Armed Forces Ins. Exchange v. Marshall

Filed 7/25/07 Armed Forces Ins. Exchange v. Marshall CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant Larry Marshall challenges the trial courts grant of summary judgment in favor of Armed Forces Insurance Exchange in this declaratory relief action. The judgment determined the absence of coverage under a homeowners insurance policy for bodily injury Marshall had suffered as a result of being shot multiple times by his former wife, Ellen Barrett, at her parents home in Saratoga where she was then residing. After shooting Marshall and then being criminally prosecuted, Barrett entered a no contest plea to a charge of assault with a firearm and she admitted great bodily injury enhancement allegations. She was sentenced to five years in prison.

Marshall sued Barrett in tort for his injuries. Barrett sought a defense of the action and indemnity from Armed Forces, which had issued a homeowners insurance policy to Barretts parents relating to their property where Barrett resided and where the shooting had taken place.[1] Armed Forces responded with this declaratory relief action, which it filed against Barrett as an insured under the policy and Marshall as Barretts potential judgment creditor under Insurance Code section 11580, subdivision (b)(2).[2][3] Armed Forces sought a judicial determination that it owed no defense under the policy to Barrett for the Marshall claim and that there was no coverage for it, eliminating any policy benefits that Marshall might derive from a judgment against Barrett as an insured. The basis of Armed Forces position was that Barretts shooting of Marshall had been an intentional act expressly excluded from coverage under the policy and as a matter of law under section 533.[4]

Armed Forces ultimately moved for summary judgment. In support of its motion, it urged that Barretts no contest plea to assault with a firearm, the elements of which include the intent to willfully commit an act the direct, natural, and probable consequences of which will be injury to another (People v. Colantuono (1994) 7 Cal.4th 206, 214 (Colantuono)), coupled with Marshalls deposition testimony as to the events of the shooting, established the absence of a triable issue of material fact as to the intentionality of Barretts actions, thus precluding coverage or any other benefit owing under the policy for Marshalls claim. Over Marshalls opposition, the trial court concluded that Armed Forces was entitled to summary judgment. Marshall now appeals, contending that the court below improperly weighed evidence in granting the motion. Like the trial court, on this record that includes inadmissible evidence offered by Marshall that the trial court properly refused to consider, we conclude that Armed Forces was entitled to summary judgment and we accordingly affirm.

STATEMENT OF THE CASE

I. Factual Background

Larry Marshall and Ellen Barrett were married and had one child, a boy. After they separated, Barrett and the boy moved into Barretts parents home in Saratoga. On Halloween night in 2001, at Barretts invitation, Marshall went to Barretts home to see their sons Halloween display.[5] Barrett had told Marshall to approach the house from the side yard entry. When Marshall did so, he encountered a fence and, confused, he retreated. As he turned around, he could discern in the moonlight Barretts figure about 15-20 feet away. At that point, he did not yet see the Mossberg shotgun she was holding at her side. Marshall stopped and said, Whats going on? or something to that effect. Then, as Marshall described it, Barrett stared at [him], kind of, like, gave [him] this, like, real angry, angry look like almost an evil look, very angry. Marshall believed that Barrett had recognized him because she had invited him there, he had arrived at the designated time, they were standing close enough and it was bright enough such that he recognized her, and she knew his voice. Moreover, Marshall had never threatened Barrett with physical violence and she admitted that he had not said or done anything prior to that night to cause her to be concerned for her safety on that occasion.

As soon as Marshall realized that Barrett had a gun and was going to shoot him, he tried to run away. But as he turned around in retreat, Barrett shot him twice, in the shoulder and face. Marshall fell and then tried to get up. Barrett shot him again. Marshall briefly lost consciousness but awakened, finding himself leaning against the fence. He pulled himself up by holding onto the fence. As he then took a step away in an effort to escape, Barrett shot him again, having reloaded the shotgun. Marshall lived but sustained serious and permanent injuries from his wounds.

Barrett was charged by felony complaint with inflicting corporal injury on a former spouse in violation of Penal Code section 273.5, subdivision (a); battery with serious bodily injury in violation of Penal Code sections 242-243, subdivision (d); and assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). The complaint further alleged an enhancement under Penal Code sections 12022.7, subdivision (e), and 1203, subdivision (e)(3), for Barrett having personally inflicted great bodily injury under circumstances involving domestic violence. Barrett later entered a plea of nolo contendere to assault with a firearm and admitted the bodily injury enhancement. She was sentenced to five years in prison.

