McMillin Companies, LLC v. American Safety Indemnity Co.

Filed 1/22/15

CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MCMILLIN COMPANIES, LLC, D063586

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2009-00083837-
CU-IC-CTL)
AMERICAN SAFETY INDEMNITY
COMPANY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Judith F.

Hayes and Lorna A. Alksne, Judges. Dismissed in part, reversed in part and remanded.

Wilson, Elser, Moskowitz, Edelman & Dicker, Gregory D. Hagen and John R.

Clifford for Defendant and Appellant.

Law Offices of Greg J. Ryan and Greg J. Ryan for Plaintiffs and Appellants.

Morris Sullivan & Lemkul, Shawn D. Morris and Matthew J. Yarling as Amicus

Curiae on behalf of Plaintiffs and Appellants.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of part I.
 The parties cross-appeal from a final judgment of the superior court in an

insurance coverage dispute between a general contractor (and, according to the general

contractor, its related entities) and the commercial general liability insurer of one of its

subcontractors. We will dismiss the appeal as to all parties other than the general

contractor (McMillin Construction Services, L.P., dba McMillin Homes, a Corky

McMillin Company (McMillin)) and the insurer (American Safety Indemnity Company

(ASIC)) and will reverse the judgment and remand for further proceedings.

I.

MOTIONS IN THE CROSS-APPEALS

A. Lack of Record References in the Briefs

Without full and complete record references in the parties' briefs, we have no

independent obligation to search the record either to determine what happened in the trial

court, to determine the accuracy of what the parties say happened, or to search for

evidence. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) To the

contrary, the party submitting a brief has the duty to support all arguments by appropriate

record references to the underlying evidence and procedure related to each argument.1

(Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Cal. Rules of

Court, rule 8.204(a)(1)(C).) Where a brief does not comply with this requirement, we

1 For an accurate record reference to an assertion of fact, a party must cite to
evidence, not merely to the same unsupported statement contained in the party's points
and authorities in the trial court. Likewise, a citation to a separate statement is not a
citation to evidence. (See Stockinger v. Feather River Community College (2003) 111
Cal.App.4th 1014, 1024-1025.)

2
have the option of either striking (Chan v. Lund (2010) 188 Cal.App.4th 1159, 1171, fn.

15) or "at a minimum" disregarding (Liberty National Enterprises, L.P. (2011) 194

Cal.App.4th 839, 846 (Liberty)) the unsupported assertions.

Having failed to provide complete record references, both McMillin and ASIC

violated rule 8.204(a)(1)(C) of the California Rules of Court. Pursuant to this rule and

Liberty, supra, 194 Cal.App.4th at page 846, we have disregarded representations of

important facts or underlying procedure in all briefs that have not been supported by

accurate record references.

McMillin filed two motions to strike or disregard specifically identified portions

of ASIC's two briefs based on ASIC's arguable noncompliance with California Rules of

Court, rule 8.204(a)(1)(C). ASIC filed oppositions that do not overcome most of

McMillin's objections.2 ASIC filed a motion to strike McMillin's December 2, 2014

letter brief for arguable noncompliance with rule 8.204(a)(1)(C). McMillin filed an

opposition.3 Given our ruling in the immediately preceding paragraph regarding lack of

record references, we deny all relief requested under rule 8.204(a)(1)(C) on the ground

those portions of the parties' motions are moot.

2 We have not considered, and thus deny, ASIC's request for judicial notice in its
opposition filed July 10, 2014, on the basis it was not presented in a separate motion, as
required by rule 8.809(a) of the California Rules of Court.

3 In the opposition, McMillin "move[s] and request[s]" that we "amend the case
caption" to add certain parties. To the extent McMillin considers its request a motion, we
deny it on procedural grounds for failing to comply with rule 8.54(a) of the California
Rules of Court. For the reasons stated at footnote 4, post, we deny the request on
substantive grounds.

3
B. ASIC's Cross-appellant's Reply Brief

In its second motion, McMillin also asks that we strike or disregard specifically

identified portions of ASIC's cross-appellant's reply brief on grounds other than

California Rules of Court, rule 8.204(a)(1)(C). Again, ASIC's opposition does not

overcome most of McMillin's objections. Thus, we grant the motion in part, disregarding

the statements identified at parts VIII.A. ("ongoing operations" under the first policy),

VIII.B. (other litigation between the parties) and VIII.D. (eight McMillin-related entities

as "additional insureds" under the relevant subcontract) of the motion and deny the

motion as to part VIII.C. (relating to the word "fabricate").

II.

ISSUES IN THE CROSS-APPEALS

A. The Entities

McMillin was the general contractor and B&B Framing, Inc. (B&B) was the

framing subcontractor in a series of construction contracts related to various residential

real estate development projects in Temecula, Riverside County, California.

ASIC is a non-admitted insurance company that issued two policies of commercial

general liability insurance to B&B: policy No. XGI 02-2922-001, covering the time

period January 18, 2002, to January 18, 2003; and policy No. XGI 03-2922-002, covering

the time period January 18, 2003, to January 18, 2004. Although both policies are

alleged in the original and first three amended complaints in this action, the parties agree

that only the first policy, No. XGI 2-2922-001 (Policy) is at issue.

4
B. The Construction Defect Litigation

In October 2007, 117 homeowners in the Brookhaven, Castle Pines and Cypress

Point projects (projects) filed an amended complaint in Riverside County Superior Court

against McMillin and others, alleging construction defect claims related to the

homeowners' residences in the projects (Baker litigation).

In December 2007, McMillin (and a number of its related entities named as

defendants in the Baker litigation) tendered the defense of the Baker litigation to ASIC

under the terms of both of the policies, contending it was an additional insured under the

policies. Approximately six months later, ASIC denied the tender.

C. The Present Insurance Coverage Litigation

1. The Complaint and Amended Complaints

In February 2009, eight McMillin-related entities (but not McMillin) filed the

underlying complaint against ASIC and 11 other insurance companies. The plaintiffs

alleged that each of the defendants was an insurer to one or more of the subcontractors on

the projects, that each of the plaintiffs was an additional insured under each of the

respective policies, that each of the defendant insurers owed each of the plaintiffs a duty

to defend the Baker litigation, and that by denying the tender of the defense of the Baker

litigation each of the defendants breached a contract of insurance and its implied

covenant of good faith and fair dealing.

In a first amended complaint filed in July 2010, McMillin and nine related entities

named the same defendants as in the original complaint and alleged essentially the same

facts and causes of action.

5
 Two months later, in a second amended complaint (SAC), McMillin and two

related entities (SAC plaintiffs) named the same defendants as in the first two complaints

and alleged essentially the same facts and causes of action.

