
their claim to recover such commission/fees in the instant action in settlement of [their]
related action[s]" in case Nos. GIC 826767 and GIC 826768. (M&F Fishing, supra, 202
Cal.App.4th at p. 1513.)
Depending on the outcome of that issue, we noted plaintiffs' entitlement to
restitution of commissions/brokers fees they paid to defendants for placement of
coverage with a nonadmitted carrier was further limited by the four-year limitations
period set forth in section Business and Professions Code section 17208. As such, we
held that plaintiffs were barred from recovering restitution of any such fees that were paid
before March 10, 2000. (M&F Fishing, supra, 202 Cal.App.4th at p. 1513.)
On remand and in accordance with the specific and unambiguous instructions in
our M&F Fishing opinion, the court in mid-November 2012 entered judgment in favor of
B&B and awarded it costs of about $123,000. Plaintiffs did not appeal the judgment.
Instead, in mid-April 2013, plaintiffs filed yet another motion under Civil Procedure
Code section 473 to "modify" that judgment.
7
In that motion, plaintiffs asked the court to strike a portion of the following
paragraph:
" 'Whereas the Court of Appeal finally dismissed defendant Brown & Brown, Inc.
from this action with prejudice (see 202 Cal.App.4th at pp. 1532-33' ";
and to replace it as follows:
" 'THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that a
separate judgment for appellate costs shall be entered in favor of defendant Brown &
Brown, Inc., in the amount of $122,828.77.' "
In support of this motion, plaintiffs argued that "nowhere in the Court of Appeal's
opinion [in M&F Fishing] did the Court dismiss defendant Brown & Brown Inc. from the
action with prejudice, nor is there any direction by the Court of Appeal to the trial court
to dismiss defendant Brown & Brown Inc. upon remand to the jurisdiction of the Superior
Court." (Italics added.) Plaintiffs instead argued our decision was an "unqualified
reversal and remand, without directions," and that, as such, the effect of our decision in
M&F Fishing was to " 'vacate the judgment, and to leave the case "at large" for further
proceedings as if it had never been tried, and as if no judgment had ever been rendered.' "
In denying plaintiffs' motion to amend the judgment in favor of B&B, the court in
its May 15, 2013 order correctly noted that we explicitly found that B&B's motion for
nonsuit should have been granted. As such, the court properly concluded that B&B
should be dismissed from the lawsuit and judgment entered in its favor, as we
contemplated.
8
Plaintiffs' appealed the order denying their motion to modify the judgment for
B&B. After plaintiffs filed their opening brief, B&B moved to dismiss the appeal on the
basis the order was not appealable. We granted B&B's motion to dismiss on June 12,
2014 -- when this case was before us a second time. In so doing, we specifically noted
that our opinion in M&F Fishing was not an unqualified reversal, and, thus, the
November 2012 judgment in favor of B&B "was not void or in excess of the superior
court's authority on remand."
Despite our clear and unambiguous instructions in M&F Fishing regarding the
issues to be decided on remand, plaintiffs in mid-November 2012 filed a motion seeking
leave to amend. In support of that motion, plaintiffs attached their proposed 100-page
FAC. In the proposed FAC, plaintiffs alleged 11 different causes of action including for
breach of contract, breach of fiduciary duty, fraud and misrepresentation, and negligence.
Plaintiffs also sought to add 38 new plaintiffs. and two new defendants.
In denying their motion, the court noted plaintiffs, "and the proposed new
plaintiffs, have had opportunities to pursue, and have pursued, the claims they now seek
to add in other lawsuits. Plaintiffs (and the proposed new plaintiffs) settled, dismissed or
otherwise did not prevail in the other lawsuits. Accordingly, [p]laintiffs (and the
proposed new plaintiffs) have not been denied their rights to pursue meritorious claims.
Plaintiffs fail to establish any inequitable result from the denial of leave to amend
sufficient to outweigh the extreme prejudice to [d]efendants should leave to amend be
allowed."
9
Undeterred, plaintiffs in early 2013 again moved to amend their complaint. This
time, plaintiffs sought to "re-plead their original alternative claim[] for legal damages
arising from the [d]efendants' per se negligence, which [was] never dismissed with
prejudice, and which [was] explicitly excluded from the prior partial settlements in GIC
826767 and GIC 826768." Plaintiffs also confusingly sought leave to "amend to conform
to the proof of the supplemental claims for fraud and/or negligent misrepresentation
arising from the [d]efendants' subsequent fraudulent conduct in this action and continuing
conspiracy to hide the breaches of their contractual, fiduciary and statutory duties to
[p]laintiffs after the original complaint was filed."
