I concur in the majority’s affirmance of the trial court’s decisions in favor of defendants on the causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. I respectfully dissent from the remainder of the majority opinion. Thus, the majority and I agree the contract between these two businesses provided insurance coverage for new cars, not used cars. We also agree that the insurer is not liable for any violation of the implied covenant or for breach of fiduciary duty. We part company because I believe the trial court’s other decisions were also correct and supported by the evidentiary record and the law.
The majority violates one of the fundamental general rules of appellate review—on appeal, in considering whether the trial court erred, the appellate court cannot consider evidence that was not before the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261]; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 [227 Cal.Rptr. 491].) In support of the conclusion that the trial court could not grant the nonsuit on the misrepresentation claims of R & B Auto Center, Inc. (R & B), the majority cites extensively from, and relies exclusively on, the deposition testimony and declarations from R & B’s business manager and president, and the deposition testimony and transcribed recorded statement of William Westenberger, an insurance agent for Truck Insurance Exchange (Truck Insurance). The fatal problem with the majority’s analysis is that all of the evidence on which it relies was presented to the trial court in connection with the parties’ earlier motions for summary judgment filed in May 2002, not in connection with the motions for nonsuit months later in March 2003. The only justification the majority gives for this unprecedented consideration of evidence outside the trial record is to say the circumstances of this case are “peculiar.” (Maj. opn., ante, at p. 341, fn. 6.)
What evidence did the trial court have to consider in ruling on the motions for nonsuit? When the motions for nonsuit were filed, R & B did not offer any evidence in opposition, and did not request an opportunity to file an offer of proof. (The only offer of proof referred to in the majority opinion was submitted by R & B in connection with its attempt to get the trial court to revisit its rulings on the motions in limine. It was not an offer of proof on the later nonsuit motions.) In responding to the nonsuit motion filed by Farmers Group, Inc. (Farmers), and Truck Underwriters Association (Truck Underwriters), R & B’s counsel said, “we oppose this motion. . . . We preserve all objections. We say that everything that we’ve offered and argued to your honor, and your honor has reviewed at tremendous length—and we appreciate that—in the past, we think we’re right on the issues that we’ve been ruled wrong on, but we understand that. And in the interest of judicial economy, we’re prepared to sign off on this order as a matter of form, preserving all rights to object.” In opposing the separate nonsuit motion filed *375by Truck Insurance, R & B’s attorney said, “[w]e oppose the motion on all the reasons and incorporate everything we ever filed in this case, if that’s okay.”
The trial court granted the motions for nonsuit. The court did not state it agreed to consider all of R & B’s evidence and argument throughout the case when ruling on the motions for nonsuit. Certainly, a party cannot refer generally to every document previously filed in the trial court record over months or even years, without any specification, and satisfy its obligations in opposing a motion for nonsuit in the trial court. In effect, the majority says that the trial court abused its discretion by limiting its review to the evidence and actual motions before the court in trial.
The majority holds that a party opposing a motion for nonsuit may incorporate by reference all prior filings in the case, and that it is reversible error for the trial court to decide the case on the evidence before it, rather than dig back through the record to locate evidence unspecified by the party. The majority’s holding is breathtaking in its novelty, and it will be devastating to the daily operation of our trial courts and to the normal processes of appellate review. As an appellate court, we cannot reverse a correct trial court decision, based on evidence that was not before the trial court when it made its decision.
As a second, independent reason showing erroneous analysis by the majority, the issues on which the majority bases its conclusions in connection with the misrepresentation claims are not properly before us because R & B has waived them on appeal under basic rules of appellate review. In its opening appellate brief, R & B never addresses the motion for nonsuit filed by Farmers and Truck Underwriters. Any arguments with regard to that issue should be deemed to be waived. (Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211, 1216, fn. 4 [112 Cal.Rptr.2d 556].) With respect to Truck Insurance’s motion for nonsuit, the issue argued to the trial court was R & B’s lack of any damages. In its opening appellate brief, R & B does not address the issue of damages (much less any issue regarding the existence or nonexistence of a misrepresentation). When the majority addresses whether R & B waived issues on appeal, it addresses the wrong issue—whether R & B waived its rights by stipulating to the granting of the nonsuit motions, and by failing to offer evidence to counter those motions. Yes, these are serious problems for R & B on appeal, but not as serious a problem as its failure to challenge damages on appeal—a failure which I believe forecloses R & B from raising a challenge to the nonsuit on appeal.