Marshall sued Barrett and her parents in tort for damages for his injuries. Against all defendants, he pleaded causes of action for negligence, premises liability, intentional tort-attempted murder/assault & battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and defamation and slander. He specifically alleged in connection with the intentional tort claims that Barrett had deliberately shot and attempted to kill him and that her actions were intentional.[6]

Barrett tendered the defense of Marshalls lawsuit against her and sought indemnity for the claim under a policy of homeowners insurance issued to her parents by Armed Forces in connection with their Saratoga residence where Barrett lived at the time of the shooting and where it had taken place.[7] The policy generally provided personal liability coverage to the policy limits unless the bodily injury is expected or intended by an insured. Specifically, the policy provided personal liability coverage (defense and indemnity) to the policy limits and subject to its terms [i]f a claim is made or a suit is brought against an insured for damages because of bodily injury . . . caused by an occurrence to which this coverage applies. Under the policy, occurrence means an accident . . . which results during the policy period, in: [] a. bodily injury. Further, personal liability coverage was expressly excluded under the policy for bodily injury expected or intended by an insured. Armed Forces responded to Barretts tender by filing this declaratory relief action against her and Marshall.

II. Procedural Background

As pertinent here, Armed Forces complaint sought a judicial declaration that it owed no duty to defend Barrett against Marshalls claim and that the claim was excluded from coverage under the homeowners policy, both by the exclusion precluding coverage for bodily injury that is expected or intended by an insured and by the exclusion deemed a part of the policy by section 533, which excludes coverage as a matter of law for a loss caused by the willful act of the insured.

After settling with Barrett, Armed Forces moved for summary judgment against Marshall. The motion asserted that based on Marshalls version of the events of the shooting as relayed in his deposition testimony and because of Barretts no contest plea to the charge of assault with a deadly weapon and her admission of the great bodily injury enhancement, there was no triable issue of material fact as to the intentionality of Barretts actions in shooting Marshall, and Armed Forces was therefore entitled to a judgment as a matter of law declaring that there was no coverage for Marshalls claim against Barrett under the homeowners insurance policy.[8]

Over Marshalls opposition, the trial court granted the motion. Its written order concluded that Armed Forces had met its initial burden of producing admissible evidence that would require a reasonable trier of fact to find it more likely than not that Ms. Barrett committed an intentional act resulting in bodily injury when she shot Mr. Marshall, thereby excluding her from coverage under the policy.[9] Finding that Armed Forces as the moving party had met its initial burden on the motion, the court went on to conclude that the burden had shifted to Marshall, who then failed to demonstrate with admissible evidence the existence of a triable issue of material fact precluding summary judgment.

In reaching this conclusion, the court refused to considerby denying Marshalls request for judicial notice and characterizing the document as hearsaya declaration filed in a post-shooting family law proceeding between Marshall and Barrett concerning custody of their son. The declaration was not signed by Barrett herself but instead by her attorney, assertedly on her behalf. The document stated that Barretts shooting of Marshall had been in self-defense since she believed he had been stalking her and might have even killed [her].

The court also rejected Marshalls argument that a document signed by Barrett entitled Petition for Writ of Habeas Corpus had created a triable issue of fact concerning the intentionality of her actions in shooting Marshall. The document was not filed in any court proceeding and its contents challenged only the criminal courts victim restitution order, not Barretts no contest plea or her conviction.[10] No habeas proceeding actually having been initiated, the trial court ultimately concluded in any event that [a] mere expression of a future intent by Ms. Barrett to someday challenge her no contest plea does not rebut the party admission created by her earlier plea. Nor is there any admissible evidence establishing that Ms. Barrett has ever gone beyond assertions of a future intent [to challenge her plea].

The subsequently entered judgment declared that the evidence submitted by the parties on the [summary judgment] motion would require a reasonable trier of fact to find it more likely than not that Ms. Barretts actions triggered the exclusion for intentional[,] wrongful acts under Insurance Code [section] 533 and negated Armed Forces[] duty to defend Ellen Barrett in the related suit brought by Larry Marshall. Accordingly, Larry Marshall would have no rights to policy proceeds or any other rights under the policy issued by [Armed Forces].

