R & B Auto Center, Inc. v. Farmers Group, Inc. (140 Cal. App. 4th 327, 2006)

Opinion

MOORE, J.

One might reasonably assume new car dealerships and used car dealerships are apples and oranges. But when a lemon is added to the mix, the lines can become blurred. When the Department of Motor Vehicles (DMV) classifies a used vehicle with a “title brand,” a purchaser of that used vehicle may sometimes bring suit under the lemon law, a procedure usually associated with defective new cars. (See the Song-Beverly Consumer Warranty Act, Civ. Code, § 1790 et seq.) Here, a car dealership licensed to sell only used cars sent out a bid for lemon law insurance, including coverage for liability arising in connection with the sale of “title branded” lemon law buyback vehicles. (See Civ. Code, §§ 1793.23, 1793.24.) It was furnished a policy containing lemon law coverage. To its chagrin, when sued under the lemon law, the dealership discovered the coverage only applied to the sale of new vehicles. The insurance carrier would not agree to either defend or indemnify the dealership in connection with the lemon law suit.

The dealership sued the insurance carrier and related parties on negligent and intentional misrepresentation, breach of contract, reformation, bad faith, breach of fiduciary duty and unfair competition theories. The unfair competition cause of action sought injunctive relief to halt the purportedly deliberate marketing and sale of lemon law coverage to used car dealerships without the disclosure that the coverage being sold to them was inapplicable to their used car operations. Through a series of rulings on dozens of motions in limine and two motions for nonsuit, the trial court largely gutted the dealership’s case. The dealership appeals from a judgment in favor of the insurance carrier and related parties.

The trial court made numerous erroneous rulings that essentially deprived the dealership of an opportunity to put on its case. Although the court properly disposed of the causes of action for breach of contract, bad faith and breach of fiduciary duty, it improperly tossed out the causes of action for negligent and intentional misrepresentation, reformation and unfair competition. We reverse and remand.

In so doing, we caution against the wholesale disposition of a case through rulings on motions in limine. (See Fatica v. Superior Court (2002) 99 Cal.App.4th 350 [120 Cal.Rptr.2d 904].) No matter how logical a moving party’s motion may sound, a judge generally should not be weighing the evidence on a motion in limine. A judge is in the ticklish situation of needing to be efficient, on the one hand, while needing, on the other hand, to give the parties their day in court and let the jury weigh the evidence. While it may be tempting to look at a case in the macro sense, the devil is in the details. The moving party’s concerns that the other party may be trying to use evidence for an improper purpose or in a way that may be unduly prejudicial can be addressed by limiting instructions, without taking away the other party’s hallowed right to a jury trial. (See Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 [107 Cal.Rptr.2d 270].)

We also express dismay that a court, having eliminated the bulk of a party’s evidence through rulings on motions in limine, would then grant motions for nonsuit before a party had the opportunity to make an opening statement or present evidence to the trier of fact.

I

FACTS

In 1997, used car dealership R & B Auto Center, Inc. (R & B), was looking for insurance for its business operations. It prepared a bid request in which it itemized the coverage it sought, including products deficiency liability coverage, i.e., coverage for losses suffered on account of the lemon laws. R & B specifically requested that the products deficiency liability coverage include coverage for liability arising in connection with “title branded” lemon law buyback vehicles. Civil Code section 1793.23 requires that the ownership certificate for a vehicle reacquired under the lemon law be “title branded” with the inscription “Lemon Law Buyback” and that a purchaser of the vehicle be notified that it is a lemon law buyback. Civil Code section 1793.24 specifies the form of the notice that must be provided.

William Westenberger, an insurance agent for the Farmers Insurance Group of Companies including Truck Insurance Exchange, and Farmers representative Beth Lopez, each advised R & B that Farmers sold an automotive dealers package that included a products deficiency liability endorsement providing lemon law coverage. Westenberger and Lopez discussed the scope of the available lemon law coverage with Otto Joe Dersch, R & B’s business manager. At his deposition, Dersch stated that in a discussion with Westenberger on the requested products deficiency liability coverage, he and Westenberger addressed the significance of R & B’s request that the policy provide coverage for “title branding.” Dersch explained to Westenberger that the term applies to “titles branded by [the] DMV with lemon law buy back, true miles unknown, salvage title.” According to Dersch, Westenberger, after having researched whether the automotive dealers package would provide coverage for used car sales, later confirmed that it did. Dersch further stated that Lopez confirmed that the package would provide products deficiency coverage, including branded title coverage, for R & B’s business.

At his deposition, Dersch further stated that R & B is licensed by the DMV to sell used vehicles only and that during a discussion on the completion of the insurance application, he specifically stated that R & B sold used cars. Indeed, in a transcript of Westenberger’s recorded statement, offered by R & B in opposition to a motion for summary judgment, Westenberger plainly acknowledged that at the time he sold R & B the policy, he was aware that R & B was a used car dealership. At his deposition, Dersch also said that he specifically discussed with Lopez the fact that R & B was a used car dealership. Dersch further indicated that after he disclosed that R & B was a used car dealership, Westenberger and Lopez each assured him that the package would include lemon law coverage for R & B’s business. In his declaration, Dersch also said that R & B relied on those representations in purchasing an insurance policy from Farmers. Bob Delozier, president of R & B, made essentially the same statement in his declaration. The policy R & B purchased was actually issued by Truck Insurance Exchange (Truck Insurance), and the face page of that policy recites that R & B is engaged in the business of “used auto sales.” (Capitalization omitted.)

On August 30, 1999, John and Renee Peralta, who had purchased a lemon law buyback vehicle from R & B, sued R & B for violation of the lemon law (the Song-Beverly Consumer Warranty Act, Civ. Code, § 1790 et seq.). On July 31, 2000, R & B tendered the defense of the litigation to Truck Insurance and requested indemnity, but Truck Insurance did not agree to provide either a defense or indemnity. According to R & B, it paid $17,500 to settle the Peralta litigation and paid an additional $49,163.61 in attorney fees in connection with that litigation.