Thus, R & B failed to address the specific issue on which the motion for nonsuit had been based and was decided, namely, the absence of damages. Truck Insurance argued in its respondent’s appellate brief that R & B could *376not recover damages, and its misrepresentation claims were therefore properly dismissed. Even in its reply brief, R & B makes no attempt to point to any evidence of actual, compensatory damages. R & B has repeatedly waived the issue of damages for misrepresentation on appeal, and the issue is not properly before this court.
The majority broadly criticizes the trial court for its rulings on motions in limine. Yet, there are really two key motions in limine in issue, the trial court was right on both, and the majority agrees with the ruling on one of the two. First, the trial court decided one motion in limine on the ground the insurance contract did not provide coverage for new cars. The majority agrees with this ruling. Second, the trial court granted a motion in limine excluding the testimony of three nonparty witnesses who were not identified by R & B in discovery. This ruling was well within the trial court’s discretion, based on the record before it.
Procedural History
I set forth here a short summary of the procedural history of this case and highlight those issues on which I agree with the majority, while making it clear where we disagree. First, the trial court granted a motion in limine in which it concluded, as a matter of law, the insurance policy did not provide coverage for R & B’s claim, and therefore dismissed R & B’s coverage-related claims. The majority agrees the issue of interpretation of the contract was a legal one and the motion was properly granted with respect to two of the claims—for breach of contract and breach of the implied covenant.1 I agree with the majority’s conclusion in this regard. I disagree, however, with the conclusion that the trial court improperly resolved the unfair competition claim, as detailed post. The trial court also granted several other motions in limine. In dicta, the majority reverses these rulings using an incorrect standard of review.
Next, the trial court conducted a bench trial on the existence of a fiduciary duty and on the issue of alter ego. At the conclusion of trial, the court found *377there was no fiduciary duty owed to R & B, and the majority concludes there was substantial evidence to support the trial court’s finding on fiduciary duty. I agree with the majority on this point. The majority then concludes it is moot whether the trial court correctly ruled that Farmers was not the alter ego of Truck Underwriters. I understand the majority’s opinion on this issue to finally dispose of the alter ego issue in favor of Farmers and Truck Underwriters. I would expressly state there was substantial evidence to support the trial court’s finding that none of the parties was the alter ego of the others.
It was at this point in the proceedings that Farmers and Truck Underwriters, and Truck Insurance separately moved for nonsuit on the remaining claims of negligent and intentional misrepresentation and reformation. I agree with the majority’s conclusion that the trial court properly granted Truck Underwriters’s motion, but the majority’s conclusion that the trial court erred by granting the motions for nonsuit by Farmers and Truck Insurance is wrong, as described post.
R & B Waived Any Challenge to the Order Granting Farmers and Truck Underwriters ’s Motion for Nonsuit.
In the trial court, two motions for nonsuit were filed. In the first, Farmers and Truck Underwriters sought nonsuit on the remaining causes of action against them. The court granted that motion. In its appellate briefs, R & B never argues the trial court erred in granting Farmers and Truck Underwriters’s motion for nonsuit. This issue should have been deemed to be waived. (Katelaris v. County of Orange, supra, 92 Cal.App.4th 1211, 1216, fn. 4.) Nevertheless, the following discussion would apply equally to Farmers and Truck Underwriters’s motion. (As noted ante, this is not the same waiver issue addressed in the majority’s opinion, ante, at pp. 337-341.)
Truck Insurance’s Motion for Nonsuit on the Misrepresentation Claims Was Properly Granted.
The motion for nonsuit on the misrepresentation claims was properly granted. The elements of a claim for intentional misrepresentation are a misrepresentation, made with knowledge of its falsity and with an intent to defraud or induce reliance, justifiable reliance, and resulting damage. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 772, p. 1121.) A claim for negligent misrepresentation requires proof of each of the foregoing elements except for knowledge of the falsity of the representation; honest belief in the truth of the statement, without a reasonable ground for that belief, is sufficient. (Id., § 818, p. 1181.)
