State Farm Mutual Automobile Ins. Co. v. Howerton CA3 ( 2016 )

Filed 3/21/16 State Farm Mutual Automobile Ins. Co. v. Howerton CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
C073993
Plaintiff and Respondent,
(Super. Ct. No. 156150)
v.
ERROL T. HOWERTON et al.,
Defendants and Appellants.
California residents Errol T. Howerton and Diane McCracken (the insureds) claim
they were injured as a result of a motor vehicle collision with an uninsured driver in
Arkansas. The insureds submitted a claim for uninsured motor vehicle coverage under
the automobile liability insurance policy (the policy) that State Farm Mutual Automobile
Insurance Company (State Farm) issued to them. State Farm filed an action in Butte
County for declaratory relief with regard to its duties and obligations to the insureds
under the policy. Concluding that California law applies and that the insureds’ claim for
uninsured motor vehicle coverage is barred under Insurance Code section 11580.2,
subdivision (i),1 the trial court granted State Farm summary judgment.
1 Undesignated statutory references are to the California Insurance Code.
1
The insureds now contend (1) Arkansas law applies to State Farm’s declaratory
relief action; (2) even if California law applies to the action, evidence that came to light
after the trial court granted State Farm summary judgment shows that triable issues of
fact exist as to whether estoppel, waiver, impossibility, impracticability, futility and
tolling apply to save the insureds’ insurance claim; (3) we should treat this appeal as a
petition for a writ of error coram vobis and grant the insureds writ relief based on newly
discovered evidence that State Farm sued the uninsured driver in Arkansas state court;
and (4) the trial court erred in granting State Farm declaratory relief.
We conclude (1) California law applies to State Farm’s declaratory relief action;
(2) the claims for estoppel, waiver, impossibility, impracticability, futility and tolling are
forfeited as not supported by analysis; (3) a writ of error coram vobis is not warranted
because the insureds fail to demonstrate extrinsic fraud, due diligence, or the likelihood
of a different result; and (4) the trial court did not err in granting declaratory relief.
We will affirm the judgment.
BACKGROUND
The insureds reside in Butte County, California. They were involved in an
automobile collision while travelling in Baxter County in Arkansas on October 15, 2009.
A vehicle driven by uninsured motorist Timothy McFarland struck a deer and then struck
the vehicle in which the insureds were travelling. The insureds claimed they sustained
physical injuries as a result of the collision.
The vehicle in which the insureds were travelling at the time of the collision was
insured under an automobile liability insurance policy issued and maintained by State
Farm, an Illinois corporation authorized to do business in California. The policy was
issued and delivered to the insureds at their residence in California, and it included
uninsured motor vehicle coverage. The insureds made a claim for uninsured motor
vehicle coverage (UM claim) under the policy in connection with the October 15, 2009
collision.
2
State Farm filed a complaint for declaratory relief against the insureds in
Butte County Superior Court more than two years after the date of the collision. The
complaint sought a declaration that California law applies to the insureds’ UM claim,
and that California law bars the UM claim because the insureds did not comply with
section 11580.2, subdivision (i), which provides that a cause of action under a policy
does not accrue unless, within two years from the accident, the insured sues the uninsured
motorist, reaches agreement on the amount due under the policy, or initiates arbitration.
The insureds subsequently filed suit in Baxter County, Arkansas, asserting a
negligence cause of action against McFarland and a breach of contract cause of action
against State Farm based on its failure to pay benefits under the uninsured motor vehicle
coverage of the policy.
State Farm moved for summary judgment in the declaratory relief action. It
argued there was a conflict between California and Arkansas law as to the statute of
limitations or repose applicable to the insureds’ UM claim. According to State Farm,
California law should apply and, under California law, State Farm was entitled to
summary judgment because the insureds did not comply with the mandates of
section 11580.2, subdivision (i).
The insureds opposed State Farm’s summary judgment motion, arguing that the
trial court should apply Arkansas law because Arkansas was the state with the greatest
interest in the matter. The insureds also asked the trial court to deny declaratory relief,
contending such relief would defeat pending claims between the same parties in
Arkansas.
The trial court granted State Farm summary judgment. The trial court determined
that California law applied, the UM claim was barred because the insureds did not
comply with the requirements of section 11580.2, subdivision (i), and State Farm had no
duty to defend or indemnify the insureds under the policy with respect to the UM claim.
Judgment was entered in favor of State Farm and against the insureds.
