AEROJET GENERAL CORP v. CHESHIRE AND COMPANIES

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Court of Appeal, First District, Division 5, California.

 AEROJET–GENERAL CORP., et al., Petitioners, v. SAN MATEO COUNTY SUPERIOR COURT, Respondent, CHESHIRE AND COMPANIES, etc., et al., Real Parties in Interest.

No. A042785.

Decided: May 18, 1989

ORDER DENYING PETITION FOR REHEARING

Real parties in interest petition for rehearing contending we have omitted or misstated material facts in our opinion filed April 19, 1989, 211 Cal.App.3d 216, 257 Cal.Rptr. 621.   We have reviewed the allegations of the petition and have found them without merit.   We deny the petition for rehearing and add the following comments.

There has been considerable confusion in this case over the role played by the extrinsic evidence in the trial court.   Although some extrinsic evidence was presented below, it was entirely stricken on cross-motions to strike and the trial court resolved the question as a matter of law.   When this was  drawn to real parties' attention at oral argument, they responded only that one piece of extrinsic evidence, a letter allegedly denying a previous insurance claim, was not stricken.   Real parties, however, were mistaken, and in footnote three of our opinion we accurately discuss the role and the fate of extrinsic evidence in this case.   In the petition for rehearing real parties argue that “the trial court's ruling on Aerojet's objections and motion to strike was limited to striking the evidence in real parties' reply.  [¶]  At no point in the record is there a ruling by the trial court striking the evidence submitted with the original motion.”

Aside from the fact that the current contention is broader than real parties' response at oral argument, we cannot agree with real parties' interpretation of the record.   Real parties accompanied their motion for summary adjudication with numerous items of purported extrinsic evidence.   These items were not cited as supportive evidence of either of the two material facts set forth in real parties' Separate Statement of Material Facts.   Indeed, real parties took pains to note again and again that the motion posed only a legal question of insurance contract interpretation;  for instance, real parties stated that the motion “presents a legal issue that depends only on the plain meaning of the insurance policies.”   The motion suggested the factual matters were not necessary to resolve the legal issue, and were presented only for “context.”   In its opposition to the summary judgment motion, Aerojet attached numerous items of purported extrinsic evidence.   In their reply brief, real parties presented additional evidentiary items.

Aerojet filed a motion to strike the purported evidence submitted in support of both the motion for summary adjudication and the reply brief.   Aerojet's motion was made “on the ground that the material sought to be stricken does not relate to the issues or to the allegedly undisputed facts set forth in [real parties'] Separate Statement [of Material Facts], and, in the case of evidentiary materials, is not listed in said Separate Statement as supporting evidence, all in violation of the applicable statute and Rules of Court.”   The motion to strike was not limited to the reply brief and was not made on the ground that any extrinsic evidence should have been presented with the original motion.   Real parties filed their own motion to strike several factual assertions of Aerojet's opposition brief as well as its supporting extrinsic evidence.

At the hearing on the motion for summary adjudication, the trial court stated:  “Now, moving on through the objections and the motion [sic ] to strike certain evidence.   I don't know which order they came in but I've looked at them both being as far as Chesire's, the way I understand, the evidence that [Aerojet is] objecting to is in the reply memorandum which would not be proper and I would sustain it.   And it would not enter into my decision on the motion.  [¶] As to [real parties' counsel's] objection to Aerojet's, I would grant it be stricken.   I see no relevance in that in the way I have determined and read the case and the motion that is before me.”  (Emphasis added.)

It is clear, especially from the court's later ruling denying a motion for reconsideration, that the trial court considered the question one of law.   This is the only evident basis for the trial court's granting in its entirety real parties' motion to strike, which targeted Aerojet's extrinsic evidence, with the last sentence of the quoted passage.   Although the court suggested its “understanding” of Aerojet's objections as speaking to the reply only, the court's ruling “and I would sustain it” clearly sustained the objections in their entirety.   Curiously, real parties neither sought clarification that their original-motion evidence was still in the case nor focused on that evidence in the ensuing argument on the issue of law raised by the motion.   In light of these circumstances, and the parties' obvious understanding, shared by the court, that the issue was purely a question of law, we think it clear the extrinsic evidence played and continues to play no role in this case, and we adhere to the phrasing of our opinion.

We also comment on an argument raised in the petition for rehearing concerning the coverage clause.   As noted in our opinion, real parties contended at oral argument that the coverage clause actually ended at the word “damages” and the ensuing “because of ․” phrase was a separate “property damage clause.”   Having suffered defeat in the writ proceeding real parties now urge in their petition for rehearing that “[r]eal parties did not and do not make that contention.”   This claim is wholly inaccurate.   Real parties, having made the contention, may not now deny it to suit their present needs.   One may not alter one's appellate argument as the chameleon does his color, to suit whatever terrain one inhabits at the moment.

The petition for rehearing is denied.

 BY THE COURT:

LOW, P.J., and HANING and KING, JJ., concur.

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