This appeal followed.

ANALYSIS

I. Standard of Review

The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The exercise is thus one of finding material issues of fact rather than determining them. A winning summary judgment motion must accordingly demonstrate that material facts are undisputed. (Code Civ. Proc., 437c, subd. (b)(1).) Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) In determining the existence of a triable issue of fact, the court must consider all the evidence on the motion, except that to which objections have been sustained, and all inferences reasonably deducible therefrom, except that summary judgment may not be granted based on such inferences if they are contradicted by other inferences or evidence that raises a triable issue of fact. (Ibid.)

The party moving for summary judgment bears the burden of persuasion that there are no triable issues of material fact and that the moving party is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850.) The moving party also bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.) A prima facie showing is one that is sufficient to support the position of the party in question. (Id. at p. 851.)

Where, as here, a plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a cause of action entitling him or her to judgment. (Code Civ. Proc.,  437c, subd. (p)(1); see Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287, disapproved on other grounds in Aguilar, supra, 25 Cal.4th at p. 854.) This means that a plaintiff who bears the burden of proof at trial by a preponderance of the evidence must present evidence [on the motion] that would require a reasonable trier of fact to find any underlying material fact more likely than nototherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact. (Aguilar, supra, at p. 851; LLP Mortgage v. Bizar (2005) 126 Cal.App.4th 773, 776 [burden on moving plaintiff to persuade court there is no issue of material fact].) At that point, the burden shifts to defendant to show that a triable issue of one or more material facts exists as to that cause of action. (Code Civ. Proc.,  437c, subd. (p)(1).)

The moving party must satisfy his or her initial burden before the opposing party needs to controvert anything. (Code Civ. Proc., 437c, subd. (p)(1) & (2).) The courts primary function [in evaluating a summary judgment motion] is to identify issues rather than to determine [them]. [Citation.] . . . If the evidence is in conflict, the factual issues must be resolved by trial. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Thus, should the court determine that triable issues of material fact exist, the summary judgment motion must be denied. (See Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1448.) There is to be no weighing of evidence. (Kids Universe v. In2Labs (2002) 95 Cal.App.4th 870, 880.)

Since summary judgment motions involve purely questions of law, we review the grant of summary judgment de novo. (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438.) In performing our independent review, we conduct the same procedure employed by the trial court. We examine: (1) the pleadings to determine the elements of the claim for which the party seeks the relief; (2) the summary judgment motion to determine if the movant established facts justifying judgment in its favor; and (3) the opposition to the motionassuming movant met its initial burdento decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.] (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438; see also Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 688.)

II. Marshall Failed to Show a Triable Issue of Material Fact and Armed

Forces was Thus Entitled to Summary Judgment

Marshall contends that Barretts no contest plea is not conclusive as to the intentionality of her actions and that he submitted evidence in opposition to the motion that demonstrated a triable issue of material fact on this issuethe pivotal question in the case. The evidence to which he cites is Barretts Petition for Writ of Habeas Corpus challenging the criminal courts victim restitution order and the family law declaration signed by Barretts attorney on her behalf in which it is asserted that Barretts actions in shooting Marshall were taken in self defense. Marshall further contends on appeal that the trial court erred by impermissibly weighing the conflicting evidence on the motion on the question of Barretts intent. Marshalls contentions display misunderstandings as to both the burden-shifting mechanism on summary judgment as confirmed by our Supreme Court in Aguilar and the requirement that the existence of triable issues of material fact be demonstrated with admissible evidence.

As noted, in support of its motion, Armed Forces offered portions of Marshalls deposition testimony that described the events of the shooting. Marshall testified not only as to facts from which Barretts intent may be inferred, but also as to the basis of his belief that Barretts actions in shooting him were deliberate and intentional. It also presented Barretts testimony that Marshall had not done anything previous to the shooting to cause her to fear him on that occasion. Armed Forces further presented evidence that Barrett had pleaded no contest to a charge of assault with a firearm, a crime that includes as an element that the defendant willfully committed an act likely to induce injurious consequences (Colantuono, supra, 7 Cal.4th at pp. 214-215) and had admitted an enhancement allegation that she inflicted great bodily injury under circumstances involving domestic violence.