On February 6, 2001, R & B filed a lawsuit against Farmers Group, Inc. (FGI), Truck Underwriters Association (Truck Underwriters) and Truck Insurance. R & B asserted causes of action for breach of contract, tortious breach of contract, negligent misrepresentation, intentional misrepresentation, breach of fiduciary duty, violation of Business and Professions Code section 17200, and reformation. On April 3, 2002, Truck Insurance tendered to R & B checks totaling $77,275.98. Truck Insurance stated that the amount was equal to $21,437.90 in defense fees and costs and $55,838.08 with respect to the settlement of claims for damages and attorney fees. It also stated that the amount included interest at the rate of 10 percent. R & B declined to accept the tender.

After ruling on dozens of motions in limine, the trial court dismissed the causes of action for breach of contract, tortious breach of contract and violation of Business and Professions Code section 17200. The court held a bench trial on issues of alter ego and breach of fiduciary duty and ruled against R & B. Before R & B had made an opening statement or had presented any evidence to the trier of fact in the contemplated jury trial on the remaining causes of action, the court granted two motions for nonsuit— one in favor of FGI and Truck Underwriters and another in favor of Truck Insurance. The court entered judgment in favor of FGI, Truck Insurance and Truck Underwriters and R & B appeals.

II

DISCUSSION

A. Introduction:

R & B raises many assertions of error. The gist of its grievance, however, is simply that the insurance agents represented that the policy being sold to R & B would provide it with lemon law coverage. When a lemon law claim later arose against R & B and R & B found out that the plain language of the policy only provided lemon law coverage for new car sales, not the used car sales in which R & B engaged, R & B was aggrieved by the lack of promised coverage. R & B raises many theories as to why defendants should be held liable and how the court erred, and in so doing cites numerous authorities. However, it cites one case nearly on point as to the underlying nature of the matter before us—Butcher v. Truck Ins. Exchange (2000) 77 Cal.App.4th 1442 [92 Cal.Rptr.2d 521] (Butcher). That case provides us with the initial framework for our analysis.

In Butcher, supra, 77 Cal.App.4th 1442, a prospective insured was looking to replace a policy that provided coverage for malicious prosecution. He provided an agent of Truck Insurance Exchange with a copy of his existing policy and asked the agent to procure the same coverage, but with higher limits. (Id. at p. 1447.) According to the insured, the agent represented to him that he had obtained a Truck Insurance Exchange policy that provided the same coverage. The insured purchased the policy, but did not read it. (Id. at p. 1448.) When he was later sued for malicious prosecution, the insured learned that the policy was not the same as his prior coverage and did not provide coverage for malicious prosecution claims.

The insured filed a lawsuit against both Truck Insurance Exchange and the agent. (Butcher, supra, 77 Cal.App.4th at p. 1449.) The trial court granted summary judgment in favor of both defendants. (Id. at p. 1450.) The appellate court reversed, stating that there was a triable issue of material fact with respect to the causes of action for reformation and negligent misrepresentation, among others. (Id. at p. 1465.) It also noted that since the insured “[had] not contended on appeal that the form of the Truck [Insurance Exchange] policy, as delivered, provide[d] malicious prosecution coverage, [the] breach of contract cause of action [had] been waived.” (Id. at p. 1467, fn. 21.)

As the Butcher court stated, “[a]n insurance agent has an ‘obligation to use reasonable care, diligence, and judgment in procuring the insurance requested by an insured.’ [Citation.] The law is well established in California that an agent’s failure to deliver the agreed-upon coverage may constitute actionable negligence and the proximate cause of an injury. [Citations.]” (Butcher, supra, 77 Cal.App.4th at p. 1461.) Moreover, the insurer may be held vicariously liable for the negligence of the agent. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1118, 1120 [55 Cal.Rptr.2d 276].) Applying these principles, the Butcher court held that “if the facts relating to the purchase of the Truck [Insurance Exchange] policy are shown to be as related by [the insured], the trier of fact could find the [insured was] misled by [the agent’s] negligent failure to warn that [the coverage sought] was not among the coverages of the policy.” (Butcher, supra, 77 Cal.App.4th at p. 1463.) Hence, the court concluded that the insured should have had his opportunity to put on his case with respect to the negligent misrepresentation and reformation causes of action. (Id. at p. 1465.)

Applying the foregoing principles to the case before us, it is clear that the facts as characterized by R & B would support causes of action for both misrepresentation and reformation. However, inasmuch as R & B has not argued that the language of the policy as issued provided lemon law coverage for used car sales, the breach of contract cause of action fails as a matter of law, as the trial court held.

B. Misrepresentation Causes of Action:

(1) Preliminary issues

We start by addressing a few preliminary matters. The first is whether, as a procedural matter, R & B waived the right to challenge the nonsuit in favor of FGI and Truck Underwriters on the misrepresentation causes of action. The second is whether the nonsuits must be affirmed because R & B failed to present any evidence in opposition to them. The third is whether R & B waived the right to argue the negligent misrepresentation cause of action as to any party, because of a purported admission that all possible damages with respect to that cause of action had been tendered already. We address these issues one by one.

(a) Stipulation to nonsuit

The record contains a copy of a minute order stating: “Counsel for plaintiff and defendant Truck Underwriters Association and Farmers Group, Inc. entered into a stipulation with counsel for plaintiff dismissing their clients from the action.” The record does not contain copies of any written stipulation or any formal order providing more complete information on the point. Read in isolation, the minute order might make it appear that R & B ought not to be able to challenge the nonsuit in favor of FGI and Truck Underwriters, having consented to the same. However, the reporter’s transcript provides background information crucial to the understanding of the nature of the stipulation and the order.