In November 2011 McMillin, as the sole plaintiff, filed a third amended complaint

(TAC) against ASIC, as the sole defendant, alleging essentially the same facts and causes

of action as in the prior three complaints.4 This was after the denial of ASIC's motion

4 Over the course of the litigation, there have been at least 12 named plaintiffs in
various combinations in the original and three amended complaints. The judgment
identifies three plaintiff insureds, referring to their "amended complaint"; and McMillan's
notice of appeal and most of both sides' appellate briefing refer to the plaintiffs/appellants
in the plural, identifying them differently in different documents. However, the TAC —
i.e., the operative complaint when the court granted the dispositive motions and when the
court entered judgment — identifies the only plaintiff as "McMillin Construction
Services, L.P. dba McMillin Homes a Corky McMillin Company." This is the entity
defined as "McMillin" in the opening paragraph of this opinion, ante.
We asked the parties for Government Code section 68081 supplemental briefing in
order to determine for purposes of appellate jurisdiction which of the allegedly insured
entities is "aggrieved" by the judgment and thus has standing to appeal. (Code Civ.
Proc., § 902.) ASIC responded, identifying only McMillin. McMillin responded,
identifying: "McMillin Construction Services, L.P., by way of its real party in interest,
McMillin Homes Construction, Inc., and McMillin Companies, LLC." In order to
explain the identified entities, McMillin's response included three paragraphs describing
various companies' corporate relationship with each other — including conversions,
mergers and stock ownership. This description was unaccompanied by any record
references or evidence.
"The amended complaint furnishes the sole basis for the cause of action, and the
[prior] complaint ceases to have any effect either as a pleading or as a basis for
judgment." (State Comp. Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124,
1131.) An entity that was a party but ceased to be a party prior to entry of judgment
ordinarily has no appellate standing. (Bates v. John Deere Co. (1983) 148 Cal.App.3d
40, 53 [plaintiff-in-intervention that voluntarily dismissed complaint on eve of trial not an
"aggrieved" party for purposes of appellate standing].)
Accordingly, we hereby dismiss all appellants other than McMillin Construction
Services, L.P., dba McMillin Homes, a Corky McMillin Company, the sole plaintiff in
the TAC. We express no opinion as to the effect of this dismissal on the underlying
6
for summary judgment, the settlements with all defendants except ASIC, and the filing of

the parties' pretrial motions in limine, but before the rulings on the in limine motions —

all discussed post.

2. ASIC's Motion for Summary Judgment

In January 2011, ASIC filed a motion for summary judgment directed to the then-

operative SAC. ASIC argued that all three causes of action — declaratory relief, breach

of contract and breach of the implied covenant of good faith and fair dealing — failed as

a matter of law on the following independent grounds: (1) none of the SAC plaintiffs

qualified as an "additional insured" under the terms of the Policy; (2) the Policy only

covered B&B's "ongoing operations," which ASIC contended had ceased prior to the

occurrences alleged in the Baker litigation; (3) the Policy only covered liability arising

out of B&B's negligence; (4) the Policy's exclusion j.(5) precluded coverage; and (5) the

Policy's exclusion j.(6) precluded coverage.5 We will discuss the substance of the

specific arguments, as necessary, in the Discussion, post.

The SAC plaintiffs opposed the motion, ASIC replied to the opposition, and the

court issued a tentative ruling and entertained lengthy oral argument.

judgment or orders preceding it, other than to note that once this opinion becomes final,
the judgment will be reversed.

5 The motion was also directed to the SAC's claims under ASIC's second policy,
No. XGI 03-2922-002. In their opposition to the motion, the SAC plaintiffs agreed that
ASIC's second policy did not provide a potential for coverage of the claims in the Baker
litigation. Accordingly, there is no need for ASIC to have argued in its cross-appeal —
and, indeed, we have not considered — whether any of the SAC plaintiffs was entitled to
insurance benefits under the second policy.

7
 By minute order filed July 29, 2011, the court denied ASIC's motion, ruling in

relevant part: (1) ASIC met its initial burden of establishing that there is not an

"additional insured endorsement" on the Policy expressly identifying any of the SAC

plaintiffs; (2) the SAC plaintiffs then did not meet their burden of raising a triable issue

of material fact as to the absence of an effective "additional insured endorsement"

identifying any of the SAC plaintiffs; but (3) the applicable " 'blanket' additional insured

endorsement" contained in the Policy provided benefits in circumstances that ASIC did

not disprove as a matter of law.

3. The Settlements

During the time period May 2010 through October 2011, the SAC plaintiffs settled

their claims in the coverage action with all the defendants except ASIC (Settlement). Of

the total $690,154 in Settlement proceeds, the Settlement documentation affirmatively

allocated $274,154 to defense expenses from the Baker litigation, and $416,000 was

unallocated.6

6 For all dollar amounts in this opinion, we have used whole numbers, usually
rounding off to the nearest dollar. Importantly, however, because we will be reversing
the judgment and remanding the matter for further proceedings, our recitation of the
dollar amounts merely reflects what the parties have represented the amounts to be — at
times without satisfactory record references or explanations of calculations. We have not
verified the calculations, and on remand neither the parties nor the court should accept
our recitation as findings or an affirmance of findings; i.e., on remand, the parties must
prove the dollar amounts to the satisfaction of the trier of fact without relying on the
amounts recited in this opinion.

8
 4. The Motions in Limine

In October 2011, in anticipation of trial, the parties filed motions in limine. One

dealt with ASIC's alleged duty to defend, and two dealt with the effect of the Settlement

proceeds on the SAC plaintiffs' alleged damages.

With regard to the duty to defend, the SAC plaintiffs filed a motion to exclude

testimony and argument disputing that ASIC had a duty to defend the Baker litigation.

With regard to the Settlement proceeds, the SAC plaintiffs filed a motion to exclude

evidence or argument about the Settlement (or any of its details); and ASIC filed a

motion to preclude McMillin from arguing either (a) that the Settlement proceeds are not

offsets to McMillin's alleged damages for breach of the duty to defend (breach of contract

claim) or (b) that the Settlement proceeds are allocated to McMillin's alleged damages

for breach of the implied covenant of good faith and fair dealing (tort claim). By the time

the motions were fully briefed and decided, the operative complaint was the TAC filed by

McMillin. Since McMillin was the only plaintiff at the time the court ruled on the

motions, we will refer only to McMillin unless context requires otherwise.

a. Duty to Defend

Relying on Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1078

(Horace Mann), and Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287,

301 (Montrose), McMillin argued that the denial of ASIC's motion for summary

judgment established as a matter of law that ASIC had a duty to defend them in the Baker

litigation. Opposing the motion, ASIC disputed the legal effect of the denial of its

summary judgment motion, contending that because the court did not deny the motion by

9
expressly finding a disputed factual issue, the effect of the ruling did not establish the

duty to defend as a matter of law.

In denying summary judgment, the court (Judge Nevitt) had ruled that, with regard

to four allegedly undisputed issues, "ASIC has not met its initial burden of proof."

During the in limine proceedings, ASIC argued that the court (Judge Alksne) could not

consider the denial of the summary judgment, relying in part on Judge Nevitt's following

comments at the conclusion of the hearing in which he denied ASIC's motion:

"However, I remind counsel that this ruling is of no evidentiary
value later. I don't know what other evidence may be presented to
the Court when these issues are next presented. Whether
foundations may have been laid for things, not laid here, and so
forth. And so should this issue come before the Court again under
different circumstances and with potentially different evidence, you
should not necessarily count on the same result."

Considering both Judge Nevitt's comment and the written order, Judge Alksne

explained at the in limine hearing that ASIC's failure to meet its initial burden in its

summary judgment motion was a decision that there was a disputed issue of material fact

as to coverage, and that such a disputed issue established the duty to defend. The court's

minute order granted the motion to exclude testimony and argument disputing that ASIC

had a duty to defend the Baker litigation.

