Filed 3/14/13 Roepel v. Pacific Specialty Ins. CA2/8

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>

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opinion has not been certified for publication or ordered published for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
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
EIGHT


>

KERRI ROEPEL et al., Plaintiffs, Cross-defendants and Appellants, v. PACIFIC SPECIALTY INSURANCE COMPANY, Defendant, Cross-complainant and Respondent.

B230306 (Los Angeles County Super. Ct. No. BC368157)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Maureen Duffy-Lewis, Judge. Affirmed.



Brentwood
Legal Services and Steven L. Zelig for Plaintiffs, Cross-defendants and
Appellants.



Shoecraft Burton,
Robert D. Shoecraft and Michelle Kelli Burton for Defendant, Cross-complainant
and Respondent.

* * * * * * * *

This case
arises from the ashes of two separate fires that occurred on February 12, 2005, at the Leona
Valley property owned by Kerri Roepel
and Roepel’s then-husband, Howard Breuer.
Their residence, which at the time was under construction from a January
2002 fire, was completely destroyed.
A detached quonset hut, located approximately 50 feet from the
residence, was also destroyed. Roepel
claimed to have lost several hundred thousand dollars in personal property
stored in the hut. Roepel timely
submitted her claim to her insurer, Pacific Specialty Insurance Company (PSIC). Approximately 20 months later, PSIC
denied Roepel’s claim and rescinded her policy based on numerous material
misrepresentations contained in her application for insurance.

The jury concurred, finding Roepel
misrepresented material facts on her application for insurance entitling PSIC
to rescind its policy. The jury also
found Freeway Insurance Services, Inc. (Freeway) was Roepel’s broker, not
PSIC’s agent. Judgment was entered for
PSIC and against Roepel on November
18, 2010. Notice of appeal
was timely filed by appellants Roepel and her children, Ryan, Jesse, Kathryne
and Madison Roepel (the Children).

Appellants argue there was href="http://www.mcmillanlaw.com/">insufficient evidence to support the
jury’s findings, evidentiary rulings by the trial court undermined appellants’
case, and the special verdict was unduly biased against appellants. Appellants also argue the trial court erred
by sustaining PSIC’s demurrer without leave to amend, by granting a directed
verdict for PSIC as to punitive damages and by granting a nonsuit as to
Roepel’s children. We agree with PSIC
that substantial evidence supports the jury’s verdict. In addition, we find all other claims of
error lack merit. Accordingly, the
judgment is affirmed in its entirety.



>FACTS AND PROCEDURAL BACKGROUND

1. The Leona Valley Residence and the January 2002 Fire

Kerri and James Roepel (the
Roepels) married in July 1987. The
Roepels purchased the Leona Valley residence from James’s parents in 2001. In January 2002, the home suffered extensive
fire damage. The house was
uninhabitable.

The Roepels
submitted claims to Allstate Insurance Company (Allstate) for damage to the
dwelling, another structure, loss of personal property and additional living
expenses. Allstate and the Roepels
settled as to the dwelling damage for $308,500, with $60,000 withheld by
Allstate pending completion of 70 percent of the repairs. The Roepels submitted a sworn statement in
proof of loss claiming $289,360 as the value of their damaged personal
property. Allstate denied their personal
property claim because of a conflict between the statements given by the
Roepels.

In February
2002, the Roepels entered into a $300,000 burn restoration contract with Eagle
Construction. Work, however, stopped
sometime between March and June 2003, the result of the Roepels’ divorce and
problems with Eagle Construction. On
November 6, 2003, the Los Angeles County Fire Department issued a stop work
order for lack of a fire suppression system, water and access.

The Roepels
also submitted a claim to Allstate for a September 2002 brush fire at the
location. Allstate paid on this claim,
although at trial, Roepel could not recall the amount. Thereafter, Allstate ceased to insure the
Leona Valley property, and the lender placed a forced insurance policy that
covered only the lender’s interest. The
forced policy did not cover personal property or other structures, such as the
quonset hut.



2. The Roepels’ Divorce

After the
2002 fires, the Roepels separated and Roepel began dating Howard Breuer. In August 2003, Roepel and Breuer moved in
together, renting a home in Granada Hills.
The Roepels’ divorce was finalized in September 2004, and Roepel was
awarded the Leona Valley property in lieu of support and other obligations.

In October
2004, Breuer became a co-owner of the Leona Valley property. His name was put on title to obtain a loan to
finish construction at the property. The
loan was initially for $95,000, but increased to $143,000. Neither Roepel nor Breuer kept a ledger
detailing loan proceeds spent on construction.


In October
2004, Roepel and Breuer listed the Leona Valley property for sale. The listing agreement stated: “Listing not to be submitted to the MLS
systems until construction is further complete in the Spring of 2005.”

To avoid
the forced policy on the residence, Roepel randomly called several insurance
companies to obtain coverage. She was
unsuccessful, either because the residence was still under construction or
because the property was in a high fire zone.
On January 18, 2005, Roepel again sought homeowners insurance, this time
through Freeway. Roepel did not contact
Freeway to obtain insurance specifically from PSIC. Rather, Roepel was interested in “all the
insurances [Freeway] offered.”