On March 20, 2003, when jury selection was in progress, the parties asked the court for an opportunity to discuss a possible stipulation, outside of the presence of the jury. Then, counsel for R & B took quite a bit of time checking with the court to make certain he understood the court’s rulings to date. He recited that the breach of fiduciary duty, breach of contract, bad faith and alter ego claims had been tossed out and that the court had ruled that the reformation claim would be prospective only. Counsel for R & B stated his understanding that Truck Insurance, FGI and Truck Underwriters were going to make additional motions in limine to further limit the evidence that R & B could present with respect to remaining matters. He further said that if the court granted the motion of FGI and Truck Underwriters, they would consider themselves to be essentially out of the case. Counsel for R & B explained R & B’s reluctant offer for a qualified stipulation under the circumstances, by stating, “[a]nd so if that motion was made and granted, and we would want to preserve on the record that we oppose all motions—we’re not throwing in the towel, we’re opposing—but, our view of the situation, your Honor, is that the court’s view of the law and the defense counsels’ view of the law is substantially different than ours. We have lost on major issues. [1] And we see—the court used the word that our case was ‘gutted.’ Before, I said, we still had all our vital organs. I think we’re coming close to having vital organs going down, your Honor.”

After a recess, counsel for FGI and Truck Underwriters stated, “Your Honor, I would move for a nonsuit in favor of my clients. I’ve prepared an order which, with one exception and that’s a notable one, is in a form that’s acceptable with the plaintiff.” Counsel for R & B stated: “Your Honor, we oppose the motion. But as I indicated on the record this morning earlier, your Honor, in light of the court’s rulings, it is clear that the plaintiffs view of the law and that of the defendants is very, very different. It is clear from several of the court’s rulings that as far as the material rulings from our standpoint goes, the court is more inclined to accept the defendants’ view of the law than our view of the law. So in light of that, we are prepared to—we oppose this motion. We agree to the form of the order in form only. We preserve all objections. We say that everything that we’ve offered and argued to your Honor ... in the past, we think we’re right on the issues that we’ve been ruled wrong on, but we understand that. And in the interest of judicial economy, we’re prepared to sign off on this order as a matter of form, preserving all rights to object.” Counsel for R & B reiterated that “reserving the right to make any argument on that agreement that might arise, we would sign off on this order as to form.” The court then granted the motion.

Although the record reflects that R & B entered into a stipulation, the exact nature and scope of the stipulation are unclear. We cannot ascertain from the record whether there was a written stipulation or a formal order precisely describing the nature and scope of the agreement. The record does make clear, however, that R & B felt boxed in by the trial court’s adverse rulings and was willing to agree to the form of an order for nonsuit, while reserving its right to argue substantive error. Considering the arguments made to the trial court, we do not conclude that R & B waived its right to challenge the nonsuit in favor of FGI and Truck Underwriters on substantive grounds. If there was a written stipulation or a formal order to the effect that R & B did waive this right, FGI and Truck Underwriters may present the same to the trial court on remand.

(b) Failure to present evidence

As to any suggestion that R & B waived its right to challenge either of the two nonsuits for failure to present evidence, we caution that the procedural posture of the litigation must be borne heavily in mind. A look at that procedural posture is most revealing.

By the time the motions for nonsuit were brought, most of R & B’s evidence had been eliminated through motions in limine and its causes of action for breach of contract, bad faith and unfair competition had been dismissed. A bench trial was held on the fiduciary duty and alter ego issues and the court ruled against R & B. At that point, only the causes of action for intentional and negligent misrepresentation and reformation remained. Jury selection was commenced with respect to the trial of those causes of action. The issue of a possible stipulation with FGI and Truck Underwriters about a nonsuit under reservation of rights came up while the jury selection was in process. There was a lengthy discussion on the record, the highlights of which are described ante. The long and the short of it is that R & B felt that, through the many rulings against it, its case had been gutted, so it was reluctantly willing to stipulate to an order for nonsuit as to FGI and Truck Underwriters, in form only, on the express reservation of its right to argue all the points previously raised.

Shortly thereafter, the same afternoon, the court granted Truck Insurance’s motion to exclude evidence of claims handling and Truck Insurance thereafter made an oral motion for nonsuit. Truck Insurance brought its motion for nonsuit before R & B ever made an opening statement or presented any evidence to the jury. R & B opposed the motion, on the basis of all arguments it had previously made, and the court granted the motion.

Is R & B now precluded from challenging the orders granting nonsuit because of its failure to file an offer of proof at the time the motions for nonsuit were made? To so conclude would be to ignore the procedural posture of this case and to compound the errors already made when the trial court serially entered orders thwarting any realistic possibility that R & B may have had to prove its case.

Code of Civil Procedure section 581c, subdivision (a) permits a defendant to move for nonsuit after the plaintiff has completed its opening statement, or presented its evidence in a jury trial. In a typical case, after a motion for nonsuit is brought, the plaintiff is well advised to move to reopen his or her case in order to present additional evidence in an effort to cure the purported defect. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2005) f 12:233, p. 12-45 (rev. # 1, 2001).) A failure to request a chance to reopen waives the right to do so. (Id. at f 12:235, p. 12-45.) Any motion to reopen must be accompanied by an offer of proof. (Id. at | 12:235.1, p. 12-46.) The offer of proof must specify the additional evidence to be offered. (Id. at f 12:236, p. 12-46.)

Here, we disagree with any suggestion that R & B was required to move to “reopen” the case to present “additional” evidence, accompanied by an offer of proof. For one thing, R & B never even had an opportunity to make an opening statement, let alone present any evidence to the jury. It would make no logical sense to require R & B to request an opportunity to “reopen” to present “additional” evidence, when it had never opened to begin with or presented any evidence to the jury at all. Moreover, it certainly would have made no sense to require a motion to “reopen,” together with an offer of proof, in the context of the nonsuit in favor of FGI and Truck Underwriters, since R & B had stipulated to the order for nonsuit, albeit reluctantly, under a reservation of rights, and as to form only. And, it would have been fruitless for R & B to move to “reopen” with respect to Truck Insurance’s motion for nonsuit, inasmuch as the court had already addressed R & B’s proffered evidence and excluded the bulk of it through rulings on motions in limine. R & B had nowhere left to go, so it simply said that it reiterated and preserved all its prior arguments. That means that it reiterated and preserved its arguments on the exclusion of evidence.