10
 b. Offset7

Both motions sought pretrial rulings as to whether the court would allow evidence

of the Settlement and, more specifically, whether the parties could present evidence or

argument as to the application of the Settlement proceeds as an offset to the alleged

damages.8 McMillin's alleged damages were limited to: contract damages for breach of

ASIC's duty to defend (consisting of McMillin's unreimbursed defense expenses from the

Baker litigation (Baker fees)9); and tort damages for breach of the implied covenant of

good faith and fair dealing (consisting of McMillin's attorney fees and costs incurred to

compel payment from ASIC of insurance benefits under the Policy (Brandt fees)10).

7 We will use the word "offset," although we do not differentiate between the words
"offset" and "setoff" in the various authorities cited. (See Dillingham Construction, N.A.,
Inc. v. Nadel Partnership, Inc. (1998) 64 Cal.App.4th 264, 278.)

8 There were at least three rounds of briefing and two oral argument hearings. The
parties' arguments developed as the briefing continued.

9 McMillin contends its Baker fees are $334,620, whereas ASIC suggests the Baker
fees are limited to those incurred after tender of the defense of the Baker litigation —
$309,957. This is not an issue in the appeal, and we express no opinion. For purposes of
this opinion only (see fn. 6, ante), we will assume McMillin is alleging its contract
damages — namely, the amount of Baker fees — to be $309,957.

10 In Brandt v. Superior Court (1985) 37 Cal.3d 813 (Brandt), our Supreme Court
ruled that an insured that is able to prove breach of the implied covenant of good faith
and fair dealing may recover as damages its reasonable attorney fees incurred in
obtaining the policy benefits wrongfully denied. (Id. at p. 817; see Essex Ins. Co. v. Five
Star Dye House, Inc. (2006) 38 Cal.4th 1252, 1257-1258.) The parties agree that
McMillin contends the Brandt fees total $87,762.

11
 In its motion in limine, McMillin principally argued in the alternative: (1) all

evidence of the Settlement was inadmissible under the collateral source rule;11 or

(2) where the Settlement agreements with the settling insurers did not expressly allocate

their Settlement payments either to unreimbursed defense expenses in the Baker litigation

(after Settlement, $416,000)12 or to consideration for the settlement of the coverage

action, ASIC should not be allowed unilaterally to allocate those proceeds to Baker fees.

ASIC responded: (1) the collateral source rule was inapplicable, since it affects only tort,

not contract, claims, and McMillin's principal claim here was breach of contract; and

(2) application of Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130

Cal.App.4th 1078 (Emerald Bay) required the court to offset all Settlement proceeds

(whether allocated or unallocated) from McMillin's alleged damages in order to preclude

McMillin from recovering more in contract damages than it actually suffered.13

11 The collateral source rule "precludes deduction of compensation the plaintiff has
received from sources independent of the tortfeasor from damages the plaintiff 'would
otherwise collect from the tortfeasor.' " (Howell v. Hamilton Meats & Provisions, Inc.
(2011) 52 Cal.4th 541, 548.)

12 Notably, $274,154 of the Settlement proceeds is expressly allocated in the
Settlement documentation to McMillin's defense of the Baker litigation — which leaves
$416,000 unallocated ($690,154 - $274,154). The $309,957 in Baker fees, claimed as
contract damages by McMillin, includes full credit for the specifically allocated
Settlement proceeds ($274,154).

13 In relevant part, as discussed in the text post, Emerald Bay held that, where one
insurer provided the insured with a complete defense at all times, the insured " 'suffered
no cognizable damages' " in its claims both for breach of contract and for breach of the
implied covenant of good faith and fair dealing. (130 Cal.App.4th at pp. 1087-1096.)

12
 In its motion in limine, ASIC affirmatively sought the relief it argued in opposition

to McMillin's motion. Again relying on Emerald Bay (see fn. 13, ante), ASIC attempted

to establish that McMillin suffered no contract damages. Given that McMillin had, in

fact, incurred unreimbursed defense expenses during the Baker litigation (i.e., Baker

fees), the only way for ASIC to prove its point was to have the trial court apply the

equitable doctrine of offset, such that each dollar of Settlement proceeds offset each

dollar of Baker fees.14 More specifically, ASIC argued that because McMillin had

recovered more in Settlement proceeds than its Baker fees, McMillin could no longer

prove an essential element of its cause of action for breach of contract — namely,

damages. From there ASIC reasoned that, without the ability to recover for breach of

contract, as a matter of law McMillin could not prove an essential element of its cause of

action for breach of the implied covenant of good faith and fair dealing — namely,

breach of the insurance contract.

In opposition to ASIC's motion, McMillin argued that, of the total Settlement

proceeds ($690,154), only $274,154 had been allocated specifically to settle the contract

claim, leaving $416,000 in unallocated Settlement proceeds; that McMillin still had

unreimbursed defense expenses from the Baker litigation of $309,957; and that ASIC

could not arbitrarily and unilaterally allocate the $416,000 to Baker fees.

14 ASIC contended: "[W]hatever [S]ettlement amounts [the SAC p]laintiffs
recover . . . from other insurance carriers should be applied to equitably reduce the
damages that they can seek against [ASIC], as was done in Emerald Bay . . . ." (Italics
added.)

13
 At a hearing on August 1, 2012, Judge Alksne orally ruled that the court would

allow evidence of the Settlement at trial.15 Following many rounds of briefing and oral

argument hearings, Judge Alksne took under submission the in limine motions regarding

the Settlement. In a minute order filed in October 2012, the court granted ASIC's motion

in limine without further explanation, thereby ruling that McMillin would be precluded

from presenting evidence or argument that the Settlement proceeds either are not offsets

to the Baker fees (McMillin's contract damages) or are allocated to the Brandt fee

(McMillin's tort damages).16 In so doing, Judge Alksne necessarily allocated at least

$309,957 of the previously unallocated Settlement proceeds ($416,000) to McMillin's

breach of contract cause of action against the settling insurers, completely offsetting

McMillin's contract damages (i.e., Baker fees) by Settlement proceeds.

5. The Judgment

The parties agreed that the effect of the rulings in the in limine motions — namely,

that although ASIC had breached its duty to defend, the Settlement proceeds ($690,154)

15 Presumably, this ruling was the denial of the SAC plaintiffs' motion in limine
No. 2. However, the August 1, 2012 minute order indicates a ruling that does not appear
in the reporter's transcript, and the clerk's transcript does not contain a ruling on the SAC
plaintiffs' motion in limine. From our review of the record, we are satisfied the reporter's
transcript is correct, and the minute order is not. (See In re P.A. (2012) 211 Cal.App.4th
23, 30, fn. 4 ["We rely on the reporter's transcript based on the rule that '[c]onflicts
between the reporter's and clerk's transcripts are generally presumed to be clerical in
nature and are resolved in favor of the reporter's transcript unless the particular
circumstances dictate otherwise.' "].)

16 The record on appeal does not contain a ruling on McMillin's motion in limine
regarding evidence of the Settlement. Given Judge Alksne's ruling on ASIC's in limine
motion, we can infer the court also denied McMillin's related motion.