In moving to amend, plaintiffs noted the "only thing" defendants "achieved on
appeal [in M&F Fishing] was a retrial. They remain subject to the Plaintiffs' claims for
legal damages and equitable restitution arising from illegally, unfairly, fraudulently and
per se negligently placing [p]laintiffs' coverage in violation" of 25 specifically
enumerated provisions of the Insurance Code and the UCL.
The court in its May 10, 2013 order again denied plaintiffs' leave to amend. In so
ruling, the court noted plaintiffs had dismissed their negligence cause of action in 2007,
or six years earlier, and did so for strategic reasons after defendants moved for summary
adjudication on that cause of action. The court also noted that plaintiffs "originally
sought leave to amend to include these causes of action in July 2008. The court denied
leave to amend. Plaintiffs thereafter pled these causes of action in a new complaint, Case
No. 37-2008-00098694-CU-Fr-CTL. Plaintiffs dismissed this complaint in response to
10
[d]efendants' . . . special motion to strike [under Code of Civil Procedure section 425.16].
As with [p]laintiffs' dismissal of their negligence per se cause of action in response to
[d]efendants' motion for summary adjudication, [p]laintiffs' dismissal of this complaint
was a 'conscious strategic decision' " and thus warranted denial of their motion.
In mid-April 2013, after judgment had been entered in favor of B&B, plaintiffs
moved to compel defendants -- including B&B -- to provide additional responses to
written discovery that were relevant to issues having little to do with plaintiffs' remaining
UCL claim. The court in response sought supplemental briefing regarding the scope of
remaining issues following our M&F Fishing opinion.
The court in its July 12, 2013 six-page order reviewed in detail our M&F Fishing
opinion and correctly concluded only the following issues remained on remand: "1)
whether [p]laintiffs are entitled to a return of the commissions/broker fees charged for the
placement of insurance with nonadmitted carriers (paid after March 10, 2000) that did not
comply with the disclosure requirements of Insurance Code § 1764.1[;] 2) whether
[p]laintiffs released their claim to a return of these commissions/broker fees[;] and 3) if
[p]laintiffs are entitled to a return of these commission/broker fees, whether [p]laintiffs
are entitled to an award of prejudgment interest on such commissions/broker fees."
After noting the limited issues remaining on remand, the court found the written
discovery sought by plaintiffs went "well beyond these three issues. As such, allowing
the discovery [p]laintiffs seek would not be consistent with the Court of Appeal
opinion. . . . Plaintiffs specifically reference numerous alleged violations of the
11
Insurance Code. To the extent any of these alleged violations are not addressed in the
Court of Appeal opinion, litigation of such alleged violations is outside of these three
issues.
"Plaintiffs themselves recognize the limiting effect of the Court of Appeal opinion
in their Petition for Rehearing to the Court of Appeal. Plaintiffs state:
"Remanding to determine what small portion of the commissions will be kicked
back after the [defendants] were caught illegally selling such coverage, while nearly all of
the $3.5 million illegally acquired is wrongfully retained by the underwriter principals in
the illegal scheme, is contrary to both the letter and the public policy of the . . . 'UCL.' "
Finally, the court in its July 12 order reiterated that B&B previously had been
dismissed from the lawsuit. As such, the court found plaintiffs were required to use a
subpoena if they wanted discovery from B&B.
The record shows the court in a December 6, 2013 order subsequently reiterated
that there were only three issues remaining in the instant case, as set forth in its July 12
order. Because plaintiffs proffered sufficient evidence to show a triable issue of fact
regarding whether plaintiffs paid broker fees after March 10, 2000 and whether plaintiffs
had previously released those claims in connection with each party's related lawsuit, the
court in its December 6 order denied defendants' summary judgment.
In May 2014, defendants filed a three-page motion regarding the "Proper Scope of
Trial and Evidence." Defendants argued such a motion was needed because following
12
M&F Fishing, plaintiffs repeatedly "sought to relitigate all of the issues decided against
them on appeal," which we note is borne out by this record.
In order to provide "clarity and guidance" in preparing for trial, defendants sought
an order as follows confirming the issues to be retried:
"(1) Plaintiffs' sole remaining claim is for [d]efendants' alleged violation of [the
UCL], and this claim is based solely on [d]efendants' alleged violation of Insurance Code
section 1764.1.