R & B had managed to get evidence of misrepresentation before the court along the way, in opposition to summary judgment, for example, even though it did not remind the court of every item of evidence when it opposed the nonsuit motions. It had also addressed, in opposition to the various motions in limine, evidence it hoped to be able to present. However, by the time the motions for nonsuit were made, it appeared as though R & B was beating its head against a brick wall in trying to get the court to consider its evidence and there was a point at which R & B realized that resistance was futile. The fact that R & B had been beaten at every turn and finally resorted to simply preserving all prior arguments does not mean that its opposition to the motions for nonsuit should be deemed inadequate as a matter of law or that the motions for nonsuit should be deemed unopposed because of the failure to remind the trial court of every piece of evidence previously put before it and every piece of evidence that had been eliminated from presentation through rulings on motions in limine.

(c) Admission of lack of damages

R & B, in an offer of proof filed in response to oral rulings on certain motions in limine, stated: “Approximately 611 days after R & B’s initial tender of defense, Farmers unilaterally ‘tendered’ to R & B two checks totaling $77,274.98. The amount represented 100% of the defense costs and settlement amount incurred by R & B, with 10% interest, in connection with the underlying Peralta matter. [T.E. 28 and 29] Farmers’ letter indicated that it was based upon ‘discussions with former Commercial Team Leader, Henry Kilinski.’ ” The referenced trial exhibit No. 28 is a letter to R & B’s counsel from Truck Insurance, albeit on Farmers letterhead, stating: “Enclosed are two checks which together total $77,275.98 (with interest calculated at the rate of 10%), which includes $21,437.90 in defense fees and costs and $55,838.08 to settle the claims for damages and attorney fees.”

The quoted language from the offer of proof can be read to mean simply that R & B intended to describe the objective of Truck Insurance as expressed in its tender letter. On the other hand, it can also be read to mean that R & B admitted that the amounts enclosed in the tender letter did in actuality cover the settlement amount, plus defense costs and interest, and further, that there were no other conceivable damages available under the negligent misrepresentation cause of action. The latter interpretation is supported by the following additional language from the offer of proof: “When Farmers eventually sent the check on April 3, 2002, it did so completely of its own accord. . . . The amount sent did not purport to be a ‘compromised’ amount, but rather was the full amount of R & B’s initial claim, with interest.”

At the same time, the offer of proof also states: “R & B’s claim for coverage remained an open ‘claims file’ at Farmers throughout the period from the time this lawsuit was filed until Farmers issued the $77,000 in checks, over a year later, in purported discharge of its coverage obligations.” The use of the word “purported” indicates that R & B may have intended to leave room for argument that the amounts tendered did not in fact represent all possible damages. R & B also couched another of its pleadings in similarly ambiguous language. In its trial brief, R & B said, “Farmers unilaterally tendered a check to R&B for in excess of $77,000 purporting to pay for the defense and indemnity it had long disavowed.” Again, this language could be viewed as casting doubt on whether the amount tendered did indeed meet the coverage obligation.

The language of the offer of proof engendered argument at the trial level. After the offer of proof was filed, FGI and Truck Underwriters filed a motion for judgment on the pleadings. A February 14, 2003 minute order described the motion by stating: “Moving party contends that the evidence in the offer of proof . . . establishes that it has paid the defense costs and the settlement amount, with interest, in the underlying Peralta action. Moving party thus contends that responding party can’t show damages on causes of action 3-5.” In response to the motion, R & B filed an opposition in which it stated, inter alia: “The statement set forth in the Offer of proof hardly qualifies as an admission that plaintiff has been offered all of the damages it could possibly prove against [Truck Underwriters] and FGI.” The trial court agreed with this contention, further stating in the minute order: “Responding party correctly argues, the statement in the offer of proof doesn’t conclusively establish that these are the entire damages suffered by responding party.” As is evident, R & B maintained at the trial level that its offer of proof was not intended to constitute an admission that all conceivable damages with respect to the negligent misrepresentation cause of action had been tendered, and the trial court agreed with this assertion. We, too, do not view the language of the offer of proof as being an unambiguous admission on R & B’s part that all damages conceivably available under the negligent misrepresentation cause of action had indeed been tendered already.

We observe that R & B, in its opening brief on appeal, reiterates verbatim the above quoted language from the offer of proof, and, in doing so, provides a citation to the offer of proof. The quoted language, as repeated in the opening brief, continues to reference the trial exhibit wherein Truck Insurance explained the nature of the tender. The ambiguity in the quoted language does not disappear just because the language is restated in R & B’s opening brief.

We also note that R & B states in its opening brief that “Track [Insurance] moved for a non-suit on the grounds the pleadings established that Track [Insurance] had tendered damages which equaled the damages on the Peralta matter, the attorneys fees paid to Peralta’s lawyers and to R&B’s lawyers on the Peralta matter and 10 percent interest to date of the tender. R.T. v. 4 p. 769; 20-770:9.” This language suffers from the same ambiguity as the other language, which was first stated in the offer of proof and then repeated in the opening brief. Did R & B merely mean to describe the grounds Track Insurance argued, or did R & B mean to concede that all possible damages had in fact been tendered already? The citation to the reporter’s transcript may be key: It is a citation to the argument of Track Insurance. This is an indication that R & B only meant to describe Track Insurance’s activities and arguments, not to make a concession.

Erring on the side of caution, and with the goal of giving the litigants a full and fair trial on the merits, we remand the negligent misrepresentation issues to the trial court for further proceedings to the extent that R & B has not conceded that all potential damages under the negligent misrepresentation cause of action have been tendered.

(2) Substantive issues

R & B states that it put out a bid request for coverage, including a requirement that the policy provide lemon law coverage for its used car sales operation. It also asserts that Westenberger and Lopez each represented that the automotive dealers package included lemon law coverage applicable to R & B’s business. R & B further maintains that while Westenberger indicated that he was not especially familiar with the details of the policy, he referred R & B to Lopez to confirm the coverage points. According to R & B, it thereafter had contact with Lopez, who confirmed that the policy would provide lemon law coverage for R & B’s business. The parties agree that the policy actually delivered provided lemon law coverage for new car sales only. Assuming this characterization of the facts is accurate, the insurance delivered clearly was not the insurance requested by R & B or promised by Westenberger and Lopez. In this way, the case before us is on all fours with Butcher, supra, 77 Cal.App.4th 1442. That is to say, a jury could potentially find that Westenberger and Lopez were the agents of FGI and/or Truck Insurance and that they made misrepresentations to R & B for which FGI and/or Truck Insurance should be held liable. (Butcher, supra, 77 Cal.App.4th at pp. 1461, 1465.)

