Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS016355
Richman, J.
Beverly Quinney appeals from a judgment in favor of California Casualty Insurance Company on its complaint for declaratory relief that there was no coverage under a policy of insurance it issued to the grandfather of one of the persons criminally responsible for the death of Quinney’s son. That judgment was entered at the conclusion of a brief bench trial at which Quinney announced she had no evidence to present. The trial itself was held more than five years after California Casualty filed its initial complaint, but the mandatory dismissal provision of Code of Civil Procedures section 583.360 was deemed inoperative when the trial court implemented the procedure sanctioned by Hartman v. Santamaria (1982) 30 Cal.3d 762 (Hartman).
At various points in the record Quinney is also identified as Beverly Quinney McGhee or Beverly Quinney-McGee.
Quinney mounts a barrage of contentions aiming to have the judgment reversed. Her arguments run the gamut: the supposedly erroneous denial of her summary adjudication motion; the denial of her request for a continuance of the trial; what she sees as a prejudicial lack of notice to improper use of the Hartman procedure; and erroneous evidentiary rulings that she asserts left her defenseless at the trial. Quinney also contends that the trial court abused its discretion in having a trial at all because California Casualty’s complaint was not dismissed as statutorily mandated.
We reject all of Quinney’s contentions and conclude that the judgment must be affirmed. In light of this conclusion, there is no need to address California Casualty’s cross-appeal, which we dismiss as moot.
BACKGROUND
Setting the stage and identifying the players is not hard. Quinney’s son Major died August 17, 1999, after being shot in the back during an incident that may have been gang-related. Monte Smith and Tarif Bailey, both of whom were minors at the time, were involved in the incident. Monte Smith lived with his grandfather, Walter Smith, who held a homeowner’s policy issued by California Casualty.
On August 15, 2000, Quinney filed a wrongful death complaint against Bailey and both Smiths. Quinney alleged that “Defendants Monte Smith and Tarif Bailey . . . carelessly, negligently, recklessly, and unlawfully used firearms” and “did negligently and recklessly use their firearms and negligently and recklessly fire at, and in the general direction of Major Quinney.” We shall refer to this as “the underlying action.”
On February 1, 2001, California Casualty filed a complaint for declaratory relief against Quinney, her son Major’s estate, and both Smiths. The nature of the dispute was that “the Defendants contend California Casualty owes the benefits of indemnity and a defense under the policy, while California Casualty contends that it does not.” Beyond this, the parties also disputed (1) whether Major Quinney’s death qualified as an “occurrence” within the meaning of the policy; (2) whether Monte Smith qualified as an insured under the policy; and (3) whether the policy’s intentional act exclusion applied. We shall refer to this as “the declaratory relief action.”
On November 5, 2002, the trial court granted the motion of both Walter Smith and Monte Smith and, over California Casualty’s opposition, stayed proceedings in the declaratory relief action pending completion of the underlying action.
The underlying action was tried to verdict in April 2003. Walter Smith was represented by counsel paid for by California Casualty (apparently without any reservation of rights); California Casualty also paid for Cumis counsel to defend Monte Smith. By this time both Bailey and Monte Smith had been committed to the Department of Corrections and Rehabilitation after pleading guilty to voluntary manslaughter for their complicity in Major Quinney’s death. After Quinney completed her case-in-chief, the trial court granted Walter Smith’s motion for nonsuit. The jury returned a verdict for $350,000 against Monte Smith. Judgment entered on the verdict became final in July 2003 when this court dismissed Monte Smith’s appeal.
San Diego Federal Credit Union v. Cumis Ins. Society, Inc. (1984) 162 Cal.App.3d 358.
In October of that year, having already lost its first motion to have the coverage issue decided on summary judgment, California Casualty moved for leave to amend its complaint. The basis for the proposed amendment was that Monte Smith, assuming that he qualified as an insured under his grandfather’s insurance policy, had “breached his obligations of notice, cooperation, and to refrain from making . . . assumptions of liability under the California Casualty policy” by abandoning his appeal from the underlying judgment by “reach[ing] a settlement with . . . Quinney.” As California Casualty put it in its proposed amended complaint, “California Casualty was substantially prejudiced by Monte Smith’s conduct, to the extent that it now confronts claims for payment of a judgment which would have been reversible on appeal, had appellate rights been properly perfected.” The trial court granted the motion.
In April 2004, at the same time she answered the amended complaint, Quinney also filed a cross-complaint against California Casualty. Quinney alleged that the settlement she had concluded with Monte Smith included “an assignment to Beverly Quinney of Monte Smith’s rights under the policy, in return for a covenant from Beverly Quinney not to execute upon Monte Smith’s personal assets.” Quinney stated causes of action for, among other things, breach of the insurance contact and of the implied covenant of good faith and fair dealing.
The record shows that the major events which occurred in 2005 were that California Casualty filed its second and third motions for summary judgment, but it was not until March 20, 2006, that both motions were denied.
Meanwhile, on May 5, 2006, California Casualty filed a “Motion To Advance Matter To Trial/Establish Tolling Date of Five Year Statute.” In support of its motion California Casualty argued that “The nature and complexity of this case has been significantly increased both by the conduct of defendant[s] Smith and Quinney in entering the agreement that breached Smith’s obligations to California Casualty and necessitated the addition of a separate cause of action; and by Quinney’s filing of a cross-complaint for bad faith in this case. Neither of these complications were at the behest of California Casualty. The pendency of other litigation with common facts was the basis for the court’s issuance of a stay in this matter. The record does not reflect any extension of time or significant delays that are attributable to California Casualty’s conduct in this matter. A review of the procedural history of this case, however, and the court’s review of its own calendar, will reveal that the court’s calendar is, and long has been, congested.”
Quinney filed written opposition to the motion to advance, but it was not included in the record on appeal. The trial court conducted a hearing on the motion, at which it suggested to counsel that “you folks have the ability to stipulate to extend the five-year statute. Interested in doing that?” Quinney’s counsel responded, “Not right now, I’m not.” The court granted California Casualty’s motion, finding that, not counting the 250 days the action had been stayed, “the five-year period under CCP Section 583.310 expires on October 9, 2006, in this case.” The court set dates for a trial management conference and trial for September 18, 2006
By the time of the trial management conference, California Casualty had prepared and filed eight in limine motions for trial. It had also filed motions for leave to amend its complaint “to add a cause of action base[d] upon the business pursuits exception,” and for bifurcation of its declaratory relief complaint and Quinney’s bad faith cross-complaint.
A case management conference took place on September 7, 2006. It opened with the court taking up the matter of California Casualty’s motion to bifurcate. After noting that it had Quinney’s written opposition (which is not in the record on appeal), the court heard argument on the motion, and granted it, ordering that California Casualty’s complaint would be decided first. The court also granted California Casualty’s motion to amend its complaint, but it allowed that Quinney would be granted time to take the depositions of Monte Smith, Walter Smith, and Tarif Bailey.