3. Roepel’s Application
for Insurance With PSIC

Roepel
spoke to Freeway’s employee, Audrey Lopez.
Roepel inquired as to the types of insurance Freeway offered. In response, Lopez faxed Roepel a document
entitled, “Appointment of Insurance Broker,” which Roepel signed. Roepel handwrote she “read and [understood]”
the document, which identifies Freeway as Roepel’s broker and states Freeway
will represent her in obtaining coverage.


Lopez then
telephonically assisted Roepel in completing the insurance application. Roepel provided Lopez with her name and the
address of the Leona Valley property for the application. Lopez then faxed the prefilled application to
Roepel; several questions were left blank and were circled for Roepel to
answer. The application states: “I have reviewed the above information and
warrant that the application is true and correct.” Roepel completed the application, signed it
on January 18, 2005, then returned it to Lopez.

On the
application, Roepel’s name was misspelled.
Roepel testified she did not notice.
Roepel also identified Breuer as her husband, though they had not yet
married; Roepel married Breuer 10 days later, on January 28, 2005. The application also had an incorrect zip
code for the Leona Valley property.

Freeway
submitted the completed and signed application to PSIC on January 24,
2005. PSIC bound the policy, effective
January 18, 2005, per Roepel’s request.
On January 25, 2005, PSIC ordered an exterior inspection of the property. The Leona Valley property, however, is
located in a rural area. The road leading
to the location was inaccessible from weather damage. PSIC’s inspector either could not locate the
property or was unable to obtain access to it.


PSIC ran a
Comprehensive Loss Underwriting Exchange (CLUE) report on Roepel. The report disclosed Roepel had submitted (1)
a theft claim to Allstate on May 17, 2001, (2) a fire claim on January 9, 2002,
and (3) a fire claim on September 3, 2002.
On January 26, 2005, to verify the accuracy of the CLUE report, PSIC
sent a letter to Roepel and Freeway requesting further information about the
previous fires. Neither Roepel nor
Freeway responded to this letter.



4. The February 12, 2005 Fires

Sometime after midnight, on
February 12, 2005 ‑‑ 18 days after PSIC received Roepel’s
application ‑‑ two separate fires struck the Leona Valley property,
one at the house, the other at the quonset hut.
Detective Larry Lewis, Los Angeles County Sheriff’s Arson Explosives
Detail, noted the house had been reduced to a “pile of coal in [the]
basement.” He concluded there were two
separate fires, both arson. Lewis spoke
to Roepel at the scene. He suspected
Roepel was involved in the fires based on her demeanor, inconsistencies between
her statements and facts he observed, and information he obtained from the
building department regarding her problems with construction permits. Lewis was subsequently unable to obtain a
sit-down interview with Roepel to discuss her inconsistencies.

PSIC’s fire
investigator, Thomas Pierce, similarly concluded there were no accidental
ignition sources associated with these fires.
Due to the remote location and difficult access, Pierce concluded the
fires were probably set by someone familiar with the property. In his opinion, the fires were arson.

According
to PSIC, Roepel’s claim had numerous red flags, indicating potential fraud,
including multiple points of origin, the property was vacant and for sale, the
fires occurred after 11:00 p.m., the fires occurred within 30 days of the
inception of coverage, and Roepel’s application appeared to contain
misrepresentations. Additionally, the
quonset hut fire debris was inconsistent with Roepel’s statement that a
refrigerator or freezer had been inside the hut. As such, PSIC did not pay on Roepel’s claim,
but instead referred the matter to its Special Investigations Unit for
review.

In or
around July 2005, Roepel hired Mike Vaughan, a public adjuster, to safeguard
her rights. Sometime thereafter, Vaughan
suggested she also hire a lawyer, which she did.



5. The Four Questions

While PSIC
suspected Roepel had caused the two February 2005 fires, PSIC ultimately
concluded it was unable to prove as such.
During its investigation, though, PSIC learned from Breuer that the
house was uninhabitable due to the January 2002 fire. This led PSIC to question the veracity of the
information in Roepel’s application.
PSIC focused on four questions.



> Question
No. 3: Will you occupy the dwelling as
your only primary residence within
10 days of inception of the policy? If
no, prohibited.

>

Roepel answered this question “yes,” even though (1)
Roepel was at the time living with Breuer and their children in a rented house
in Granada Hills, and (2) their lease required 30 days written notice to
vacate, which had not been given to their landlord. Additionally, Breuer testified he never
stayed overnight at the Leona Valley residence and Roepel told Pierce no one
was living at the property at the time of the fires. The residence only had a temporary power pole
and the county had not issued a certificate of occupancy permit.



Question No. 14: Has insured reported any claim in the past
three years? If yes, risk prohibited.