From this evidence, Armed Forces contended that there was no triable issue of material fact as to the intentionality of Barretts actions and, therefore, it was entitled to the judicial determination as a matter of law that coverage under the policy for Marshalls claim against Barrett was excluded. This argument had two components, the second of which formed the basis of the lower courts judgment: (1) coverage was expressly excluded under the policy because Marshalls bodily injury was expected or intended by Barrett; and (2) coverage was excluded as a matter of law under section 533 since Marshalls injuries had resulted from Barretts willful act in shooting him.[11]

Ignoring that Barretts intent to shoot Marshall and thereby cause him harm could be inferred from his own deposition testimony, Marshall argued below and reiterates here that Barretts intent could not be conclusively established by her no contest plea and that other evidence in the record offered in opposition to the motion created a triable issue of fact on this question in any event. We thus begin our analysis by addressing the impact of Barretts plea on the coverage question.

Barrett pleaded no contest to a felony, assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). The California Supreme Court has made clear that this crime does not require specific criminal intent and that the only mental state required is the general intent to willfully commit an act the direct, natural, and probable consequences of which . . . would be the injury to another. (Colantuono, supra, 7 Cal.4th at p. 214.) The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature [would] probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm. . . . Because the offensive or dangerous character of the defendants conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state. [Citations.] (Id. at pp. 214-215; see also People v. Williams (2001) 26 Cal.4th 779, 782, 784-785, 790.)

As provided at Penal Code section 1016, subdivision (3), a plea of nolo contendere shall be considered the same as a plea of guilty . . . . The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes. Barretts no contest plea to a felonyassault with a firearmwas thus an admission in this action of her intent to have committed the willful shooting of Marshall, an act likely to produce injurious harm. (Interinsurance Exchange v. Flores (1996) 45 Cal.App.4th 661, 672 [no contest plea is admissible in subsequent civil action as an admission of the crime].)

Yet, because such a plea may reflect a compromise or a choice not to undergo prosecution, it is not a conclusive admission, and has no collateral estoppel effect. Thus, it does not necessarily establish the underlying factual matters at issue in the civil litigation. [Citation.] (Kerns v. CSE Insurance Group (2003) 106 Cal.App.4th 368, 395, second italics added.) In other words, Barretts plea, all by itself, would not necessarily be conclusive to establish the intentionality of her act and other evidence could be received to contest the matters admitted by the plea, which here include the willful commission of an act likely to cause harm as an element of assault with a firearm. (Ibid.) Despite evidence of Barretts plea, then, whether Barretts act in shooting Marshall was willful or intentional might remain, depending on the other proffered evidence, as a disputed issue of fact. (Rusheen v. Drews (2002) 99 Cal.App.4th 279, 284.)

But accepting Marshalls argument that Barretts no contest plea might not alone conclusively establish matters encompassed by that plea, he fails to account for the fact that Armed Forces did not rely on just Barretts plea to establish the absence of a triable issue of fact as to the willfulness or intentionality of her actions. Its motion also included Marshalls complaint alleging Barretts intentional conduct, his deposition testimony as to the events of the shooting, and Barretts own testimony that she was not in fear of Marshall when she shot him. Together this testimony rather dramatically chronicled how Barrett had invited Marshall to her home and at the designated time of his arrival, with no provocation and having recognized him, she willfully shot him three times, reloaded, and shot him at least once more, seriously injuring him. Even without evidence of Barretts plea but especially coupled with it, from these undisputed facts, it is eminently reasonable to infer the intentionality of Barretts actions or at least that she willfully shot Marshall under circumstances likely to produce harm. This inference raises the specter of section 533, the implied statutory exclusion for willful acts.

Section 533 is read into every insurance policy in this state. (J. C. Penny Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, 1019.) It is construed not like a policy exclusion in an insureds favor but instead according to the rules of statutory construction. (Id. at pp. 1019, 1020, fn. 9.) It provides,  An insurer is not liable for a loss caused by the willful act of the insured; but he is not exonerated by the negligence of the insured, or of the insureds agents or others.  (Id. at p. 1020, fn. omitted.) This section reflects a public policy to prevent the existence of insurance coverage from encouraging willful tort. (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 648.) Accordingly, it has been held not to preclude coverage for negligent or reckless acts and to require an element of wrongfulness or misconduct. (J. C. Penny Casualty Ins. Co. v. M. K., supra, at pp. 1021, 1023-1024.)