Following a lengthy discussion about unresolved discovery disputes, the court asked both sides’ counsel whether, in light of the amount of discovery yet to be completed, they would stipulate to an extension of the five-year statute; California Casualty would, but Quinney declined. The court then vacated the trial date because “both sides are in a position that fairness and justice mandate.”
Counsel for California Casualty advised the court that he had already deposed Monte Smith and Tarif Bailey at a correctional facility the previous year. At a later stage of the conference, Quinney’s counsel mentioned that he had eight other depositions planned or noticed, and that at least one other discovery request was still outstanding.
The next day, September 8, the court filed an order stating: “[T]he court vacated the trial date of September 18, 2006, tolled the five-year statute of CCP section 583.310 by 120 days, and set a new trial date for January 19, 2007, finding that commencement of trial any sooner to be impossible, impracticable, and futile under CCP section 583.340(c) for a number of reasons, including the status of the pleadings and the discovery, unexpected delays not attributable to plaintiff’s lack of reasonable diligence in prosecuting the case, the need for more time as indicated by counsel for both parties . . . and also the extreme congestion of the court’s calendar.” The court also set a “further trial management conference” for September 21.
On September 21, the court told counsel that “I did a few things during our hearing [on] September 7th that in hindsight perhaps could have been handled better.” The court reminded counsel that “I vacated the then existing trial date. And I did that without the benefit of the stipulation from each side. I did that under what I felt was . . . I felt that it was simply impossible, futile and impractical, to quote the words of . . . 583.340 to have the case go to trial before October 10th given all of the unattended issues to discovery matters that counsel insisted were necessary.”
The court then mentioned the Hartman option: “[I]f you do not want to stipulate to extend the 5-year statute, here is what we are going to do: Under the authority of that case . . . we will commence trial, jury selection on October 2nd. We will pick a jury. You will give opening statements. And plaintiff will call their [sic] first witness. That witness will be sworn. I will ask the witness their name, where they live. And at that point I am going to continue the trial until the next available date in this courtroom.
“I am not joking about the unavailability of this courtroom. I have been working with counsel in a double wrongful death punitive damage case since January of 2004. . . . They are due to start trial in this courtroom on the 29th and be back on the 28th for more trial management. The case, in my estimation, will last at least until Thanksgiving. And that . . . is the first half. I want you to understand that. I want that to be clear on the record. [¶] So let me start with you folks, Mr. [Mackie], Mr. Lambert [both counsel for Quinney]. Given what I have now told you, are you still of a mind or not [to] stipulate to extending the five-year statute: Yes or no?”
Quinney’s counsel were willing to stipulate, but only on conditions California Casualty declined to accept. The court then ruled: “Okay. . . . We do not have a stipulation. . . . Therefore we will start jury selection on October 2nd at 9:30 a.m. in this courtroom. We are going to follow the plan that I outlined for you. Be prepared to give your opening statements that day.” The case management conference ended with the court declining to rule on the pending in limine motions and urging counsel to agree to a stipulation.
On October 2, the court opened the proceedings by announcing “we are here to pick a jury today,” but first it addressed some preliminary matters. It first overruled Quinney’s demurrer to California Casualty’s second amended complaint. It then granted California Casualty’s “Motion in Limine Number 4 that asked for there to be no reference to the amount of the jury verdict in the underlying matter.” Next, Quinney’s counsel mentioned “one matter that I think needs to be brought to the court’s attention . . . that being Monte Smith, who . . . has gotten no notice at all that a trial is proceeding today.” The court noted that Monte Smith was a party only as to the rights he had assigned to Quinney. The court also granted another in limine motion by California Casualty concerning the burden of proof: “it is the burden of Cal Casualty to establish that any exclusions apply. It will be the burden of the defendant [i.e., Quinney] to establish that there is a covered loss.”
The court then called in a panel of prospective jurors. The court was still in the process of asking the venire members the initial general questions, when one of Quinney’s attorneys asked for a recess. Out of the presence of the panel, the attorney, Mr. Lambert, offered a stipulation: “What we propose is that this procedure be abbreviated somewhat over that which was announced by the court by the following stipulation: The defendant and cross-complainant Beverly Quinney will stipulate that there is no irregularity which arises by virtue of halting the proceedings now as opposed to having them continue through the selection of a jury, through opening statements, through the swearing and the taking of some perfunctory testimony.
“[¶] . . . [¶] I therefore believe that we have commenced this trial, and I would suggest that the reason it’s a good idea is that doubtless we are going to have to re-plow a whole lot of the same ground with these folks, those who come back in January if we went through it now anyway. So I just think that this is better for all concerned—the jury, the court, and the parties.”
When the court asked for California Casualty’s response, its counsel, Mr. Smith, stated: “I think there is much merit to Mr. Lambert’s suggestion, if I correctly understand it. I believe I understand him to be saying for the purposes of the five-year statute trial has now commenced. If that is the stipulation, I am in agreement with that.” The court inquired “Mr. Lambert, do you accept what Mr. Smith has just told us?” Mr. Lambert did not accept: “We are not stipulating that in fact this procedure as initially contemplated or now defeats the five-year problem. . . . We still intend to move to dismiss under the five-year statute as soon as October 9th has run, Your Honor. And that will happen irrespective of what we do here today.”
When the court pressed “Do you stipulate that the trial has commenced: Yes or no?” Mr. Lambert replied: “Yeah—yes. The requirements for the commencement of a trial involving a jury has [sic] been met, Your Honor. I continue to object to today being set for the trial. But what I will say is reserving that objection, whether we stop now, whether we stop after opening statements, whether we stop at the end of the trial, my objection remains identical. I will not raise any new points as a result of our doing this. That is my position.” Mr. Smith then added, “I think we are on the same page.”
Mr. Lambert stated: “Correct. Whether we go clear through to the swearing of a witness and the taking of some testimony from that witness, I will raise no additional objections. There will be nothing further asserted that it is wrong with this procedure by our stopping now . . . .” Mr. Smith interjected “So stipulated,” and the court stated “I accept your stipulation. Counsel were ordered to return on October 30.
On October 30, the court announced to counsel that “we will move forward in deciding what is for the jury and what is for the court.” After more than 20 transcript pages of largely inconclusive to-ing and fro-ing of counsel’s mutual hostility—in the vernacular of many an exasperated trial court, counsel “could not agree on the time of day”—the court suggested that they meet again on January 12, 2007, after counsel had attempted to establish “the issue, facts that you agree to and disagree on . . . geared towards a decision as to what is to be tried by the court and what is to be tried by the jury.”