Roepel
answered this question “no,” even though she submitted a claim to Allstate for
a wild fire at the location in September 2002.
In fact, Roepel received money from Allstate for this claim, although at
trial, she could not recall the amount.
While Roepel’s earlier claim for the January 2002 fire fell days outside
the three-year window, the September 2002 fire occurred within three years of
her application.



Question No. 16: Has any damage remained unrepaired from
previous claims and/or any pending claims and/or any known or potential (a)
defects, (b) claim disputes, (c) property disputes and/or (d) lawsuits? If yes, risk prohibited.



Question
No. 22: Does dwelling have any
remodeling or construction performed without permit or ongoing extensive
remodeling or renovation? If yes, risk
prohibited.



Roepel
answered “no” to the above two questions.
Correspondence from Roepel to Allstate, however, dated January 18, 2005 ‑‑
the same date the PSIC application was signed ‑‑ paints a different
picture. In the correspondence to
Allstate, Roepel writes:

“As you are aware, we suffered fire damage
. . . on Jan. 9, 2002. You settled for
$308,500 on or about April 24, 2002. You
paid a $248,367.74 installment to our lien holder, Washington Mutual, in
mid-May 2002, and held back over $60,000 until we could reach 70 percent
completion (drywall stage). We are at
that stage and we request that Allstate release the remainder of the money.”

Further evidence the home was still under construction
includes: (1) there was a temporary
power pole to provide electricity with a large gauge extension cord running in
through a window, into the house; (2) the residential listing agreement stated
“[l]isting not to be submitted to MLS systems until construction is further
complete in the Spring of 2005 . . .”; and (3) photos submitted with the
January 18, 2005 letter to Allstate show the unfinished interior of the
residence, with open walls and visible insulation in certain areas, along with
large stacks of unused drywall in the premises.

Unrelated
to its investigation, PSIC cancelled Roepel’s policy for nonpayment of premium
on May 18, 2005. Then, in October 2006,
as the result of purportedly material misrepresentations, PSIC reinstated
Roepel’s policy and rescinded it.
Representatives from PSIC testified PSIC returned the unearned premiums
and inspection fee, although whether the inspection fee was actually returned
was contested at trial.

>6. Procedural History

As noted, Roepel and her Children
filed suit on March 19, 2007, alleging 10 causes of action against
PSIC: (1) breach of implied covenant of
good faith and fair dealing; (2) breach of contract; (3) fraud in the
performance of insurance contract; (4) negligent misrepresentation; (5)
fraud in the inducement of the insurance contract; (6) negligent
misrepresentation; (7) negligence; (8) breach of contract; (9) intentional
infliction of emotional distress; and (10) reformation. The complaint further alleges Freeway was the
agent of PSIC. Roepel and her children
also sued Freeway, though they settled prior to trial.href="#_ftn1" name="_ftnref1" title="">>[1]>

PSIC demurred to the third through
seventh and ninth causes of action. On December
13, 2007, the court sustained PSIC’s demurrer without leave to amend. PSIC then filed an answer to the remaining
causes of action and a cross-complaint (which it abandoned as to the Children). Jury trial commenced on July 1, 2010. Deliberations began on August 4, 2010. That same day, the jury reached a verdict.

The jury found Roepel
misrepresented material facts on her application for insurance entitling PSIC
to rescind its policy. The jury also
found Freeway was acting as Roepel’s broker, not PSIC’s agent. Judgment was entered for PSIC on November 18,
2010. Notice of appeal was timely filed
by appellants.

Roepel argues there was
insufficient evidence to support the jury’s findings, evidentiary rulings by
the trial court undermined her case, the special verdict prejudiced her, and
the trial court erred by granting a directed verdict for PSIC as to punitive
damages. Roepel and her Children further
argue the trial court erred by sustaining PSIC’s demurrer without leave to
amend, and her Children argue the trial court erred by granting a nonsuit
against them.



DISCUSSION

Trial
in this matter spanned the better part of five weeks; trial transcripts cover
21 volumes and are nearly 6,000 pages in length. Appellants’ appendix exceeds 2,800 pages. Appellants spend in excess of 40 pages in
their opening brief recounting purportedly favorable testimony of each witness,
along with countless rulings appellants deem erroneous, for the most part,
without presenting any specific argument, citation to case law or statutory
authority.

I. Substantial Evidence
Supports the Jury’s Findings

The
primary argument advanced by Roepel is that the evidence presented does not
support the verdict. The substantial
evidence standard governs this claim of evidentiary insufficiency. In assessing whether substantial evidence
exists, we view the evidence in the light most favorable to the prevailing
party and indulge in all legitimate and reasonable inferences to uphold the
jury’s verdict. (Sanchez-Corea v. Bank of America
(1985) 38 Cal.3d 892, 907.) We
do not evaluate the credibility of the witnesses but defer to the trier of fact
(Lenk v. Total-Western, Inc. (2001)
89 Cal.App.4th 959, 968); nor do we reweigh the evidence. The testimony of a single witness may provide
substantial evidence. (>In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
The judgment will be upheld if it is supported by substantial evidence,
even though substantial evidence to the contrary also exists and the trier of
fact might have reached a different result had it believed other evidence. (Howard
v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).) We employ the
substantial evidence rule no matter what the standard of proof at trial,
whether a preponderance of the evidence,
clear and convincing evidence or proof beyond a reasonable doubt. (People
v. Ceja (1993) 4 Cal.4th 1134, 1138; Crail
v. Blakely (1973) 8 Cal.3d 744, 750; In
re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) Here, there is substantial evidence to
support each challenged finding by the jury.



