Opinion
A127005
08-31-2011
KAMLESH BANGA, Plaintiff and Appellant, v. ALLSTATE INSURANCE COMPANY, Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Solano County Super. Ct. No. FCS029694)
The Pleadings and Pretrial Proceedings
Appellant Kamlesh Banga (Banga) was insured by respondent Allstate Insurance Company (Allstate) under a deluxe-plus homeowners policy. On June 5, 2005, Banga's home was damaged by fire. She made a claim to Allstate, which assigned two separate adjusters to the claim, one to adjust the real property claim, the other for the personal property, and apparently most of the claim was handled without incident. However, on June 15, 2005, Banga submitted to the Allstate personal property adjuster what Banga called a "supplemental list of damaged items," adding a table lamp and a dining room table. Issues arose concerning these two items, issues not resolved to Banga's satisfaction.
On June 5, 2007, Banga filed a complaint for damages. The complaint is not in the record, so we do not know the claims asserted in it. On August 30, 2007, and apparently prior to serving the complaint, Banga filed an amendment to complaint. On September 19, 2007, Allstate filed a demurrer to the complaint, which the court sustained, granting leave to amend on several causes of action, but not on the sixth (for emotional distress), as to which the court sustained the demurrer without leave to amend.
On January 12, 2008, Banga filed a second amended complaint, which is also not in the record. Again, Allstate filed a demurrer and also a motion to strike. The trial court granted the motion to strike, and on March 19, 2008, filed its order on the demurrer, granting leave to amend as to three causes of action and denying leave to amend as to three others. In pertinent part, the order ruled as follows:
"Defendant's demurrer to Plaintiff's first three causes of action is sustained with leave to amend. Having granted the motion to strike, these causes of action only depend on Plaintiff's allegations that Defendant had failed to fully pay out the benefits of the insurance policy. Though this Court granted Plaintiff leave to amend these causes of action in its ruling on Defendant's demurrer to the First Amended Complaint, Plaintiff has not substantially or material [sic] changed the factual basis of her causes of action. The allegation that Allstate had improperly withheld $1805.62 in benefits is still tied to the dispute concerning the work performed or not performed by Restoration Cleanup, which Allstate has actually paid out. Plaintiff is admonished that while this Court cannot at this time conclude that she is not in possession of facts that might permit sufficient amendment of these causes of action, any future amendment must relate to some unpaid portion of insurance benefits for which Allstate has not actually dispensed, regardless of who actually received the proceeds of the payment.
"Defendant's demurrer to Plaintiff's two fraud-based causes of action is sustained without leave to amend. Plaintiff has not corrected the problem identified in this Court's prior ruling. Plaintiff has not pleaded these fraud-based causes of action with adequate specificity. [Citations.] There are no allegations establishing the names of the persons making fraudulent representation, the authority of the persons to speak on behalf of Allstate, to whom the representations were made, exactly what was said or written, or when it was said or written. Moreover, notwithstanding her conclusory assertions to the contrary, the allegations in the complaint do not support the contention that Allstate's assurance that it would fully fix or replace damaged property covered by the policy was false. In addition, Plaintiff fails to demonstrate any damages directly caused by any reliance on Allstate's alleged representation that Plaintiff's insurance premiums would not rise more than the result of the removal of a specified discount, especially given her admission that she has been unable to find a better insurance rate among competing providers.
"Defendant's demurrer to Plaintiff's sixth cause of action for infliction of emotional distress is again sustained without leave to amend. Not only did this Court deny Plaintiff leave to amend this cause of action in ruling on the prior demurrer, the Court finds that Defendant's alleged conduct cannot be deemed so 'extreme' that it exceeds all bounds of conduct that may be tolerated in a civilized society as a matter of law. [Citation.] Disagreement between an insured and an insurer concerning the scope and application of insurance coverage is common and generally expected between contracting parties."
On April 18, 2008, Banga filed a third amended complaint, which complaint is in the record. It was styled "Breach of Contract, Violation of the Fair Credit Reporting Act" and alleged four causes of action: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing (hereafter bad faith); (3) violation of 15 United State Code section 1681; and (4) unfair and unlawful business practice.