On January 12, the trial court had issued a tentative ruling denying Quinney’s motion to dismiss. The transcript begins with counsel for Quinney contesting that ruling, arguing that Hartman was “distinguishable in several material respects,” notably that “[h]ere we don’t have any reason, particular reason for the delay.” Counsel for California Casualty argued that Quinney’s attack had not demonstrated “any effect upon the court’s finding that the trial to go forward was impracticable or futile” or “that this court has in any way, shape or form abused its discretion” in concluding “there were no courtrooms available and it was impracticable to go forward.” After hearing counsels’ argument, the trial court adopted the tentative ruling.
The hearing held on January 19, 2007, was yet another devoted to pretrial arrangements. One of the matters was California Casualty’s written opposition to Quinney proposed use of “prior testimony” from the trial of the underlying action. California Casualty’s counsel described the objection as a “supplement” to its in limine motion that had already been granted. Counsel advised the court the objection was prompted by, and intended “to challenge . . . Quinney’s offer of proof as set forth in the trial documents” that “list[ed] their evidence that they intend to offer at the time of trial,” specifically, “they are going to read the testimony of Monte Smith from the underlying trial, from his underlying deposition.”
Counsel was referring to Quinney’s trial management report” dated August 16, 2006. Monte Smith was designated as one of three “Witnesses Who Are Unavailable and Whose Testimony Will Be Presented by Deposition.” California Casualty had filed another in limine motion (No. 6) to have excluded “Excerpts of trial transcript in underlying wrongful death action entitled Quinney versus Smith.”
Quinney’s counsel argued that the reliance by California Casualty on Evidence Code section 1290-1292 was mistaken because “We aren’t dealing with that here . . . . What we are dealing with here is party admissions of Monte Smith,” thus relieving Quinney of the necessity of demonstrating that Smith was “unavailable” as required by Evidence Code section 1291, subdivision (b). California Casualty’s counsel admitted “I want to exclude all prior testimony in the case,” and “I don’t believe any of the prior testimony should come in.” Quinney’s counsel protested that California Casualty was “seeking to keep out . . . the only available evidence that there is.”
The trial court indicated it was “very much inclined” to grant California Casualty’s motion. The court was impressed that California Casualty was not a party to the underlying action and thus had not had an opportunity to cross-examine Monte Smith. In addition, the court told Quinney’s counsel, “You haven’t shown me he is unavailable.” The court believed that, by reason of the settlement assignment, Quinney succeeded to Smith’s cause of action against the insurer, and thus “It’s you offering your own testimony. It is Monte Smith offering Monte Smith’s own out-of-court testimony to which these people [i.e., California Casualty] didn’t get the opportunity to cross-examine and to which they will be deprived of the opportunity to cross-examine here in this trial. That is not fair.”
After hearing a final word from Quinney’s counsel, the court ruled that “the evidentiary objection of California Casualty to Quinney’s use of prior testimony from the Case of Quinney versus Smith . . . and to Quinney’s use of request for admissions from that same case is granted.”
The court then brought up “California Casualty’s request that the case proceed as a bench trial.” Quinney’s counsel opined that “ I don’t think that that would be appropriate,” but he was granted several hours to explore “alternative means,” “a Plan B,” of proving his case in light of the rulings on California Casualty’s in limine motions The court and counsel then discussed jury instructions and the verdict form.
Near the end of the day’s session, the court asked Quinney’s counsel, “other than what I have excluded this morning, do you have any evidence to produce to the jury” on the issue of whether Major Quinney’s death was accidental or intentional. Counsel responded, “I am not at all sure that I do,” and complained about the manner and timing by which California Casualty’s evidentiary objections were handled. Claiming that “[f]ettered as I have been by this surprise motion,” Quinney’s counsel then orally moved “for a continuance of about two weeks . . . [a]nd the reason for that is I do not have time this afternoon in order to find out whether or not it is going to be possible to put on a case.” Conceding that its rulings did constitute “a significant change,” the court went on: “But I would also say it is not one you should not have anticipated. Your request for a continuance is denied.”
After hearing additional argument, the court decided to defer until January 22 a ruling on California Casualty’s motion for a bench trial.
On January 22, the court opened the hearing by indicating agreement with Quinney that she had “established the liability of Monte Smith in the underlying action” and thus would not “have that burden in these proceedings.” Quinney’s counsel explained his strategy to the court, together with an offer of proof, as follows: “[L]et me just digress for a moment on the subject of how it is that we anticipate and anticipated bringing ourselves within the coverage portions of the policy. All we had to establish is that there was a claim against their insured which occurred during the policy period and was for personal injury or bodily injury or property damage. We’ve got bodily injury. We have established that part of it now, according to the court’s ruling of this afternoon, that we’ve got the claim. There isn’t a dispute that it was within the policy territory or that it was within the policy period.
“What that leaves us with, Judge, on the subject of getting into the insuring provisions, there is only one question, is this liability the result of an occurrence, which is defined as being an accident? Here is the way that we intended to prove that. . . . [¶] . . . [¶] I would like to make . . . an offer of proof on the subject of what it is that I would prove if permitted to read from the testimony of Monte Smith. And just stated simply, it is that Monte Smith had with him on the night of the shooting a 9 millimeter handgun. He did not have a .22 caliber [handgun]. He shot a 9 millimeter handgun. Not a .22 caliber handgun. He fired a 9 millimeter handgun into the air. Not at Major Quinney, but indeed away from him. And the other evidence . . . is going to be . . . that Major Quinney was killed by a single shot from a .22 caliber weapon.
“The other bit of testimony that I would have gotten from Monte Smith’s testimony is that he didn’t even know there was a .22 caliber weapon there. And, finally, that he had no intention to harm Major Quinney.”
At another point in the proceedings, Quinney’s counsel told the court: “Major Quinney is dead. Nobody else [but Monte Smith] saw it. . . . Did he intend to hurt anybody? Did he fire something other than a 9 millimeter? And that is it. That’s what we have to establish. But we can’t establish it through anybody but Monte Smith. . . . [¶] But if indeed we are precluded from reading from Monte Smith’s prior testimony, then our only alternative is to have Monte Smith present.”
Quinney’s counsel then renewed his request of three days earlier for a continuance. When the court reiterated its ruling that the problem of Monte Smith’s testimony did not qualify as a significant and unanticipated change in the case, counsel quickly switched gears and told the court, “I don’t really need a continuance of the whole case, Judge. What I need is some accommodation on the subject of the sequencing of when these things happen[]. . . . And all that I am really asking is that we get to the way things ordinarily work anyway which is that the plaintiff go first.”
The court then signed an order Quinney’s counsel presented for prison authorities to produce Monte Smith to testify at the trial. However, the court again denied Quinney’s request for a continuance: “So let me back up and see if I can condense down everything you told me. I think you told me that without Monte Smith, you are dead in the water, that you don’t have any evidence with which to dispute the facts or assertion of California Casualty. Now, I am more than happy to go ahead and sign your application ordering the removal of Monte Smith. We are not going to delay the trial, and we are going to proceed.