"(2) Because [this court] already found that standing under the UCL exists for this
one remaining alleged statutory violation (Insurance Code section 1764.1), [p]laintiffs
have no further need or right to litigate whether they suffered harm as a result of anything
[else] allegedly done by [d]efendants. . . .
"(3) Plaintiffs' potential remedy is limited to restitution of the broker's fees and/or
commissions related to insurance placed by [d]efendants with non-admitted insurers on
or after March 10, 2000, based on [d]efendants' alleged violation of Insurance Code
section 1764.1. Plaintiffs are not permitted to pursue (a) recovery of damages, (b)
restitution of insurance premiums, (c) restitution of any monies paid by [p]laintiffs and/or
received by [d]efendants in connection with insurance placed with admitted insurers,
and/or (d) restitution of any monies paid by [p]laintiffs and/or received by [d]efendants
before March 10, 2000.
"(4) The [c]ourt may consider whether or not [p]laintiffs released their claim for
broker's fees and/or commissions under Insurance Code section 1764.1 when they settled
13
Case No. GIC 826767 (involving M&F) and Case No. GIC 826768 (involving C&F).
However, the [c]ourt will not consider, and [p]laintiffs are not permitted to pursue, the
claim that the releases in these settlements should be rescinded or otherwise disregarded
because [d]efendants allegedly wrongfully induced [p]laintiffs to settle the above cases.
"(5) To the extent permitted by [this court], the [c]ourt may consider whether
[p]laintiffs are entitled to any prejudgment interest on any monies awarded by the
[c]ourt."
Plaintiffs filed a 15-page opposition in response. Briefly, plaintiffs argued in their
lengthy opposition that the court at no time had ruled plaintiffs "may not prove any
unlawful, unfair and/or fraudulent business practice by [d]efendants that caused
[p]laintiffs loss in fact." Plaintiffs also confusingly argued that, because this court found
there was insufficient evidence to support the $3.5 million restitution award, this court in
M&F Fishing allegedly did not "decide that the [p]laintiffs could not put on new and old
evidence to meet its burden of proof on their standing to make any claim stated in the
[c]omplaint."
As such, plaintiffs contended in their opposition that they were "entitled to present
admissible evidence as to any unlawful, unfair and/or fraudulent business practice of
[d]efendants that has caused them loss in fact, pursuant to the [UCL]" (italics added); that
they were not limited to Insurance Code section 1764.1 in proving that claim; and that on
retrial, this court allegedly "did not limit [p]laintiffs' potential remedy to restitution of
14
broker's fees and/or commissions for insurance placed in violation [of Insurance Code
section 1764.1] since March 10, 2000."
The court in its August 15, 2014 order again reiterated the limited issues that
would be retried, as summarized ante, and once again rejected plaintiffs' attempts to
broaden this case including whether defendants' conduct violated provisions of the
Insurance Code other than section 1764.1 and/or whether defendants allegedly engaged
in fraudulent conduct in connection with the settlement of case No. GIC 826767.
On December 23, 2014, less than two months before retrial was to commence,
plaintiffs dismissed their UCL claim without prejudice. In connection with that request,
plaintiffs confusingly attached "Exhibit A," which summarized line-by-line what they
were deleting from their operative complaint. Plaintiffs also attached a copy of that
complaint, which was modified by "striking" or "blacking out" various words, phrases
and/or references as summarized in Exhibit A.
Thus, for example, the record shows in the caption of their complaint, plaintiffs
eliminated reference to section 17200 of the UCL. Plaintiffs alleged in Exhibit A that
while they were dismissing "all counts and all claims for equitable relief [under the
UCL]," they were not dismissing the "remaining counts and claims for legal damages, as
stated in the remaining First and Third Causes of Action" Confusingly, the first cause of
action was for violation of the UCL, which plaintiffs dismissed, and the third cause of
action was for declaratory and injunctive relief, which clearly involved only equitable
remedies (if any).
15
Not surprisingly, the parties disagreed on the effect of plaintiffs' dismissal of their
UCL claim. In supplemental briefing ordered by the court, plaintiffs on the one hand
argued their dismissal meant they no longer could pursue their "equitable remedies"
under the UCL. However, they further argued that they had "preserve[d] [their]
Constitutional right to a jury trial of the remaining alternat[e] legal remedies for
damages"; that this court "had affirmed the factual finding [in M&F Fishing], that
[p]laintiffs 'suffered harm caused by [d]efendants' violation of [the] Insurance Code' ";
and that what remains to be decided "by a jury on retrial is the total amount of damages
. . . caused by [d]efendants' breaches of contract, money had and received, tortious
violation of the Insurance Code and fraud." According to plaintiffs, these claims were
not new and have "been continuously plead in the complaint from its inception."