A. Freeway Was a Broker, Not an Agent

Roepel’s case hinged on the premise
that (1) Freeway was PSIC’s agent, and (2) Roepel disclosed the truth
regarding all material facts to Freeway.
Thus, Roepel argues, even if Roepel’s application contained material
misstatements, the true and correct information is imputed to PSIC through its
agent, Freeway. The jury did not agree,
finding Freeway was acting as an insurance broker on behalf of Roepel, not as
an agent of PSIC. There is href="http://www.mcmillanlaw.com/">substantial evidence to support this
finding.

Immediately prior to submitting her
application for insurance, Roepel signed a document entitled “Appointment of
Insurance Broker,” which identifies Freeway as her broker and states that
Freeway will represent her in obtaining coverage. This document alone constitutes substantial
evidence to affirm the jury’s finding.

Additionally, and amongst other
witnesses, Susan Valencia, a vice president and head of underwriting at McGraw
Insurance Services, PSIC’s parent, testified Freeway was a broker, not an agent
of PSIC. Michael Miles, from PSIC
Special Investigations Unit, testified PSIC does not use agents, only brokers,
and Freeway was not PSIC’s agent. Marlon
Young, in-house counsel for PSIC, similarly testified Freeway was a broker, not
an agent. Young added there had been no
appointment by the Department of Insurance permitting Freeway to serve as
PSIC’s agent, as required by law. Kelly
Turton, Freeway’s then-President, testified Freeway was an insurance broker,
placing insurance with as many as 40 to 50 carriers, including PSIC. Turton unequivocally stated that Freeway was
a broker, not an agent.href="#_ftn2"
name="_ftnref2" title="">>[2]> Thus, we conclude substantial evidence
supports the jury’s finding Freeway was acting as an insurance broker on behalf
of Roepel and not as an agent of PSIC.



B. PSIC Properly Rescinded
Roepel’s Policy

In October
2006, PSIC rescinded Roepel’s policy on the grounds (1) Roepel did not occupy
the Leona Valley property as her primary residence within 10 days of the
inception of coverage; (2) Roepel made a claim within the past three years; and
(3) there was unrepaired damage to the Leona Valley residence. The jury agreed, finding PSIC properly
rescinded Roepel’s policy. We find the
record contains substantial evidence to support the jury’s finding.



1. Material
Misrepresentations

Roepel’s
application for insurance contained numerous material misrepresentations
justifying rescission. To begin with,
her name and address were incorrect on the application. Susan Valencia testified the accuracy of this
information is important to PSIC because if a name is misspelled, it could
prove difficult to identify the applicant and obtain a CLUE report on that
person, whereas if the full address is incorrect, it could prove difficult to
inspect the premises, as in this case.
Valencia further testified PSIC relies on the accuracy of the
application and any prohibited risk would automatically disqualify an
applicant. Roepel answered each of the
following four questions untruthfully:



“Question
No. 3: Will you occupy the dwelling as
your only primary residence within 10 days of inception of the policy? If no, [risk] prohibited.”



Roepel
answered “yes,” even though the Leona Valley home had a temporary power pole
and was without a certificate of occupancy.
Breuer testified that he never stayed overnight at the Leona Valley
residence and Roepel told PSIC’s fire investigator, that no one was living at
the property at the time of the fire.
Jesse Roepel, who was 16 years old at the time of the fire,
testified as follows:

“Q: Now
you never lived at the Leona Valley property between the dates of January 18,
2005, and February 12, 2005, the day of the fire, right?

“A: That’s
correct.

“Q: And
your brothers and sisters didn’t live at the Leona Valley property between
those two dates, right?

“A: That’s
correct, no.

“Q: And
Howard Breuer didn’t live at the Leona Valley property between those two dates,
true?

“A: Correct.”

Jesse added that he was last at the Leona Valley property
two to three months prior to the February 2005 fire. Sarah Breuer testified she never slept at the
Leona Valley residence.

Valencia
testified the preferred HO3 Program Roepel applied for and obtained coverage
under is available only to those who occupy their home as their primary
residence. Valencia added an insured
under this policy cannot have two primary residences. Valencia concluded that while Roepel may have
qualified for a different program (DP1 or DP3), at a substantially higher
premium, she would not have qualified for the HO3 Program had she answered this
question truthfully.



“Question No. 14: Has insured reported any claim in past
three years? If yes, risk prohibited.”



Roepel answered “no,” even though
in September 2002, she submitted a claim to Allstate for a wild fire at the
premises for which she received compensation.
Valencia testified PSIC would not have bound its policy if Roepel had
answered this question truthfully.