“This is something that could have been done and should have been done a long time ago. . . . [Y]our chosen method of trying to prove your case has been on file at least since November, if not before. And you can see how quickly and easy it is to obtain an order to get this gentleman here. You can see from my point of view why I conclude it should have been done a long time ago. So I have signed your order. Here is your order. But without him, you are not in a position to put on your case in front of a jury, are you?”
After hearing from Quinney’s counsel, the court stated: “I [have] reached a point where I feel comfortable in saying that this case will not proceed on the coverage issue with a jury trial. It will only proceed by way of a court trial. So the clerk is to contact jury services and let them know that the panel is to be called off. They are discharged.” The court then adjourned until the following day.
When matters resumed on the following day, January 23, Quinney made her opening statement to the court. After some discussion as to the state of the evidence, the court took judicial notice—first of the complaint, verdict, judgment, and nonsuit for Walter Smith, the judgment, and then, at Quinney’s request, “the entire file”—of the underlying action, together with California Casualty’s complaint and Quinney’s answer in the declaratory relief action.
Quinney’s counsel then made an opening statement that was based on the premise of what could be proved “in the form of live testimony of Monte Smith” had it been allowed.” Quinney’s counsel admitted “I have no further evidence beyond that of which the court has taken judicial notice . . . . I have nothing to put on this point, Your Honor.”
During the course of his opening statement, Quinney’s counsel stated: “[M]y understanding of the law is that we can’t compel Mr. Smith to come here, this being a civil case, and he being incarcerated in the state prison. So I know we can’t compel it. The question is: Is he inclined to come here? And I don’t really know the answer to that one. I have been led by his lawyer to believe that he will indeed show up. And then the last question that pertains here is: When will he be permitted to show up? And I don’t know the answer to that one either, Judge. Assuming that Mr. Smith is inclined to be here and is permitted to be here, I would request the opportunity to put him [on the stand] out of order . . . of my case-in-chief.”
California Casualty’s counsel responded: “Well, . . . I move for judgment. I assume he is resting. He has no witnesses and no evidence. . . . My office has talked to the folks at the prison, and they said it is a wish and a prayer that he will be here anytime before 30 days. He is also not listed on their witness list in the pretrial documents. In fact, they put in there that he will not be called because he is, quote, currently incarcerated in state prison. Which is true. That doesn’t mean he is unavailable for purposes of coming to court. But that is how they listed him. [¶] I submit they have no witnesses . . . . Since they have no evidence I submit that California Casualty is entitled to judgment on the case. They haven’t sustained their burden of proof.” Quinney’s counsel responded briefly, arguing that “The man [i.e., Monte Smith] is legally unavailable.”
The trial court granted the motion as follows: “The motion for judgment on behalf of California Casualty on this issue as to whether or not the event, the death of Major Quinney was an accident and whether or not Beverly Quinney has carried her burden of proof to prove it was an accident to bring it within the coverage of the policy is granted. [¶] I have said this before, but I am going to say it again: In an effort to use the deposition of Monte Smith there must be an appropriate showing of his unavailability. That showing was not made. What was deficient in the showing was that reasonable efforts were conducted by counsel to get him here prior to today’s proceedings or yesterday’s proceedings. No showing was made in that regard as far as I am concerned. As Mr. Werner [counsel for California Casualty] indicates, Mr. Monte Smith was not listed on the witness list. A representation was made in trial management pleadings filed on behalf of Beverly Quinney that he would not be called. So the motion by California Casualty for judgment on this issue is granted.”
Judgment for California Casualty was filed on February 28. Three days after Quinney appealed from the judgment on April 4, California Casualty appealed from the orders denying its motions for summary judgment/adjudication.
DISCUSSION
In the interests of coherence, the rulings that are the targets of Quinney’s contentions will be addressed in the chronology of their occurrence.
Quinney Has Not Established That The Trial Court Erred In Denying Her Motion For Summary Adjudication
In May 2006, Quinney moved for summary adjudication “as to three coverage defenses asserted by” California Casualty. Quinney explained: “The coverage defenses targeted by the instant motion are California Casualty’s assertions that: (1) there is no coverage because the events giving rise to the death of Beverly Quinney-McGee’s son were not an ‘occurrence’ as defined by the subject homeowners policy; (2) there is no coverage because of the ‘intentional acts’ exclusion as set forth in the subject homeowners policy; and (3) there is no coverage because of the provisions of Insurance Code section 533,” which provides that an insurer is not liable for the “wilful act[s] of the insured.” “The grounds for the summary adjudication of these three coverage issues are that California Casualty is precluded or estopped from asserting that Monte Smith’s conduct in causing or contributing to the death of Beverly Quinney-McGee’s son as determined by the jury in the underlying wrongful death action was ‘wilful’ pursuant to the doctrine of judicial estoppel, due to the trial court’s granting the nonsuit motion of California Casualty’s insured, Walter Smith . . . .”
California Casualty opposed the motion on the ground that it “cannot be bound by the underlying action because there was no finding made as to whether Monte Smith’s conduct was willful, California Casualty was not even a party to the Underlying Action, and California Casualty provided a defense. It is well-established in California law that an insurer who defends an insured while reserving its right to dispute coverage will not be bound by the outcome of a liability action. Conversely, only an insurer who has refused to defend, or failed to reserve its right is bound by the outcome of the liability suit.”
Quinney contends that the trial court erred in denying her motion. We do not agree, for several reasons.
The first is procedural. The record provided by Quinney does not include an actual order denying her motion, merely a reporter’s transcript for August 9, 2006, of the argument on the motion, at the end of which the trial court advised the parties that “I am going to think about what you have said, and then I will issue a ruling.” However, the record provided by Quinney does not include that promised ruling. Because error is never presumed, it is every appellant’s duty to show it in the record the appellant produces before the reviewing court. (E.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Ballard v. Uribe (1986) 41 Cal.3d 564, 574; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, pp. 704-706; In re L.B. (2003) 110 Cal.App.4th 1420, 1424.) “ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’ ” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) Accordingly, Quinney’s claim falls because she did not provide a copy of the very order she now asks this court to reverse.
Second, Quinney would also lose on the merits. We are able to make this determination because California Casualty, perhaps inadvertently, came to Quinney’s rescue by providing the trial court order that Quinney did not furnish in her record. That order discloses that the trial court had two reasons for denying Quinney’s motion for summary adjudication. On our independent review (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 832; Nakamura v. Superior Court (2000) 83 Cal.App.4th 825, 832), we agree with the first of these grounds, which is sufficiently potent by itself to render the second ground immaterial.