14
would be applied as an offset to McMillin's Baker fees ($309,957) — was that McMillin

could not prove any contract damages, and without contract damages, McMillin could not

maintain a cause of action for breach of the implied covenant of good faith and fair

dealing. The parties further agreed that, based on the effect of the rulings, judgment

could be entered in favor of ASIC — with all parties reserving their rights to appeal.

The court entered judgment, and ASIC gave notice of its entry on March 5, 2013.

McMillin timely appealed, and ASIC timely cross-appealed.

III.

DISCUSSION

As we explain post, the trial court erred in granting McMillin's motion in limine to

preclude evidence or argument that disputed ASIC's duty to defend; the trial court erred

in granting ASIC's motion in limine to preclude McMillin from presenting evidence or

argument either that the Settlement proceeds are not an offset to McMillin's Baker fees or

that the Settlement proceeds are allocated to Brandt fees; and we are unable to affirm that

portion of the judgment in favor of ASIC on McMillin's cause of action for breach of the

implied covenant of good faith and fair dealing.

A. The Trial Court Erred in Granting the Motions in Limine

1. Introduction and Standard of Review

Motions in limine are designed to facilitate management of a case by deciding

difficult evidentiary issues in advance of trial. (Amtower v. Photon Dynamics, Inc.

(2008) 158 Cal.App.4th 1582, 1593 (Amtower); see Super. Ct. San Diego County, Local

Rules, rule 2.1.18 ["Motions in limine must be limited in scope in accordance with

15
Clemens v. American Warranty Corp. (1978) 193 Cal.App.3d 444, 451: e.g., evidentiary

issues where attempts to 'unring the bell' would be unduly prejudicial or futile."].)

Although trial courts may exercise their inherent powers to permit other uses of motions

in limine (Amtower, at p. 1595; Coshow v. City of Escondido (2005) 132 Cal.App.4th

687, 701-702 [proper exercise of "inherent powers" by construing motions in limine as a

motion for judgment on the pleadings]), when used in such fashion they become

substitutes for dispositive statutory motions (Amtower, at p. 1594).

Like many evidentiary rulings, orders on motions in limine are generally reviewed

for abuse of discretion. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493.)

However, as we explain post, that standard does not apply where (as here) the grant of the

motion becomes a substitute for a summary adjudication or nonsuit motion, which

requires a ruling as a matter of law in the first instance and de novo review on appeal.

By granting McMillin's motion as to the duty to defend, the court essentially

granted a summary adjudication motion in favor of McMillin on one of the elements of

its cause of action for breach of contract, ruling as a matter of law that ASIC had a duty

to defend. (See Code Civ. Proc., § 437c, subd. (f)(1) ["party may move for summary

adjudication as to . . . one or more issues of duty"].) For this reason, we will review de

novo the order granting McMillin's in limine motion. (Lomes v. Hartford Financial

Services Group, Inc. (2001) 88 Cal.App.4th 127, 131 ["the appellate court independently

reviews an order granting summary adjudication of the duty to defend"].)

Similarly, by granting ASIC's motion as to offset, the court essentially granted "a

motion for nonsuit after [McMillin's] opening statement" in favor of ASIC on McMillin's
16
causes of action for breach of contract and breach of the implied covenant of good faith

and fair dealing — all resulting from ASIC's alleged breach of the duty to defend.17

(Amtower, supra, 158 Cal.App.4th at pp. 1594, 1595; see Edwards v. Centex Real Estate

Corp. (1997) 53 Cal.App.4th 15, 27 (Edwards) [where the grant of defendant's motion in

limine precludes plaintiff from presenting all evidence on an issue at trial, the effect is

"the functional equivalent of an order sustaining a demurrer to the evidence, or

nonsuit"].) Accordingly, like the trial court in ruling on a motion for nonsuit, "on this

appeal we must view the evidence most favorably to [McMillin], resolving all

presumptions, inferences and doubts in [its] favor, and uphold the judgment for [ASIC]

only if it was required as a matter of law" (Edwards, at p. 28), recognizing that "the grant

of such a motion is not favored" (Amtower, at p. 1595). Since this determination raises

only an issue of law, we review the order de novo. (M&F Fishing, Inc. v. Sea-Pac Ins.

Managers, Inc. (2012) 202 Cal.App.4th 1509, 1532.)

2. Duty to Defend

An insurer owes a duty to defend any lawsuit "which potentially seeks damages

within the coverage of the policy." (Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263,

275.) Since the duty arises whenever the claim against the insured seeks damages on any

17 The parties recognized the effect of the ruling on ASIC's in limine motion in their
stipulation to enter judgment: After offsetting the amount of Baker fees by the amount of
Settlement proceeds: (1) McMillin could not prove contract damages, an essential
element of its contract claim (Careau & Co. v. Security Pacific Business Credit, Inc.
(1990) 222 Cal.App.3d 1371, 1388); and (2) without a breach of the insurance contract,
McMillin could not prove an essential element of its related tort claim (see California
Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 54).
17
theory that, if proved, would be covered by the policy, the insurer is relieved of its duty

only when " 'the third party complaint can by no conceivable theory raise a single issue

which could bring it within the policy coverage.' " (Montrose, supra, 6 Cal.4th at p. 300.)

Thus, where the insurer moves for summary judgment based on the lack of a duty to

defend, the insurer must present undisputed facts that establish "the absence of any such

potential" for coverage.18 (Id. at p. 300.) In so doing, if coverage depends on an

unresolved dispute over a factual question, the very existence of that dispute would not

only result in a denial of the motion, but also establish a possibility of coverage and thus

a duty to defend. (Horace Mann, supra, 4 Cal.4th at p. 1085.)

In its cross-appeal, ASIC's principal argument is that Judge Alksne erred when she

ruled that, based on Judge Nevitt's denial of ASIC's motion for summary judgment, ASIC

was precluded from presenting evidence or argument disputing that ASIC owed the SAC

plaintiffs a duty to defend the Baker litigation.19 Although Judge Alksne's minute order

merely granted, without explanation, McMillin's motion in limine, Judge Nevitt's minute

order denying ASIC's summary judgment motion explained:

18 That is because while "the insured need only show that the underlying claim may
fall within policy coverage[,] the insurer must prove it cannot." (Montrose, supra, 6
Cal.4th at p. 300.) For an insurer to succeed on a motion for summary adjudication on
the duty to defend, the insurer must be able to negate coverage as a matter of law.
(Maryland Casualty Co. v. National American Ins. Co. (1996) 48 Cal.App.4th 1822,
1832.)

19 ASIC does not argue on appeal that Judge Nevitt erred in denying its motion for
summary judgment.

18
 " 'Undisputed issue' 7 concerns ASIC's contention that there is not an
'additional insured endorsement on the policies which specifically
identifies any of the [SAC p]laintiffs' [citation]. [The SAC
p]laintiffs appear to agree with ASIC . . . . Therefore, ASIC has met
its initial burden of proof, and [the SAC] plaintiffs have not raised a
triable issue of material fact as to the absence of an effective
additional insured endorsement specifically naming [the SAC]
plaintiffs (or any of them) as an additional insured. However, this is
not dispositive.

