IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
October 3, 2011
LISA FLETCHER, PLAINTIFF AND APPELLANT,
PROGRESSIVE CASUALTY INSURANCE COMPANY, DEFENDANT AND RESPONDENT.
(Super. Ct. No. YCSCCVCV00009388)
The opinion of the court was delivered by: Hoch , J.
Fletcher v. Progressive Casualty Ins. Co.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the supplemental complaint's proposed tort cause of action was barred by the statute of limitations.
The trial court denied Fletcher's motions to file a supplemental complaint and to conform the operative complaint to proof.
Fletcher's Motion to Tax Costs
In August 2010, Fletcher moved to tax costs on grounds that Progressive's offer to settle for $5,000, made pursuant to Code of Civil Procedure section 998, was not made in good faith. The appellate record does not contain any order by the trial court regarding Fletcher's motion.
Fletcher timely appealed the order dismissing the case after the trial court granted Progressive's motion for non-suit. (Shepardson v. McLellan (1963) 59 Cal.2d 83, 86 [order terminating litigation without indication that it would be followed by formal written judgment held appealable].)
Granting of Motion for Non-suit
Fletcher contends the trial court erred in granting Progressive's motion for non-suit. We disagree.
When testifying on her own behalf, Fletcher admitted that "the policy provides that it authorizes the insurance company to have access to your business and personal records as often as the insurance company reasonably requires." Fletcher also acknowledged that the policy stated, "We may not be sued unless there is full compliance by you or an insured with . . . all the terms of this policy."
As part of Progressive's investigation, its coverage counsel requested that Fletcher bring specified financial documents with her to her examination under oath. Fletcher's attorney objected on grounds of privacy and relevance. After Fletcher's examination under oath, Progressive again requested the financial documents. The parties never resolved the dispute over production of Fletcher's financial information. Fletcher conceded that she also did not "provide anything to Progressive after [she] got this letter [denying her claim] and before [she] filed the lawsuit against the insurance company two or two and a half years later."
The court set forth the reasons for its granting of Progressive's motion for non-suit as follows:
"The non-suit was granted because plaintiff was unable, despite being permitted to reopen her case, to demonstrate an element of her cause of action, cooperation in the investigation of her claim by the carrier. Abdelhamid v. Fire Ins. Exchange (2010) 182 Cal.App.4th 990.
"The duty to cooperate with the carrier's investigation was a condition precedent to the commencement of the action, i.e., an element of the cause of action. Under Abdelhamid, the carrier was entitled to request the financial documents the plaintiff refused to produce, and, under that case, reliance on advice of counsel in refusing to cooperate does not obviate the refusal to cooperate. The relevant period for determining whether there was evidence of cooperation is the period during which the claim was being evaluated, that is, before it was denied. Because plaintiff refused to cooperate with the carrier, she failed to establish that element of her cause of action."
B. Motion for Non-suit
Code of Civil Procedure section 581c authorizes motions for non-suit by providing: "Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of non-suit." With a motion for non-suit, a defendant may test the sufficiency of plaintiff's evidentiary case before presenting evidence in support of the defense. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.)
"A trial court must not grant a motion for non-suit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor. [Citations] [¶] 'In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor. . . ."' (Campbell v. General Motors Corp. [(1982)] 32 Cal.3d at [112,] 118, quoting Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583; accord Ewing v. Cloverleaf Bowl [(1978)] 20 Cal.3d [389,] 395; Estate of Lances (1932) 216 Cal. 397, 400.)
"In an appeal from a judgment of non-suit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. 'The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.' (Mason v. Peaslee (1959) 173 Cal.App.2d 587, 588; accord Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 699; Hughes v. Oreb (1951) 36 Cal.2d 854, 857.)" (Carson v. Facilities Development Co., supra, 36 Cal.3d at pp. 838-839.) Substantial evidence is not just any evidence but must be reasonable, credible, and of solid value. (OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845.)
C. Fletcher's Failure to Cooperate in Progressive's Investigation of her Claim
Here, the trial court granted the motion for non-suit based on Fletcher's failure to introduce evidence showing her compliance with the insurance policy's requirement to cooperate with an investigation of a claim. A plaintiff's compliance with the terms of the insurance policy constitutes an element of the breach of contract claim asserted by Fletcher. "'The standard elements of a claim for breach of contract are "(1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) damage to plaintiff therefrom. [Citation.]" [Citation].' (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)" (Abdelhamid v. Fire Ins. Exchange (2010) 182 Cal.App.4th 990, 999.) Based on Fletcher's noncompliance with the terms of the insurance policy, she could not prove the second element of her breach of contract claim.
