Marriage of Bradley and Lind
Filed 5/23/13 Marriage of Bradley and Lind CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re the Marriage of WILLIAM
ROBERT BRADLEY and BEATRIZ LAURENTINA LIND.
WILLIAM ROBERT BRADLEY,
Respondent,
v.
BEATRIZ LAURENTINA LIND,
Appellant.
D059945
(Super. Ct.
No. DN131119)
APPEAL from
a judgment of the Superior Court
of
County, Richard G. Cline, Judge. Affirmed.
Kehr,
Schiff & Crane and Joe Schiff for Appellant.
Trope &
DeCarolis and Patrick DeCarolis, Jr., for Respondent.
This action
involves the interpretation of language in paragraph 7.4.1 of a premarital
agreement between appellant Beatriz Laurentine Lind (Laura) and respondent
William Robert Bradley (Robert)
name="_ftnref1" title="">[1]
that detailed the parties' rights regarding certain real property owned by
Robert.
The
Laura would receive $3 million from Robert shortly after the marriage. Approximately six months after the parties
married it was decided that a house would not be built on the property
described in paragraph 7.4.1.
Robert
filed an action for martial dissolution in December 2003.
Thereafter,
Robert brought a motion for summary
adjudication seeking to have the property located on Camino Sierra del Sur
in Rancho Santa Fe (the Rancho Santa Fe property) declared to not be the joint
residence and for a finding that Laura was not entitled to any money or damages
from the sale of property located on Tierra Del Sur in San Diego (the Tierra
Del Sur property). The motion for
summary adjudication was denied and the case was thereafter set for trial.
Prior to
the commencement of trial, both parties filed motions in limine regarding the
admissibility of parol evidence to interpret paragraph 7.4.1. Robert sought to prohibit the use of parol
evidence in construing that paragraph.
Laura's motion in limine argued that (1) the disputed provision of the
premarital agreement was unclear and ambiguous, and (2) therefore parol
evidence should be admitted.
The trial
court granted Robert's motion in limine, finding that "[t]he agreement is
clear and unambiguous. Extrinsic
evidence is barred with regard to the intentions of the parties expressed in
[paragraph] 7.4.1 of the prenuptial agreement."
Once the court ruled on these
motions in limine, Laura sought to have the judge who heard Robert's motion for
summary adjudication rule on the motions in limine (the case had been
reassigned for trial). The court denied
this request.
On appeal,
Laura asserts that (1) parol evidence should have been admitted consistent with
the court's order denying Robert's summary judgment motion; and (2) the court
did not comply with the procedural mandates applicable to reexamination of
Robert's motion for summary judgment. We
affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
Laura and
Robert married on July 30, 1999. Robert filed for dissolution of the marriage
on December 31, 2003.
A. Facts
Occurring Prior to Marriage
In May 1998
Robert purchased the Tierra Del Sur property, with title taken in the name of
"Via Del Mar, LLC," a limited liability company formed by Robert for
the purchase.
On July 28, 1999, the parties entered
into the premarital agreement. Laura had
at least two different attorneys representing her in connection with drafting
of the premarital agreement and there were "many" drafts of the
premarital agreement before it was signed by the parties.
The
premarital agreement provided that all property acquired prior
would remain the separate property of the person acquiring it except as
expressly provided otherwise in the premarital agreement. The only exception was paragraph 7.4.1 which
describes the "Joint Residence" as the Tierra Del Sur property and
provides as follows: "Upon the
marriage of the Parties, Robert shall transfer into the joint names of the
Parties the real property described in Exhibit D (hereinafter the 'Residence'
or 'Joint Residence'). [Laura] shall
designate how she will hold title to her interest in the Residence (however,
she may not hold title as a joint tenancy).
It is Robert's and [Laura's] intention
that a home will be built on this property in which they both shall live -
although the Parties have looked at and are considering other places to
purchase a home. The Parties will each
have input with regard to the operations of the Residence, and the Parties will
consult with one another on all major issues regarding the residence, but
Robert will make the ultimate decisions.