“Question
No. 16: Has any damage remained
unrepaired from previous claims and/or any pending claims and/or any known or
potential (a) defects, (b) claim disputes, (c) property disputes and/or
(d) lawsuits? If yes, risk prohibited.”



“Question No. 22: Does dwelling have any remodeling or
construction performed without permit or ongoing extensive remodeling or
renovation? If yes, risk prohibited.”



Roepel answered “no” to the above two questions, even though
on the same date she submitted her application, January 18, 2005, she wrote a
letter to Allstate in which she represented the Leona Valley residence was
70 percent complete and was at the drywall stage. Jesse Roepel testified when he was last at
the residence before the fire, sometime in November or December 2004, the
drywall had just barely been started, the stucco work had not been completed,
the kitchen cabinets were not installed, he did not believe the kitchen sink
had been installed, the walls just had particle board, the carpeting had yet to
be installed and there were no toilets or bathroom sinks (other than in the
basement). He added he had not been told
a move-in date.

Again, a
temporary power pole provided electricity to the residence via a large gauge
extension cord running in through a window into the house, and the county had
not issued a certificate of occupancy permit.
The residential listing agreement stated: “Listing not to be submitted to MLS systems
until construction is further complete in the Spring of 2005 . . .
.” Photos submitted with the January 18,
2005 letter to Allstate show the unfinished interior of the residence, with
open walls and visible insulation in certain areas, along with large stacks of
unused drywall in the premises. Plus, in
November 2003, the Los Angeles County Fire Department issued a stop work order,
for lack of a fire suppression system, water and access.

Valencia
testified “if [the application] says ‘if yes, prohibited,’ they answer ‘yes,’
we wouldn’t have accepted the application.
We wouldn’t have cashed the check or accepted payment, and we would
return the application unbound to [Freeway] and letting [sic] them know why we are returning it unbound.” She added that the Roepel residence, with
prior unrepaired damage, was not in an insurable condition per the underwriting
guidelines.



2. Timeliness of Rescission and Waiver

The jury expressly found PSIC
did not delay in providing Roepel with notice of rescission, PSIC returned or
offered to return the insurance premiums paid on behalf of Roepel, and PSIC did
not waive its right to rescind the insurance policy. To the extent Roepel contends the jury erred
as to these findings, we disagree.

At trial,
neither side disputed the February 12, 2005 fires resulted from arson. Roepel suggested they may have been caused by
her bitter ex-husband, James Roepel, or possibly by a disgruntled former
contractor. PSIC argued Roepel was
responsible for the two fires. The jury
found in favor of Roepel (i.e., that someone else caused the two fires). Regardless of who caused the two fires, it
was reasonable for PSIC to fully investigate this claim and in fact, mandated
by law. (See Cal. Code Regs., tit. 10, § 2698.30 et seq.) As such, substantial evidence supports the
jury’s finding PSIC did not delay because it took 20 months to investigate and
deny a claim as complex as this one, especially when the record contained
evidence Roepel, during the pendency of this claim, delayed sitting (for about
nine months) for a recorded statement and later, an examination under oath.

Nonetheless, Roepel argues PSIC
failed to comply with California Code of Regulations, title 10, section 2695.7,
subdivision (b), by failing to accept or deny Roepel’s claim, in whole or
in part, within 40 calendar days from receiving proof of the claim. However, section 2695.7,
subdivision (c)(1) permits additional time to determine whether a claim
should be accepted and/or denied in whole or in part, so long as written notice
is provided to the claimant within the time frame specified in section 2695.7,
subdivision (b) and every 30 days thereafter until a determination has
been made, as occurred in this matter.
Section 2695.7, subdivision (h) is similarly unhelpful to Roepel,
in that all amounts here “were reasonably in dispute.”



3. Instructional Error

On page 74 of her opening brief, Roepel includes the
following two sentences:

“Appellants
requested that the Trial Court instruct the jury that whether there was a
foreclosure should be disregarded.

“Likewise,
Appellants requested that the trial court instruct the jury that whether
repairs were actually performed was irrelevant to the issue of amounts due
under an insurance policy.”

Roepel fails to list these contentions under a separate
heading or subheading, per California Rules of Court, rule 8.204(a)(1)(B),
which requires each side to “[s]tate each point under a separate heading or
subheading summarizing the point, and support each point by argument and, if
possible, by citation of authority . . . .”

Nor does
Roepel provide any argument with respect to her position. “Appellate briefs must provide argument and
legal authority for the positions taken.
‘When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.
[Citations.]’” (Nelson v.
Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 (>Nelson).) “We are not bound to develop appellants’
arguments for them. [Citation.] The absence of cogent legal argument or
citation to authority allows this court to treat the contention as
waived.” (In re Marriage of Falcone
& Fyke (2008) 164 Cal.App.4th 814, 830; see also Associated Builders
& Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th
352, 366, fn. 2; People v. Stanley (1995) 10 Cal.4th 764, 793.) We therefore deem Roepel’s argument regarding
instructional error waived.