In Abdelhamid, a similar case involving a law suit by a policyholder for breach of contract after the insurance carrier denied a claim for loss of a house that had been subject to arson, this court upheld the insurance carrier's denial of a claim based on the policyholder's non-cooperation in the investigation of the claim, including the policyholder's refusal to submit a completed claim form, answer material questions, and produce requested financial information. (Id. at p. 995-996.) As this court explained, "'An insured's compliance with a policy requirement to submit to an examination under oath is a prerequisite to the right to receive benefits under the policy.' (Brizuela v. Calfarm Ins. Co. (2004) 116 Cal.App.4th 578, 587 (Brizuela), citing Hickman v. London Assurance Corp. (1920) 184 Cal. 524, 534 (Hickman).) '[A]n insured materially breaches an insurance policy by failing to submit to an examination under oath, as often as may reasonably be required, or failing to answer material questions.' (13 Couch On Insurance (3d ed. 1999) § 196:24, p. 196-32, italics added & fns. omitted.) A 'refusal of the insured to answer material questions at an examination under oath (provided for in the policy), shows a failure to give to the insurer that degree of cooperation required by the provisions of the policy . . . , and is a violation of the agreement of the insured to submit to such examination under oath.' (Robinson v. National Automobile & Casualty Insurance Co. (1955) 132 Cal.App.2d 709, 716.) Where the insurer has reason to suspect arson, it is relevant and material to inquire into the financial condition of the insured because an insurer is entitled to develop circumstantial evidence of the insured's involvement in the suspected arson. (13 Couch on Insurance, supra, § 196:11, p. 196-20, & cases cited in fns. 53 & 55.)" (Abdelhamid, supra, 182 Cal.App.4th at p. 1001.)
As in Abdelhamid, the plaintiff in this case failed to satisfy the insurance policy condition to cooperate with an investigation of a claim for loss. The trial court correctly noted that Fletcher's own testimony established her inability to prove that she satisfied the policy requirement to cooperate with an investigation by Progressive. On the witness stand, Fletcher conceded that the insurance policy required her cooperation, that Progressive repeatedly requested her financial information, and that Fletcher's attorney refused to hand over the documents. This testimony established Fletcher's failure to prove an element of her breach of contract claim, i.e., her performance of all terms of the insurance policy. (Abdelhamid, supra, 182 Cal.App.4th at p. 999.) For lack of proof, the trial court correctly granted Progressive's motion for non-suit. (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 838.)
Fletcher attempts to distinguish Abdelhamid on grounds that the prejudice in that case was not present here. Not so. This court found that the insurance carrier in Abdelhamid was prejudiced by plaintiff's failure to disclose financial information because it prevented the insurer from completing its investigation. (Abdelhamid, supra, 182 Cal.App.4th at p. 1007.) "The documentation [that the insurer] sought with respect to [plaintiff's] claimed losses was essential to a determination of the extent of her claim. [The insurer's] requested documentation and queries regarding her financial status were, however, even more fundamental. The financial information . . . sought went to the heart of its investigation of whether there was circumstantial evidence of [plaintiff's] involvement in the arson of her home or whether there was a reasonable explanation for the many suspicious circumstances uncovered by [the insurer's] investigation. This addressed the very validity of her claim." (Ibid.) So too, this case presents the same prejudice to an insurance carrier that has been asked to pay a claim for loss of property that was burned by an unidentified person.
We reject Fletcher's attempt to distinguish Abdelhamid, supra, 182 Cal.App.4th 990, by asserting that Progressive did not conclude she was complicit in the vehicle's loss. Progressive was unable to conclude anything about the loss because it was unable to complete its investigation. Fletcher's refusal to cooperate with Progressive's investigation constituted the obstacle. Her financial condition was directly relevant to the investigation and was called into question by her own misrepresentations to Progressive and by the "red flags" surrounding the vehicle's loss.