3
STANDARD OF REVIEW
Summary judgment provides 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. (Code Civ. Proc., former § 437c, subd. (f)(2), as added by Stats.
2011, ch. 419, § 4; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843
(Aguilar).) A plaintiff may move for summary judgment if it is contended that there is no
defense to the action or proceeding. (Code Civ. Proc., former § 437c, subd. (a).) A
plaintiff has met its burden of showing that there is no defense to a cause of action if it
has proved each element of the cause of action entitling it to judgment on that cause of
action. (Id. at subd. (p)(1).) Once the plaintiff has met that burden, the burden shifts to
the defendant to show that a triable issue of material fact exists as to that cause of action
or a defense thereto. (Ibid.) The defendant may not rely upon the mere allegations or
denials of its pleadings to show that a triable issue of material fact exists but, instead,
must set forth the specific facts showing that a triable issue of material fact exists. (Ibid.)
In ruling on the motion, the trial court views the evidence and inferences
therefrom in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th
at p. 843; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) If the
trial court concludes the evidence or inferences raise a triable issue of material fact, it
must deny the motion. (Ibid.) But the trial court must grant the motion if the papers
show 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. (Code Civ. Proc., former § 437c, subd. (c).)
We review an order granting summary judgment de novo. (Aguilar, supra,25 Cal.4th at p. 860.) We independently examine the record to determine whether a
triable issue of material fact exists. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th
474, 499-500; Saelzler, supra, 25 Cal.4th at p. 767.) The trial court’s stated reasons for
granting summary judgment are not binding on us because we review its ruling, not its
4
rationale. (Coral Construction, Inc. v. City and County of San Francisco (2010)
50 Cal.4th 315, 336.)
DISCUSSION
I
The insureds contend we must apply Arkansas law to State Farm’s declaratory
relief action because California has no interest in “gratuitously extending jurisdiction
over a case for the purpose of exterminating the rights of its own citizen, in favor of a
non-resident corporate insurer,” whereas Arkansas has an interest in regulating the
subject of the policy, i.e., the uninsured driver.
When, as here, Code of Civil Procedure section 361 does not require application
of another jurisdiction’s statute of limitations, we apply the so-called “governmental
interest” analysis to decide the choice of law. (McCann v. Foster Wheeler LLC (2010)
48 Cal.4th 68, 87 (McCann); see Washington Mutual Bank v. Superior Court (2001)
24 Cal.4th 906, 920 [stating that “governmental interest” analysis applies whether the
dispute arises out of contract or tort].) “ ‘In brief outline, the governmental interest
approach generally involves three steps. First, the court determines whether the relevant
law of each of the potentially affected jurisdictions with regard to the particular issue in
question is the same or different. Second, if there is a difference, the court examines each
jurisdiction’s interest in the application of its own law under the circumstances of the
particular case to determine whether a true conflict exists. Third, if the court finds that
there is a true conflict, it carefully evaluates and compares the nature and strength of the
interest of each jurisdiction in the application of its own law “to determine which state’s
interest would be more impaired if its policy were subordinated to the policy of the other
state” [citation], and then ultimately applies “the law of the state whose interest would be
more impaired if its law were not applied.” ’ ” (McCann, supra, 48 Cal.4th at pp. 87-88.)
Applying the governmental interest analysis, we first consider whether the
applicable laws in each jurisdiction are different. Here, the insureds’ UM claim would be
5
barred under California’s uninsured motorist statute (§ 11580.2) because the insureds did
not satisfy a statutory condition precedent to accrual of a UM cause of action. Section
11580.2, subdivision (i) provides, “(1) No cause of action shall accrue to the insured
under any policy or endorsement provision issued pursuant to this section unless one of
the following actions have been taken within two years from the date of the accident: [¶]
(A) Suit for bodily injury has been filed against the uninsured motorist, in a court of
competent jurisdiction. [¶] (B) Agreement as to the amount due under the policy has
been concluded. [¶] (C) The insured has formally instituted arbitration proceedings by
notifying the insurer in writing sent by certified mail, return receipt requested.”2 It is
undisputed that the insureds did not file a lawsuit against McFarland, reach agreement
with State Farm as to the amount due under the policy, or make a demand for formal
arbitration within two years from the date of the accident.
Section 11580.2 sets forth a prerequisite for accrual of a UM cause of action
against the insurer. (Spear v. California State Automobile Assn. (1992) 2 Cal.4th 1035,
1039, 1041.) The insured forfeits a UM claim against the insurer if he or she does not
comply with the statutory mandates. (Blankenship v. Allstate Ins. Co. (2010)
186 Cal.App.4th 87, 94 (Blankenship).) Therefore, the insureds cannot maintain a UM
claim against State Farm if California law applies.
