Judge: Donald F. Gaffney, Case: The Estate of Frances Marsh v. Chicago Title Insurance Company, Date: 2023-05-24 Tentative Ruling



For the reasons set forth below, Plaintiff The Estate of Frances Marsh’s Motion for Judgment on the Pleadings, as to the Fourth Cause of Action for declaratory relief, is DENIED.


The Court finds Plaintiff complied with it meet-and-confer obligation prior to filing the Motion (Code Civ. Proc., § 439), and it grants Plaintiff’s requests for judicial notice. (Evid. Code, § 452, subd. (d).)


However, while the Court takes judicial notice of the existence of pleadings and the two notices of ruling, as well as the truth of the results reached in the two notices of ruling, it does not take judicial notice of the truth of hearsay statements in decisions and court files. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882; People v. Harbolt (1997) 61 Cal.App.4th 123, 126-127.)


Plaintiff argues the denial of Defendant’s two prior MSJ’s conclusively establishes both the duty to defend/indemnify, as well as the need to appoint cumis counsel. Not so, as the hearing on a motion for judgment on the pleadings, much like a hearing on a demurrer, “‘may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the [defendant].’ [Citation.]” (Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 477-478; Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 660; accord, Panterra GP, Inc. v. Superior Court (2022) 74 Cal.App.5th 697, 710.) 


Yet, this is precisely what Plaintiff is attempting to do, as it has asked the Court to take judicial notice of pleadings and rulings related to two motions for summary judgment that Defendant filed, both of which were denied by this Court, along with the Fourth Amended Complaint and Defendant’s Answer to same. This is an improper use of judicial notice, as Plaintiff is effectively attempting to transform this motion for judgment on the pleadings into a contested evidentiary hearing such as a motion for summary adjudication.


In support of its Motion, Plaintiff cites to Mirapad, LLC v. California Ins. Guarantee Ass’n (2005) 132 Cal.App.4th 1058, 1068 and Horace Mann Ins. Co. v. Barbara B. (1993) 4 Cal.4th 1076, 1085 for the proposition that, in denying the two motions for summary judgment, the Court found a factual dispute over insurance coverage existed, which establishes a duty to defend.


However, the Fourth Amended Complaint asks the Court to interpret the terms of Defendant’s insurance policy to determine whether Plaintiff is entitled to a defense in the underlying litigation, whether Plaintiff is entitled to reimbursement of all post-tender fees and costs, and whether Plaintiff was entitled to utilize cumis counsel. (Fourth Amended Complaint, ¶ 106; Exhibit 2 to the Fourth Amended Complaint.)


This requires the resolution of a legal question, namely, the interpretation or application of the insurance policy’s terms. (State Farm General Ins. Co. v. Mintarsih (2009) 175 Cal.App.4th 274, 284, fn. 6; see TIG Ins. Co. of Michigan v. Homestore, Inc. (2006) 137 Cal.App.4th 749, 755 [“Interpretation of an insurance policy is a question of law and follows the general rules of contract interpretation”].) The law is clear that there is no duty to defend when the only potential for coverage turns on the resolution of a legal question. (Mirapad, supra, 132 Cal.App.4th at p. 1068; Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 25-26.)


Contrary to Plaintiff’s contention, adjudication of the declaratory relief cause of action requires the resolution of a legal question, not merely a factual one. Thus, Plaintiff is not entitled to judgment on the pleadings of its fourth cause of action for declaratory relief.


Defendant Chicago Title Insurance Company to give notice.