[¶] Presently, Robert has invested $1,035,647.63 in purchasing the real
property for the Residence. In the
any right to acquire [Laura's] interest in the Residence, or upon sale or other
disposition of the Residence, Robert shall either receive a credit against any
payment due to [Laura] or her estate (e.g., in connection with any payments due
under Sections 6.3 of 7.4.3), or shall be reimbursed the amount he has invested
[in] said Property, from any sale proceeds.
[Laura] has the right at any time to acquire one-half of Robert's equity
in the land by paying Robert one-half of his investment in the Residence (e.g.,
per Exhibit A, $517,824). Except for
this limited right of contribution or credit, the equity in the real property
and the residence constructed thereon shall constitute the Joint Residence, and
shall be community property. To the
extend [sic] that Robert uses separate property funds to pay construction costs
he shall not be reimbursed for such expenditures." (Italics added.)
The
premarital agreement also states in paragraph 2 that: "It is the Parties' desire that the
properties owned by each Party prior to marriage shall remain separate property
and that the other shall acquire no interest in these properties by virtue of
their marital relationship, except as expressly provided for in this
Agreement. Thus, each Party preserves
certain assets as his or her separate property to the exclusion of the other
and waives certain property rights that he or she would or might acquire in the
property of the other, and these benefits and waivers, along with the
consideration in Sections 7 and 8 for the consideration for this
Agreement."
The only
exception regarding what property would be community property is
forth ante, as "the real
property described in Exhibit D (hereinafter the 'Residence' or 'Joint
Residence')."
Paragraph
5.1.8 of the premarital agreement also states, in all capital letters: "IT IS THE INTENT OF THE PARTIES THAT
ABSENT A SPECIFIC WRITTEN AGREEMENT NO COMMUNITY PROPERTY SHALL RESULT FROM THE
MARRIAGE OF THE PARTIES. TO EMPHASIZE
THE IMPORTANCE OF THIS ENTIRE SECTION 5.1 AND SUBPARTS THEREOF AND THIS SECTION
5.1.8, THE PARTIES SHALL INITIAL BELOW.
FURTHER, BY INITIALLING, THE PARTIES ACKNOWLEDGE THAT THEY HAVE BEEN
ADVISED OF THEIR RIGHTS RELATING TO COMMUNITY PROPERTY, AND FULLY UNDERSTAND
THEIR RIGHTS, AND AGREE TO WAIVE THEIR COMMUNITY PROPERTY RIGHTS."
Paragraph
14.4 states: "The Parties recognize
the possibility that they may discuss from time to time the possibility of
altering or amending the terms of this Agreement (e.g., by acquiring
jointly-owned property, or entering into a partnership or joint venture, etc.). It is specifically agreed that any statements
made during those discussions, whether or not phrased in terms of promises,
agreements, representations, or otherwise, shall not be binding, and shall be
null and void, and of no force and effect, and shall be considered as discussions
only, unless and until they are reduced to a written agreement signed by both
Parties. [¶] The Parties recognize the
possibility that each Party may, from time to time, act in such a way and
engage in such conduct as to lead the other to believe that he or she intends
to alter or amend the terms of this Agreement. It is specifically agreed that
any such act or conduct by either Party shall not be binding, and shall be null
and void, and of no force and effect, regardless of the inference drawn therefrom
by the other Party, in the absence
of a written agreement signed by both Parties setting forth the Parties'
understanding."
Paragraph
14.3 states : "This Agreement may
not be amended or terminated except by an in instrument in writing, signed by
each of the Parties. No failure to
exercise and no delay in exercising any right, remedy, or power under this
Agreement shall operate as a waiver thereof.
No modification, alteration, or waiver of any term, covenant, or
condition of this Agreement shall be valid unless it is in writing and signed
by each Party. The Parties understand
that oral promises or promises inferred from conduct, which would modify the
terms of this Agreement, will not be binding on either Party. The Parties have been advised that they
should obtain the advice of independent counsel prior to entering into any
future agreement between them."
At the time
the parties signed the premarital agreement, Robert had already entered into
escrow to purchase the Rancho Santa Fe property through Anasazi Retreat, LLC,
an entity formed by Robert for the purchase of that property.
B.
Separation
As stated,
1999. The following month, on August 17,
1999, escrow closed on the Rancho Santa Fe property and the parties moved in
and resided there during their marriage.