"ASIC acknowledges that there is a ' "blanket" additional insured
endorsement' (AIE) . . . . The AIE includes an Amendment limiting
coverage. ASIC's 'undisputed issues' 1, 2, 5 and 6 are based on
provisions of this Amendment. ASIC contends that the underlying
action [citation] does not involve, or potentially involve, '[o]ngoing
operations performed by the Named Insured [B&B Framing] on or
after the effective date [of] this endorsement,' '[l]iability arising out
of or relating to the Named Insured's sole negligence,' or ' "bodily
injury" or "property damage" caused by an "occurrence" under
Coverage A not otherwise excluded in the policy to which the
Endorsement applies.' (AIE's Amendment, emphasis added.)
ASIC's arguments are not persuasive as to any of these four
'undisputed issues,' i.e., ASIC has not met its initial burden of proof."
(Last italics added.)

We focus on the last statement that "ASIC has not met its initial burden of proof."20

Horace Mann instructs: Where "factual issues exist precluding summary

judgment in the insurer's favor . . . , the duty to defend is then established, absent

additional evidence bearing on the issue." (Horace Mann, supra, 4 Cal.4th at p. 1085.)

Given this language, ASIC contends that, because Judge Nevitt denied ASIC's motion on

20 The moving party bears the initial burden of production to make a prima facie
showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.) Only if the moving party carries its initial burden is the
opposing party then subject to its own burden of production to make a prima facie
showing that a triable issue of material fact exists. (Ibid.)

19
the basis ASIC "has not met its initial burden" — not because factual issues existed —

the duty to defend was not established as a matter of law. McMillin's response is that

under the "doctrine of implied findings," Judge Nevitt's denial of ASIC's motion

necessarily found that the SAC plaintiffs were additional insureds under the "blanket

additional insured endorsement."21 We agree with ASIC. The reason for the above-

quoted language in Horace Mann is that, "[i]f coverage depends on an unresolved dispute

over a factual question, the very existence of that dispute would establish a possibility of

coverage and thus a duty to defend." (Mirpad, LLC v. California Ins. Guarantee Assn.

(2005) 132 Cal.App.4th 1058, 1068 (Mirpad).) Here, however, Judge Nevitt's summary

judgment ruling did not find a factual dispute that necessarily established a possibility of

coverage. Rather, the ruling established only that ASIC did not meet its initial burden of

production to make a prima facie showing that there are no triable issues of material fact.

As further support for this position, we note that Judge Nevitt did not "specify one or

more material facts raised by the motion" — a requirement when the court denies the

21 We are unaware of how the doctrine of implied findings applies in this instance,
and McMillin does not provide any authority for its position. (ASIC also relies on this
doctrine in support of its position on a different issue in its cross-appeal; and likewise,
ASIC does not provide authority for application of this doctrine.) The doctrine of
implied findings provides that, if the parties in a civil court trial waive a statement of
decision, then on appeal the appellate court will presume that the trial court made all
factual findings necessary to support the judgment for which substantial evidence exists
in the record; i.e., the necessary findings of ultimate facts will be implied, and the only
issue on appeal is whether the implied findings are supported by substantial evidence.
(Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792-793.) In civil cases, statements of
decision generally are not required after a ruling on a motion. (Mechanical Contractors
Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 678; see Code Civ. Proc.,
§ 632 [statement of decision required only after a bench trial, upon timely request].)

20
motion "on the ground that there is a triable issue as to one or more material facts."

(Code Civ. Proc., § 437c, subd. (g).)22

Judge Alksne's statement from the bench indicates a possible source of

misunderstanding. In granting McMillin's motion in limine as to the duty to defend, she

explained to ASIC's counsel: "[Judge Nevitt's] written order says . . . that you [ASIC]

didn't meet your burden of proof. And the case law says [if] you don't meet your burden

of proof, [then] you" have "a duty to defend." However, as we clarified ante, in order for

the denial of an insurer's motion for summary judgment to establish a duty to defend, the

denial must be based on "an unresolved dispute over a factual question," because only

that type of dispute "establish[es] a possibility of coverage and thus a duty to defend."

(Mirpad, supra, 132 Cal.App.4th at p. 1068; see Horace Mann, supra, 4 Cal.4th at

p. 1085.) Denying a summary judgment motion because the moving party failed to meet

its initial burden of production is not the same as denying the motion based on an

unresolved factual dispute.

Accordingly, the trial court erred in ruling prior to trial that ASIC was precluded

from presenting evidence or argument that disputed whether ASIC had a duty to defend

the SAC plaintiffs in the Baker litigation.23 In making such a ruling in limine, the trial

22 "Upon the denial of a motion for summary judgment, on the ground that there is a
triable issue as to one or more material facts, the court shall, by written or oral order,
specify one or more material facts raised by the motion as to which the court has
determined there exists a triable controversy. . . ." (Code Civ. Proc., § 437c, subd. (g).)

23 Because the parties dispute the burden of proof on the duty to defend, we provide
the following guidance in the event the case goes to trial following remand. McMillin, as
21
court essentially granted summary adjudication as to the breach of ASIC's alleged duty to

defend without requiring the statutory procedural protections associated with summary

judgment proceedings, thereby not requiring McMillin to prove its case and not allowing

ASIC to defend McMillin's proof.

3. Offset

McMillin contends the court erred in ruling that McMillin was precluded from

arguing or presenting evidence either that the Settlement proceeds are not offsets to the

contract damages or that the Settlement proceeds are allocated to settling the tort (as

opposed to contract) cause of action. We agree, but not for the same reasons suggested

by McMillin. As we will explain post, because of procedural context of the requested

relief (in limine proceedings) and the standard of review (de novo), on this record ASIC

was not entitled to an offset based on equitable principles at this stage of the litigation.

the alleged insured, has the burden of proving both the existence of the Policy and its
material terms. (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 438.) Since
McMillin's contract claim is based on an alleged breach of the duty to defend the Baker
litigation, proof of actual coverage is not required; rather, McMillin's burden is to present
only a prima facie case of entitlement to a defense by showing that the claims in the
Baker litigation potentially fall within the insuring provisions of the Policy. (Montrose,
supra, 6 Cal.4th at pp. 300, 304; 2 Croskey et al., Cal. Practice Guide: Ins. Litigation
(The Rutter Group 2014) ¶ 7:571.6, p. 7B-26.) The burden then shifts to ASIC to show
conclusively that the claims alleged in the Baker litigation were not covered under the
Policy. (Mostrose, at pp. 300, 304; Croskey et al., supra, at ¶ 7:571.7, p. 7B-26.) If
ASIC carries its burden by the application of an exclusion in the Policy, then McMillin
has the burden of establishing an exception to the exclusion. (Aydin Corp. v. First State
Ins. Co. (1998) 18 Cal.4th 1183, 1188 [duty to indemnify, though same standard applies
to duty to defend]; Croskey et al., supra, at ¶ 7:571.6, p. 7B-26.)

22
 a. Offset as an Affirmative Defense

Based on inconsistencies in the record and appellate briefing, we requested and

received Government Code section 68081 supplemental briefing on the issue whether

ASIC was asserting offset as an affirmative defense. (See Code Civ. Proc., § 431.70.)

We received responses from both McMillin and ASIC, and they are in agreement:

ASIC's claim of offset at issue in this appeal is not being asserted or defended as an

affirmative defense.