The absence of any one of these elements warranted granting the nonsuit motion. The trial court correctly concluded R & B suffered no damages and *378based its decision on that ground. In addition to the absence of damages, the nonsuit motion could have been granted as to each and all of the other elements as well.
R&B could not have proved a claim for intentional or negligent misrepresentation because it suffered no damages. R&B was limited to recovering economic damages. (Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 468 [72 Cal.Rptr. 344, 446 P.2d 152].) The only economic damages R&B could have suffered as a result of the alleged misrepresentations by Westenberger and Lopez (a Farmers field underwriter) were the costs and expenses in defending against and settling the lemon law lawsuit filed against R&B which spawned the present case. Truck Insurance tendered payment to R & B for all its litigation expenses and settlement costs incurred in the Peralta litigation. Therefore, R&B suffered no loss.2
R&B admitted it suffered no damages on multiple occasions throughout the litigation and waived the issue on appeal. In its opening brief on appeal, R&B acknowledges, as it did in asking the trial court to reconsider its ruling on the motions in limine: “Approximately 611 days after R&B’s initial tender of defense, Farmers unilaterally ‘tendered’ to R&B two checks totaling $77,27[5].98. The amount represented 100% of the defense costs and settlement amount incurred by R&B, with 10% interest, in connection with the underlying Peralta matter. ...[][] When Farmers eventually sent the check on April 3, 2002, it did so completely of its own accord. There had been no request or negotiations leading up to its tender. The amount sent did not purport to be a ‘compromised’ amount, but rather was the full amount of R&B’s initial claim, with interest.” R&B also acknowledges on appeal that Truck Insurance moved for nonsuit “on the grounds the pleadings established that Truck had tendered damages which equaled the damages on the Peralta *379matter, the attorneys fees paid to Peralta’s lawyers and to R&B’s lawyers on the Peralta matter and 10 percent interest to date of the tender.”3
R & B waived the right to argue on appeal it suffered any damages as a result of defendants’ alleged misrepresentations. The issue before the trial court on Truck Insurance’s motion for nonsuit was R & B’s lack of any damages. In its opening appellate brief, R & B does not address the issue of damages. Instead, R & B argues the totality of the trial court’s earlier rulings on the contract claims, the fiduciary duty claim, the unfair competition claim, and the motions in limine was “a series of prejudicial errors” and that once those prior rulings were reversed, the “Trial Court’s decision on the intentional and negligent misrepresentation [would] fall as well.” Truck Insurance argues in its respondent’s appellate brief that R & B could not recover damages, and its misrepresentation claims were therefore properly dismissed. In its reply brief, R & B does not identify any evidence of actual, compensatory damages. On appeal, R & B has repeatedly waived the issue of damages for misrepresentation, and the issue is not properly before this court.
So the law tells us what the outer limits of R & B’s recovery are, and R & B admits on appeal that Truck Insurance had tendered the full amount of its potential damages. This should be the end of it. How does the majority address the issue? It says R & B did not really make any concession that Truck Insurance tendered the total potential damages. (Maj. opn., ante, at pp. 342-343.) The majority then concludes with the following: “Erring on the side of caution, and with the goal of giving the litigants a full and fair trial on the merits, we remand the negligent misrepresentation issues to the trial court for further proceedings to the extent that R & B has not conceded that all potential damages under the negligent misrepresentation cause of action have been tendered.” (Id. at p. 343.) The majority fails, however, to address the fact, given the evidence before the trial court, R & B could not prove damages, a necessary element of its intentional and negligent misrepresentation claims.
There was also no evidence before the trial court on the motions for nonsuit of a misrepresentation that the products deficiency liability endorsement for new cars would cover used cars. Without such a representation, R&B’s case fails, as the trial court correctly understood. The evidence cited by the majority was taken entirely from the parties’ submissions in connection with motions for summary judgment filed months earlier. The majority does not cite any evidence presented to the trial court in connection with the motions for nonsuit, because there was none.