In 1999,
Robert decided not to pursue developing the Tierra Del Sur property. Robert testified that he lost faith in his
ability to develop the property, there were problems that came to his attention
regarding a road that needed to be improved, the City of San Diego gave him a
two-page document of requirements, and there was a wind problem. In March 2000, while married and living with
Robert, Laura filed a lawsuit against him regarding the Tierra Del Sur property
and recorded a lis pendens on the property.
The lawsuit was ultimately dismissed by Laura on February 20, 2001, and
the lis pendens was expunged.
On December
4, 2001, the Tierra Del Sur property was sold to the person from whom Robert
had purchased the property for the same price he had paid for it. Prior to the property being sold, Laura was
presented with an opportunity to purchase the property on the terms detailed in
the premarital agreement, but she chose not to exercise that option.
C. Events
Occurring After Separation
On December
31, 2003, Robert filed for dissolution of marriage. Laura and Robert continued to reside at the
Rancho Santa Fe property during the separation with Robert paying all of the
expenses.
On December
1, 2006, the Rancho Santa Fe property was sold for $7.9 million. Laura subsequently claimed that that the
Rancho Santa Fe property should be "substituted" for the Tierra Del
Sur property.
D.
On
September 28, 2009, Robert filed a motion for summary adjudication requesting
"[t]hat the Court summarily adjudicate and find as follows: [¶] (1) That the residence [on] Camino Sierra
del Sur in Rancho Santa Fe, California, also known as 'Rancho Santa Fe,' is not
the joint residence of the parties, as described in paragraph 7.4.1 of the
Parties' Premarital Agreement; and (2) That Respondent is entitled to no money
or damages from the sale of the property located [on] Tierra Del Sur in San
Diego, California, also known as 'Via Del
Mar.'"
On December
4, 2009, the court (the Honorable Sim Von Kalinowski) denied Robert's motion,
finding that "there are triable issues in this case, including, but not
limited to, the issues of whether or not the Rancho Santa Fe home was a
substitute property and whether or not there were damages for not developing
the property at Tiare [sic] Del
Sur. The
Court further finds that parol evidence will need to be presented at the time
of trial." (Italics added.)
E.
On
September 20, 2010, Laura served Robert with a list of exhibits she intended to
introduce at trial, along with copies of the exhibits. Laura sought to introduce various
correspondence relating to the negotiations and execution of the premarital
agreement, as well as various drafts of the premarital agreement.
Thereafter,
Robert filed a motion in limine which requested that the court (the Honorable
Richard G. Cline, the matter having been reassigned for trial): (1) order Laura not to introduce into
evidence any documents interpreting the parties' premarital agreement or
concerning the parties' negotiation of it, including drafts of the agreement
and letters relating to its negotiation and preparation; (2) order Laura, her
counsel, and all witnesses to refrain from referring to those documents; (3)
order Laura not to introduce into evidence any documents concerning a
hypothetical residence; and (4) order Laura, her counsel, and all witnesses to
refrain from referring to a hypothetical residence.
Laura opposed that motion and also
filed a motion in limine, requesting:
(1) an order declaring the language of paragraph 7.4.1 of the premarital
agreement was uncertain, ambiguous and/or unclear as to the meaning and
interpretation of its terms requiring the use of parol evidence (extrinsic
evidence) to determine the meaning and interpretation of paragraph 7.4.1; (2)
an order allowing Laura and Robert to introduce parol evidence, consisting of
written documentation and/or witness testimony, to determine the meaning and
interpretation of the terms of paragraph 7.4.1 of the premarital agreement to
conform to the intent and understanding of the parties; and (3) an order
overruling or denying any objection to or motion in limine by Robert to
preclude the use of parol evidence to determine the meaning and interpretation
of paragraph 7.4.1 of the premarital agreement.
Specifically,
Laura argued that paragraph 7.4.1 of the premarital agreement (1) should be
interpreted to show that Robert was obligated
to build a joint residence on the Via Del Mar property or, (2) alternatively,
that paragraph 7.4.1 should be interpreted to mean that Robert was
residence and that the substituted residence was the Rancho Santa Fe residence.
F.