Defendants, on the other hand, argued that plaintiffs' dismissal of the UCL claim
meant the case was over and judgment should be entered accordingly. Defendants also
argued that plaintiffs were not entitled to try any claims for damages, and that plaintiffs'
continued insistence on their right to do so was "frivolous."3
In it January 15, 2015 order, the court found the only cause of action in which
plaintiffs had sought damages was in their second cause of action for negligence that
3 Although defendants argued plaintiffs' conduct was frivolous, they did not move
for sanctions in the trial court or in this court. Of course, as a court of review we have
the authority to impose sanctions on our own motion. (See Cal. Rules of Court, rule
8.276.) We note many of plaintiffs' arguments on appeal are borderline frivolous,
including by way of example their argument that dismissal of their UCL claim did not
impact their ability to try their remaining damages claims, despite the fact no such claims
remained in their complaint.
16
plaintiffs had dismissed in 2007. The court also found that plaintiffs had sought
restitution of premiums and/or commissions in connection with their UCL claim and that
plaintiffs were not, in any event, entitled to damages on that claim.
With respect to plaintiffs' remaining cause of action for declaratory and injunctive
relief, the court found it was limited to a declaration of defendants' responsibility, if any,
for "alleged violations of the Insurance Code" and thus, was "entirely derivative" of p
UCL claim. Because plaintiffs dismissed their UCL claim, the court found there was no
basis for an award of declaratory or injunctive relief. The court separately found
plaintiffs were not entitled to declaratory relief because they sought a declaration
regarding defendants' past conduct and declaratory relief "does not lie to redress past
wrongs." The court thus dismissed the action and entered judgment for defendants.
DISCUSSION
We independently conclude that once plaintiffs voluntary dismissed their UCL
claim, there was no viable cause of action remaining in their operative complaint,
including any cause of action for damages as plaintiffs argue on appeal.
First, despite plaintiffs' efforts and imagination, the court correctly and repeatedly
limited the issues to be retried following our opinion in M&F Fishing. (See Puritan
Leasing Co. v. Superior Court (1977) 76 Cal. App. 3d 140, 147 [noting that when, such as
here, a court orders a matter reversed and remanded " 'for proceedings consistent with
this opinion,' " the remand order must be read with the appellate decision as a whole and
noting that when this phrase is a " 'summary method of incorporating by reference
17
directions, as to proceedings on retrial,' " then the order is not a general reversal and "the
trial court is limited to following the directions precisely on remand"].)
Second, as the detailed summary ante shows, plaintiffs in 2007 dismissed the only
cause of action (i.e., negligence) in which they sought recovery of damages, as opposed
to equitable relief. Thus, contrary to plaintiffs' argument here, there were no remaining
damages claims to be tried in 2009 or retried following our opinion in M&F Fishing.
Third, plaintiffs were not entitled to recover damages in their UCL claim (see In re
Tobacco II Cases (2009) 46 Cal. 4th 298, 312 [noting a UCL action " 'is equitable in
nature' " and, thus, " 'damages cannot be recovered' "]) or in their third cause of action for
declaratory and injunctive relief.
Fourth, assuming plaintiffs had not abandoned their declaratory relief cause of
action, we independently conclude this cause of action was derivative of plaintiffs'
dismissed UCL claim. In addition, we separately conclude the declaratory relief cause of
action was limited to equitable relief, if at all, and is no longer at issue inasmuch as we
already "declared" in M&F Fishing that defendants may be liable under the UCL for
violating Insurance Code section 1764.1, subdivision (a)(2), which was one of the
Insurance Code provisions listed by plaintiffs in connection with that cause of action.
Fifth, when plaintiffs in about 2005/2006 settled for over $6 million in case Nos.
GIC 826767 and 826768, they released all claims except for the "claims, causes of action
and damages alleged" in the instant case. As such, and in light of plaintiffs' dismissal of
their negligence cause of action in 2007 and the court's denial of leave to amend in 2008,
18
plaintiffs were limited to equitable relief both when they went to trial in 2009 and on
remand, following our decision in M&F Fishing. For this separate reason, plaintiffs were
not entitled to a retrial of any alleged damage claims, as they argue on appeal, including
for breach of contract and breach of fiduciary duty.
DISPOSITION
The judgment for defendants is affirmed. Defendants to recover their costs of
appeal.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
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