C. The Trial Court’s
Evidentiary Rulings Do Not Support Reversal

Roepel
spends in excess of 47 pages detailing the testimony of each witness and
bewailing the trial court’s evidentiary rulings relating thereto. We review Roepel’s contentions under an abuse
of discretion standard. “ ‘Broadly
speaking, an appellate court reviews any ruling by a trial court as to the
admissibility of evidence for abuse of discretion.’ [Citation.]
Even where evidence has been erroneously excluded, the judgment or
decision shall not be reversed unless the reviewing court is of the opinion
that the error resulted in a miscarriage of justice. (Evid. Code, § 354; Cal. Const., art.
VI, § 13.)” (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 516.)

Here, aside
from stating her contention and quoting the relevant legal standard in her
opening brief, Roepel offers no analysis to support her argument. Even when she specifies rulings that were purportedly incorrect,
she does not explain why they were
incorrect or why they constituted prejudicial error, with citations to the law
and cogent argument. We are “‘not
required to make an independent, unassisted study of the record in search of
error or grounds to support the judgment.’”
(McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) A party’s contentions must be supported by
argument and citation to authority or we may deem them waived.

In all but
three instances, Roepel fails to cite to any legal principle. Nor does she comply with California Rules of
Court, rule 8.204(a)(1)(B). Therefore,
without further analysis, we reject Roepel’s claim of abuse of discretion. (Landry
v. Berryessa Union School District (1995) 39 Cal.App.4th 691, 699-700.)href="#_ftn3" name="_ftnref3" title="">>[3]


First,
Roepel contends the trial court erred by allowing PSIC to ask questions
concerning a polygraph examination allegedly requested of Roepel. Although Roepel provides argument and legal
authority for her position, she fails to cite specifically to the record,
instead broadly citing pages 4920 through 5230 of the reporter’s
transcript. It is not this court’s
obligation to sift through several hundred pages of trial testimony to find the
polygraph question (or questions) Roepel deems inappropriate. Regardless, even were we to agree with
Roepel’s contention, given (1) the length of this trial ‑‑ five
weeks ‑‑ and the amount of evidence introduced, (2) the jury
believed Roepel’s testimony that she did not cause the arson to her property,href="#_ftn4" name="_ftnref4" title="">>[4]> and (3) the evidence was overwhelming that
Roepel’s application contained material misrepresentations and Freeway was a
broker, we find any alleged error did not result in a href="http://www.fearnotlaw.com/">miscarriage of justice.

Second,
Roepel complains the court erred in precluding her from using “judicial
admissions” contained in PSIC’s answer and cross-complaint. Roepel relies on Fuentes v. Tucker (1947) 31 Cal.2d 1, and Razzano v. Kent (1947) 78 Cal.App.2d 254, for the proposition that
a party is bound by the admissions in his or her own pleadings. While we have no quarrel with the legal
principle advanced, we disagree with Roepel that either the complaint or the
cross-complaint contains judicial admissions.
We therefore find no abuse of discretion by the trial court in failing
to deem any portion of either PSIC’s complaint or cross-complaint a judicial
admission.

Finally,
Roepel appears to contend the court erred by preventing her from impeaching
Lopez with a conviction “for driving without a license.” Roepel, though, fails to identify the
specific Vehicle Code section violated by Lopez (i.e., § 12500, 12951 or
14601, amongst others). Roepel also
fails to provide any case law to substantiate her position that driving without
a license is a crime of moral turpitude; nor are we aware of any such
holding. Regardless, neither side called
Lopez as a witness during trial.
Therefore, impeaching her is not appropriate and we find that the trial
court did not err.



D. Prejudice

Unless we conclude there is a
reasonable probability that a result more favorable to appellants would have
been reached in the absence of error, we must affirm the lower court’s
ruling. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574; >People v. Watson (1956) 46 Cal.2d 818,
836.) A reasonable probability is one
sufficient to undermine confidence in the outcome of the proceedings. (Strickland
v. Washington (1984) 466 U.S. 668, 694; In
re Neely (1993) 6 Cal.4th 901, 909.)
Reasonable probability does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility. (College
Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) Here, the evidence in support of the jury’s
verdict is so compelling we find no reasonable probability a result more
favorable to appellants would have been reached in the absence of any purported
error, whether addressed herein or not.



II. Special Verdict

Roepel
contends the trial court erred by approving a special verdict that required the
jury to answer 38 interrogatories before Roepel would have any chance of
recovery. We disagree.

We review
Roepel’s contention that the special verdict prejudiced appellants under an
abuse of discretion standard. (>Red Mountain, LLC v. Fallbrook Public
Utility Dist. (2006) 143 Cal.App.4th 333, 364.) Moreover, “[a]
party who fails to object to a special verdict form ordinarily waives any
objection to the form. [Citations.] However, waiver is not automatic, and there
are many exceptions. [Citation.]
For example, ‘[w]aiver is not found where the record indicates that the
failure to object was not the result of a desire to reap a “technical
advantage” or engage in a “litigious strategy.”
[Citations.]’ [Citation.] Nor is
an objection required when the verdict is fatally inconsistent.” (Behr
v. Redmond (2011) 193 Cal.App.4th 517, 530.)