On January
10, 2011, the court granted Robert's motion in limine and denied Laura's. In doing so, the court found that the
premarital agreement was fully integrated, not susceptible to the
was clear and unambiguous. The court
found "[e]xtrinsic evidence is barred with regard to the intentions of the
parties expressed in [paragraph] 7.4.1 of the prenuptial agreement. Further, [Robert's] Motion in Limine to
exclude evidence of the 'Hypothetical Residence' is granted."
Trial was
held in January 2011.
On January
25, 2011, the court granted Robert's motion for judgment pursuant to Code of Civil Procedure section 631.8
and found in favor of Robert and against Laura.
On March 1,
2011, the court issued a statement of decision making the following
had a legal obligation to build a residence on the property located [on] Tierra
Del Sur San Diego California. [¶] 2. At
the relevant times, [Robert] had no obligation to provide a substitute
residence in lieu of the Tierra Del Sur residence. [¶] 3.
[Laura] is not entitled to any funds from the sale of the Tierra Del Sur
residence in light of her failure to exercise her right-of-first refusal. Further, [Robert] engaged in an arm's length
transaction with the former owner of the property in connection with the sale
by him of the Via Del Mar property. [¶]
4. The Rancho Santa Fe property is not a
substitute residence for the joint residence set forth in paragraph 7.4.1 of
the premarital agreement. [Laura] is not
entitled to any share of the proceeds of that residence or any other alleged
substitute residence. [¶] 5. All monies held in a trust in an account that
[Robert] established per court order in this action are the property of and
shall be released to [Robert]. [¶]
6. [Laura] has failed to establish her
defenses to the petition. [¶] 7. [Robert] is entitled to judgment and to his
costs as set forth."
On March
23, 2011, judgment was entered in Robert's favor consistent with the court's
decision.
This timely
appeal follows.
DISCUSSION
I. STANDARD
OF REVIEW
The
determination of whether the parol evidence rule applies so as to preclude
extrinsic evidence concerning the mutual intention of the parties is a question
of law subject to de novo review. (
62 Cal.2d 861, 865; Fischer v. First
Internat. Bank (2003) 109 Cal.App.4th 1433, 1443.)
I. ANALYSIS
A.
The parol
evidence rule is codified in Code of Civil Procedure section 1856
which provides that the "[t]erms set forth in a writing intended by the
parties as a final expression of their agreement with respect to such terms as
are included therein may not be contradicted by evidence of any prior agreement
or of a contemporaneous oral agreement."
Further, Civil Code
section 1625 states that "[t]he execution of a contract in writing,
whether the law requires it to be written or not, supersedes all the
negotiations or stipulations concerning its matter which preceded or
accompanied the execution of the instrument."
"Although
the parol evidence rule results in the exclusion of evidence, it is not a rule
of evidence but one of substantive law.
[Citation.] It is founded on the
principle that when the parties put all the terms of their agreement in
writing, the
agreement. The written terms supersede
statements made during the negotiations.
Extrinsic evidence of the agreement's terms is thus irrelevant,
and cannot be relied upon.
[Citation.] '[T]he parol evidence
rule, unlike the statute of frauds, does not merely serve an evidentiary
purpose; it determines the enforceable and incontrovertible terms of an
integrated written agreement. [Citations.]
The purpose of the rule is to ensure that the parties' final
understanding, deliberately expressed in writing, is not subject to
change." (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn.
(2013) 55 Cal.4th 1169, 1174 (Riverisland).)
Application
of the parol evidence rule involves a two-step analysis: (1) "[W]as the writing intended to be an
integration, i.e., a complete and final expression of the parties' agreement,
precluding any evidence of collateral agreements?" (2) "[I]s the agreement susceptible of
the meaning contended for by the party offering the evidence?" (Gerdlund v. Electronic Dispensers
International (1987) 190 Cal.App.3d 263, 270.)
Laura does not dispute that the
marital settlement agreement is a fully integrated agreement. Therefore, we need only address the second
step of the parol evidence analysis.
C.
Under the
second step of our analysis we determine whether the extrinsic evidence offered
by Laura serves to prove a meaning to which the language of the instrument is
reasonably susceptible. However, in this
case, Laura sought to introduce evidence that would alter the terms of paragraph 7.4.1 of the premarital
agreement. Laura sought to change the
word "intention" to "obligation." Laura also sought to insert a
Robert to provide a substitute residence.