“The most definitive characteristic of an insurance agent is his authority to bind his principal, the insurer ....’’ (Marsh & McLennan of Cal, Inc. v. City of Los Angeles (1976) 62 Cal.App.3d 108, 117 [132 Cal.Rptr. 796].) “[T]he general rule is that ‘. . . in the absence of notice, actual or constructive, to the insured of any limitations upon such agent’s authority, a general agent may bind the company by any acts, agreements or representations that are within the ordinary scope and limits of the insurance business entrusted to him, although they are in violation of private instructions or restrictions upon his authority.’ [Citation.]” (Troost v. Estate of DeBoer (1984) 155 Cal.App.3d 289, 298 [202 Cal.Rptr. 47].) Indeed, “[a]n insurer, as a principal, may be vicariously liable for the torts of its agent if the insurer directed or authorized the agent to perform the tortious acts, or if it ratifies acts it did not originally authorize. [Citation.]” (Desai v. Farmers Ins. Exchange, supra, 47 Cal.App.4th at pp. 1118-1119.) Furthermore, an insurer “may be held vicariously liable for failing to fulfill its basic obligation to provide the insurance required by the policy’s intended beneficiary and demanded from the agent. [Citation.]” (Id. at p. 1120.)

Despite the fact that the court had before it evidence concerning the agency status of both Westenberger and Lopez, and the purported misrepresentations made by each of them, the court granted two motions for nonsuit as to the misrepresentation causes of action. It granted the first motion in favor of FGI and Truck Underwriters and the second motion in favor of Truck Insurance.

We address these two motions in turn. In doing so, we bear in mind that “ ‘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.]’ [Citations.]” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 262-263 [80 Cal.Rptr.2d 196].)

(a) FGl/Truck Underwriters motion

The judgment recites that the court granted the motion for nonsuit brought by FGI and Truck Underwriters in light of the court’s findings that neither FGI nor Truck Underwriters owed R & B a fiduciary duty under a subscription agreement and that FGI was not the alter ego of Truck Underwriters. We will discuss these findings in greater detail later in this opinion. However, at this point, suffice it to say that we do not see the relevance of these findings with respect to the misrepresentation causes of action. The fact that the subscription agreement did not give rise to certain fiduciary duties and the fact that FGI was not found to be the alter ego of Truck Underwriters have no bearing on whether either of those entities made misrepresentations to R & B.

The cause of action in question, misrepresentation, simply is not predicated on the existence of a fiduciary duty under the subscription agreement. Furthermore, inasmuch as evidence was presented showing that Lopez was a “Farmers” commercial sales representative or a field underwriter for FGI, and Westenberger was an agent for the Farmers Insurance Group of Companies, there is a conceivable basis for holding FGI liable for misrepresentation irrespective of whether it is the alter ego of Truck Underwriters. Whether Lopez and Westenberger were agents of FGI, for whose representations FGI should be held liable, is a question of fact for the jury to determine. (Troost v. Estate of DeBoer, supra, 155 Cal.App.3d at p. 299.) We cannot say, with respect to FGI, that the evidence was insufficient, as a matter of law, to hold FGI liable for the purported misrepresentations of Westenberger and Lopez. The court erred in granting nonsuit in favor of FGI as to the misrepresentation causes of action.

The ruling in favor of Truck Underwriters is another matter. R & B does not state why Truck Underwriters should be liable on account of representations made by Westenberger and Lopez. In fact, it cites no evidence at all that would permit a jury to find that Truck Underwriters made any misrepresentation to R & B. The court did not err in granting nonsuit in favor of Truck Underwriters as to the misrepresentation causes of action.

(b) Truck Insurance motion

We turn now to the motion of Truck Insurance. As R & B readily admits, Truck Insurance tendered two checks totaling $77,275.98 to R & B more than a year and a half after R & B had tendered the defense of the Peralta litigation to Truck Insurance and more than a year after R & B had filed suit against Truck Insurance. At the time of tender, Truck Insurance said that the total amount of the checks represented the amount R & B had paid to the Peraltas to settle their suit, plus the amount of attorney fees and costs R & B had incurred in defending itself in the Peralta suit, together with 10 percent interest. In moving for nonsuit, Truck Insurance said it had already tendered payment in full for all damages that were available to R & B on a negligent misrepresentation cause of action and thus there was no viable negligent misrepresentation cause of action to be tried.

Truck Insurance reiterates this argument on appeal, while R & B maintains the trial court, due to erroneous evidentiary rulings, failed to consider what actual damages R & B had incurred. Truck Insurance cites no portion of the record to show that R & B conceded that the amount tendered represented the full amount of damages that could possibly be recovered under the negligent misrepresentation cause of action. The order granting Truck Insurance’s motion for nonsuit as to the negligent misrepresentation cause of action is reversed.

Next, we turn to the intentional misrepresentation cause of action. Truck Insurance, pointing to two statements contained in R & B’s trial brief, contends that R & B has conceded that there was no intentional misrepresentation. As we shall show, this is an overly narrow construction of R & B’s statements.

