(Super. Ct. No. YCSCCVCV00009388)
The opinion of the court was delivered by: Hoch , J.
Fletcher v. Progressive Casualty Ins. Co.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this appeal, Lisa Fletcher challenges the trial court's order dismissing her claim for breach of contract against her automobile insurance carrier, Progressive Casualty Insurance Company (Progressive). Fletcher sued to recover the value of her 2003 Land Rover, which had been found burned. Progressive considered the circumstances of the vehicle's loss to be suspicious and denied Fletcher's claim after she refused to produce financial documents.
Fletcher contends the trial court erred by (1) granting Progressive's motion for non-suit, (2) denying her motion to file a supplemental complaint, (3) denying her motion to amend her complaint to conform to proof adduced at trial, and (4) denying her motion to tax costs based on a bad faith settlement offer by Progressive made pursuant to Code of Civil Procedure section 998.
Finding no error, we affirm the trial court's order dismissing Fletcher's case. By refusing to cooperate in Progressive's investigation of her claim, a condition of the insurance policy, Fletcher cannot allege all the elements for a breach of contract action. Fletcher's attempt to file a tort cause of action in a supplemental complaint fails because the action is time barred. Similarly, Fletcher's motion to amend her complaint to conform to proof at trial fails because the additional allegations for her contract cause of action did not excuse her non-cooperation in Progressive's investigation of her claim and her attempt to add a tort-based cause of action is time barred. Finally, Fletcher's appeal of the trial court's denial of her motion to tax costs is deemed forfeited for lack of an adequate appellate record.
FACTUAL AND PROCEDURAL HISTORY
Fletcher's Claim and Progressive's Denial
At 1:44 a.m. on May 22, 2006, the Sacramento Fire Department received a call about a fire. When the fire department arrived at the scene, they found Fletcher's Land Rover fully engulfed in flames.
On May 23, 2006, Fletcher met with Rita Sharma, a fire and theft claims adjuster for Progressive. Fletcher asserted that the Land Rover had been stolen and presented a claim for the vehicle in the amount of $50,719.44.
In June 2006, Sharma discussed the claim with her supervisors because it seemed suspicious. Sharma's supervisors, Kelly Dobbins and Eric Snitzler, agreed that "some red flags came up in this case." The claim raised suspicions for several reasons, including Fletcher's past due payments on the vehicle, her attempts to sell the vehicle prior to its loss, the condition of the vehicle when it was located, and the lack of tampering with the vehicle's ignition. Moreover, Progressive's initial investigation revealed several misrepresentations by Fletcher. Fletcher first denied any attempt to sell the Land Rover, but later admitted listing it for sale during a 10-day period. Progressive discovered that the vehicle had been advertised for a lower price than Fletcher reported. Fletcher stated that she called the police immediately after she discovered the vehicle missing, but her cell phone records indicated that the call had been made "much later." And, Fletcher's account of discovering the vehicle to be missing differed from what Progressive learned during its initial investigation.
Sharma and her supervisors reached the conclusion that Progressive needed to investigate Fletcher's claim further. Thus, Sharma called Fletcher on June 23, 2006, to explain that a field investigation would be conducted.
Dobbins referred the claim to Progressive's coverage counsel, Teresa Starinieri, for additional investigation and to take Fletcher's examination under oath. Starinieri requested some financial documents but Fletcher's attorney refused to provide them. Consequently, Progressive was unable to complete its investigation of the claim. Progressive supervisors discussed Fletcher's claim and concluded that it should be denied.
On January 2, 2007, Progressive mailed to Fletcher's attorney an 11-page letter in which it denied the insurance claim. Among the grounds listed for the denial of the claim were Fletcher's material misrepresentations to Progressive and her refusal to provide the requested financial documents.
In May 2009, Fletcher filed a complaint alleging a single cause of action for moneys due under an auto insurance policy. Fletcher subsequently amended her complaint, which retained the single cause of action alleged in the original complaint.
Progressive's Motion for Non-suit
A jury trial commenced on July 20, 2010. After calling Sharma and Dobbins as witnesses, Fletcher rested her case. Progressive moved for non-suit on grounds that Fletcher had not proven an element of her cause of action, namely that she performed all the conditions of the insurance policy. Progressive argued that Fletcher's refusal to produce financial documents at Progressive's request violated the express terms of the auto insurance policy. Fletcher's counsel opposed the motion but acknowledged that Fletcher "didn't live up to the duties of the policy, and that's fair enough." The trial court then granted Fletcher's motion to reopen her case.
Fletcher testified on her own behalf, recounting that she and her husband had been on vacation in Canada from May 14 to 21, 2006. On the evening of May 21, their son picked them up from the airport. The next morning, Fletcher discovered that her Land Rover was missing. The vehicle was gone despite the fact that both sets of keys were still in her kitchen drawer. Thinking that she might have left the Land Rover at her place of employment, she drove one of her husband's trucks to check. When she did not see the Land Rover at her workplace, Fletcher immediately reported the theft to the police. Fletcher acknowledged that her cell phone records listed no call to the police but asserted that the records did show a later call to the Yuba County Sheriff's department.
Fletcher admitted that she and her husband filed for bankruptcy in November 2009. However, she claimed that her attempt to sell the Land Rover in 2006 was not motivated by financial necessity. Following her testimony, Fletcher rested her case a second time.
Progressive again moved for non-suit. The court indicated its inclination to grant the motion as follows: "[T]here's been no dispute that there were records that, and I'm not talking about records in possession of the third party, I'm talking about records in the possession of  Fletcher that she did not provide before her [examination under oath]. She, apparently, based on the testimony, she -- they weren't provided after the [examination under oath], and there was an ongoing objection, and she relied on advice of counsel, which this case says that you cannot rely on advice of counsel in this context. And the coverage -- or the claim was subsequently denied. There was no additional information given after the denial."
At the court's request, the parties submitted written briefing on the motion for non-suit. After a hearing, the trial court granted the motion for non-suit.
At some point Fletcher moved for a new trial and Progressive opposed the motion.*fn1 The trial court denied the motion for new trial on the same grounds as its granting of Progressive's motion for non-suit.
Fletcher's Motion to Conform Complaint to Proof and Motion to File a Supplemental Complaint
Before the court granted Progressive's motion for non-suit, Fletcher moved for leave to conform the complaint to proof. Fletcher proposed to amend her operative complaint by alleging that Progressive made factual mistakes in its denial of claim letter. She also sought to allege that Progressive failed to reevaluate her claim on the basis of an interrogatory response where Progressive stated it does not contend that Fletcher was complicit in the loss of the vehicle. Progressive opposed the motion on grounds that the allegations set forth a claim that was time barred.
Around the same time, Fletcher also moved for leave to file a supplemental complaint to state a tort cause of action for bad faith damages and to request attorney fees. Fletcher proposed to add allegations that Progressive made mistakes of fact in denying the claim and that the company conceded she was not "'complicit' in the loss of the vehicle." Progressive opposed the motion, arguing that ...