The pertinent portions of the trial court’s order denying Quinney’s motion read as follows: “California Casualty is not collaterally estopped from asserting its coverage defenses because an insurer that has adequately reserved its rights is not bound by the underlying action. (J.C. Penney Casualty Ins. Co. v. M.K. (1991) 52 Cal.3d 1009.) In addition, McGhee [sic] has not established as a matter of law all of the elements required for judicial estoppel to apply in the present case. McGhee has not established that California Casualty was in privity with Walter or Monte Smith; that California Casualty took any position in the underlying action; or that Walter Smith’s position in the underlying action was successful and totally inconsistent with the position of California Casualty. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)”
For purposes of Quinney’s motion, neither she nor California Casualty disputed that the insurer had provided a legal defense for both Walter and Monte Smith, but with a reservation of its rights to contest whether it owed either of the Smiths any duties of coverage. By reserving those rights, California Casualty immunized itself from Quinney’s estoppel argument. As noted in the Supreme Court decision cited by the trial court: “ ‘[I]f the insurer adequately reserves its right to assert the noncoverage defense later, it will not be bound by the judgment. If the injured party prevails, that party or the insured will assert his claim against the insurer. At this time the insurer can raise the noncoverage defense previously reserved.’ ” (J.C. Penney Casualty Ins. Co. v. M.K., supra, 52 Cal.3d 1009, 1017 (J.C. Penney), quoting Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 279, fn. omitted.) At a later point in its opinion, the court repeated itself for emphasis: “We reiterate the rule that an insurer that timely and adequately reserves its right to deny coverage and that does not subsequently intentionally waive its reservation of rights is not collaterally estopped by a judgment in favor of a third party against its insured.” (J.C. Penney, supra, at p. 1018.)
This court was among the first in the state to reach this conclusion. (Bear Film Co. v. Indemnity Ins. Co. (1937) 22 Cal.App.2d 520, 523-524.)
The Supreme Court went on to note: “To overcome the rule that an insurer does not waive its right to deny coverage, an insured must show that, after the insurer reserved its rights, ‘. . . the insurer either intentionally relinquished a known right, or acted in such a manner as to cause the insured reasonably to believe the insurer had relinquished such right, and the insured relied upon such conduct to his detriment.’ ” (J.C. Penney, supra, 52 Cal.3d 1009, 1017-1018, quoting Val’s Painting & Drywall, Inc. v. Allstate Ins. Co. (1975) 53 Cal.App.3d 576, 587.) But Quinney has never claimed, and does not now claim, that California Casualty ever wavered in its position.
Thus, there is no reason not to apply what the court called “the no-estoppel rule.” (J.C. Penney, supra, 52 Cal.2d 1009, 1018.) Although the court was there rejecting a claim to apply collateral estoppel, there is no reason the logic is not equally applicable to judicial estoppel. The two share one element—both require identity of parties, or privity between parties to the first and the second actions. (See Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987 [judicial estoppel]; Gikas v. Zolin (1993) 6 Cal.4th 841, 848-849 [collateral estoppel].) Judicial estoppel has been described as an “ ‘ “extraordinary remed[y] to be invoked when a party’s inconsistent behavior will otherwise result in a miscarriage of justice.” [Citation.]’ ” (Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 491; accord, Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 131; Jogani v. Jogani (2006) 141 Cal.App.4th 158, 169; cf. In re Marriage of Recknor (1982) 138 Cal.App.3d 539, 546 [“Estoppel applies to prevent a person from from asserting a right where his conduct or silence makes it unconscionable for him to assert it.”].) If a result is disallowed under collateral estoppel, there is no reason it should be permitted by judicial estoppel. (See Civ. Code, § 3511 [“Where the reason is the same, the rule should be the same.”].)
Quinney Has Not Established That The Trial Court Abused Its Discretion In Granting California Casualty’s Motion For Leave to Amend
Quinney contends that the trial court erred in September 2006 when it granted California Casualty’s motion for leave to amend its complaint to add a cause of action based upon the business exclusion provision of the policy issued to Walter Smith. Again, we disagree.
“There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding. [Citations.] An application to amend a pleading is addressed to the trial judge’s sound discretion. [Citation.] On appeal the trial court’s ruling will be upheld unless a manifest or gross abuse of discretion is shown.” (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1081; accord, Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945.)
In her opening brief, Quinney states that she “opposed the motion, pointing out that if the motion was were granted: (1) the case would no longer be ‘at issue,’ (2) additional discovery would be necessary, (3) Defendant [Quinney] would likely challenge the legal sufficiency of the pleading and also challenge the evidentiary support for the coverage exclusion through a motion for summary adjudication, and (4) the September 18, 2006 trial date would almost certainly be lost.” Quinney argues that the trial court’s ruling “allow[ed] California Casualty to begin a brand new round of pleadings just 11 days before the trial date and barely a month before the expiration of the five-year limitations period for bringing the matter to trial.”
Although the trial court’s register for the action shows that Quinney filed written opposition to the motion, she did not see fit to include it in her record on appeal. The consequences of this omission are severe.
Because error is never presumed, it is every appellant’s duty to show it in the record the appellant produces before the reviewing court. (E.g., Ketchum v. Moses, supra, 24 Cal.4th 1122, 1140-1141; Ballard v. Uribe, supra, 41 Cal.3d 564, 574; In re Kathy P. (1979) 25 Cal.3d 91, 102; Hughes v. Wheeler (1888) 76 Cal. 230, 234; 9 Witkin, Cal. Procedure, supra, Appeal, § 628, p. 704-706; In re L.B., supra, 110 Cal.App.4th 1420, 1424.) “ ‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’ ” (Gee v. American Realty & Construction, Inc., supra, 99 Cal.App.4th 1412, 1416.) Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Maria P. v. Riles, supra, 43 Cal.3d 1281, 1295-1296.) The relevant reporter’s transcript does not show that Quinney raised the points just quoted from her brief. Thus, because she cannot establish that the arguments she now makes were first made to the trial court, Quinney cannot demonstrate that the arguments were preserved for appeal. (E.g., Burden v. Snowden (1992) 2 Cal.4th 556, 570; 9 Witkin, Cal. Procedure, supra, Appeal, § 400, p. 458.)
Moreover, as California Casualty points out, the amendment merely allowed California Casualty to allege a new exclusion to the policy’s coverage, and matters never got to the point where that exclusion became an issue. Once Quinney failed to establish the occurrence of an event covered by the policy, the existence of any exclusion became moot. As will be seen, we also conclude that Quinney’s arguments about the five-year statute are not well taken. In these circumstances, we fail to see how allowing the amendment resulted in prejudice to Quinney.