*380In response to a motion for nonsuit, the plaintiff normally makes an offer of proof. In this case, R & B did not do so. “The offer of proof must be specific, setting forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued.” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1124 [118 Cal.Rptr.2d 873].) A plaintiff attempting to defeat a motion for nonsuit through the use of an offer of proof bears the burden of adequately specifying the additional proof to be offered. (See Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2005) 1 12:236, p. 12-46 (rev. # 1, 2001).) The failure to do so properly results in the granting of the motion. “In the absence of a more precise offer of proof, however, we are in no position to arrive at conclusions about these subjects favorable to [the plaintiff], who must bear the consequences of all defects and ambiguities in its offer.” (S. C. Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 540 [30 Cal.Rptr.2d 286].)
On appeal, the plaintiff must show how the evidence in the offer of proof would have remedied the defects in the cause of action. (Abreu v. Svenhard’s Swedish Bakery (1989) 208 Cal.App.3d 1446, 1457 [257 Cal.Rptr. 26]; Cacciaguidi v. Elliott (1974) 39 Cal.App.3d 261, 265-266 [114 Cal.Rptr. 93]; Greene v. Atchison, T. & S. F. Ry. Co. (1953) 120 Cal.App.2d 135, 144 [260 P.2d 834].) If the plaintiff does not or cannot, the appellate court is not in a position to reverse the trial court’s order granting the motion for nonsuit. To simply incorporate by reference all material in the case file and all arguments previously made by counsel in opposing a nonsuit motion does not satisfy the requirements of an offer of proof. This procedure deprives the moving party of due process, and puts both the trial court and the appellate court in impossible positions. As a Court of Appeal, we should not resurrect such causes of action based on evidence that was not before the trial court in connection with the motion in question.4
Also, there was no evidence of knowledge of falsity, or of intent on the intentional misrepresentation claim. R & B admitted Westenberger and Lopez were unaware the products deficiency liability coverage only applied to new cars when they confirmed R & B would have lemon law coverage. True, parties may, throughout litigation, plead alternative causes of action, and R & B’s evidence supporting its claim for reformation based on mistake does not necessarily preclude the existence of evidence of knowledge of a falsity. But R & B did not provide the trial court with evidence that Westenberger and Lopez knew any of their statements regarding R & B’s products *381deficiency liability coverage were false. Proof on this material point is not in the trial brief, the offer of proof, the reporter’s transcript, or anywhere else. Even the unsupported statements from the trial brief, quoted by the majority, do not show Westenberger’s and Lopez’s knowledge of any falsity of their statements, of any such knowledge on the part of Truck Insurance, or of any intent to defraud R & B.
The majority relies primarily on Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442 [92 Cal.Rptr.2d 521], to support its conclusion that R & B should have had the opportunity to present its misrepresentation and reformation claims to a jury. (Maj. opn., ante, at pp. 336-337.) But Butcher does not support the majority. The key to the appellate court’s holding in Butcher is “[t]he cases cited and discussed above demonstrate that, if the facts relating to the purchase of the Truck policy are shown to be as related by [the insured], the trier of fact could find the insureds were misled by [the agent]’s negligent failure to warn that personal injury was not among the coverages of the policy.” (Butcher v. Truck Ins. Exchange, supra, 77 Cal.App.4th at p. 1463, italics added.) When, as here, the plaintiff does not offer any facts or evidence to the court, Butcher does not help R & B.
In the real world, products deficiency liability coverage does not exist for used cars. No reasonable trier of fact could ever have concluded Truck Insurance would provide lemon law coverage for used cars for $25 a year or R & B could reasonably rely on a statement, much less its own unexpressed, secret belief, that Truck Insurance would do so. Could a buyer of a used car obtain an extended warranty for $25? Of course not, and who would know that better than a car dealer?
The majority opinion states in effect that on remand, R & B may be entitled to recover punitive damages on the remaining claims. As set forth ante, I do not believe R & B is entitled to retry its case on remand at all, and certainly it cannot prove the elements of its claim for intentional misrepresentation, in connection with which punitive damages might theoretically be available.
The Trial Court Properly Granted the Nonsuit Motion Regarding the Claim for Reformation.
The majority asserts the trial court erred in granting Truck Insurance’s nonsuit motion regarding R & B’s reformation claim because (1) R & B did not have the opportunity to present evidence of damages for breach of a reformed contract, and (2) R & B did not have an opportunity to establish the elements of a reformation case. (Maj. opn., ante, at pp. 348-349.)
