Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and postjudgment order of the Superior Court of Orange County No. 05CC06151, Geoffrey T. Glass, Judge.
Spach, Capaldi & Waggaman, Madison S. Spach, Jr., Thomas E. Walling and Amanda E. Manahan, for Plaintiffs and Appellants Cherokee Partners, LLC, H. Daniel Lively, Stephen Kemp, doing business as Developer Financial Services, Pacific Street Five, LLC, HJC Capital Corporation, and Builders Financial Services.
Brady, Vorwerck, Ryder & Caspino, Ravi Sudan and David L. Carollo, for Defendant and Appellant Clarendon National Insurance Company.
Gordon & Rees, Roger M. Mansukhani, Eric M. Volkert and Shane M. McGuire, for Defendant and Appellant Robert E. Harris Insurance Agency, Inc.
OPINION
BEDSWORTH, ACTING P. J.
This is a coverage action by a developer who tendered defense of an action to its insurer and was turned down, and a fraud case against the developer’s insurance broker who said the developer had coverage the insurer later denied.
The developer and related parties are Cherokee Partners, LLC, Pacific Street Five, LLC, H. Daniel Lively, Stephen Kemp, Builders Financial Services, Developer Financial Services Corporation, and HJC Capital Corporation (collectively, Cherokee, unless otherwise indicated). Clarendon National Insurance Company (Clarendon) is the insurer. Robert E. Harris Insurance Agency, Inc. (Harris) is the insurance broker.
Cherokee appeals from a judgment for Clarendon and Harris, entered after both prevailed on motions for summary judgment. Cherokee argues an exclusion relied on by the trial court does not apply, no other ground for summary judgment was shown, and its own motion for summary adjudication should have been granted. Clarendon and Harris each cross-appeal. They argue summary judgment was proper on other grounds raised in their motions but not reached by the trial court. Clarendon and Harris also appeal from a postjudgment order that purported to vacate the judgment and deny their summary judgment motions. Clarendon argues its new trial motion should have been granted. Harris argues the order was void as beyond the jurisdiction of the trial court.
We conclude Clarendon was entitled to summary judgment, although not for the reason given by the trial court, and affirm the judgment as to Clarendon. The same is not true for Harris, as to whom we reverse the judgment. We agree with Harris there was no jurisdiction to reconsider the judgment, and so reverse the postjudgment order.
FACTS
Pacific Street Five, LLC (Pacific Street) owned a property in Oceanside and retained Cherokee (along with another entity not a party to this action) to develop it into a five-unit condominium complex. Stephen Kemp and H. Daniel Lively were managers of both Pacific Street and Cherokee, and among the principals of both entities.
The facts are drawn from the parties’ separate statements of undisputed facts, the evidence submitted on the motions for summary judgment and summary adjudication, and the pleadings.
Builders Financial Services was a company owned by Kemp, Developer Financial Services was a business name used by Kemp, and HJC Capital Corporation was owned by Lively. Developer Financial Services and HJC Capital Corporation were the members of Pacific Street and Cherokee, along with Zocco Development, Inc., which is not a party to this action.
In 1998, Cherokee engaged Harris as its agent to obtain insurance for the project. Harris contacted a wholesale broker, who obtained a quote from a general agent for United Capitol Insurance Company (United). Harris did not have an agreement with United to transact business on its behalf, nor was he an agent for United. He presented Cherokee with a proposal based on the United quote.
The policy offered by United included a “condominium and townhouse exclusion,” which in effect provided there was no coverage for accidental property damage after completion of the insured’s work and during the remainder of the policy term if the work was part of, or incorporated in, a condominium or townhouse project. At his deposition, Harris testified that either Lively or Kemp expressed concern about the condominium exclusion. Harris called the wholesale broker (Joe Rowland at Lemac & Associates), who said he would speak with the general agent to see whether United considered the five-unit project to be a condominium. Harris and Rowland spoke several times. According to Harris, eventually Rowland told him the project was a planned unit development and would not be considered a condominium, and “Westcap [the general agent] or United Capitol had approved the project as a covered project under their policy.” Harris claimed to have asked Rowland for something in writing, and was told the approval had been noted in the file. When Rowland was deposed, he did not recall these conversations and no record of them was found in his files. Nor was any writing found in the files of the general agent or United that waived the condominium exclusion.