Quinney Has Not Established That Any Error Was Committed in Connection With The “Trial” Conducted On October 2
Quinney opens her argument on this issue by arguing that “the parties were not given adequate notice of the October 2, 2006 proceeding as commencement of trial.” The particulars of her argument are that “the trial court lacked jurisdiction to proceed with the trial in the absence of defendant Monte Smith. Moreover, defendant Quinney did not [waive] her right to proper notice.” Although, as Quinney notes, adequate notice is essential to the lawful exercise of jurisdiction (Code Civ. Proc., § 594; Au Yang v. Barton (1999) 21 Cal.4th 958, 962-963), any absence here does not inure to Quinney’s benefit.
For present purposes, we are willing to accept that notice of the proceedings to be held on October 2 was not provided to Monte Smith. Nevertheless, that oversight or omission is not germane here, because Quinney is not aggrieved by it and thus will not be heard to attack an error affecting only another party. (E.g., Dobbs v. Purington (1902) 136 Cal. 70, 71; Ball v. Nichols (1887) 73 Cal.193, 194; Estate of Thramm (1947) 80 Cal.App.2d 756, 766; 9 Witkin, Cal. Procedure, supra, Appeal, § 323, pp. 376-377.) As for Quinney herself, any failure to provide the written notice required by Code of Civil Procedure section 594 is immaterial because she had actual notice, and because she appeared on the specified date and presumably was prepared to litigate the issues. (E.g., Estate of Wempe (1921) 185 Cal. 557, 562-563; Carlton v. Quint (2000) 77 Cal.App.4th 690, 696-697; Parker v. Dingman (1975) 48 Cal.App.3d 1011, 1016.)
Quinney tells us “The Declaratory Relief Action was Subject to Mandatory Dismissal Because the Proceeding on October 2, 2006, Did Not Commence Trial.” Quinney is not attacking the mechanics of what the trial court did to comply with Hartman. If she was, her arguments would be immediately rejected as contrary to the stipulation of her counsel quoted above. What she is arguing is that the procedure was pointless because the five-year period had already elapsed before the Hartman procedure was employed. But if Quinney’s motion to dismiss was correctly granted, her Hartman-related contention becomes moot. Accordingly, we consider whether the motion to dismiss was erroneously denied.
Quinney Has Not Established That The Trial Court Abused Its Discretion In Denying Her Motion To Dismiss
“An action shall be brought to trial after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310.) “An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. [¶] The requirements of this article are mandatory and not subject to extension, excuse, or exception except as expressly provided by statute.” (Code Civ. Proc., § 583.360, subds. (a) & (b).) However, excluded from the five-year period is “the time during which . . . [¶] . . . [¶] Bringing the action to trial . . . was impossible, impracticable, or futile.” (Code Civ. Proc., § 583.340, subd. (c).)
“The determination whether it was ‘impossible, impracticable, or futile’ to bring a case to trial within a given time period is generally fact specific, depending on obstacles faced by the plaintiff in prosecuting the action and the plaintiff’s exercise of reasonable diligence in overcoming those obstacles.” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 438.) The determination made by the trial court is to take account of the totality of the circumstances—although the plaintiff’s reasonable diligence is probably the preeminent factor—and is reversible only if the reviewing court is convinced there was an abuse of the trial court’s discretion. (E.g., Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270-1271; Hughes v. Kimble (1992) 5 Cal.App.4th 59, 67, 71.) Moreover, “[w]hat is impossible, impractical, or futile must be interpreted liberally, consistent with the policy favoring trial on the merits.” (Monzon v. Schaefer Ambulance Service, Inc. (1990) 224 Cal.App.3d 16, 26.)
The heart of Quinney’s argument, setting aside boilerplate statements of general principles and statutory language, is her claim that California Casualty failed to demonstrate that it had acted with reasonable diligence to bring its case to trial. Quinney’s claim fails for several reasons.
First, Quinney did not include in the record on appeal she submitted her motion to dismiss which she claims was erroneously denied. Her contention can be rejected for this reason alone, because she cannot establish that the arguments in her brief were first made to the trial court. (Maria P. v. Riles, supra, 43 Cal.3d 1281, 1295-1296; Gee v. American Realty & Construction, Inc., supra, 99 Cal.App.4th 1412, 1416; 9 Witkin, Cal. Procedure, supra, Appeal, § 400, p. 458.) We discuss our second and third reasons solely because California Casualty included Quinney’s motion papers, and its opposition thereto, in the record it prepared.
Second, as just mentioned, the inquiry Quinney asks us to undertake is fact specific and, while the issue of California Casualty’s diligence was an important consideration, it was only one of many for the trial court to consider. (Howard v. Thrifty Drug & Discount Stores, supra, 10 Cal.4th 424, 438; Sanchez v. City of Los Angeles, supra, 109 Cal.App.4th 1262, 1270.) The relevant portion of Quinney’s argument on this point is as follows: “In the instant case, California Casualty’s level of diligence did not increase as the five-year deadline approached. Instead, Plaintiff’s level of diligence remained constant; that is to say, California Casualty continued to exercise no diligence. [¶] For at least several years, California Casualty did nothing to advance the trial of this matter. No effort to specially set the trial was made until mid-2006, when a trial date was assigned before the five-year deadline. However, California Casualty then moved for leave to file a second amended complaint. That motion was granted on September 7, 2006, just 11 days before the then-scheduled trial date. As a result, the five-year statute deadline expired.” This is patently inadequate.
Although we do not have a formal order denying Quinney’s motion, the trial court’s denial is deemed to incorporate a finding that California Casualty did establish that it had acted with reasonable diligence. (See Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 793; Gray v. Gray (1921) 185 Cal. 598, 599; Wilson v. Gentile (1992) 8 Cal.App.4th 759, 763, fn. 1.) Another implied finding to the same effect can be deemed made by the trial court when it granted California Casualty’s “Motion to Advance Matter to Trial/Establish Tolling Date of Five-Year Statute.” The latter is relevant because “a motion for a preferential setting raises the same issues for the trial court as a motion to dismiss for failure to prosecute . . . .” (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 346-347, citing Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 560-561.) Moreover, another express finding to this effect was made by the trial court on September 8, 2006, when it vacated the trial date.
But in choosing to attack that finding, presumably for lack of substantial evidence, Quinney has to comply with the rule of appellate procedure requiring her as the appellant to set forth all of the evidence relevant to that point, on penalty of forfeiting the issue for review. (E.g., In re Marriage of Fink (1979) 25 Cal.3d 877, 887; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) This court is under no obligation to make good this omission. “We are a busy court which ‘cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when [her] brief makes no reference to the pages where the evidence on the point can be found in the record.’ [Citations.]” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 113.) This is an instance where “ ‘appellant’s brief is a mere challenge to respondent[] to prove the court was right. And it is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent. An appellant is not permitted to evade or shift [her] responsibility in this manner.’ ” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.) This is a second reason for treating the issue as not preserved for plenary review.