Here, while
there are 48 interrogatories in the special verdict (with damages starting at
question No. 38), only the first 14 interrogatories were answered by the jury
to reach its verdict. Moreover, the
final language of the interrogatories was negotiated at length, both on and off
the record. At no point on the record
does Roepel formally object to the final version of the special verdict. Instead, Roepel cites generally to
51 pages of “horse-trading,” during which Roepel fails to raise her
current argument that either the number or order of the interrogatories
prejudiced her. To the contrary, one can
infer from the transcript Roepel was satisfied with the special verdict. Regardless, we find any error in the special
verdict has been waived by Roepel’s failure to object at trial.



III. Demurrer

A. Ruling on the Demurrer

Roepel
contends the trial court erred in sustaining PSIC’s demurrer to the fraud,
negligence and intentional infliction of emotional distress causes of action,
and by not allowing leave to amend.

“‘A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters. . . . The only issue involved
in a demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action.’”
(Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747, citations omitted.)
We review the complaint de novo to determine whether it alleges facts
sufficient to state a cause of action.
For purposes of review, we accept as true all material facts alleged in
the complaint, but not contentions, deductions or conclusions of fact or
law. We also consider matters that may
be judicially noticed. (>Blank v. Kirwan (1985) 39 Cal.3d 311,
318.)

1. Fraud

According to Roepel, valid causes of action lie for both
fraud in the inducement and fraud in the performance. The elements of fraud are:
(1) misrepresentation (false representation, concealment, or
nondisclosure); (2) knowledge of falsity (scienter); (3) intent to
defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See
Civ. Code, §§ 1572, 1709, 1710.) Fraud actions are subject to strict
requirements of particularity in pleading.
(Committee on Children’s
Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)

We need not
address Roepel’s contention regarding fraud in the inducement as it is moot in light of the jury’s
finding Freeway was a broker representing Roepel’s interests, not an agent of
PSIC. As such, PSIC cannot be held
liable for any alleged misrepresentations made by Freeway. (Krumme
v. Mercury Ins. Co. (2004) 123 Cal.App.4th 924, 929.)

With
respect to fraud in the performance, while Roepel’s complaint is exhaustive, it
fails to sufficiently identify a false representation, concealment, or
nondisclosure. Moreover, it fails to
articulate justifiable reliance.
Roepel’s contention that had she known the true facts, she would have
filed suit sooner does not constitute justifiable reliance, nor is it
reasonable given that Debbie Ashmore, PSIC’s Special Investigator Unit,
repeatedly told Mike Vaughan, Roepel’s public adjuster, PSIC had no intention
of paying. Ashmore explained, “I’m not
giving you a dime until the investigation is complete.” As such, we affirm the trial court’s ruling
sustaining the demurrer to the fraud claim.

2. Negligence

The
elements of negligence are: (1) a duty
the defendant owes to the plaintiff; (2) a breach of that duty by the
defendant; (3) a causal connection between the breach and the plaintiff’s
injury; and (4) actual injury. (>Williams v. Beechnut Nutrition Corp.
(1986) 185 Cal.App.3d 135, 141; 4 Witkin, Cal. Procedure (4th ed. 1997)
Pleading, § 537, p. 624.)

The
complaint alleges PSIC was “extremely negligent relative to the procurement of
the subject insurance policy for various reasons.” The complaint then lists seven specific
breaches of duty purportedly committed by PSIC and Freeway. Again, given the jury found Freeway was
acting as a broker and was therefore Roepel’s agent, not PSIC’s, none of the
conduct alleged is actionable as against PSIC; PSIC had nothing to do with the
procurement of the policy at issue. (>Rios v. Scottsdale Ins. Co. (2004) 119
Cal.App.4th 1020, 1028-1029.) Nor can
PSIC be held liable for any misrepresentation made by Freeway regarding
coverage. (Krumme v. Mercury Ins. Co., supra,
123 Cal.App.4th at p. 929.)
Therefore, by virtue of the verdict, which we herein affirm, this issue
is now moot and we need not address it.



3. Intentional Infliction of Emotional Distress

The elements of intentional
infliction of emotional distress are:
(1) outrageous conduct by the defendant; (2) intention to cause or
reckless disregard of the probability of causing emotional distress; (3) severe
emotional suffering; and (4) actual and proximate causation of the emotional
distress. Conduct is extreme and
outrageous when it exceeds all bounds of decency usually tolerated by a decent
society, and is of a nature which is especially calculated to cause, and does
cause, mental distress. Liability does
not extend to mere insults, indignities, threats, annoyances, petty oppressions
or other trivialities. (>Fisher v. San Pedro Peninsula Hospital
(1989) 214 Cal.App.3d 590, 617.) Additionally, “California
courts have held that delay or denial of insurance claims is not sufficiently
outrageous to state a cause of action for intentional infliction of emotional
distress.” (Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403,
416 (Coleman).)