Therefore, the court properly excluded Laura's proffered
"Under
the parol evidence rule, extrinsic evidence is not admissible to contradict
express terms in a written contract or to explain what the agreement
was." (Sunniland Fruit, Inc. v.
Verni (1991) 233 Cal.App.3d 892, 898.)
"The agreement is the writing itself." (Ibid.) "Parol
evidence cannot . . . be admitted to show intention
independent of an unambiguous written instrument." (Ibid.)
Laura
contends that the court should have admitted her parol evidence for the limited
purpose of determining whether an ambiguity existed in the premarital
agreement. However, the court
was completely integrated, unambiguous, and not reasonably susceptible to the
interpretation proffered by Laura. Thus,
the court was not required to admit Laura's parol evidence.
By way of
example, in Malstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187
Cal.App.3d 299, the Court of Appeal held that when a contract was integrated and
provided that it superseded all prior agreements, evidence of an implied
agreement which contradicted the terms of the written agreement was not
admissible, stating: "'[I]f the
court decides in light of this extrinsic evidence that the contract is not
reasonably susceptible to the offered interpretation, then the evidence is
irrelevant and inadmissible to interpret the contract.'" (Id.
at p. 316.)
Laura also asserts that the court
erred in giving a "precatory" meaning to the word
"intention," in paragraph 7.4.1 and should have looked at the entire
clause of paragraph 7.4.1. However, the
court did not just focus on the word "intention." Rather, in its statement of decision the
court stated: "Following are some,
but not all of the factors supporting the court's decision regarding
interpretation of paragraph 7.4.1 of the premarital agreement. The separate property of each of the parties
is clearly described in the agreement.
This includes the Rancho Santa Fe property. Any claim of [Laura] to this
property necessarily involves a transmutation.
The contract includes a complete integration clause. The various obligations of the parties are
clearly set forth in mandatory language.
The disputed language in paragraph 7.4.1 clearly is not mandatory in nature. The word 'intention' by definition does not
connote an 'obligation.' The limitations
on [Laura's] right to community property are clearly set out. Her right to a community property interest in
Via Del Mar, on the other hand, is clearly spelled out and is limited. In several places the premarital agreement
clearly specifies the limits upon transmutation of separate property into
community property; transmutation cannot occur by acts [or] words alone;
transmutation will occur only by a writing and only by the construction of a
residence on the Via Del Mar property. Use
of the word 'intention'
is consistent with [the] remainder of the sentence and the
paragraph: there is no
obligation to build on Via Del Mar and other property is being considered for a
residence. The paragraph contains an
expression of current intention, not a future obligation." (Italics added.)
Laura's
reliance on Holmes v. Lerner (1999) 74 Cal.App.4th 442 is also
unavailing. Holmes dealt with the
enforceability of an oral agreement, specifically an oral partnership
agreement, not a fully integrated written agreement as we have in this
case. Further, Holmes did not
address intent, but an actual verbal agreement.
As the Court of Appeal in Holmes stated: "Holmes was not seeking specific
enforcement of a single vague term of the agreement. She was frozen out of the business
altogether, and her agreement with Lerner was completely renounced. The agreement that was made and the
subsequent acts of the parties supply sufficient certainty to determine the
existence of a breach and a remedy."
(Id. at p. 459, fn. omitted.)
Laura's
reliance on Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th
793 also does not support her position.
As Laura states in her opening brief, Weddington merely stands for the proposition
that an agreement is formed if the parties agreed on the "same thing in
the same sense." (
states the parties' mutual intent.