United issued a comprehensive general liability policy in the name of Cherokee covering the period from June 16, 1998 to June 16, 1999. The policy included the condominium exclusion, which was signed by Lively on behalf of Cherokee. When the policy came up for renewal, Harris said Cherokee wrote to him expressing concern about the condominium exclusion. Nonetheless, Cherokee renewed the policy for another year, to June 16, 2000, and later extended it to September 16, 2000. On September 6, 2000, Harris sent a fax to Kemp attaching the latest renewal forms. He said “at the time of policy issuance . . . [United was] completely aware that the projects were attached dwellings known as PUD’s and they issued the policy with that understanding and the condo/townhome exclusion does not apply.”
Harris also issued a “certificate of liability insurance” (in April 2000) that stated Pacific Street and Kemp were additional insureds under the United policy. At his deposition, Harris claimed he had authority to do so under “the blanket additional insured endorsement” in the policy and “within the quotation provided by Lemac [the wholesale broker].” Clarendon entered the picture in June 2000. It assumed United’s obligations from that date forward, as reflected in a reinsurance endorsement to the policy.
Construction was completed in June 2000. Pacific Street recorded a declaration of covenants, conditions, and restrictions (CC&R’s) that described the property as “a 5 unit condominium project known as Pacific Street Five Condominiums.” Final approval of the project by a state agency was issued on September 26, 2000, after which the units were sold.
In July 2004, a construction defect action was brought against Cherokee by the condominium homeowners association. It claimed water damage, including dry rot and ponding water, framing separation, gypsum board cracks, stucco cracks, and overflowing plumbing. Paragraph 30 of the complaint alleged “[Cherokee] first discovered signs of defective construction shortly after construction of the [property]. However, [p]laintiff did not become aware of the nature and extent of the defective construction . . . until less than three (3) years prior to the commencement of this [a]ction, when the damages and defects . . . first culminated in appreciable damage.”
The homeowners’ complaint set out causes of action for negligence, strict liability, negligent misrepresentation, breach of fiduciary duty, breach of the CC&R’s, and breach of implied warranty.
Cherokee tendered defense of the action to Clarendon. On September 14, 2004, coverage counsel advised Cherokee the insurer would not defend the action or provide indemnity. In effect, it said the damage did not first take place during the policy period, and the condominium exclusion was applicable. The instant action followed.
Cherokee filed its complaint against Clarendon and Harris in May 2005. The causes of action against Clarendon were for a declaration of the duty to defend and indemnify, breach of contract, breach of the covenant of good faith and fair dealing, reformation (eliminate the condominium exclusion and add Pacific Street and Kemp as additional insureds, something Harris had purported to do), and a claim by Lively and Kemp for intentional infliction of emotional distress. As to Harris, the gravamen of the complaint was misrepresenting the condominium exclusion was inapplicable, the additional insureds had been added to the policy, and failing to obtain endorsements from Clarendon confirming these changes. The causes of action against Harris were fraud and negligent misrepresentation, breach of contract, breach of fiduciary duty, and negligence.
In December 2005, Cherokee moved for summary adjudication on the duty to defend cause of action, arguing there was a potential for coverage and the condominium exclusion did not apply. The trial court found no possibility of coverage and denied the motion on March 1, 2006.
In June 2006, Clarendon moved for summary judgment, or in the alternative summary adjudication. It argued the underlying action did not allege property damage had occurred while the policy was in force, the condominium exclusion barred coverage, and Pacific Street and Builders Financial were not insureds under the policy, among other things. Harris moved for summary judgment on the ground no damage occurred during the policy period. In July 2006, Clarendon brought a separate motion for summary adjudication, which argued Cherokee was not entitled to punitive damages on its claims for bad faith and intentional infliction of emotional distress.
In addition to the evidence set out above, Cherokee offered a letter from counsel for the owners in the underlying litigation, which claimed the owners had sustained damage “from the very completion of construction.” Clarendon’s hearsay objection was overruled. Cherokee also offered excerpts from the deposition testimony of the owners’ expert in the underlying litigation, Edward K. Takahashi. In one portion, referring to conditions not included in the excerpt, Takahashi said there “could have been water intrusion, or there’s a possibility that there was water intrusion from the beginning in all of the units as to each of these conditions.” Later, summarizing testimony not in the record, Takahashi said the conditions he had described “could” lead to water intrusion. Then this: Q: “And would those problems create a problem of water intrusion from the very inception of construction?” A: “Yes.”