On the issue of the nonexistence of coverage, the majority agrees there was no miscarriage of justice when the trial court decided the issue through a *382motion in limine, because the issue was one for the court to decide and its ultimate conclusion was correct. The same analysis ought to apply here. The issue of reformation was for the court, and the court’s conclusion that the insurance contract could not be reformed was correct.
“The purpose of reformation is to make a written contract truly express the intention of the parties. This language refers to ‘a single intention’ entertained by both parties. [Citation.] ‘Although a court of equity may revise a written instrument to make it conform to the real agreement, it has no power to make a new contract for the parties, whether the mistake be mutual or unilateral [citation].’ [Citation.]” (American Home Ins. Co. v. Travelers Indemnity Co. (1981) 122 Cal.App.3d 951, 963 [175 Cal.Rptr. 826]; see 1 Witkin, Summary of Cal. Law, supra, Contracts, § 276, pp. 306-307 [“Where the parties come to an agreement, but by mistake (or fraud) the written instrument does not express their agreement correctly, it may be reformed or revised on the application of the party aggrieved . ... [1] ... HQ Reformation to correct a mistake in reducing the contract to writing is clearly distinguishable from rescission, which is granted where the contract would not have been entered into at all save for the mistake or fraud”].) A written contract is presumed to express the parties’ actual intention, and the party seeking reformation bears the burden by clear and convincing evidence to overcome that presumption. (Nat. Auto. & Cas. Co. v. Ind. Acc. Com. (1949) 34 Cal.2d 20, 25 [206 P.2d 841]; Dictor v. David & Simon, Inc. (2003) 106 Cal.App.4th 238, 253 [130 Cal.Rptr.2d 588].)
The remaining issue in this case is not whether the contract expressed the intentions of the parties; the majority and I agree the contract provides no coverage for new cars. Instead, the issue is whether the agents misinformed R & B regarding what was covered by the products deficiency liability endorsement. Given the nature of the claimed mistake, reformation was not an appropriate remedy here. “Representations of an agent due to ignorance of the terms of the policy or misunderstanding of the effect thereof do not warrant reformation to conform to the representations, where there was no intention of the agent to deliver a different contract from that contained in the usual policy form.” (13A Appleman, Insurance Law and Practice (rev. ed. 1976) § 7609, pp. 323-324.) “To justify reformation the mistake must be in the drafting of the instrument and not in the making of the contract which it evidences.” (Id., § 7608, pp. 309-310.) R & B was given an opportunity to make an offer of proof and argue its case when the motions for nonsuit were heard. If R & B had any evidence relevant to the court’s consideration of the reformation cause of action, that was the time to present it.
As Truck Insurance succinctly puts it in its respondent’s brief, “[bjoiled down to its essence, R & B’s appeal against Truck turns on the notion that, *383while the policy as issued never provided coverage, a court could have equitably reformed it, and if that happened, Truck’s initial denial of benefits not owed would retroactively be transformed into a bad faith denial of benefits owed under the subsequently reformed policy. This is not how bad faith law works. [][] A bad faith claim must be based on unreasonable withholding of benefits owed under the contract between the parties. [Citation.] Logically, the reasonableness of the conduct must be measured against the contract in force at the time, not against the chance that a court may someday exercise its equitable discretion to reform the contract. If the elements of reformation are proved, the equitable remedies for that claim— not the contract-dependent tort remedies for bad faith—would be owed. And here, Truck long ago tendered an amount sufficient to cover any award under a theory of reformation based on negligence in the sale of the policy.” The trial court got it right, and its ruling granting the nonsuit motion as to the reformation claim should be affirmed.
Dismissal of the Unfair Competition Claim Should Be Affirmed.
The majority concludes the trial court correctly determined there was no coverage under the insurance policy for the Peralta litigation as a matter of law, and therefore correctly dismissed the breach of contract and breach of the implied covenant claims.5
The trial court dismissed R & B’s unfair competition claim along with the claims for breach of contract and breach of the implied covenant. Another of the fundamental rules of appellate review is that we affirm a judgment or order that is correct on any theory, even if the trial court’s stated reasoning is incorrect. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330 [48 P. 117].)
