IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Nevada)
January 5, 2012
DUPRE INSURANCE SERVICES, INC., CROSS-COMPLAINANT AND APPELLANT,
SAMANTHA L. HALL ET AL., CROSS-DEFENDANTS AND RESPONDENTS.
(Super. Ct. No. T06/2289C)
The opinion of the court was delivered by: Blease , Acting P. J.
Dupre Ins. Services v. Hall
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case involves the tort of another doctrine. The cross-complainant, an insurance agent, was sued by a third party for failure to procure liability insurance for the third party resulting in the insurance company's denial of a defense in an action against the third party. The cross-complainant then filed this action claiming the cross-defendants' negligence was responsible for the failure to obtain insurance, thus requiring the cross-complainant to defend against the action by the third party. The trial court granted the cross-defendants' summary judgment motion on the ground they were not negligent. This appeal followed.
Cross-complainant Dupre Insurance Services, Inc. appeals from a summary judgment entered in favor of cross-defendants Insurenet Insurance Marketing, Inc., Samantha L. Hall, and Stefanie Ann Habbestad. Dupre contends the trial court erred in entering summary judgment as to its "tort of another" cause of action because "the evidence and argument presented in the moving papers did not address the factual and legal basis for [that] cause of action," namely that cross-defendants' misappropriation and use of Dupre's name led to Dupre having to defend itself in a lawsuit brought against it by a third party and to bring a defensive cross-complaint.
Under the tort of another doctrine, "[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred." (Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620 (Prentice).)
Dupre's tort of another cause of action is premised on cross-defendants' alleged negligence in failing to procure liability insurance applicable in defense of third party's action against Dupre. However, the trial court concluded that cross-defendants were not negligent. Because there can be no tort of another without a tort, Dupre's tort of another cause of action is barred as a matter of law. Accordingly, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Ross Garrison dba Ross Garrison Construction (Garrison) sued Dupre, Insurenet, and others for professional negligence and negligence after Garrison's insurance carrier refused to defend him in a lawsuit on the ground the carrier had not been paid for Garrison's commercial general liability policy, and the policy had been cancelled. Garrison's claims were based on Habbestad's alleged negligence in procuring and maintaining the policy. Believing Habbestad "was employed by DUPRE and/or its successor-in-interest INSURENET," Garrison named Dupre and Insurenet as defendants in his complaint.
Dupre cross-complained against Insurenet, Hall, and Habbestad for, among other things, negligence and "tort of another." Dupre's negligence cause of action was based on Hall's alleged misrepresentation that she and Habbestad were agents or employees of Dupre, Habbestad's "participation in the failed procurement of the insurance policy for [Garrison]," Insurenet's consummation of the sale of Dupre's assets to Insurenet, and Insurenet and Hall's control and management of Dupre. Dupre's tort of another cause of action likewise was based on Hall's purported negligent misrepresentation that she and Habbestad were agents or employees of Dupre, and Habbestad's alleged failure "to exercise ordinary care" in procuring the insurance policy for Garrison. In addition, Dupre alleged that as a result of Hall and Habbestad's conduct, it was "compelled to hire an attorney to defend against [Garrison's] complaint and to prosecute this cross-complaint," and that "[u]nder the 'tort of another' doctrine, [it was] entitled to recover its attorney fees and costs incurred in" defending against and prosecuting those actions.
Cross-defendants moved for summary judgment on the cross-complaint, arguing, among other things, that Dupre could not prove any of its claims against them because they "had nothing to do with the cancellation of the Garrison policy." They also asserted that Dupre's negligence cause of action failed as a matter of law because Dupre could not prove cross-defendants' alleged conduct caused it harm, and that the tort of another doctrine was inapplicable under the circumstances of this case.