On April 25, 2008, Allstate filed a motion to strike portions of the third amended complaint, seeking to strike some specific allegations and the entire third cause of action. Banga filed opposition, which did not address the entire third cause of action and, according to Allstate, in fact Banga filed a "request to withdraw the third action." The motion to strike was heard on May 27, 2008, and on June 5 the trial court filed its order striking portions of the third amended complaint. On July 3, 2008 Banga filed a motion for reconsideration, which was denied.
On September 24, 2008, Banga filed a motion for leave to file a fourth amended complaint, which motion was accompanied by various exhibits, including one which Banga referred to as a "communication log sheet." Allstate opposed the motion, and on November 20, 2008, the trial court denied it. Doing so, the court noted as follows:
"Plaintiff has not demonstrated good cause for permitting amendment. [Citation.] The only reason given for permitting the amendment is to 'consolidate the causes of action stated in plaintiff's second amended complaint and third amended complaint . . . into one single complaint.' However, the filing of an amended complaint supersedes any previous pleading and the amended complaint becomes the sole operative pleading in the action. [Citation.] Consequently, the third amended complaint is the only operative pleading in the case and there is nothing surviving from the second amended complaint to consolidate with the third. This court need not 'tolerate a purported amended complaint which fails to amend the previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative of orderly judicial administration.' [Citation.]
"Moreover, much of plaintiff's proposed amended complaint fails to state a cause of action against defendant. [Citation.] . . . To the extent that plaintiff intended to state a cause of action based on fraud or unfair business practices, it has not been alleged with the requisite degree of specificity. [Citation.] Plaintiff's proposed amended complaint fails to allege any other malfeasance by defendant Restoration upon which a different theory of liability might be based, unlike her second amended complaint."
In light of this ruling, what Banga had at this point was her third amended complaint and its three remaining causes of action: the first, for breach of contract; the second, for bad faith; and the fourth, for unfair competition.
On February 2, 2009, Allstate filed a motion for summary adjudication as to the second and fourth causes of action and the claim for punitive damages. Banga filed opposition, and on April 29 the court granted the motion. Banga filed a motion for reconsideration, which was denied.
So, following that ruling, Banga was left with her third amended complaint, now with a single cause of action, for breach of contract.
Meanwhile, in addition to these motions, the register of actions reveals that Banga filed several motions pertaining to discovery, and that the court held various conferences, including, apparently, a settlement conference. And the case was set for trial for September 3, 2009.
The Trial
Prior to trial Banga filed a trial brief. It was 10 pages long and, following assertions of the claimed "Key Facts Admitted By Allstate" and four pages of "Factual Background[]," Banga set forth her position why she "may recover the cash value of her personal property claim." And what was that claim? As the "introduction" to her trial brief described it, "This is an action arising out of [Allstate's] unreasonably and without proper cause withholding policy benefits for [Banga's] table lamp and dining room table which was damaged during fire."
Against that background, the case came on for court trial on September 3, 2009, before the Honorable Scott Kays. On September 8, Judge Kays filed a "Judgment After Court Trial," which provides in its entirety as follows:
"On September 3, 2009, the above-entitled matter came on regularly for court trial before the Honorable Scott L. Kays, Judge presiding. Plaintiff, Kamlesh Banga, appeared in propria persona. Attorney, Dennis M. Campos, appeared on behalf of defendant, Allstate Insurance Company. Evidence was presented, both oral and documentary, and thereafter the Court took the matter under submission. No statement of decision was requested.
"The Court, having considered the evidence and arguments of the parties, and good cause appearing
"FINDS AND ORDERS AS FOLLOWS:
"Judgment shall be entered in favor of plaintiff, Kamlesh Banga, and against defendant, Allstate Insurance Company, in the amount of $62.50. Costs to be awarded in an amount to be determined as provided by law." Judgment was thereafter entered on September 17.
The Appeal
On October 9, 2009 Banga filed her notice of appeal, checking that she was appealing the "Judgment after court trial."
On December 22, 2009 Banga filed her notice designating the record on appeal, followed by her "amended" notice. The amended notice requested only one "additional" document beyond the required documents: her August 27, 2009 trial brief. The amended notice also requested reporter's transcripts of two hearings, those of: (1) May 27, 2008 (order granting motion to strike) and (2) November 20, 2008 (order after hearing). No reporter's transcript of the trial was designated, and none is before us.