As the parties agree in their supplemental briefs, and as the majority notes (maj. opn., ante, at pp. 359-361), following the enactment of Proposition 64, in order to proceed with a claim for unfair competition, R & B must show it “has suffered injury in fact and has lost money or property as a result of such unfair competition.” (Bus. & Prof. Code, § 17204.) R & B’s third amended complaint does not allege it suffered any damages as a result of the alleged *384unfair competition by Truck Insurance, Truck Underwriters, or Farmers; R & B sought a permanent injunction and disgorgement of profits on behalf of the general public. In its offer of proof asking the court to revisit its rulings on the motions in limine, R & B reiterated it had not lost any money due to the alleged unfair competition: “Plaintiff is not seeking a monetary recovery from Farmers on this claim, but only injunctive relief to prevent Fanners from continuing its current course of unfair and deceptive conduct.” (Fn. omitted.)
R & B did not suffer any damages, and never sought recovery of damages, in connection with its claim for unfair competition. Therefore, R & B cannot assert such a claim, and the trial court’s dismissal of that claim should be affirmed.
There Was Substantial Evidence Supporting the Trial Court’s Finding, After a Bench Trial, That Farmers Was Not the Alter Ego of Truck Underwriters.
The majority concludes it is moot whether the trial court correctly ruled that Farmers was not the alter ego of Truck Underwriters vis-a-vis the fiduciary duty claim, because the court correctly ruled that Truck Underwriters itself did not owe R & B a fiduciary duty. Following a bench trial, the court found Farmers was not the alter ego of Truck Underwriters. There is substantial evidence in the record supporting this finding, and I would directly reach the issue and affirm the trial court’s decision.
Motions in Limine
The majority concludes the trial court must revisit its rulings on several motions in limine because the majority opinion resurrects the claims for unfair competition and misrepresentation. No party disputes that a reversal of any substantive part of the court’s judgment would require a reassessment of several of the motions in limine. The majority’s discussion as to how the motions in limine ought to have been decided is dicta.
I specifically disagree with the majority’s analysis of the trial court’s ruling on Truck Insurance’s motion in limine No. 14, which precluded the testimony of three witnesses who had not been disclosed in discovery. (Maj. opn., ante, at pp. 356-358.) R & B argues on appeal that these three witnesses were unknown to it when the discovery responses were served. The majority admits there is no evidence in the record to support this assertion, yet finds the trial court abused its discretion by not just assuming such evidence existed. The majority concludes, “[w]e do not see how a failure to disclose the names of witnesses who were unknown to R & B before the discovery cutoff date could constitute a misuse of the discovery process.” (Id. at *385p. 357, fn. 15.) Without any evidence in the record about R & B’s knowledge, the majority has improperly injected itself into the trial court’s discretionary decisionmaking province based only on a presumption that the evidence exists. Did the trial court abuse its discretion based on the record before it? No.
I also disagree with the majority’s citation to Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 26-28 [61 Cal.Rptr.2d 518] (Edwards), as the appropriate standard of review for many of the motions in limine. The court’s orders on motions in limine are reviewed for abuse of discretion (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493 [21 Cal.Rptr.3d 36]), except where the grant of a motion in limine excludes all the evidence relevant to a particular claim and thereby disposes of an entire cause of action. In that situation, the appellate court should apply the standard applicable to a motion for nonsuit—whether the evidence presented by the plaintiff was insufficient to permit a jury to find in the plaintiff’s favor. (Edwards, supra, 53 Cal.App.4th at p. 28.) In Edwards, the plaintiffs sued the defendants for fraud in connection with the defendants’ procurement of release agreements from the plaintiffs. (Id. at p. 25.) The trial court granted a motion in limine to exclude all prelitigation communications by the defendants and their agents regarding the underlying claims and their resolution. (Id. at pp. 25-26.) That ruling prevented the plaintiffs from introducing the alleged fraudulent statements, gutting the plaintiffs’ case. (Id. at p. 26.)
The rule of Edwards would apply here if the court had granted a motion in limine precluding R & B from offering evidence of Westenberger’s and Lopez’s statements. It did apply to the majority’s analysis of the coverage issue, which was decided by a motion in limine. But it does not apply to the remainder of the motions in limine. They should be decided under the abuse of discretion standard.
Costs Under California Rules of Court, Rule 27{a)
Finally, as a procedural matter, it is improper for the majority to award costs on appeal to R & B. On several key points, the majority correctly affirms the trial court’s rulings against R & B, so in the interests of justice, all parties should bear their own costs on appeal.