Where application of section 533 is an issue, the insurance company must establish either that the insured acted with intent to harm, not just with the intent to commit the act, or that the insured committed an inherently wrongful act without legal justification. (J. C. Penny Casualty Ins. Co. v. M. K., supra, at pp. 1021-1027 [act of child molestation is inherently wrongful or harmful in itself, precluding coverage under section 533]; Interinsurance Exchange v. Flores, supra, 45 Cal.App.4th at pp. 671-672; Fire Ins. Exchange v. Altieri (1991) 235 Cal.App.3d 1352, 1357-1358 [deliberate assault not committed in self defense is without legal justification, and is thus inherently harmful and wrongful, invoking section 533]; Jacobs v. Fire Ins. Exchange (1995) 36 Cal.App.4th 1258, 1269, fn. 8, 1270, 1278-1279 [aiming and shooting gun at persons head from short distance and without legal justification is inherently harmful and wrongful].)

In this declaratory relief action concerning insurance coverage (for indemnity, not defense), Barretts no contest plea to the commission of assault with a firearman act likely to produce bodily injurycoupled with deposition testimony concerning Barretts unprovoked shooting without legal justification demonstrated, as the trial court found, that it was more likely than not that Barrett had committed an inherently wrongful act, precluding coverage under section 533.[12] This showing satisfied Armed Forces initial burdens of persuasion and production as to the absence of a triable issue of fact and demonstrated its entitlement to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at pp. 850-851; Code Civ. Proc., 437c, subd. (c).)

Contrary to Marshalls contention on appeal, that the trial court so found does not mean that it improperly weighed evidence on the motion. Rather, this finding simply demonstrates that the court, as it was required to do, assessed whether Armed Forces had met its initial burden on the summary judgment motion by presenting evidence that would require a reasonable trier of fact to find [the] underlying material fact[s] more likely than not. (Aguilar, supra, 25 Cal.4th at p. 851.) [E]ven though the court may not weigh [one partys] evidence or inferences against the [others] as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact. . . . In so doing, it does not decide on any finding of its own, but simply decides what finding such a trier of fact could make for itself. [Citations.] (Id. at p. 856, fn. omitted.)

Armed Forces having met its initial burden on the motion, it was incumbent on Marshall to demonstrate, with admissible evidence, the existence of a triable issue of material fact in order to defeat summary judgment. (Aguilar, supra, 25 Cal.4th at pp. 845, 849; Code Civ. Proc., 437c, subds. (d) & (p)(1).) Marshall contends that Barretts Petition for Writ of Habeas Corpus and the declaration filed on Barretts behalf in the family law proceeding were sufficient to put in dispute that Barrett had willfully or intentionally shot Marshall or that her actions were inherently wrongful. We address each of these documentary items in turn.

Marshalls take on Barretts Petition for Writ of Habeas Corpus is that this document asserted that her actions were in self-defense, maintained her innocence, and challenged her plea by raising ineffective assistance of counsel in the criminal proceeding.[13] Relying on Grain Dealers Mutual Ins. Co. v. Marino (1988) 200 Cal.App.3d 1083 (Grain Dealers), he contends that the document effectively overcame the admissions encompassed by Barretts plea, thus leaving these matters in dispute and precluding summary judgment. In Grain Dealers, the court of appeal reversed a summary judgment in favor of an insurer. The insured had been convicted of second-degree murder, among other things, and the trial court had concluded that the conviction had conclusively established that the crime, a shooting, had been intentionally committed, thus triggering a policy exclusion for intentional acts.

The basis of the trial courts ruling in Grain Dealers was collateral estoppel on the issue of the intentionality of the insureds conduct, this issue having been conclusively determined by the criminal conviction. The basis of the court of appeals reversal was that the insured had successfully challenged his conviction via a federal petition for writ of habeas corpus, which had asserted that the shootings were either accidental or in self-defense. The federal district court had granted the writ, which was upheld by the circuit court of appeals, effectively obliterate[ing] the judgment in the criminal action convicting the insured of murder. (Grain Dealers, supra, 200 Cal.App.3d at p. 1088.) Under these circumstances, the court of appeal in the later coverage action determined that collateral estoppel, which requires a final judgment, did not apply to conclusively determine the insureds intent. As there now is no judgment of any kind on the murder counts, the doctrine of collateral estoppel cannot be used to uphold the grant of summary judgment. The issue of whether [the insured] willfully shot [the victims] . . . remains to be adjudicated. (Id. at p. 1089.)