Roepel fails to sufficiently allege
any conduct that would fall within the parameters set forth in >Coleman. Therefore, we find the
demurrer was properly sustained as to this cause of action.

B. Leave to Amend

Roepel argues that even if the demurrer was properly
sustained, she should have been granted leave to amend.

After a trial court sustains a demurrer without leave to
amend, on appeal, the appellate court must decide whether there is a reasonable
possibility the defect can be cured by amendment and, if so, whether the trial
court abused its discretion, requiring reversal. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Hernandez
v. City of Pomona (1996) 49
Cal.App.4th 1492, 1497-1498;
Sanchez v. Truck Ins. Exchange (1994) 21 Cal.App.4th 1778, 1781.) The plaintiff bears the burden of
proving there is a reasonable possibility of amendment. (Rakestraw
v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) The appellate court will generally not decide
an issue that has been rendered moot. (>Giles v. Horn (2002) 100 Cal.App.4th
206, 227-228.)

We hold this issue has been rendered moot by the jury’s
finding PSIC had the legal right to rescind Roepel’s policy based on material
misrepresentations in her application for insurance, which again, we herein
affirm. “A contract is
extinguished by its rescission.” (Civ.
Code, § 1688.) “The consequence of
rescission is not only the termination of further liability, but also the
restoration of the parties to their former positions by requiring each to
return whatever consideration has been received.” (Imperial
Casualty & Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 184 (>Imperial), citing 1 Witkin, Summary
of Cal. Law (9th ed. 1987) Contracts, § 869, p. 781.)

Here, as in Imperial, the policy would be extinguished ab initio, as
though it had never existed. In other
words, Roepel, as a matter of law,
was never an insured under a policy of insurance. (Imperial,
supra, 198 Cal.App.3d at p.
184.) Since she was never an insured,
Roepel cannot now allege a valid cause of action for negligence, fraud or
intentional infliction of emotional distress.



IV. Directed Verdict

Roepel contends the court erred
in granting a directed verdict in favor of PSIC and against Roepel as to
punitive damages. We disagree.

A directed verdict against a
plaintiff properly may be granted “‘“only when, disregarding conflicting
evidence and giving to plaintiff’s evidence all the value to which it is
legally entitled, . . . indulging in every legitimate inference which may be
drawn from that evidence, the result is a determination that there is no
evidence of sufficient substantiality to support a verdict in favor of the
plaintiff if such a verdict were given.”
[Citations.] Unless it can be said as a matter of law . . . no other reasonable
conclusion is legally deductible [sic]> from the evidence . . . the trial court is
not justified in taking the case from the jury.’ . . .” (Hilliard
v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 395.) Substantial evidence is evidence that is of
“‘“ponderable legal significance,”’ ‘“reasonable in nature, credible, and of
solid value.”’” (Howard, supra, 72 Cal.App.4th at p. 631.) The appellate court views the evidence in the
light most favorable to the appellant and will reverse the judgment if
substantial evidence exists to support a judgment for the appellant. (Colbaugh
v. Hartline (1994) 29 Cal.App.4th 1516, 1521.)

Here, Roepel provides
39 examples of malice, oppression or fraud, without a single reference to
the record, in violation of “rule 8.204(a)(1)(C) of the California Rules
of Court, with the consequence that such assertions will, at a minimum, be
disregarded.” (Liberty National Enterprise, L.P. v. Chicago Title Insurance Co.
(2011) 194 Cal.App.4th 839, 846.) Even
were we to consider the 39 points, Roepel has failed to make a cogent
argument as to why any or all of these points constitute(s) evidence of sufficient
substantiality to support a verdict for punitive damages in her favor. Nor do we so find.

Regardless, this issue is moot given
the jury found against Roepel as to the only cause of action that might support
an award of punitive damages (i.e., the first cause of action for breach of the
implied covenant of good faith and fair dealing). Therefore, there is no basis for an award of
punitive damages.



V. Nonsuit

The Children contend the court
erred in granting a nonsuit in favor of PSIC and against the Children.

“A
defendant is entitled to a nonsuit if the trial court determines that, as a
matter of law, the evidence presented by plaintiff is insufficient to permit a
jury to find in his favor.
[Citation.] ‘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.”’ [Citation.] A mere ‘scintilla of evidence’ does not
create a conflict for the jury’s resolution; ‘there must be >substantial evidence to create the necessary
conflict.’ [Citation.]” (Nally
v. Grace Community Church (1988) 47 Cal.3d 278, 291.)

Here, the
Children are not named insureds under the policy; their rights derive from
Roepel. Again, since Roepel, under >Imperial, was never an insured under a
policy of insurance, neither were the Children.
Thus, whether the nonsuit should have been granted as against the
Children is moot and we need not address it.




>DISPOSITION

The
judgment is affirmed. PSIC is awarded
costs on appeal.



KARLAN,
J.href="#_ftn5" name="_ftnref5" title="">*

We concur:



FLIER, Acting
P. J. GRIMES,
J.