Response to Concurring Opinion
I wish to briefly, respectfully, respond to a few comments made by my concurring colleague. First, the concurrence complains about the granting of the very motions in limine that the majority says were properly granted because they raised legal issues (e.g., no coverage can be created by *386waiver or estoppel (maj. opn., ante, at pp. 351-352); the insurance contract does not provide coverage (id. at pp. 349-351); because no coverage existed, there could be no breach of the implied covenant of good faith (id. at pp. 352-354)). Second, the concurrence complains that the issues raised by this dissenting opinion required the majority to deal with the evidence. R & B challenged the grant of a motion for nonsuit; the appropriate standard of review on appeal requires this court to examine the evidence. Third, the concurrence says I want to decide this case based on the “name” of the motion. This dissenting opinion never makes that argument. Instead, this dissenting opinion says that in ruling on a motion for nonsuit, the trial court is not required to consider evidence presented in connection with pretrial motions earlier in the case when none of that evidence is directed to the trial court’s attention by offer of proof or otherwise at the time the nonsuit motion is under consideration. In my view, the trial court did not err by failing to consider evidence not before it.
On July 5, 2006, the opinion was modified to read as printed above.
R & B purchased a package of coverages written by Truck Insurance. The package contained a products deficiency liability endorsement. The endorsement provided coverage only for lemon law claims arising out of the sale of a new car. “Subject to the Limits of Liability shown above, we will pay: []Q a. all legal fees and expenses; [][] b. the satisfaction of all judgments; and [f] c. the repair or replacement cost of any ‘new motor vehicle’ [f] which the ‘insured’ becomes legally obligated to pay as damages because of a ‘suit’ alleging the ‘insured’s’ inability to service or repair a ‘nonconformity’ in a ‘new motor vehicle’ to conform to applicable express warranties as prescribed by the laws of the state in which the ‘insured’ conducts operations.” The policy endorsement defined “new motor vehicle” as “a new untitled motor vehicle recently purchased for use and primarily used for personal, family or household purposes. A ‘new motor vehicle’ does not include . . . any type of resale vehicle.”
R & B’s attorney fees incurred in its lawsuit against Truck Insurance were not recoverable as an element of its damages. When an insured sues its insurer for breach of the duty of good faith and fair dealing to secure policy benefits unreasonably withheld by the insurer, the insured can recover its attorney fees. (Brandt v. Superior Court (1985) 37 Cal.3d 813, 817 [210 Cal.Rptr. 211, 693 P.2d 796].) “When an insurer’s tortious conduct reasonably compels the insured to retain an attorney to obtain the benefits due under a policy, it follows that the insurer should be liable in a tort action for that expense. The attorney’s fees are an economic loss—damages—proximately caused by the tort.” {Ibid., italics added.)
Even if the holding of Brandt v. Superior Court could be extended to a claim for misrepresentation, Brandt applies only where the insured must sue to obtain policy benefits. Here, the trial court properly concluded there were no policy benefits to be withheld— unreasonably or otherwise—because there was no coverage for the Peralta litigation under the written insurance policy.
R & B’s acknowledgement that it could not prove any damages is further highlighted by its appellate reply brief, in which R & B argues its prayer for punitive damages was not dependent on any showing of compensatory damages.
In arguing its own motion to permit evidence of claims handling, R & B incorporated the offer of proof it submitted when it asked the trial court to reconsider its rulings on the motions in limine. Even if this were a part of R & B’s opposition to the motion for nonsuit, it would not meet the requirements of a specific offer of proof setting forth the evidence to be argued, as discussed ante.
The majority states that R & B did not claim Truck Insurance breached the terms of the insurance contract as written. R & B’s third amended complaint (which is the operative complaint for this case) alleges: “The Peralta Complaint contains allegations of covered product deficiency. The policy provides defense and indemnity coverage for product deficiency. As a result FARMERS had, and has, a continuing duty to defend and indemnify R & B. Notwithstanding its duty to defend and indemnify, FARMERS has failed and refused to provide any coverage whatsoever.” (In its complaint, R & B referred to Farmers, Truck Insurance, and Truck Underwriters collectively as FARMERS.)