Grain Dealers is easily distinguished from the instant case. First, here, it is apparent from the face of the habeas petition, which does not appear to have been filed in any proceeding, that Barrett challenged only victim restitution and not her plea or her resulting conviction. Her innocence is nowhere claimed in the document. To the extent it obliquely references self-defense, it does not do so directly in relation to Barretts acts in shooting Marshall. Directed as it is to the issue of victim restitution, the document does not meet or overcome the admissions subsumed within Barretts earlier no contest plea. Nor does it even create a disputed issue of fact as to the willfulness of Barretts actions since it does not put such willfulness in issue. Moreover, the basis of the courts holding in Grain Dealers was the absence of a final criminal judgment to support the application of collateral estoppel. (Grain Dealers, supra, 200 Cal.App.3d at p. 1089.) Here, Barretts criminal conviction stands and collateral estoppel was not the basis of the trial courts grant of summary judgment. Accordingly, Marshalls arguments notwithstanding, Grain Dealers is not dispositive of anything in this case.

Turning to the declaration filed in the family law proceeding and proffered by Marshall below only via a request for judicial notice, Armed Forces posed evidentiary objections on the bases that the document lacked foundation since it was not signed by Barrett herself but by her attorney, that it was not executed under penalty of perjury in violation of Code of Civil Procedure section 2015.5, subdivision (a), and that it constituted hearsay. Armed Forces reiterates these evidentiary deficiencies on appeal. Marshall retorts (in his reply brief) that the evidence [filed in opposition to summary judgment] was not found to be inadmissible by the trial court.[14] Marshalls statement misrepresents the trial courts order granting summary judgment. This misrepresentation is compounded by his omission of the order from the appellate record.[15] Since we have remedied that omission ourselves, it is evident that the trial court most certainly did specifically exclude the declaration from consideration on the motion.[16] It did so by denying Marshalls request for judicial notice of the document and noting its inadmissible contents. (Judicial notice of the purported Family Court Declaration is DENIED as its contents are inadmissible hearsay in this matter. Original Caps.) Armed Forces hearsay objection to the declaration has therefore been preserved and Marshall has not shown any abuse of discretion by the trial court in its rejection of it. Therefore, we will likewise not consider the document and it consequently cannot operate to show or create a triable issue of fact.

The net result of Marshall having failed to raise a triable issue of fact about Barretts willfulness or intentionality in shooting him and the wrongfulness of that act is that Armed Forces, having carried its initial burden on the motion, was entitled to summary judgment as a matter of law. Indeed, on this state of the record, the trial court was obligated to grant the motion. (Code Civ. Proc., 437c, subd. (c) [The motion . . . shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law], italics added.) Under these circumstances, our de novo review starkly reveals only the absence of trial court error.

DISPOSITION

The judgment is affirmed.

Duffy, J.

WE CONCUR:

Bamattre-Manoukian, Acting P.J.

McAdams, J.

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[1] Marshall also sued Barretts parents, who likewise sought a defense and indemnity from Armed Forces for the claim. But Armed Forces has apparently provided them with a defense in the Marshall lawsuit under a separate homeowners insurance policy or has settled with them and the issue of their entitlement to a defense and indemnity under the policy here in issue is not relevant to this appeal.

[2] Further unspecified statutory references are to the Insurance Code.

[3] This section provides for third party recovery on a judgment against a policy of personal liability insurance, subject to the policy terms and limitations, where the third party has obtained the judgment against an insured in an action for bodily injury, death, or property damage.

[4] This section makes an insurer not liable for a loss caused by the willful act of the insured.

[5] We take the facts concerning the shooting incident largely from Marshalls deposition testimony. In her deposition, Barrett refused to answer specific questions about the incident.

[6] As we understand it, Marshalls lawsuit has not yet resolved.