The two
other cases cited by Laura also do not support her position. Laura cites Yield Dynamics, Inc. v. TEA
Systems Corp. (2007) 154 Cal.App.4th 547 and Magpali v. Farmers Group
Inc. (1996) 48 Cal.App.4th 471 for the proposition that
act . . . are in the nature of promises." However, in Yield, supra, 154 Cal.App.4th at page 575, the
Court of Appeal stated that in order to prevail on a claim of
evidence sufficient to persuade the trial court that at the time defendants entered
into the asset transfer agreement, they lacked the intention to perform their
undertakings." (See 5 Witkin,
Summary of Cal. Law 10th ed. 2005) Torts, § 781, p. 1132 ["A
declaration of intent, although in the nature of a promise, made in good faith,
without intention to deceive, and in the honest expectation that it will be
fulfilled, does not constitute fraud, even though it is not carried
out.".) Magpali, supra, 48 Cal.App.4th at page 481 stands for
the same proposition. However, in this
case, the court found that Laura failed to establish her claim of
Laura next
asserts that paragraph 7.4.1 is reasonably susceptible to the meaning she seeks
to ascribe to it. In her opening brief,
Laura recites all of the parol evidence she sought to admit in support of her
position. However, this evidence is not
admissible if the court has determined that the document at issue is fully
integrated and not reasonably susceptible to the meaning offered by Laura,
which is what the court found in this case.
Laura
contends that the court did not comply with applicable "procedural
mandates" in ruling on the motions in limine, which amounted to a
"reconsideration" of Robert's motion for summary adjudication. However, Robert and Laura both filed motions in limine, placing the issue
of admissibility of parol evidence before the court.
Moreover,
as the California Supreme Court stated in Le Francois v. Goel (2005) 35
Cal.4th 1094, 1104-1105 (Goel), a
restriction on a court's ability to sua sponte reconsider its own rulings
"would directly and materially impair and defeat the court's most basic
functions, exercising its discretion to rule upon controversies between the
parties and ensuring the orderly administration of justice. Courts are empowered to decide controversies,
a power derived from the state constitution.
We are hard pressed to conceive of a restriction that goes more directly
to the heart of a court's constitutionally mandated functions." Although the high court agreed there could be
limits on a party's ability to file
court's ability to reconsider a prior ruling.
(Id. at p. 1107.)
In
judgment. The court denied the motion,
finding that the plaintiffs had raised a triable issue of fact. Thereafter, the defendants again moved for
summary judgment on the same grounds.
The motion was originally scheduled to be heard by the judge who had
heard the first motion, but thereafter, was transferred to a second judge, who
granted the motion. (
1097.)
The
plaintiffs appealed, asserting that the court's reconsideration of the motion
for summary judgment was improper. The
Court of Appeal affirmed, holding that the trial court "had inherent power
derived from the California Constitution to consider the second
motion." (Goel, supra, 35 Cal.4th at p. 1096.) The California Supreme Court affirmed the
Court of Appeal's decision, holding that while a party may not make renewed motions not based upon new facts or law,
nothing "limit[s] a court's ability
to reconsider its previous interim orders on it own motion, as long as it gives
the parties notice that it may do so and a reasonable opportunity to litigate
the question." (
Laura's
assertion that the trial court did not provide her with adequate notice and an
opportunity to be heard is also misplaced.
Laura herself filed a
motion in limine putting the issue squarely before the court. In her motion in limine, Laura also asked
that the trial court "consider all opposition pleadings, declarations and
exhibits and legal authority filed by [Laura] in connection with the Motion for
Summary Judgment as further support of [the] Motion in Limine." In addition, Laura filed a response to
Robert's motion in limine on the same issue and addressed it in her reply
memorandum of points and authorities.
Laura's
argument that the motions in limine
should have been heard by the judge who heard the motion for summary
adjudication is also unavailing. The
case was assigned to Judge Cline for trial.
However, Laura did not request that the case be transferred back to the
judge who denied the motion for summary in her motion in limine, or opposition
to Robert's motion in limine. Rather,
Laura did not make this request until after
the trial court had ruled against her motion in limine. The fact that Laura did not object to Judge
Cline hearing her motion until after Judge Cline ruled on her motion prevents
her from now arguing that the motion should have transferred back to the judge
who had previously heard the motion for summary adjudication.
Laura also
argues that Judge Cline was not allowed to "overrule" the decision of
a different judge in the same case.
However, Judge Cline was
not ruling on another motion for summary adjudication, but on motions in limine
that were presented to him by both parties.