Here, as in Abdelhamid, "[t]he deficiencies in [plaintiff's] proof of loss were a far cry from minor defects and no reasonable trier of fact could conclude she substantially performed her obligations or complied with the condition of her insurance contract requiring her to provide a proof of loss with supporting documentation. (Cf. McCormick v. Sentinel Life Insurance Co. (1984) 153 Cal.App.3d 1030, 1046.)" (Abdelhamid, supra, 182 Cal.App.4th at pp. 1000-1001.)
Fletcher also argues that Abdelhamid does not apply because the insurance carrier in this case made mistakes of fact in its denial of claim letter. That Progressive's letter rejecting her claim may have had factual errors does not excuse Fletcher's obligation to cooperate with the insurer's investigation. The non-suit was premised on Fletcher's inability to prove that she performed under the insurance policy even though her performance is an essential element of her sole cause of action. On that basis, the trial court correctly granted the motion for non-suit.
Fletcher relies on Zamos v. Stroud (2004) 32 Cal.4th 958 (Zamos) to excuse her nonperformance and give rise to a new cause of action for breach of the implied covenant of good faith and fair dealing. Zamos does not support her argument.
Zamos involved a malicious prosecution action that followed an unsuccessful lawsuit initiated by attorney James Stroud against his clients' former attorney, Jerome Zamos. (Zamos, supra, 32 Cal.4th at pp. 961, 963.) After Stroud's case was dismissed, Zamos sued his former clients and Stroud. (Id. at p. 963.) The defendants filed an anti-SLAPP motion (Code Civ. Proc., § 425.16) on grounds that Zamos could not show a reasonable probability of success on his malicious prosecution claim. (Zamos, supra, 32 Cal.4th at pp. 961, 963.) Zamos countered that defendants discovered their case had no merit shortly after its filing. (Ibid.) The trial court granted the anti-SLAPP motion, and the Court of Appeal reversed as to attorney Stroud. (Id. at p. 965.) The Supreme Court affirmed the decision of the Court of Appeal that Stroud was liable for maintaining a lawsuit after discovering it to be meritless. The Zamos court reasoned that "[c]onfining the tort of malicious prosecution to the initiation of a suit without probable cause would be, we conclude, without support in authority or principle." (Id. at p. 966, italics omitted.) As a result, the high court held that "an attorney may be held liable for continuing to prosecute a lawsuit discovered to lack probable cause." (Id. at p. 960.)
From Zamos's holding, Fletcher extracts a rule that an insurance company's failure to reconsider its denial of claim gives rise to a new cause of action for breach of the implied covenant of good faith and fair dealing. Fletcher seems to believe that an attorney's duty to reevaluate the validity of a lawsuit he or she is prosecuting carries over to an insurer that has denied coverage for a suspicious claim. Fletcher is mistaken. Zamos, supra, 32 Cal.4th 958, does not hold that the statute of limitations for breach of an insurance policy may be reset every time a policyholder requests a reevaluation of the denial of claim.
We rejected a similar argument in Abdelhamid. In that case, the policyholder argued that the insurer's offer in its denial letter to consider additional information revived the policyholder's claim. (Abdelhamid, supra, 182 Cal.App.4th at pp. 1006-1007.) We held that an insurer's offer to consider additional evidence in a denial letter "did not 'reopen' the door to its obligations and duties under the policy by making this offer." (Id. at p. 1006.) Here, as in Zamos, Fletcher "was still failing to produce all requested documentation and was continuing to be uncooperative in [the insurance carrier's] investigation of the validity and extent of her claim." (Id. at p. 1007.) On the stand, Fletcher admitted that she had not given Progressive any additional evidence since the denial of her claim. Thus, Progressive had no reason to reevaluate the claim after its thwarted investigation. (See ibid.)
The trial court properly granted Progressive's motion for non-suit after Fletcher failed to prove that she performed her duties under the insurance policy.
Denial of Motion to File a Supplemental Complaint
Fletcher contends the trial court abused its discretion in denying her leave to file a supplemental complaint. We are not persuaded.
Fletcher sought leave to file a supplemental complaint that asserted a tort cause of action for "bad faith damages and attorney fees." This tort cause of action alleged that Progressive made mistakes in its original denial letter and failed to reevaluate her claim as required by Zamos, supra, 32 Cal.4th 958. The original and amended complaints asserted only a contract theory of recovery for Progressive's alleged breach of the insurance policy.