While that answer satisfies our inquiry, we note the parties' lack of clarity in their

appellate briefing regarding the basis of ASIC's requested application of offset and the

related burden of proof, especially in light of the parties' express arguments in the trial

court regarding the affirmative defense of offset and the parties' citations to and reliance

on authorities in their appellate briefing applicable to the affirmative defense of offset.

b. Offset as Equitable Relief

From the parties' presentations throughout this case, we perceive a basic

misunderstanding as to the effect of the type of equitable offset ASIC is asserting. Both

ASIC and McMillin treat the entire Settlement proceeds ($690,154) as potential offsets to

damages. The Settlement proceeds do not affect McMillin's damages. Rather, in the

event of an award of damages at trial, Settlement proceeds that are found to be offsets by

the trial court24 affect only McMillin's right to recover the full amount of damages

24 We agree with the parties that the court, not the jury, decides whether to allow,
and if so the amount of, any offset. (Prudential Reinsurance Co. v. Superior Court
(1992) 3 Cal.4th 1118, 1151 [general principles of equity govern offset].)
23
awarded at trial. (See Goodman v. Lozano (2010) 47 Cal.4th 1327, 1338 [in the context

of determining the prevailing party for purposes of awarding costs, settlement offsets

affect whether a party has a " 'net monetary recovery' "].) If we assume (solely for the

purpose of this illustration) that ASIC breached its duty to defend, "the proper measure of

damages is the reasonable attorneys' fees and costs incurred by [McMillin] in defense of

the [Baker litigation]." (Marie Y. v. General Star Indemnity Co. (2003) 110 Cal.App.4th

928, 961 (Marie Y.); see Hogan v. Midland National Ins. Co. (1970) 3 Cal.3d 553, 564

[same, even where no duty to indemnify].) In the context of this record, that means all

attorney fees and costs McMillin incurred other than those that were paid by insurer(s)

that accepted the tender of, and participated in, the defense of the Baker litigation. The

significance of this distinction — namely, that an offset affects the right to recover

damages, not the amount of damages suffered — is that McMillin should be allowed to

present at trial evidence of the contract damages it suffered; and if the trier of fact awards

contract damages and finds support for the other elements of McMillin's claim for breach

of the implied covenant of good faith and fair dealing, then McMillin may also recover

tort damages, subject to proof (and the potential posttrial request for offset to reduce

McMillin's recovery). The fact that the 11 other insurer defendants settled with McMillin

should not, and does not, affect whether ASIC breached the duty to defend or the implied

covenant of good faith and fair dealing. At best, the Settlement proceeds from the other

11 insurers may reduce (by way of offset) the amount ASIC ultimately owes McMillin

for contract or tort damages.

24
 In our Government Code section 68081 letter, we indicated an intent to treat

Judge Alksne's ruling on the motion in limine as a ruling on a motion for nonsuit,

inquiring if the result would be different depending on whether ASIC had asserted its

right to offset as an affirmative defense or as an equitable claim. McMillin responded

that the result would be the same, repeating its request for a reversal.

Rather than responding to the question presented, ASIC argued that its motion in

limine was not really a motion in limine; "it is better understood as a shifting of the order

of proof." According to ASIC, "the parties stipulated that the court was to make certain

damage determinations before presenting the remainder of the case." ASIC described its

understanding of the stipulated procedure as follows:

"The setoff issue was thus decided by the trier of fact (stipulated to
be the trial judge who usually addresses third party payments
post trial) following the presentation of the evidence — the only
difference being that Judge Alksne made the same factual and legal
determinations at the start of trial that she would have made after
trial."

From this description of the procedure, ASIC argued that because the parties presented

evidence in support of their respective positions, some of which Judge Alksne credited

and applied as an offset to damages, McMillin is not entitled to the presumptions,

inferences and doubts that benefit an appellant in an appeal from the grant of a nonsuit

after opening statement, as we suggested in our Government Code section 68081 letter.25

25 ASIC's position on the standard of review is not clear. In its respondent's brief,
ASIC suggested an abuse of discretion standard of review for application of an offset,
citing Margott v. Gem Properties, Inc. (1973) 34 Cal.App.3d 849, 854. In Margott,
however, the denial of the offset that was reviewed for an abuse of discretion was an
25
Finally, ASIC repeated its principal (already briefed) contention that, because Emerald

Bay is factually and legally indistinguishable from the present case, the trial court

correctly ruled as it did, and we have no choice but to affirm based on the standards of

review suggested by ASIC.

We disagree with ASIC's representation of the scope of the proceedings before

Judge Alksne (and, accordingly, the standard of review to be applied) and with ASIC's

insistence that Emerald Bay and similar cases are controlling. As we will explain post,

Emerald Bay and ASIC's related authorities are factually distinguishable and thus

inapplicable. In Emerald Bay, the insured did not suffer any damages because the

participating insurers paid the insured's entire costs of defense as they were incurred,

whereas here McMillin actually suffered contract damages of at least $309,957, even if

affirmative defense of offset — i.e., where " '[a] court of equity will compel a set-off
when mutual demands are held under such circumstances that one of them should be
applied against the other and only the balance recovered' " (ibid.) — which ASIC
expressly tells us is not being asserted here. In its letter brief, ASIC contends that,
because the proceedings were essentially a stipulated trial (not a motion in limine),
McMillin's appeal presents issues to be reviewed under the "more lenient" standards of
"substantial evidence and abuse of discretion." In so doing, however, ASIC fails to
advise what standard applies to what ruling(s) or to provide any authority for its position.
In the same sentence, ASIC describes the procedure as "a pre-trial determination of
mixed legal and factual issues" — which, if true, would suggest a de novo standard of
review. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801 [mixed questions of fact
and law are reviewed de novo where legal issues predominate].) Here, during the in
limine proceedings, there were no disputes as to McMillin's alleged contract damages, the
total amount of Settlement proceeds, or the amount of Settlement proceeds allocated
expressly to contract damages by the settling insurers; rather, the parties' disagreements
centered on who had the burden of proof and whether, as a matter of law, McMillin
suffered damages. In any event, we are not persuaded by ASIC's letter brief, since
ASIC's positions are inconsistent, and ASIC presents its most recent iteration without
authority.

26
the eventual application of an equitable offset precludes McMillin from recovering some

or all of these damages. We will then explain that because the record on appeal does not

support ASIC's representation that the parties stipulated to have Judge Alksne decide

either the amount of damages in lieu of trial or the amount of any offset, there is no

support for ASIC's suggestion of a standard of review other than de novo with all

presumptions, inferences and doubts in favor of McMillin.

(i) Emerald Bay

Throughout the briefing at all stages in both the trial and appellate courts, ASIC

has relied on the opinion in Emerald Bay, supra, 130 Cal.App.4th 1078, as authority

requiring the court to rule as a matter of law that McMillin did not suffer any contract

damages. We disagree; Emerald Bay is not controlling, except to the extent it supports

the claim that McMillin suffered damages here, whereas the insured in Emerald Bay did

not.

In Emerald Bay, an insured sued Golden Eagle Insurance Corporation for breach

of the duties to defend and to indemnify under a policy of commercial general liability

insurance. (130 Cal.App.4th at pp. 1082-1083.) Although Golden Eagle had refused to

defend or indemnify the insured in the underlying action at a certain point in time,

Federal Insurance Company, another of the insured's insurers, provided a complete

defense (and indemnification) at all times. (Id. at pp. 1083-1084.) The trial court granted

summary judgment in favor of Golden Eagle — and the Court of Appeal affirmed — on

the ground that, since Federal had provided a complete defense at all times, the insured

27
" 'suffered no cognizable damages' " in its claims both for breach of contract and for

breach of the implied covenant of good faith and fair dealing. (Id. at pp. 1087-1096.)