In the introduction to the trial brief, R & B stated, with respect to Westenberger and Lopez, “The Farmers’ agents were apparently unaware, as was R & B, that the fine print of the policy limited ‘lemon law’ coverage to the sale of ‘new motor vehicles.’ ” (Boldface omitted.) Under its topic heading on reformation, R & B also said, “both Farmers (through its agents Lopez and Westenberger) and R & B proceeded in the mutually mistaken belief that R & B was receiving ‘Lemon Law’ coverage under the Products Deficiency Liability Endorsement, notwithstanding the fact that it was never a seller of ‘new motor vehicles.’ ” While one could argue that these statements constituted an admission that the two insurance agents acted only negligently, and there were no intentional misrepresentations made, one must consider these statements in their argumentative context. Litigants frequently plead in the alternative, coloring assertions of fact to support one cause of action or another. (See Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29 [223 Cal.Rptr. 806].) Here, the assertion that there was a mutual mistake was intended to support the reformation cause of action, but this does not preclude R & B from making an effort to characterize the facts of the case, in the alternative, as supporting intentional misrepresentation.

Furthermore, other language in the trial brief indicates that R & B did not intend to make any concession that there was no intentional misrepresentation. Under its bait and switch topic heading, R & B stated: “Farmers[, i.e., Truck Insurance, Truck Underwriters and FGI collectively,] intentionally misrepresented the terms of the policy when Farmers agents failed to disclose to R & B the new vehicle limitation on coverage and provided R & B with the false and deceptive marketing brochure which also failed to disclose this limitation.” Under the intentional misrepresentation topic heading, R & B stated: “The evidence will show that Farmers created the Automotive Dealers package knowing that there was no coverage for used cars but never distinguished it in its brochures or advised its agent Westenberger. FGI employee Lopez affirmatively misrepresented the terms. The evidence will show that Farmers extensively marketed the policy to used car dealers—Mom and Pop organizations .... The evidence will show intentional misrepresentation of the worst kind: bait and switch.” Clearly, R & B did not intend to concede there was no intentional misrepresentation.

On appeal, Truck Insurance refers to Westenberger as its agent and concedes that the evidence, viewed in the light most favorable to R & B, reflects that Westenberger offered to sell R & B an automotive dealers package. Truck Insurance also concedes that the marketing brochure for the package, a copy of which is contained in the record as a trial exhibit, represented that the package included product deficiency liability (i.e., lemon law) coverage. R & B wanted to link this evidence together with evidence of Truck Insurance’s marketing of the automotive dealers package to other used car dealerships, but it did not have that opportunity.

R & B stated in opposition to the motion for nonsuit that it believed it could prove intentional misrepresentation were it not for the fact that the court, in granting various motions in limine, had excluded R & B’s evidence on the point. More specifically, it stated that it could show that Westenberger’s conduct in connection with the sales of the automotive dealers package to other used car dealerships demonstrated fraud. As we explain in greater detail post, the court erred when it granted Truck Insurance’s motion in limine No. 14, thereby excluding the testimony of several used car dealers, at least two of whom purportedly were prepared to testify that they had received express representations that the policies sold to them would provide lemon law coverage for their used car dealerships. On remand, R & B will have an opportunity to present that evidence. The order granting Truck Insurance’s motion for nonsuit as to the intentional misrepresentation cause of action is reversed.

C. Reformation:

When the court granted Truck Insurance’s motion for nonsuit, it disposed of not only the misrepresentation causes of action, but also the reformation cause of action. The judgment does not articulate the court’s rationale with respect to the disposition of the reformation cause of action. However, the reporter’s transcript of the proceedings at which the court ruled shows that the focus of the argument was on the misrepresentation causes of action and the fact that Truck Insurance had already tendered payment of $77,275.98. The court appeared to buy into the argument that there were no damages left to collect and therefore nothing left to say. The court expressed no separate or distinct rationale for granting nonsuit as to the reformation cause of action.

Whether the court made its ruling based on the $77,275.98 tender or otherwise, it erred in granting nonsuit as to the reformation cause of action. For one thing, the full measure of damages that may be available under a cause of action for breach of a reformed insurance contract has not been shown. For another, there has been no finding on the issue of whether the predicate elements of a cause of action for reformation have been met. (See Civ. Code, § 3399; Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 524-525 [117 Cal.Rptr.2d 220, 41 P.3d 46]; Butcher, supra, 77 Cal.App.4th 1442, 1465.) Based on the information contained in the record, we cannot say that the evidence was insufficient as a matter of law to support a finding in favor of R & B on a reformation cause of action.

D. Breach of Contract:

(1) Waiver

As mentioned previously, the court in Butcher, supra, 77 Cal.App.4th 1442, stated that the appellant insured therein had waived its right to argue the breach of contract cause of action, because the insured had not asserted that the insurer breached the terms of the insurance contract as written. (Id. at p. 1467, fn. 21.) In the case before us, R & B acknowledges that the insurance contract as written provides lemon law coverage for new car sales only. Since R & B makes no argument that Truck Insurance breached its obligation to provide lemon law coverage for new car sales, it has waived its right to argue that the insurance contract as written was breached.

(2) Procedural issues

This notwithstanding, R & B claims that it was denied due process when the court ruled that Track Insurance had not breached the insurance contract as a matter of law. This is a curious assertion given the procedural posture of the case. Track Insurance filed its motion in limine No. 1 in which it requested the court to bifurcate the issue of coverage from the other issues and to rale on the issue of coverage as a matter of law. In addition, R & B, in its own motion in limine No. 1, specifically asserted that the question of whether the insurer had a duty to defend and indemnify was a matter of law and requested that the court rale on the issue of coverage before submitting the remainder of the case to the jury. Of course, R & B sought a different outcome than did Track Insurance. Track Insurance sought a ruling as a matter of law that the Peralta litigation was not covered, based on clear policy language, whereas R & B sought a ruling as a matter of law that there was a duty to defend and indemnify, based not on policy language but on waiver.

The bottom line is that both parties requested the court to make a ruling as a matter of law, and the court did so. It ruled that R & B’s claim was not covered under the insurance policy as a matter of law, and it was correct in so ruling. R & B has never asserted that its policy provides lemon law coverage applicable to used car sales and has never claimed that Truck Insurance breached the terms of the insurance contract as issued. The insurance policy provided no coverage, and no potential for coverage, so it was clear there was no duty to either defend or indemnify and the breach of contract cause of action was not viable. (See Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 19, 37 [44 Cal.Rptr.2d 370, 900 P.2d 619]; Ward General Ins. Services, Inc. v. Employers Fire Ins. Co. (2003) 114 Cal.App.4th 548, 559 [7 Cal.Rptr.3d 844].)