An order denying summary adjudication "simply establishes the
existence of a triable fact when the order was made." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2012) ¶ 10:364, p. 10:143.) It
"does not establish the merits or legal sufficiency of either party's
case. Thus, the judge at trial may
direct a verdict in favor of the moving party despite the earlier denial of
summary [adjudication]." (
In fact, in
her motion in limine, counsel for Laura specifically requested that Judge Cline
consider "all the opposition pleadings, declarations and exhibits and
legal authority filed by [Laura] in connection with the Motion for Summary
Judgment as further support of this Motion in Limine," thereby inviting
Judge Cline to review Judge Von Kalinowski's ruling denying Robert's motion for
summary judgment. Also, as noted by the
court, Laura, by presenting Judge Cline with her motion in limine to introduce
parol evidence, was estopped from requesting that the issue be referred back to
Judge Von Kalinowski.
name="_ftnref2" title="">[2]
Laura's
reliance on In re Marriage of Herr (2009) 174 Cal.App.4th 1463 is also
unavailing. In In re Marriage of Herr,
an untimely motion for reconsideration
was filed after a two-day trial. The
trial court, on its own motion, granted reconsideration and announced that all
of the issues previously addressed during the trial would be revisited. (Id. at
p. 1465.) The Court of Appeal held this
amounted to a new trial which the court did not have authority to grant. (Ibid.)
Cal.App.4th 368, 372 also does not assist our analysis. There, the Court of Appeal held the trial court erred when it granted a
motion for summary judgment when a different
judge had previously denied the identical motion.
Here, the
court did not rule on a motion for reconsideration or attempt to retry issues
previously heard. It did not grant a
request for summary judgment that had been previously denied. Rather, it only ruled on motions in limine
regarding the issue of parol evidence that had been properly placed before it
by both parties.
D.
On February
22, 2013, we granted [Laura's] request to file a letter brief addressing the
California Supreme Court's recent decision in Riverisland, supra, 55 Cal.4th 1169. At issue in
parol evidence to prove fraud. (Id. at
p. 1177.)
In
an agreement to restructure their debt to a production credit association. They alleged that the representative of the
credit association told them that their loan would be extended for two years in
exchange for additional collateral consisting of two ranches. These assurances were repeated when they
signed the restructuring agreement, which they signed where tabbed for their
signatures without reading it. But the
agreement actually provided for only three months forbearance and identified
eight parcels as additional collateral.
(Riverisland, supra, 55 Cal.4th at p.
1173.) The plaintiffs sued for fraud,
negligent misrepresentation, rescission and reformation of the
the ground that the fraud exception to the parol evidence rule did not allow
admission of promises at odds with the terms of a written agreement. (Ibid.)
The Court
of Appeal reversed, and the California Supreme Court affirmed, that
decision. In doing so, the
Supreme Court overruled Bank of America etc. Assn. v. Pendergrass (1935)
4 Cal.2d 258. Pendergrass had
limited the fraud exception to the parol evidence rule by requiring that
evidence offered to prove fraud "must tend to establish some independent
fact or representation, some fraud in the procurement of the instrument or some
breach of confidence concerning its use, and not a promise directly at
variance with the promise of the writing." (Id. at p.
263, italics added.) Characterizing Pendergrass
as "an aberration," the Supreme Court "reaffirm[
maxim stated in
Ferguson v. Koch [(1928)] 204 Cal. [342,]
347: '[I]t
that the parol
evidence rule should
be used as
of fraud.'" (Riverisland, supra,
55 Cal.4th at p. 1182.)
However, in
this case, both below and on appeal, [Laura] is not seeking to set aside the premarital agreement based upon
fraud. Rather, she seeks to introduce
parol evidence to ascribe a meaning to paragraph 7.4.1 that is, as we have
discussed, inconsistent with the plain and unambiguous language of the
clause. Thus, the RiverIsland case has no bearing on our resolution of this appeal.
DISPOSITION
The judgment is affirmed.
NARES,
Acting P. J.
WE CONCUR:
McDONALD, J.
AARON, J.
name="_ftn1" title="">[1]
We refer to the parties by their
middle names as they do themselves. We
intend no disrespect.
name="_ftn2" title="">[2]
Although the court stated in its
ruling that it could and would reconsider the ruling denying the motion for
summary judgment, it only actually was presented with and ruled on the
parties. We express no opinion on
when or under what circumstances one judge may reconsider a ruling by another
judge. (Goel, supra, 35 Cal.4th at p. 1097, fn. 2.)