The trial court denied leave to file the supplemental complaint. In a subsequent written order, the court elaborated that "there is nothing in Zamos that demonstrates its pertinence to the case at bar. Neither Zamos, nor any other authority cited by the plaintiff, supports the notion that the refusal to 'reconsider' after the tort statute of limitations has run, gives rise to a new cause of action in tort."
B. Motion to File a Supplemental Complaint
Subdivision (a) of Code of Civil Procedure section 464 provides that "[t]he plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint or answer, alleging facts material to the case occurring after the former complaint or answer." Witkin elaborates that "[a] supplemental complaint differs from an amended complaint in two chief respects: (1) it deals only with matters occurring after the commencement of the action, and (2) it sets up only matters that are consistent with and in aid of the case made by the original complaint. 'The complaint, whether original or amended, can properly speak only of things which occurred either before or concurrently with the commencement of the action. The office of a supplemental complaint is to bring to the notice of the court and the opposite party things which occurred after the commencement of the action, and which do or may affect the rights asserted and the relief asked in the action as originally instituted.' (California Farm & Fruit Co. v. Schiappa-Pietra (1907) 151 C. 732, 742.)" (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1248, p. 692.)
A trial court properly denies leave to file a supplemental complaint when the facts sought to be alleged existed when the causes of action in the original complaint accrued. (Erickson v. Boothe (1954) 127 Cal.App.2d 644, 647.) A trial court also correctly denies leave to amend a complaint or to file a supplemental complaint when the plaintiff seeks to assert claims barred by the statute of limitations. (See Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448 (Solit).)
C. Statute of Limitations Bar to Supplemental Complaint
A cause of action for breach of an insurance policy and breach of the implied covenant of good faith and fair dealing (whether sounding in tort or contract) begins to accrue on the date when the insurer denies the policyholder's claim. (Singh v. Allstate Ins. Co. (1998) 63 Cal.App.4th 135, 140 (Singh).)
The statute of limitations applicable to an insured's claim for breach of an insurance policy by the insurer depends on whether the cause of action arises in tort or contract. "In every contract, including policies of insurance, there is an implied covenant of good faith and fair dealing that neither party will do anything which will injure the right of the other to receive the benefits of the agreement." (Archdale v. American Intern. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 463 (Archdale).) An insured may bring a cause of action against an insurance carrier for breach of the implied covenant of good faith and fair dealing either as a tort or a breach of contract. (See Tilbury Constructors, Inc. v. State Compensation Ins. Fund (2006) 137 Cal.App.4th 466, 479, 480.) "There is a significant difference, however, in the available remedies. If the insured elects to proceed in tort, recovery is possible for not only all unpaid policy benefits and other contract damages, but also extra-contractual damages such as those for emotional distress, punitive damages and attorney fees. An insured electing to proceed in tort, however, is burdened with a significantly shorter statute of limitations . . . . If the insured (or assignee) elects to proceed only in contract . . . then recovery is limited to those damages recoverable in contract. (See Civ. Code, § 3300.) In such case, the applicable statute of limitations . . . is four years (Code of Civ. Proc., § 337, subd. (1)), instead of the two-year period applicable in tort actions. (Code of Civ. Proc., § 339, subd. (1).)" (Archdale, supra, 154 Cal.App.4th at p. 467, fn. 19.)
Here, the supplemental complaint's sole tort cause of action for breach of the covenant of good faith and fair dealing was barred by the two-year statute of limitations. When Fletcher sought to file the supplemental complaint in May 2009, more than two years had passed since Progressive denied her insurance claim in January 2007. Moreover, Fletcher's supplemental complaint was barred from focusing on mistakes in Progressive's denial letter because the original complaint already asserted a cause of action arising out of the same denial of claim. (Erickson v. Boothe, supra, 127 Cal.App.2d at p. 647.)
Fletcher repeats her argument that Progressive's rejection of her request to reconsider the claim gave rise to a new cause of action for bad faith denial of insurance coverage. However, an insured's request that an insurer reconsider its denial of claim does not revive a time-barred cause of action nor does it give rise to a new cause of action premised on the rejection of the request to reconsider. (See Abdelhamid, supra, 182 Cal.App.4th at pp. 1006-1007; Solit, supra, 68 Cal.App.4th at p. 1448.) Accordingly, the trial court did not err in denying Fletcher leave to file a supplemental complaint alleging a time-barred cause of action.