Once it ruled that R & B’s claim was not covered under the insurance policy as a matter of law, the court dismissed the cause of action for breach of contract. R & B complains that the court erred in dismissing the cause of action sua sponte. However, as we shall show, to the extent that the court may have made a procedural error either in issuing a coverage ruling in response to a motion in limine or in dismissing the breach of contract cause of action, it was invited error.

R & B clearly requested the coverage ruling, not only in its motion in limine, but in extensive oral argument as well. At a hearing on the motion, R & B argued that the evidence was undisputed and that the parties agreed that the matter they had put before the court was a legal issue. Truck Insurance argued that R & B’s motion was an improper motion for summary judgment and the court itself repeatedly asked R & B whether it would have been more appropriate to raise the matter as a motion for summary adjudication. At the hearing, the court also asked what it was supposed to do after it made a coverage determination. The parties made their respective arguments as to which, if any, causes of action would then be eliminated. Although we discourage the use of motions in limine to achieve summary adjudication, given the procedural posture of the case, any error in granting relief based on R & B’s motion in limine was invited error. “When a party by his conduct induces the commission of an error, he is estopped from asserting it as a ground for reversal. [Citation.]” (Kardly v. State Farm Mut. Auto. Ins. Co. (1995) 31 Cal.App.4th 1746, 1750 [37 Cal.Rptr.2d 612].)

Furthermore, “[a] judgment may not be reversed on appeal . . . unless ‘after an examination of the entire cause, including the evidence,’ it appears the error caused a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. [Citation.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574 [34 Cal.Rptr.2d 607, 882 P.2d 298].) Inasmuch as the court correctly ruled that there was no coverage as a matter of law, a more favorable result would not have been reached had the court awaited the filing of a separate motion before dismissing the breach of contract cause of action. Consequently, we do not see how the court’s dismissal order resulted in a miscarriage of justice.

(3) Other relief

The fact that the breach of contract cause of action was dismissed does not mean, of course, that R & B is without a remedy. R & B claims to be aggrieved because the insurance agents misrepresented coverage and the coverage that was delivered did not conform to the agreement of the parties. Based on Butcher, supra, 77 Cal.App.4th 1442, it is clear that R & B’s claims sound in misrepresentation and reformation. As we have already stated, R & B may seek relief under those theories.

E. Motion for Leave to Amend to Allege Waiver and Estoppel:

R & B did not identify either waiver or estoppel as a basis of a cause of action in its third amended complaint. This notwithstanding, R & B says that Truck Insurance, Truck Underwriters and FGI have waived any defenses to their obligation to provide coverage and should be estopped from denying coverage. Shortly before trial, Truck Insurance filed its motion in limine No. 4, in which it requested a court order precluding R & B from either alleging waiver or estoppel or introducing evidence thereof. In its opposition to the motion, R & B requested leave to further amend its complaint to add allegations of waiver and estoppel.

Truck Insurance also filed its motion in limine No. 7, in which it sought a court order binding R & B to the parameters of its pleadings and prohibiting R & B from introducing evidence outside the parameters of its third amended complaint. The court granted motion in limine No. 4 and motion in limine No. 7. R & B then filed a motion for leave to file a fourth amended complaint in which the breach of contract cause of action would be predicated on a waiver of the right to deny coverage and an estoppel to deny coverage. The court denied the motion.

R & B asserts the trial court abused its discretion in denying R & B’s motions for leave to further amend its third amended complaint to include allegations of waiver and estoppel. It contends that the evidence shows Truck Insurance, Truck Underwriters and FGI deliberately chose not to deny either the duty to defend or the duty to indemnify, leaving the coverage determination up in the air, despite a regulatory requirement that the insurer either defend or deny coverage. (See Cal. Code Regs., tit. 10, § 2695.7, subd. (b); see also Ins. Code, § 790.03, subd. (h).) This, R & B concludes, demonstrates that Truck Insurance, Truck Underwriters and FGI waived the right to deny coverage, or should be estopped to deny coverage. R & B also says that the ultimate tender of the $77,275.98 is also ground for waiver or estoppel. Finally, R & B asserts that Truck Insurance, Truck Underwriters and FGI should be estopped to deny coverage because R & B relied to its detriment on the representations of Westenberger and Lopez that the policy provided lemon law coverage for used car sales.

In support of its waiver and estoppel arguments, R & B cites Chase v. Blue Cross of California (1996) 42 Cal.App.4th 1142, 1151 [50 Cal.Rptr.2d 178].) Chase had to do with an instance in which the plaintiff insured asserted that the defendant insurer had forfeited the right to invoke the policy’s arbitration clause. (Id. at p. 1148.) The appellate court acknowledged that an insurer could lose a contractual right under certain circumstances and remanded the matter to the trial court for a determination of whether the insurer had indeed forfeited the right to invoke the arbitration clause on the facts of the case. (Id. at pp. 1151, 1158, 1162.) The case before us, however, does not involve the forfeiture of a contractual right under the policy. Rather, it involves the use of the theories of waiver and estoppel to create coverage where none otherwise exists—that is, to create an otherwise nonexistent written contract providing lemon law coverage for used car sales, in order to use the newly created contract as the basis for a claim of breach. The distinction is key.

“ ‘ “ ‘The rule is well established that the doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom [Citation.]” (Manneck v. Lawyers Title Ins. Corp. (1994) 28 Cal.App.4th 1294, 1303 [33 Cal.Rptr.2d 771].) We cannot see how the court abused its discretion in denying a motion that would have permitted R & B to amend to include allegations upon which R & B cannot prevail as a matter of law. We will affirm the ruling of the trial court if it is correct on any ground (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 110 [115 Cal.Rptr.2d 285]) and so uphold the ruling in this case.