The trial court granted cross-defendants' motions for summary judgment, finding: "There is no triable issue of material fact that any of these moving parties caused any damage to Garrison. There is no triable issue of material fact that they violated any duty to either Garrison or Dupre as these challenged causes of action allege. There is no triable issue of material fact that the moving parties made any money or were enriched due to the alleged use of Dupre's name, license or good will."*fn1
Dupre contends the trial court erred in granting summary judgment as to its tort of another cause of action because "cross-defendants failed to present admissible evidence or any legal argument that they were entitled to judgment on the cross-complaint's sixth cause of action [(tort of another)]." In particular, Dupre contends cross-defendants failed to present any evidence "regarding their involvement in the misappropriation of Dupre's business . . ., and their conduct in holding themselves out as employees or agents of Dupre . . ., which resulted in [Garrison] naming and prosecuting the complaint against Dupre." According to Dupre, cross-defendants' "evidence addressed only the allegations in [Garrison's] complaint, i.e., the application for insurance, and the financing and cancellation of the policy."
Cross-defendants respond that the tort of another doctrine is limited to torts committed against third parties and does not extend to torts committed against the party asserting the doctrine. Because it is undisputed that cross-defendants committed no tort against Garrison, cross-defendants assert summary judgment was proper. We need not determine the scope of the tort of another doctrine here because, as we shall explain, there is no tort upon which to base the tort of another cause of action.
To prevail on a motion for summary judgment, a defendant or cross-defendant must show that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once a defendant or cross-defendant has shown that one or more elements of the plaintiff's cause of action cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue. (Ibid.) We review the trial court's ruling on a motion for summary judgment de novo, considering all the evidence the parties offered in connection with the motion, except that which the court properly excluded, and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
The tort of another doctrine, which allows a person to recover his attorney fees if he is required to employ counsel to prosecute or defend an action against a third party because of the tort of the defendant, is "an application of the usual measure of tort damages." (Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310 (Sooy); see also Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505.) "The theory of recovery is that the attorney fees are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action." (Sooy, supra, 220 Cal.App.3d at p. 1310.) Thus, to recover under the doctrine, Dupre must establish a tort actually was committed. (Prentice, supra, 59 Cal.2d at p. 620; Sooy, supra, 220 Cal.App.3d at p. 1310; see also Manning v. Sifford (1980) 111 Cal.App.3d 7, 13 (Blease, J., conc. and diss.).)
As previously discussed, Dupre's tort of another cause of action was prefaced on (1) Hall's alleged misrepresentation that she and Habbestad were agents or employees of Dupre, and (2) Habbestad's failure to exercise ordinary care in procuring and maintaining Garrison's comprehensive general liability insurance policy. Dupre does not challenge the trial court ruling to the extent it was prefaced on a finding that cross-defendants were not negligent in procuring or maintaining the Garrison policy as a matter of law. Rather, Dupre contends summary judgment was improper because cross-defendants' motions for summary judgment as to the tort of another cause of action did not address Dupre's claims regarding cross-defendants' "conduct in holding themselves out as employees or agents of Dupre" or "their involvement in the misappropriation of Dupre's business . . . ."
Dupre's negligence cause of action, like its tort of another cause of action, was based, in part, on Hall's alleged misrepresentation that she and Habbestad were agents or employees of Dupre. Summary judgment was entered as to Dupre's negligence cause of action, and Dupre does not challenge that portion of the trial court's order on appeal. Accordingly, Dupre is precluded from relying on Hall's alleged misrepresentations as the basis for its tort of another cause of action.
As for Dupre's contention that the trial court erred in granting summary judgment as to its tort of another cause of action because cross-defendants' moving papers failed to address its claim "regarding their involvement in the misappropriation of Dupre's business," we note that Dupre failed to raise this argument below in its opposition to the summary judgment motions. "[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court. [Citation.]" (Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 26; see also JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) In any event, Dupre's argument fails on the merits.
Dupre's tort of another cause of action does not mention misappropriation of Dupre's name or business. Such a claim, however, was included in Dupre's negligence cause of action. As previously discussed, that cause of action included allegations that Hall negligently represented she and Habbestad were agents or employees of Dupre; Insurenet "negligently consummated" the sale of Dupre's assets to Insurenet," and Insurenet and Hall "controlled the management and operation of Dupre, and engaged in various business transactions . . . without [Dupre's] knowledge or consent and without any legal basis to do so." Because Dupre's negligence cause of action encompassed its claim that cross-defendants misappropriated its business, Dupre is precluded from relying on such a claim as the basis for its tort of another cause of action.
Summary judgment was properly entered in cross-defendants' favor on the cross-complaint.
The judgment is affirmed. Cross-defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
We concur: HULL , J. MAURO , J.