Clarendon offered additional evidence as well. Two items are noteworthy. One was a series of excerpts from the depositions of the five owners taken in the underlying litigation. Each said they only observed damage to their units after the first big rain in late 2000 or early 2001, primarily water damage. Clarendon obtained the transcripts from Cherokee, which stipulated it would not object to the use of copies of the transcripts “to the same extent as . . . the original transcripts might be used.” The other evidence was a certified copy of meteorological records from the U.S. Department of Commerce National Climatic Data Center. It showed data collected from a station located at Oceanside Municipal Airport, daily, for the months of May 2000 to September 2000. Among the data collected was inches of precipitation. It showed .02 inches in May, and “T” in June, July, August, and September. Cherokee’s authentication and hearsay objections to both items of evidence were sustained.
The trial court granted summary judgment for Clarendon and Harris based on an issue neither had raised – an exclusion for damage to property owned by the insured. It found Cherokee was the owner of the insured property, and for that reason, concluded there was no coverage. The court also found there were triable issues whether damage occurred during the policy period and whether Harris was acting as agent for United. The court sustained Cherokee’s evidentiary objections and overruled Clarendon’s objections. It dismissed Clarendon’s motion for summary adjudication on punitive damages as moot. On November 1, 2006, judgment was entered for Clarendon and Harris. Clarendon served notice of entry on November 17, 2006.
Cherokee moved for a new trial on November 20, 2006, and Clarendon on December 4, 2006. On January 31, 2007, the trial court denied the motions. The court then decided it had inherent power to reconsider its prior ruling, noting it had “overlooked the fact that none of the parties agreed that Cherokee . . . owned the property” and “[s]uch subtleties are often missed by this trial court.” The court vacated the judgment and denied the motions for summary judgment and summary adjudication on the ground there were triable issues, but granted summary adjudication for Clarendon on the claim for intentional infliction of emotional distress.
I
Cherokee argues the owned property exclusion was not in issue, and in any event, it was not the owner, so it was error to grant summary judgment on this ground. We agree.
Neither Clarendon nor Harris raised the owned property exclusion as an affirmative defense, so it was not in issue. Nor was it alleged in either moving party’s separate statement that Cherokee owned the property. To the contrary, both asserted it was an undisputed fact that “the ownership interest was transferred from . . . Pacific Street to the respective homeowners” after final state approval of the project on September 26, 2000.
Since it was an undisputed fact that Pacific Street was the owner of the insured property, there was no room to consider the owned property exclusion. While the trial court may grant summary judgment on grounds not raised by the moving party, that power is limited to situations in which the facts are undisputed and the law clear, since the purpose of summary judgment is to eliminate unmeritorious claims. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 69.)
Harris argues that Cherokee admitted at the hearing on the motions that it owned the property “when the potential for coverage in this case existed.” But that comment was at odds with the assertion in the separate statements, and we do not believe it was sufficient in and of itself to permit the trial court to grant summary judgment on the owned property exclusion. We note the trial court did not think so either, since it later recanted the decision on that ground.
II
Cherokee contends there was a possibility that property damage occurred during the policy period, so Clarendon had a duty to defend. Clarendon and Harris take the opposite position and go one step further, arguing the absence of any damage means there was neither a duty to defend nor coverage under the policy. We conclude there was no possibility of coverage, hence no duty to defend nor indemnify.
‘“The determination whether the insurer owes a duty to defend usually is made in the first instance by comparing the allegations of the complaint with the terms of the policy. Facts extrinsic to the complaint also give rise to a duty to defend when they reveal a possibility that the claim may be covered by the policy. [Citations.]’ . . . ‘[T]he
existence of a duty to defend turns not upon the ultimate adjudication of coverage . . . but upon those facts known by the insurer at the inception of a third party lawsuit. [Citation.]’ [Citation.]” (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295.) “The defense duty is a continuing one . . . lasting until the underlying lawsuit is concluded [citation], or until it has been shown that there is no potential for coverage. . . .” (Ibid.) Just as extrinsic evidence may impose a duty to defend, it may also relieve an insured from that duty. (Id. at p. 298.)