The third reason is that Quinney would lose on the merits. The papers of California Casualty in support of its own motion to advance, in opposition to Quinney’s motion to dismiss, and for the trial management conference, as well at the trial court’s register of the case, establish ample evidentiary support for the trial court’s finding that California Casualty had exercised reasonable diligence. These sources show that California Casualty had virtually completed its discovery, including the crucial depositions of Monte Smith and Tariff Bailey, while Quinney had not. (See fn. 3, ante.) By contrast, Quinney, despite having widened the scope of the litigation with her cross-complaint, was far less prepared. (See id. and accompanying text, ante.) And despite being given additional time to depose Monte Smith, Walter Smith, and Tarif Bailey, there is nothing to indicate that Quinney ever took these vital preparations.
California Casualty had also devoted considerable efforts to ending the litigation via summary judgment; although those efforts were not successful, they are hardly indicative of indifference to the litigation. Time was also spent in arbitration and mediation ordered by the trial court. Perhaps most importantly, in its report for the trial management conference, California Casualty submitted witness and exhibit lists that appear to indicate a present ability to proceed to trial. California Casualty also had its instruction list prepared, and reported that there were no “anticipated evidentiary disputes.” All of this—and there is more that we have not thought it necessary to detail—is more than enough to support the trial court’s repeated findings that California Casualty had exercised reasonable diligence in trying to bring its case to trial within the five-year period.
Third, California Casualty holds a trump card, the clear and repeated statements by the trial court that there was no courtroom available. For purposes of Code of Civil Procedure section 583.340, subdivision (c), “Impossibility occurs when there is no courtroom available.” (Rose v. Scott (1991) 233 Cal.App.3d 537, 542, collecting decisions; accord, Monzon v. Schaefer Ambulance Service, Inc., supra, 224 Cal.App.3d 16, 27-29.) As the leading Supreme Court decision put it, “if the plaintiff . . . is prevented from actually going to trial because no courtroom is open, the delay is ‘on the house.’ ” (Hartman, supra, 30 Cal.3d 762, 766.)
For each and all of the above reasons, we conclude that there was no error in the denial of Quinney’s motion to dismiss.
Quinney Has Not Established That The Trial Court Abused Its Discretion In Granting California Casualty’s In Limine Motions To Exclude Evidence From The Underlying Trial
In contending that “The Trial Erred in Excluding Defendant Monte Smith’s Prior Testimony,” Quinney is in effect challenging the trial court’s decision to grant what was designated the in limine motion “No. 4” submitted by California Casualty. But here again Quinney defeats her cause by not including the actual motion in the record she provided for this appeal. Yet again we note that this omission is by itself a sufficient reason to reject her claim. (Maria P. v. Riles, supra, 43 Cal.3d 1281, 1295-1296; Gee v. American Realty & Construction, Inc., supra, 99 Cal.App.4th 1412, 1416; 9 Witkin, Cal. Procedure, supra, Appeal, § 400, p. 458.) And yet again we will address the merits only because California Casualty has remedied the situation by including its moving papers in its respondent’s appendix.
The point of California Casualty’s in limine motion no. 4 was that introduction of materials from the trial of the underlying action was essentially incompatible with the insurer’s right not to be collaterally estopped from asserting its coverage defenses. We have already seen that this was the reason the trial court denied Quinney’s motion for summary adjudication, a ruling we have already found not to be an abuse of discretion. Granting the in limine motion was therefore eminently sound as a reiteration of the earlier ruling.
There is yet another reason the ruling on the in limine motion does not command reversal. This reason emerges upon a careful consideration of the pretrial chronology, and particularly the trial court’s order for producing Monte Smith at trial.
The actual order is not in the record, nor is it described with any particularity. We assume it is the order authorized by Code of Civil Procedure section 1995, supported by the showing demanded by Code of Civil Procedure section 1996, and in the form set out in Penal Code section 1567. The issuance of such an order is within the trial court’s discretion. (See Willard v. Superior Court (1890) 82 Cal. 456, 458-459; People v. Stabler (1962) 202 Cal.App.2d 862, 865) We assume from the fact that the trial court here was willing to issue the order on the eve of trial that the court would have granted a similar order at an earlier point in the proceedings, when the logistical difficulties of producing Monte Smith for the trial would have been considerably more manageable. We also assume that, upon a proper and timely application, the court would have allowed Quinney to depose Smith in prison at an earlier point in the proceedings, as authorized by Code of Civil Procedure section 1997, and as the trial court permitted California Casualty to do in 2005. (See fn. 3, ante.)
When matters came to a head in the third week of January 2007, it became clear that Quinney’s trial strategy would essentially rest on (1) materials from the trial of the underlying action that would establish the general circumstances of Major Quinney’s death by gunfire, and (2) the anticipated testimony of Monte Smith that the gunfire was “accidental,” and thus within the policy’s coverage, in the sense that there had been no intent to kill Major Quinney. Although the first prop of the strategy went out the window when the trial court granted California Casualty’s in limine motion, the truly lethal blow was the realization that Smith would not testify because insufficient thought had been given to securing his attendance in a timely fashion.
Quinney should have been on notice that Monte Smith’s status as a prison inmate would pose special problems in producing him for trial. The witness subpoena ordinarily used in civil cases would not suffice. Special procedures would be required, as Quinney had cause to know. The problem first arose in the pretrial proceedings in the underlying action, when getting Smith to trial brought the Attorney General into court on behalf of the Department of Corrections. And then Quinney knew that deposing Smith for this proceeding had necessitated a trip to Smith’s prison by California Casualty’s counsel. (See fn. 3, ante.) Thus, he was almost certain to be unavailable to testify in January 2007.
But that was unavailability in the ordinary sense of the word. For purposes of the Evidence Code, Monte Smith would be deemed “unavailable” for trial only if he was absent from the hearing and Quinney established that she had “exercised reasonable diligence but has been unable to procure his . . . attendance by the court’s process.” (Evid. Code, § 240, subds. (a)(4) & (a)(5).) Testimonial statements of witnesses absent from trial are admitted only when the declarant is unavailable. (People v. Wilson (2005) 36 Cal.4th 309, 340.)
The trial court repeatedly found that Quinney had not established that Monte Smith was “unavailable” in the Evidence Code sense. Those findings are subject to de novo review because there is no dispute as to the relevant factual circumstances, with Quinney having the burden of proof on the issue. (E.g., People v. Valencia (2008) 43 Cal.4th 268, 292; People v. Cromer (2001) 24 Cal.4th 889, 899-900.) The undisputed circumstances here require the conclusion that Quinney had not exercised reasonable diligence because it was not until virtually the eve of trial that serious thought appears to have been given to getting Smith’s testimony produced in court in a manner consistent with the Evidence Code. Accordingly, we cannot agree with Quinney that excluding Smith’s testimony from the trial of the underlying proceeding constituted error.