ASIC's reliance on Emerald Bay is misplaced, because the predicate in Emerald

Bay — namely, that at all times the insured had been provided a complete defense by a

participating insurer (130 Cal.App.4th at p. 1084) — is not present here. ASIC's other

authorities are also unpersuasive because of ASIC's failure to appreciate that, in each, the

insured was never without a complete defense provided by someone other than the

defendant. (Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th

468, 471-473 [in an action against subcontractors to recover costs of defense from an

underlying construction defect action, all of the contractor's attorney fees in the third

party action were paid by the contractor's insurer]; Patent Scaffolding Co. v. William

Simpson Constr. Co. (1967) 256 Cal.App.2d 506, 510-511 [where defendant contractor

had agreed to procure fire insurance but did not and plaintiff subcontractor suffered fire

loss, because plaintiff recovered all losses from its own insurer plaintiff did not suffer

damages]; Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th

1165, 1187 [plaintiff insured did not suffer damages when defendant insurer withdrew

from providing a defense, because insured "was fully protected from having to pay any

costs of its own defense by other insurers"]; Tradewinds Escrow, Inc. v. Truck Ins.

Exchange (2002) 97 Cal.App.4th 704, 712 [defendant insurer not liable for costs of

defense in third party action "where other insurers were on the risk and assumed the

insured's defense"]; Prichard v. Liberty Mutual Ins. Co. (2000) 84 Cal.App.4th 890, 909

[no breach of duty to defend where multiple insurers shared total defense expenses];

28
Ceresino v. Fire Ins. Exchange (1989) 215 Cal.App.3d 814, 823 [where one insurer paid

for insured's defense in underlying litigation, second insurer's failure to do so "was of no

consequence" to insured].) ASIC fails to distinguish the situation where the insured is

provided a complete defense (plaintiffs in Emerald Bay and related authorities) from the

situation where the insured is without a complete defense but later, following litigation,

recovers payments from others that arguably compensate the insured for having to

provide its own defense (McMillin here).

On appeal, ASIC acknowledges that only a portion of McMillin's defense

expenses in the Baker litigation were covered by other insurers, thereby essentially

conceding that McMillin did, in fact, suffer damages in the amount of the unpaid portion

defense expenses in the Baker litigation.26 (Marie Y., supra, 110 Cal.App.4th at p. 961

["the proper measure of damages [for breach of the duty to defend] is the reasonable

attorneys' fees and costs incurred by the insured in defense of the claim"].) In its most

recent letter brief, in reliance on Emerald Bay and related authorities, ASIC emphasizes

that "the measure of damages for breach of the duty to defend are the costs and attorney

26 Citing Buss v. Superior Court (1997) 16 Cal.4th 35, 48-49, and Presley v.
American States Ins. Co. (2001) 90 Cal.App.4th 571, 575, ASIC also claims that, because
other insurers had accepted McMillin's tender of the defense of the Baker litigation, the
other insurers were required to "defend immediately and entirely." We have not
considered this argument, since ASIC presents no record references or any arguments as
to how this authority might apply here. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C);
Liberty, supra, 194 Cal.App.4th at p. 846 ["at a minimum," we may disregard
unsupported assertions in briefs].) In any event, ASIC does not explain how the other
insurers' alleged breach of their duties to defend is a defense to McMillin's claim against
ASIC, as opposed to a potential claim ASIC may have against those other insurers.

29
fees that were paid by McMillin and remain 'unreimbursed.' " ASIC presents no

authority (and we are aware of none) that supports the italicized portion of ASIC's

statement requiring an insured's damages to "remain 'unreimbursed ' " at the time of trial

in order to establish damages as an element of the cause of action. The timing and source

of "reimbursement" may affect the insured's ability to recover damages awarded, but not

whether the insured suffered the damages.

Emerald Bay is neither controlling nor persuasive, except to the extent it confirms

that, in contrast with the insured in Emerald Bay, the insured here (McMillin) does have

evidence of damages — namely, McMillin's attorney fees and costs incurred in defending

the Baker litigation that were not paid by the insurers that participated in McMillin's

defense of that action. Thus, according to Emerald Bay and ASIC's related authorities,

the existence of the Settlement proceeds is irrelevant to the determination of whether

McMillin suffered damages as a result of the alleged breach of the duty to defend.

(ii) Purported Stipulation

After merits briefing of 152 pages and amicus briefing of 32 pages, for the very

first time in its letter brief, ASIC advises that "the parties stipulated that [Judge Alksne]

was to make certain damage determinations before presenting the remainder of the case"

and "McMillin agreed to have [Judge Alksne], not the jury, decide whether [McMillin]

still had damages at the start of trial." In support of this new revelation, ASIC refers us to

the following statements, which it attributes to McMillin during the in limine

proceedings:

30
 " 'Plaintiff MCMILLIN joins with Defendant ASIC in requesting that
the court address the issue of offset before the remainder of the case.
Plaintiff concurs with Defendant ASIC that the issue of damage
offsets is one for the trial judge, not the jury to decide.' "

" 'MCMILLIN joins . . . in requesting that the court address the issue
of offset before the remainder of the case.' "

The first statement is contained in one of McMillin's briefs on the issue of offsets.

ASIC did not provide a record reference for the second statement, and thus we may

disregard it. (Cal. Rules of Court, rule 8.204(a)(1)(C); Liberty, supra, 194 Cal.App.4th at

p. 846.) In any event, neither statement alone nor both statements together establish an

agreement by McMillin and ASIC to have Judge Alksne decide the issue of damages

based on declarations and oral argument. At most, McMillin asked the court to decide

the potential effect of the Settlement proceeds on McMillin's alleged damages in order to

limit or exclude evidence of the Settlement,27 not to preclude McMillin from going to

trial on the causes of action in the TAC. Finally — and tellingly — ASIC does not tell us

where in the record it agreed to the procedure that it now contends was intended by the

parties and accepted by the court; and our familiarity with the record does not disclose

such an agreement.

(iii) Trial Court's Error

As explained at part III.A.1, ante, we consider ASIC's motion in limine as if it had

been a motion for nonsuit after opening statement. As such, we review the trial court's

27 Consistently, McMillin had filed a motion in limine asking for an order excluding
evidence of or reference to the Settlement.

31
ruling de novo, viewing the evidence and offers of proof most favorably to McMillin, and

resolving all presumptions, inferences and doubts in its favor; and we will uphold the

order granting ASIC's motion only if it is required as a matter of law. (Edwards, supra,

53 Cal.App.4th at p. 28; Amtower, supra, 158 Cal.App.4th at pp. 1594-1595.) Under this

standard, Judge Alksne's order granting ASIC's motion in limine — and, therefore, the

related judgment — must be reversed.