On December 28, 2009, Banga filed in this court a civil case information sheet in which she checked that her appeal was "from: . . . Judgment after court trial" and "Judgment of dismissal after an order sustaining a demurrer." And, she went on, the date of the entry of judgment or order appealed from is November 20, 2008—the date of the order denying her leave to amend.
On October 1, 2010, Allstate filed a motion to augment the record on appeal, to include the acknowledgment of satisfaction of judgment. Banga filed her response on October 18, which included her request to withdraw acknowledgment, a request file marked October 15 in the superior court. We granted Allstate's motion to augment by order of October 21, "without any determination of relevance."
Summary of Banga's Position
Banga's opening brief begins this way: "This is an appeal from an order granting the motion to strike portions of the Third Amended Complaint entered on May 27, 2008, and a denial of Motion for Leave to File a Fourth Amended Complaint entered on November 20, 2008." And essentially all Banga's arguments address those two rulings (with a small portion of the brief addressing the bad faith claim which, as noted, had been disposed of on summary adjudication).
It is, of course, the rule that orders granting motions to strike or refusing leave to amend are not appealable. (Yandell v. City of Los Angeles (1931) 214 Cal. 234, 235 [granting motion to strike]; Figueroa v. Northridge Hospital Medical Center (2005) 134 Cal.App.4th 10, 12 [denying leave to amend].) However, claimed error in these rulings can be urged in an appeal from the judgment, from which Banga did appeal here. Thus, in the abstract Banga's arguments could be considered by us. But this is not the abstract, and we need not reach the arguments, as Banga's appeal is defeated by two separate, and independent, principles of appellate review.
Banga Has Waived The Right to Appeal By
Acceptance Of the Benefits of the Judgment
As noted above, at Allstate's request, Banga signed a satisfaction of judgment. This was done following Allstate's sending a check (or checks) to Banga, which she cashed. Thus, according to Allstate, Banga has waived her appeal. We agree.
The law has long been that "Ordinarily, a party cannot accept the benefits of a judgment, in whole or in part, and then attack it by appeal. The party's conduct in taking any of a judgment's advantages while seeking to reverse it is inconsistent, and the result is a waiver of the right." (9 Witkin, Calif. Proc. (5th ed. 2008) Appeal, § 67, p. 127, and number of cases there collected.) As Witkin goes on, quoting an old California Supreme Court case, appellant " 'has the option to proceed with his appeal or to accept what the judgment may award him and forego his appeal. If he does accept the fruits of the judgment his election so to do estops him from further prosecution of the appeal. It is, in effect, his affirmance of the validity of the judgment against him.' " (Turner v. Markham (1907) 152 Cal. 246, 247; accord, Schubert v. Reich (1950) 36 Cal.2d 298, 299.)
There is a recognized exception to the rule, described as "appeal seeking greater recovery." (See 9 Witkin, supra, § 71, p. 131.) However, this exception ordinarily does not apply unless the judgment is limited to a specific and severable portion of the judgment, so that the portion of the judgment appealed from can be reversed without affecting the right of the appellant to retain the fruits of the judgment she has already received and retained from the other portions of the judgment not appealed from. (Preluzsky v. Pacific Co-operative C. Co. (1925) 195 Cal. 290, 294.) No specificity or severability is apparent here.
The Absence of a Reporter's Transcript Defeats the Appeal
As indicated above, the only two reporter's transcripts Banga requested were for the May 27, 2008 hearing on Allstate's motion to strike and the November 20, 2008 hearing on her motion for leave to file a fourth amended complaint. She has provided no reporter's transcript of the trial. Thus, her appeal is defeated by the rule confirmed, for example, in Estate of Fain (1999) 75 Cal.App.4th 973, 992: "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 153-154.) The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. (Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386; National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521-522.)"
As indicated above, Banga's trial brief asserted what was involved, her claims for the lamp and the dining room table. The trial court heard her case, and then entered judgment for Banga for $62.50. Banga did not request a statement of decision, and thus we must "assume the trial court made whatever findings are necessary to support the judgment." (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 793; Hall v. Municipal Court (1974) 10 Cal.3d 641, 643.)
Disposition
The judgment is affirmed.
Richman, J. We concur: Kline, P.J. Lambden, J.