The showing required to trigger the duty to defend is slim. “Any doubt as to whether the facts establish the existence of the defense duty must be resolved in the insured’s favor. [Citations.]” (Montrose Chemical Corp. v. Superior Court, supra, 6 Cal.4th at pp. 299-300.) In other words, “a bare ‘potential’ or ‘possibility’ of coverage [is] the trigger of a defense duty.” (Id. at. p. 300.) On a motion for summary judgment or summary adjudication, “the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot. Facts tending to show that the claim is not covered, or may not be covered . . . add no weight to the scales.” (Ibid.)
But it is facts that count, not the possibility they may exist. As we have said, “the universe of facts bearing on whether a claim is potentially covered . . . does not include made up facts, just because those facts might naturally be supposed to exist along with the known facts. An insured is not entitled to a defense just because one can imagine some additional facts which would create the potential for coverage.” (Friedman Prof. Management Co., Inc. v. Norcal Mutual Ins. Co. (2004) 120 Cal.App.4th 17, 34-35; accord, Gunderson v. Fire Ins. Exchange (1995) 37 Cal.App.4th 1106, 1114.)
The instant policy provides coverage on an occurrence basis. That is, it promises to pay for property damage if: “caused by an occurrence which takes place during the policy period whether such occurrence is known to the Insured; and “property damage resulting from such occurrence first takes place during the policy period.” The policy goes on to state that “[a]ll property damage . . . arising from, caused by or contributed to, by, or in consequence of an occurrence shall be deemed to take place at the time of the first such damage, even though the nature and extend of such damage . . . may change . . . .”
Here, the underlying complaint alleged the homeowners first observed damage within three years of filing their action (July 2004), which placed the onset of damages in July 2001 – after the policy expired in September 2000. Since the policy covers only property damage that first occurs during the policy period, and that was not alleged, there is no coverage.
Cherokee contends the possibility of coverage existed because the underlying complaint also alleged Cherokee itself knew of defective conditions soon after construction was finished in June 2000, well within the policy period. It points to the first sentence from the operative paragraph of the complaint set out above, which alleged “[Cherokee] first discovered signs of defective construction shortly after construction of the [property].” But the trigger of coverage under the policy is damage within the policy period, not knowledge of defects, so this allegation did not raise the possibility of coverage.
A related argument is that the underlying complaint did not exclude the possibility of property damage between the completion of construction and the expiration of the policy, so the possibility of coverage existed. A valiant effort, but it does not work. Here, Cherokee is hypothesizing facts that were not alleged, and made up facts do not raise a duty to defend. (Friedman Prof. Management Co., Inc. v. Norcal Mutual Ins. Co., supra, 120 Cal.App.4th at pp. 34-35.) As one court put it, “[a]n insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.” (Gunderson v. Fire Ins. Exchange, supra, 37 Cal.App.4th at p. 1114.)
Cherokee asserts Takahashi’s testimony shows a duty to defend because he said “property damage occurred from the time of construction.” But that is not quite accurate. Takahashi, the homeowners’ expert, had inspected the property and identified various construction defects. He said there “could have been . . . or there’s a possibility [of] water intrusion from the beginning,” unspecified conditions “could” lead to water intrusion, and he answered “yes” when asked if unspecified problems “would. . . create a problem of water intrusion from the . . . inception of construction?”
We do not think that was enough. Saying the defects could have let in water during construction does not show the possibility of damage at that time, since there is no evidence it rained at that time. The only evidence of weather conditions during construction was Clarendon’s offer of a certified copy of U.S. Department of Commerce climatological data in Oceanside for May to September 2000. It appears to show .02 inches in May 2000 and nothing thereafter. Cherokee successfully objected to this evidence (contending it was unauthenticated, hearsay, and irrelevant). Clarendon argues sustaining the objection was an abuse of discretion without explaining why or citing any authorities. But either way, Cherokee loses on this point since it failed to offer evidence it had rained during the policy period, which was necessary to permit an inference that is when damage first occurred. So Takahashi’s testimony, without the additional evidence of rain during construction, did not show a possibility of coverage that entitled Cherokee to a defense.
There is also the homeowner testimony to be considered. It will be recalled each said he or she did not see damage until after the first large rain in late 2000 or early 2001 – long after the policy ended in September 2000. This, too, was successfully objected to by Cherokee (again as lacking foundation, hearsay, and irrelevant), another ruling Clarendon challenges as an abuse of discretion.