The parties do not dispute that pursuant to express language in certain of the

Settlement agreements, $274,154 was allocated to McMillin's defense expenses in the

Baker litigation. McMillin presented this evidence to the trial court, explaining: "[I]f it

was McMillin and the settling carriers' intent to allocate a portion of the [settlement]

funds to settlement of defense costs, then the allocation would have been set forth

explicitly in the settlement agreement[s]." This statement and a reasonable inference

from it establish that because the remaining Settlement proceeds ($416,000) were

unallocated, the settling parties did not intend that those funds be allocated to Baker fees

— i.e., those Settlement funds instead should be allocated to settling insurers' resolution

of the cause of action for breach of the implied covenant of good faith and fair dealing,

not to the cause of action for breach of the contract duty to defend. Doing so leaves

McMillin with its claim for Baker fees — sufficient evidence to defeat a motion for

nonsuit after opening statement, the standard we are to apply.28

28 We do not have to apply the inference from the evidence related to the allocation
of Settlement proceeds. The mere fact that McMillin incurred the Baker fees (regardless
of the amount) is sufficient evidence to defeat a motion for nonsuit.
32
 Thus, under the standards for ruling on motions for nonsuit — which are the same

for purposes of our standard of review on appeal (Edwards, supra, 53 Cal.App.4th at

p. 28) — Judge Alksne erred in rejecting McMillin's presentation (that unallocated

Settlement proceeds be allocated to resolving the tort claim) and accepting ASIC's

presentation (that unallocated Settlement proceeds be allocated first to resolving the

contract claim), leaving McMillin without evidence of damages. In making such a ruling

in limine, the trial court essentially granted a nonsuit as to the issue of McMillin's alleged

damages without requiring the statutory procedural protections associated with nonsuit

proceedings, thereby precluding McMillin from trying its case.

(iv) Conclusion

In ruling that McMillin was precluded from arguing that the unallocated

Settlement proceeds either are not an offset to contract damages or are allocated to the

tort damages, the trial court erred in essentially granting a nonsuit in ASIC's favor.

ASIC's arguments regarding offsets based on the Settlement proceeds do not

defeat McMillin's right to go to trial on the TAC. The fact that McMillin may have

obtained the Settlement from 11 other insurers years after the tender of defense to ASIC

— regardless how the Settlement proceeds are allocated — affects only McMillin's

potential right to recover damages from ASIC, not whether McMillin suffered damages

as a result of ASIC's alleged breaches.29

29 Thus, we agree generally with ASIC's statement that based on its claim for breach
of contract "McMillin is only entitled to a [final] judgment for the balance of defense fees
and costs (the contract damages) that were not paid by others." Importantly, however, the
33
 4. The Orders Granting the Motions in Limine Are Reversed

The minute order filed July 26, 2012, precluding ASIC from disputing its alleged

duty to defend is reversed; and on remand, the court should enter an order denying the

SAC plaintiffs' motion in limine. The minute order filed October 22, 2012, precluding

McMillin from arguing that the unallocated Settlement proceeds either are not an offset

to contract damages or are allocated to the tort damages, is reversed; and on remand the

court should enter an order denying ASIC's motion in limine.30

As evidenced in this appeal, using an in limine motion as a substitute for a

potentially dispositive statutory motion produces substantial risk of prejudicial error.

"The disadvantages of such shortcuts are obvious. They circumvent procedural

protections provided by the statutory motions or by trial on the merits; they risk

blindsiding the nonmoving party; and, in some cases, they could infringe a litigant's right

"balance of defense fees and costs" can only be determined following a trial (at which
McMillin is given the opportunity to prove both contract and tort damages) and, if
necessary, posttrial offset proceedings (at which ASIC may attempt to limit recovery of
any damages awarded).

30 Both in briefing and at oral argument, ASIC insisted Atlantic Mutual Ins. Co. v.
J. Lamb, Inc. (2002) 100 Cal.App.4th 1017 precludes McMillin from arguing that any
portion of the unallocated Settlement proceeds be allocated to Brandt fees (tort damages)
before allocating sufficient Settlement proceeds to fully reimbursing McMillin for its
Baker fees (contract damages). We disagree. In the context of an equitable subrogation
dispute between two insurers, J. Lamb merely stated that a settlement agreement between
an insured and its insurer "which does not even reflect that a claim for bad faith was
pending or existed" — combined with the testimony of a representative from the settling
insurer regarding the insurer's intent — was not evidence that the settlement proceeds
were intended by the settling parties as "a payment 'for defense and indemnity of bad
faith.' " (Id. at p. 1042.) On remand, McMillin and ASIC may each present whatever
evidence it has regarding the intent of any of the settling parties here.
34
to a jury trial." (Amtower, supra, 158 Cal.App.4th at p. 1594.) Accordingly, "[t]he better

practice in nearly every case is to afford the litigant the protections provided by trial or by

the statutory processes." (Id. at p. 1588.)

B. ASIC Is Not Entitled to Judgment on McMillin's Cause of Action for Breach of the
Implied Covenant of Good Faith and Fair Dealing

As part of its cross-appeal, ASIC asks us to affirm that portion of the judgment in

its favor on McMillin's third cause of action for breach of the implied covenant of good

faith and fair dealing.

However, since only a "party aggrieved" can prosecute an appeal (Code Civ.

Proc., § 902), we question whether ASIC has standing to raise this request in its cross-

appeal. A party is legally "aggrieved" for appeal purposes only if its "rights or interests

are injuriously affected by the judgment." (County of Alameda v. Carleson (1971) 5

Cal.3d 730, 737.) Here, ASIC raised the request as an appellant (in a cross-appeal), yet

ASIC's rights or interests are hardly "injuriously affected" (ibid.) by a judgment that is

entirely in its favor — including specifically as to McMillin's cause of action for breach

of the implied covenant of good faith and fair dealing.

Even if we treat this portion of ASIC's cross-appeal as if it were raised by ASIC as

the respondent in McMillin's appeal (as an alternative way to affirm the judgment as to

the tort claim), we still are unable to grant the relief. ASIC moved only for summary

judgment and did not seek summary adjudication on the cause of action for breach of the

implied covenant of good faith and fair dealing, and we may not consider relief ASIC did

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not request in the summary judgment proceedings.31 (Barber v. Chang (2007) 151

Cal.App.4th 1456, 1469; Motevalli v. Los Angeles Unified School Dist. (2004) 122

Cal.App.4th 97, 114 ["a motion for summary adjudication cannot be considered by the

court unless the party bringing the motion for summary judgment duly gives notice that

summary adjudication is being sought as an alternative to summary judgment, in the

event summary judgment is denied"].)

31 We express no view on the merits of ASIC's argument that the application of
genuine dispute doctrine entitles ASIC to judgment as a matter of law on McMillin's
cause of action for breach of the implied covenant of good faith and fair dealing. (See
Opsal v. United Services Auto. Assn. (1991) 2 Cal.App.4th 1197, 1205-1206 ["[B]ad faith
liability cannot be imposed where there 'exist[s] a genuine issue as to [the insurer's]
liability under California law.' "]; but see Mt. Hawley Ins. Co. v. Lopez (2013) 215
Cal.App.4th 1385, 1424 ["doubtful that the so-called 'genuine dispute doctrine' applies in
third party duty to defend cases"].)
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 DISPOSITION

The appeal is dismissed as to all appellants other than McMillin Construction

Services, L.P., dba McMillin Homes, a Corky McMillin Company. The judgment is

reversed and the matter remanded for further proceedings. The parties will bear their

respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)

IRION, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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