F. Breach of the Covenant of Good Faith and Fair Dealing:

Truck Insurance, in its motion in limine No. 1, argued that if the court found there was no coverage as a matter of law, then R & B would be unable to succeed on its bad faith cause of action. In support of its position, Truck Insurance cited Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th 1. In that case, the Supreme Court stated: “It is clear that if there is no potential for coverage and, hence, no duty to defend under the terms of the policy, there can be no action for breach of the implied covenant of good faith and fair dealing because the covenant is based on the contractual relationship between the insured and the insurer. [Citation.]” (Id. at p. 36.)

After the trial court in the matter before us granted Truck Insurance’s motion, it dismissed the cause of action for tortious breach of contract. It was correct in so doing. The policy clearly provides no lemon law coverage for used car sales and Truck Insurance cannot be held to have breached the implied covenant of good faith and fair dealing with respect to the insurance contract as written, because there was no potential for coverage thereunder. (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 36.)

To the extent that R & B attempts to characterize its bad faith claim as pertaining to statutory bad faith, i.e., acts such as those Insurance Code section 790.03 defines as unfair or deceptive, the dismissal of the cause of action remains proper. As the Supreme Court stated in Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th 1, Insurance Code “section 790.03 confers no private right of action for damages. [Citations.]” (Id. at p. 35.) When an insurance company engages in activities proscribed by that section, the conduct may be addressed by the Insurance Commissioner, who may impose administrative sanctions against the company. (Id. at p. 36.)

Although two cases, i.e., Neufeld v. Balboa Ins. Co. (2000) 84 Cal.App.4th 759 [101 Cal.Rptr.2d 151], and Spray, Gould & Bowers v. Associated Internal. Ins. Co. (1999) 71 Cal.App.4th 1260 [84 Cal.Rptr.2d 552], have held that an estoppel may be applied against an insurance company that violates the provisions of Insurance Code section 790 et seq. or the regulations promulgated thereunder, those cases are distinguishable from the one before us because in each of them there was a potential for coverage under the respective policy. However, when there is no potential for coverage, a cause of action for bad faith in the investigation and processing of a claim will not lie. (San Diego Housing Com. v. Industrial Indemnity Co. (1998) 68 Cal.App.4th 526, 544-545 [80 Cal.Rptr.2d 393].) That being the case, the trial court in this matter did not err in dismissing the bad faith cause of action to the extent it may be based on a violation of Insurance Code section 790 et seq. or the regulations promulgated thereunder.

That is not quite the end of our inquiry, however. R & B attempts to piggyback a bad faith cause of action on top of its reformation cause of action. That is to say, R & B argues that an insurance contract can be reformed to provide not only retroactive insurance coverage, but also a retroactive basis for a bad faith claim. As R & B sees it, even though there was no potential for coverage at the time Truck Insurance processed the lemon law claim, Truck Insurance nonetheless should be held liable for bad faith if in the future the insurance contract is reformed to provide lemon law coverage for used car sales. Truck Insurance disagrees. Neither party cites a case on point.

However, we observe that “before an insurer can be found to have acted tortiously (i.e., in bad faith), for its delay or denial in the payment of policy benefits, it must be shown that the insurer acted unreasonably or without proper cause. [Citations.]” (Chateau Chamberay Homeowners Assn. v. Associated Internal Ins. Co. (2001) 90 Cal.App.4th 335, 347 [108 Cal.Rptr.2d 776].) Generally speaking, “the reasonableness of the insurer’s decisions and actions must be evaluated as of the time that they were made .... [Citation.]” (Ibid.; accord, Flippo Industries, Inc. v. Sun Ins. Co. (1999) 74 Cal.App.4th 1429, 1441 [88 Cal.Rptr.2d 881].) When an insured submits a claim to an insurer and there is no potential for coverage of that claim under the policy, the insurer has no duty to defend and it may reasonably deny the claim. (Waller v. Truck Ins. Exchange, Inc., supra, 11 Cal.4th at p. 36.) Since it is reasonable to deny the claim at the time, if the policy is later reformed to provide retroactive coverage, the insurer may not be held liable for bad faith for failing to have the foresight to know that the policy would be reformed.

In the case before us, R & B submitted a lemon law claim with respect to a used car sale when the policy clearly provided lemon law coverage with respect to new car sales only. At the time Truck Insurance evaluated the claim, it was reasonable to deny it. If, on remand, the court should reform the policy to provide lemon law coverage for used car sales, this does not mean that Truck Insurance will be deemed to have acted in bad faith retroactively. The court did not err in dismissing the bad faith cause of action.

G. Violation of Business and Professions Code section 17200:

(1) Effect of coverage ruling

In its third amended complaint, R & B asserted a cause of action for violation of Business and Professions Code section 17200. R & B stated FGI, Truck Insurance, and Truck Underwriters “have engaged in unfair and unlawful business practices by selling insurance policies in which the policy coverage states that it applies to new cars, to car dealerships engaged solely in the business of selling used cars. Based on [the insurance companies’] representations, the dealerships believed that they were covered by the aforementioned [policies]. Plaintiff is informed and believes, and thereon alleges that [the insurance companies] sold these policies with the intent of subsequently denying coverage to the used car dealers on the basis that the policies only applied to new cars.” R & B sought to enjoin the insurance companies from continuing the allegedly unlawful practice. It also requested that the insurance companies be required to disgorge their wrongfully obtained profits and that R & B be awarded attorney fees pursuant to Code of Civil Procedure section 1021.5.

Curiously, the court disposed of the unfair competition cause of action when ruling on the first motions in limine filed by each of Truck Insurance and R & B, those seeking a ruling as to the existence of coverage as a matter of law. At the hearing on the motions in limine, the court asked Truck Insurance how many of the seven causes of action would be eliminated if the court determined as a matter of law that there was no coverage. Truck Insurance responded that such a ruling would eliminate the breach of contract, bad faith, and unfair competition causes of action.

Truck Insurance says that, at the hearing on the motions in limine, “R & B never suggested its unfair competition [argument] was independent of its coverage arguments.” This implies that R & B was throwing in the towel on the unfair competition argument in the event the court ruled against it on the coverage argument. However, this is not the case. At the hearing, R & B stated, “even if one [were] to . . . reach the conclusion that the naked provisions of the p