Cherokee argues the home owner’s testimony is irrelevant, since the duty to defend turns on facts known upon tender of the underlying litigation to an insurer. Yes and no. The duty to defend arises upon tender if there is a possibility of coverage, but it ends if the insurer later establishes that possibility does not exist. (Montrose Chemical Corp. v. Superior Court, supra, 6 Cal.4th at p. 295.) Here, where no duty to defend arose, it is true the homeowner testimony adds nothing. Our conclusion there was no duty to defend – or coverage – is confirmed when we turn to the condominium exclusion.
III
Cherokee argues it is unclear whether the condominium exclusion applies, so a possibility of coverage remains. Clarendon harbors no such doubt. We set out Cherokee’s arguments below and conclude they are wide of the mark – the condominium exclusion also establishes there is no coverage.
The condominium exclusion provides the policy does not apply to property damage “arising from, related to or in any way connected with your work or your product which is within the products-completed operations hazard when your work or your products are part of or are incorporated into a condominium or townhouse project . . . .” The term “products-completed operations hazard” is defined as including all property damage “occurring away from premises you own or rent and arising out of your product or your work except: (1) Products that are still in your possession; or (2) Work that has not yet been completed or abandoned.” The term “your product” is defined in part as “any goods or products, other that real property, manufactured, sold, handled, distributed or disposed of by . . . you.” “Your work” is defined as “work or operations performed by you or on your behalf” and “materials, parts or equipment furnished in connections with such work or operations.”
Properly understood, the provision in issue excludes coverage for product liability from defective workmanship following completion of the insured’s operations or work on a condominium project. As explained by a leading commentator, “once a product has been completed and sent to market . . . liability may be incurred by reason of a defect in merchandise or improper workmanship. It should be clear that . . . the individual now needs ‘products liability’ or ‘completed operations’ coverage. The coverages are complementary and not overlapping and the premiums are separate and distinct. The premium charged for either coverage would be inadequate to cover both hazards. The product liability-completed operations can be written under the comprehensive liability policy . . . .” (7A Appelman, Insurance Law and Practice (Berdal ed. 1979) § 4508, p. 341; accord, Fiberboard Corp. v. Hartford Accident & Indemnity Co. (1993) 16 Cal.App.4th 492, 500; Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2007) ¶ 7:1429, p. 7E-23.)
The applicability of the exclusion is clear enough. According to Cherokee, construction was completed in June 2000, and damage first occurred in the time between then and the expiration of the policy in September 2000. That falls squarely within the products-completed hazard – damage from defective workmanship or product, after work or operations are completed – which is not covered when the work was part of a condominium project.
Cherokee contends the policy is ambiguous in not defining the term condominium, and there was no evidence the project was a condominium. The argument is frivolous. There is nothing ambiguous about the term condominium, a form of property ownership recognized by statute. (Civ. Code, §§ 783; 1351, subd. (f).) Pacific Street purposefully availed itself of this ownership form when it recorded CC&R’s, signed by Lively and Kemp, that stated the project was a “5 unit condominium project known as Pacific Street Five Condominiums.” Moreover, the underlying complaint alleged the homeowners association, which brought suit, was composed of the unit owners in a condominium legally described in recorded documents as Pacific Street Five Condominiums.
Cherokee next argues the exception is ambiguous because it provides coverage for the condominium units, and then excludes coverage for damage arising from work performed on a condominium. But a more carful reading of the policy disposes of this contention. What is excluded is not all work on a condominium project, but only the risk of damage arising once the work is completed. Since the latter is considered a separate risk, for which a separate premium is charged (7A Appelman, Insurance Law and Practice, supra, § 4508, p. 341), the distinction is both understandable and clear.
Finally, Cherokee argues coverage was possible because there was a legitimate question whether United had waived the condominium exclusion. In correspondence after Clarendon denied coverage, Cherokee advised the insurer that Harris had been told by the wholesale broker that United’s general agent waived the condominium exclusion. Cherokee also forwarded a letter from Harris summarizing what he later testified to. It asserts that was sufficient to impose a duty to defend. We cannot agree.