[7] She also sought a defense and indemnity under a second homeowners policy issued to her parents by Armed Forces in connection with another property they owned in Carmel. The parties apparently agree that there is no coverage afforded to Ellen Barrett under that policy and this issue is not raised in connection with this appeal. We accordingly do not address it.

[8] We are not dealing here with a settlement between Barrett and Marshall and Marshall is thus not an assignee of any rights Barrett may have under the homeowners insurance policy, such as the right to a defense of Marshalls action against her. Accordingly, only Armed Forces duty to indemnify Barrett for the claim, or actual coverage giving rise to Marshalls ability under section 11580 to recover against the policy on a judgment against Barrett, is at issue. An insurers duty to indemnify is narrower in scope than its duty to defend, which arises on the potentiality for, rather than actual, coverage. (Aerojet-General Corp. v. Transport Indemnity Co. (1997) 17 Cal.4th 38, 56-59.) And one who is only a third-party claimant under section 11580 may not assert against the insurer a breach of the duty to defend. (Jane D. v. Ordinary Mutual (1995) 32 Cal.App.4th 643, 650.) Armed Forces was therefore not required to negate any duty to defend in moving for summary judgment. Marshalls reliance on cases which deal with an insurers broader duty to defend, such as Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263 and Mullen v. Glens Falls Ins. Co. (1977) 73 Cal.App.3d 163 is therefore misplaced.

[9] The record does not include a reporters transcript of the hearing. Nor did it include the courts written order granting the motion. On our own motion, we augmented the record to include this order.

[10] The petition expressly stated that it did not concern a conviction but rather, restitution. Further, in the section entitled Grounds for Relief, the document states, The trial court imposed an illegal restitution. Victim lied about his losses.

[11] Armed Forces did not contend that the policys personal liability insuring clause did not cover the claim in the first instance. That clause covers claims for damages because of bodily injury . . . caused by an occurrence to which this coverage applies, with occurrence defined as an accident which results during the policy period, in: [] . . . bodily injury Whether Armed Forces disputed coverage as a result of the insuring clause or an exclusion affects the burden of proof, the insurer bearing that burden with respect to exclusions from coverage. Since the parties do not raise the question whether coverage was even afforded under the policys insuring clause in the first place, we need not resolve this issue and assume that it was. We accordingly put our focus instead to whether Armed Forces demonstrated that coverage for the Marshall claim was excluded.

[12] These facts would likely also defeat coverage based on the policys exclusion for bodily injury that is expected or intended by an insured, which, in any event, cannot be construed more narrowly in favor of coverage than the statutory exclusion. (J. C. Penny Casualty Ins. Co. v. M. K., supra, 52 Cal.3d at pp. 1019-1020, fn. 8.) But in light of the result here, we need not separately analyze this alternate basis for exclusion from coverage. In other words, Armed Forces could show on the motion that coverage was defeated and it was therefore entitled to judgment as a matter of law either under the policy exclusion or by application of section 533.

[13] The record does not show that Armed Forces asserted evidentiary objections to this document in the court below. Accordingly, its contentions on appeal as to the documents inadmissibility have not been preserved.

[14] He further asserted, incorrectly, at oral argument that the trial court did not actually rule on the admissibility of the declaration because it only denied his request for judicial notice and did not separately rule as to the admissibility of the document itself. This assertion is specious since the declaration was only offered through the mechanism of Marshalls request for judicial notice. That request having been denied, there was no need for the trial court to separately rule as to the documents admissibility, although the court clearly, and correctly, characterized it as hearsay in denying the request for judicial notice.

[15] We could consider this behavior as a deliberate attempt to mislead this court. We will instead give counsel the benefit of the doubt and attribute this gaffe, which likely would have been avoided had the trial courts order properly been part of the record in the first place, to misinterpretation of the actual contents of the omitted order.

[16] The order also cited Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, for its declination to render formal rulings on the evidentiary objections but its simultaneous disregard of all inadmissible and incompetent evidence. Biljac has been rejected by many courts but was recently repudiated by the First District Court of Appeal, Division Twothe same appellate court that issued itin Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566, 573-579. But the waiver of evidentiary objections on appeal as a result of a trial courts reliance on Biljac is not relevant here because the court in this instance, by denying Marshalls request for judicial notice, specifically ruled that the challenged declaration was inadmissible and beyond the courts consideration, a ruling not acknowledgedlet alone contestedby Marshall on appeal.