Denial of Motion to Amend the Complaint to Conform to Proof
Fletcher next contends the trial court erred by denying her motion to conform her complaint to proof at trial. We disagree.
After the trial court stated its inclination to grant Progressive's motion for non-suit, Fletcher moved to conform her complaint to proof. Specifically, Fletcher sought to add allegations that Progressive did not consider her to be complicit in the loss of the vehicle, made mistakes in its denial of claim letter, and had the "financial information in a general sense that they had sought."
Fletcher's motion to conform the complaint according to proof was pending at the same time that she sought to file a supplemental complaint alleging a tort-based cause of action against progressive. The record does not clearly establish whether Fletcher's motion to conform sought to add allegations in support of the contract-based claim in her first amended complaint or add the tort cause of action set forth in the supplemental complaint. In either event, the trial court did not err in denying Fletcher's motion to conform her complaint according to proof at trial.
Generally, "'[a]mendments to conform to proof should be liberally granted. [Citations.]' (20th Century Cigarette Vendors v. Shaheen (1966) 241 Cal.App.2d 391, 396.) However, 'the allowance of amendments to conform to the proof rests largely in the discretion of the trial court and its determination will not be disturbed on appeal unless it clearly appears that such discretion has been abused. [Citations.]' (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31.)" (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 527.)
To the extent that Fletcher sought to bolster her contract cause of action, the trial court properly denied the motion to conform because the allegations did not excuse Fletcher's nonperformance under the insurance policy. Allegations of mistakes in Progressive's denial of claim letter and the insurer's discovery response that it does not contend that Fletcher was complicit in the loss of the vehicle are irrelevant to the element of a breach of contract claim requiring her full performance under the terms of the insurance policy. Although Fletcher's counsel stated that Progressive had her financial documents "in a general sense," the record belies the assertion. Fletcher's testimony established that her attorney did not hand over the documents requested by Progressive and that the parties never resolved the issue of financial document production. In short, Fletcher's additional allegations did not prove the missing element of her breach of contract claim.
To the extent that Fletcher's motion to conform to proof sought to add a tort-based theory of recovery, the trial court properly denied the motion because the statute of limitations barred the proposed amendments. As we explained in part II-B., ante, Fletcher was barred from seeking to assert a tort-based cause of action for breach of the covenant of good faith and fair dealing. The additional allegations upon which Fletcher's motion to conform to proof was premised did not excuse her failure to comply with the two-year statute of limitations for a tort-based cause of action for denial of her claim.
The trial court did not err in denying Fletcher's motion to conform her complaint to proof.
Denial of Motion to Tax Costs
Fletcher contends the trial court abused its discretion in denying her motion to tax costs. For lack of an adequate appellate record, we deem the contention forfeited.
The record does not contain the trial court's order on the motion to tax costs. Instead, the clerk's transcript contains only a declaration that the Yuba County court clerk was "unable to locate a document titled 'Court's Order on Motion to Tax Expert Fees' filed 8/24/10 requested in the Notice Designating Clerk's Transcript."
Although Progressive acted to remedy an omission from the record by having a supplemental clerk's transcript prepared, Fletcher took no steps to cure the lack of the trial court's order on the motion to tax costs.
We cannot review a trial court ruling that is not contained in the appellate record. An appellant "bears the burden to provide a record on appeal which affirmatively shows that there was an error below, and any uncertainty in the record must be resolved against the [appellant]." (People v. Sullivan (2007) 151 Cal.App.4th 524, 549; accord People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084.) And, we cannot assume that the trial court abused its discretion. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Fletcher has not secured a record that allows review of the trial court's denial of the motion to tax costs. Nor has she made a motion to augment the record with a copy of an order, of which she presumably has a copy. (See Cal. Rules of Court, rule 8.155(a).) Consequently, she has forfeited the issue on appeal. (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.)
In its respondent's brief, Progressive states it "stipulates for the record, however, that the court did in fact reject said motion." However, a stipulation in an appellate brief cannot substitute for the proper manner of completing an appellate record by stipulation of the parties, namely by settled statement under California Rules of Court, rule 8.137.
For lack of an adequate record to review an alleged order of the trial court, we deem the issue forfeited.
The order dismissing Lisa Fletcher's case is affirmed. Progressive Casualty Insurance Company shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur: BLEASE , Acting P. J. ROBIE , J.