Quinney asserts that Monte Smith’s prior testimony qualified as admissions, and thus admissible under Evidence Code section 1220. But this label merely begs the question of the form in which the supposed admissions can be presented consistent with the Evidence Code. (See People v. Wilson, supra, 36 Cal.4th 309, 340.) Because of Quinney’s lack of timely application for the court’s process, Smith could not be deemed unavailable, thus allowing use of his testimony from the trial of the underlying action. (See Evid. Code, §§ 240, subds. (4), (5). 1291, subd. (a)(1); Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1004-1005.) In addition, because California Casualty was not a party, merely the paymaster for the Smiths’ defense in the underlying trial, it never had the opportunity for cross-examination required by Evidence Code section 1291, subdivision (a)(2). Our independent review compels us to agree with the trial court’s repeated findings that Quinney failed to establish that Monte Smith was unavailable as a witness. Accordingly, we cannot agree with Quinney that excluding his testimony from the trial of the underlying proceeding constituted error.
Moreover, in light of this conclusion there is no need to examine Quinney’s argument whether exclusion was also proper under Evidence Code section 1224. (See Philip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 172-173; 9 Witkin, Cal. Procedure, supra, Appeal, §§ 342, 347, pp. 392-393, 398-399.) Likewise, there is no need to address Quinney’s argument that the judgment from the underlying action was admissible under Evidence Code section 1302. Because the trial court took judicial notice of the entire file of the underlying action prior to granting California Casualty’s motion for judgment, its in limine ruling excluding the judgment cannot qualify as prejudicial.
The Trial Court Did Not Abuse Its Discretion By Denying Quinney’s Oral Motions For A Continuance Or Change Of Procedure
As previously stated, the trial court denied two oral motions by Quinney for continuing the trial. The first was a request for a two-week continuance that was denied on January 19. The second was the motion of January 22 that appeared to be another request for a continuance but changed into the request for “some accommodation on the . . . sequencing of when these things happen.” “A trial court has great discretion in the disposition of an application for a continuance. Absent a clear abuse of discretion, the court’s determination will not be disturbed.” (Estate of Smith (1973) 9 Cal.3d 74, 81.) Quinney asserts that the trial court’s denials of her two oral motions qualify as a reversible abuse of discretion. We are not persuaded.
California has a firm policy against granting continuances of civil trial dates. (Gov. Code, § 68607, subd. (g); California Rules of Court, rule 3.1332(a).) If a continuance is sought on the ground of absence of evidence/unavailability of witnesses—the basis invoked by Quinney—the party making the request must do by noticed motion accompanied by “an affirmative showing of good cause.” (Cal. Rules of Court, rule 3.1332(b) & (c).) The showing must include “the materiality of the expected evidence to be obtained, and that due diligence has been used to procure it.” (Code Civ. Proc., § 595.4; Cal. Rules of Court, rule 3.1332(c).) Quinney satisfied none of these procedural requirements.
A continuance may be granted on the basis of “A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (Cal. Rules of Court, rule 3.1332(c)(7).) The trial court found that Quinney’s request was based on adverse rulings on matters that should have been anticipated. We have already concluded that the trial court’s findings were more than sound and cannot be overturned on appeal.
Thus, Quinney is unable to demonstrate that the denial deprived her of the opportunity to produce material and admissible evidence which could not with reasonable diligence be identified sooner. By reason of this failure, we cannot find that the trial court abused its discretion. (See, e.g., Wilbur v. Everhardy (1917) 176 Cal.142, 144; Vanderbilt Growth Fund, Inc v. Superior Court (1980) 105 Cal.App.3d 628, 637-639; Agnew v. Larson (1961) 197 Cal.App.2d 444, 449-451.)
No Reversible Error Attended The Trial Court’s Granting California Casualty’s Motion For Judgment
Citing Interinsurance Exchange v. Savior (1975) 51 Cal.App.3d 691, Quinney contends that she had a right to have a jury decide California Casualty’s declaratory relief action, and that the trial court erred in taking away that right. But that very same authority holds that there is no error if the party complaining had no evidence to present to a jury. (Id. at p. 695.)
As far back as 1943, a Court of Appeal stated: “Preservation of the inviolable right of a litigant to trial by jury is guaranteed by both the federal state constitutions, which accounts for the rule that it is only when it can be said as a matter of law that no reasonable conclusion is legally deducible from the evidence other than would sustain a verdict for [one party], and that any other holding would be so lacking in evidentiary support that an appellate court would be impelled to reverse it on appeal or a trial court set it aside, that a court is justified in taking the case from the jury and rendering the decision itself.” (Shannon v. Thomas (1943) 57 Cal.App.2d 187, 193.) That was precisely the situation here.
“The essence of trial by jury is that converted facts shall be decided by a jury. Unless the facts are controverted, there is no issue to submit to a jury.” (People v. Hickman (1928) 204 Cal. 470, 476.) Once it was determined that Monte Smith could not testify in person, and that his testimony from the trial in the underlying action could not be used, Quinney had no evidence to present. With no evidence from her, there was no controverted issue that required determination by a jury. The only reasonable conclusion in the circumstances was the one the trial court made.
This conclusion moots Quinney’s final contention, that her offer of proof “was sufficient to withstand California Casualty’s speaking motion for judgment.” In that Quinney had no evidence, her offer of proof was nothing of the kind because she lacked the means to prove anything.
California Casualty’s Cross-Appeal Is Moot And Must Be Dismissed
California Casualty made three motions for summary judgment or summary adjudication seeking to establish that it owed no coverage to either Monte Smith or Walter Smith by reason of Monte Smith’s intentional act. All were denied. California Casualty filed a notice of cross-appeal from these orders of denial. Because it has already been determined that the judgment should be affirmed on Quinney’s appeal, there is no point to attempting to considering the cross-appeal. Even if we were to conclude that California Casualty’s cross-appeal had merit, it would only furnish an additional basis for not overturning the judgment against Quinney. In other words, finding error in the denial of any of the summary judgment would still leave California Casualty as the ultimate victor. Thus, the cross-appeal presents what we recently termed “a classical instance of mootness.” (Friends of Bay Meadows v. City of San Mateo (2007) 157 Cal.App.4th 1175, 1192.) Because it is moot, California Casualty’s cross-appeal must be dismissed. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541; 9 Witkin, Cal. Procedure, supra, Appeal, § 749, pp. 814-815.)
DISPOSITION
The judgment is affirmed. The cross-appeal is dismissed as moot. California Casualty shall recover its costs on appeal with respect to Quinney’s appeal. The parties shall bear their respective costs incurred on the cross-appeal.
We concur: Kline, P.J., Haerle, J.