The problem is the Harris evidence is inadmissible. The parol evidence rule bars introduction of extrinsic evidence to vary the terms of an integrated written document (Wagner v. Glendale Adventist Medical Center (1989) 216 Cal.App.3d 1379, 1385-1386), which is presumed where the writing contains an integration clause. (Haggard v. Kimberly Quality Care, Inc. (1995) 39 Cal.App.4th 508, 518.) Here, the policy contains such a clause: “This policy contains all of the agreements between you and us concerning the insurance afforded. . . . This policy’s terms can be amended or waived only by endorsement issued by us and made a part of this policy.” Since the policy is clear that it was intended to be the parties’ final agreement, and can be varied only in writing, extrinsic evidence of the alleged oral waiver of the condominium exclusion is inadmissible. There was no possibility of coverage on the theory the condominium exclusion might have been waived.
IV
Cherokee contends Harris is not entitled to summary judgment even if there was no occurrence during the policy period, because his conduct required it to litigate the condominium exclusion as well in an attempt to establish coverage. In other words, Cherokee is saying that even if it had prevailed on the occurrence issue, Harris’ failure to eliminate the condominium exclusion required that it also win on that issue before establishing a duty to defend or coverage. Here, Cherokee is right. The judgment must be reversed as to Harris.
The tort causes of action against Harris alleged that if he had not told Cherokee the condominium exclusion was waived, it would have sought another policy that offered coverage. One item of damage sought was attorney fees incurred in bringing the instant coverage action.
The situation is analogous to Third Eye Blind, Inc. v. Near North Entertainment Ins. Services, LLC (2005) 127 Cal.App.4th 1311. There, the court held summary adjudication that established coverage did not absolve an insurance broker of alleged negligence in failing to advise the insured its policy contained an exclusion – the basis for the coverage litigation – that could be obviated by purchasing an additional policy. It explained that if the broker was found negligent, the insured could recover attorney fees incurred in the coverage litigation as an item of damages. (Id. at p. 1325.)
Here, too, the issue of coverage is separate from the negligence claim against Harris. The allegation is that Harris’ negligence compelled Cherokee to litigate an additional issue if it was to prevail against Clarendon – the condominium exclusion. The fact that no damage occurred during the policy period does not absolve Harris of negligence.
We note Harris moved only for summary judgment on the theory of no occurrence during the policy period, and not summary adjudication on the individual causes of action against him. Accordingly, the judgment in favor of Harris must be reversed.
V
Finally, we consider the postjudgment order. Harris correctly points out it was void as beyond the jurisdiction of the trial court.
Judgment was entered on November 1, 2006, and Clarendon served notice of entry on November 17, 2006. There followed new trial motions by Cherokee (November 20, 2006) and Clarendon (December 4, 2006). On January 31, 2007, the trial court denied the new trial motions and, on its own initiative, vacated the judgment and reconsidered the prior ruling. After admitting it made a mistake in finding Cherokee owned the property (and the applicability of the owned property exclusion), the court denied the motions on the ground there were triable issues of fact, save for one claim on which it granted summary adjudication for Clarendon.
The trial court had no jurisdiction to reconsider its prior order, so the postjudgment order must be reversed. “Once judgment had been entered . . . the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment. [Citations.]” (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606.)
The only possibility here was the new trial motions, but they were denied by operation of law before the instant ruling. The power to rule on the new trial motions expired 60 days after notice of entry, or at the latest, 60 days after the filing of the first notice of intention to move for a new trial (Code Civ. Proc., § 660). Since the first filed notice was on November 20, 2006, the new trial motions were denied automatically on January 19, 2007. So the postjudgment order cannot be sustained as one granting a new trial. Since no other ground appears to sustain the postjudgment order, it must be reversed.
In light of our decision, we do not consider whether Clarendon was entitled to summary adjudication on the individual causes of action against it, nor whether there were additional insureds beyond Cherokee.
In fine, no possibility of damage during the policy period was shown and the condominium exclusion also bars coverage. So, Cherokee’s motion for summary adjudication was properly denied. Clarendon was entitled to summary judgment. Harris, on the other hand, was not entitled to summary judgment since the absence of coverage did not dispose of the negligence claims against it. The postjudgment order of January 31, 2007 is reversed, since it was beyond the jurisdiction of the trial court. The judgment entered November 1, 2006 is reinstated and affirmed as to Clarendon National Insurance Company, but reversed as to Robert E. Harris Insurance Agency, Inc. In light of the numerous cross-appeals and overlapping issues, the parties shall bear their own costs on appeal.
WE CONCUR: MOORE, J., IKOLA, J.