A different result is reached if Arkansas law applies to the insureds’ UM claim.
Section 23-79-202 of the Arkansas Code provides: “(a) An action may be maintained in
the courts of this state by an insured or any other person on his or her behalf to recover on
2 Similarly, the policy provides that there is no right of action against State Farm under
the uninsured motor vehicle coverage of the policy unless within two years from the date
of the accident: (1) suit for bodily injury has been filed in the proper court against the
uninsured motorist; (2) an agreement as to the amount due under the uninsured motor
vehicle coverage has been made; or (3) the insured or his or her representative has
formally started arbitration proceedings by making a written request to State Farm, sent
by certified mail with return receipt requested.
6
any claim or loss arising under a policy of insurance on property or life against the
insurer issuing the policy . . . at any time within the period prescribed by law for bringing
actions on promises in writing. [¶] (b) Any stipulation or provision in the policy or
contract requiring the action to be brought within any shorter time or be barred is void.”
Actions to enforce written obligations under Arkansas law must be commenced within
five years after the cause of action accrues. (Ark. Code, §§ 16-56-111, subd. (a), 23-79-
202, subd. (a); Shelter Mutual Ins. Co. v. Nash (2004) 357 Ark. 581, 586 [184 S.W.3d
425, 427] [declaratory relief action regarding insurer’s obligation under insurance policy
is a breach of contract action, which is controlled by the five-year statute of limitations
for breach of a written contract].) Unlike section 11580.2, the Arkansas statutes
governing uninsured motorist coverage do not set forth a condition precedent to the
accrual of a UM cause of action. (Ark. Code, §§ 23-89-401 to 23-89-405.) Even
assuming the date of the collision triggered the accrual of the insureds’ breach of contract
cause of action against State Farm, the insureds timely filed their breach of contract
complaint against State Farm under Arkansas law.
Thus, under the first step of the governmental interest analysis, it is clear that the
relevant laws in each jurisdiction are different. But that fact, by itself, does not
necessarily present a conflict of laws. (Hurtado v. Superior Court (1974) 11 Cal.3d 574,
580.) “The second step of the governmental interest analysis requires us to examine
‘each jurisdiction’s interest in the application of its own law under the circumstances of
the particular case to determine whether a true conflict exists.’ ” (McCann, supra,48 Cal.4th at p. 90.)
The purpose of section 11580.2 is to require the insured to take action that will
protect the insurer’s right of subrogation (Quintano v. Mercury Casualty Co. (1995)
7
11 Cal.4th 1049, 1060)3 and to promptly notify the insurer of its potential exposure so as
to encourage settlement of the claim (Blankenship, supra, 186 Cal.App.4th at p. 103). It
has also been said that section 11580.2, subdivision (i) is, in effect, a statute of
limitations. (Freeman v. State Farm Mutual Automobile Ins. Co. (1975) 14 Cal.3d 473,
484.) A statute of limitations reflects the Legislature’s balancing of the public policies in
favor of resolving causes of action on the merits and of providing repose. (Norgart v.
Upjohn Co. (1999) 21 Cal.4th 383, 396.) A statute of limitations serves to prevent stale
claims, gives stability to transactions, protects settled expectations, promotes diligence,
encourages the prompt enforcement of substantive law, and reduces the volume of
litigation. (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th
481, 499.) Although the overall purpose of section 11580.2 is remedial, “the Legislature
intended to impose strict prerequisites and time limits for claims involving uninsured
motorists . . . .” (Juarez v. 21st Century Ins. Co. (2003) 105 Cal.App.4th 371, 377.)
Arkansas’s statute of limitations similarly serves the purpose of “ ‘spar[ing] the
courts from litigation of stale claims, and the citizen from being put to his defense after
memories have faded, witnesses have died or disappeared, and evidence has been lost.’ ”
(Owen v. Wilson (1976) 260 Ark. 21, 26 [537 S.W.2d 543, 545-546]; see McEntire v.
Malloy (1986) 288 Ark. 582, 586 [707 S.W.2d 773, 776] [a statute of limitations
3 This court noted in Blankenship, supra, 186 Cal.App.4th at page 103, that the statute’s
purpose was no longer to protect the insurer’s subrogation claim from being time barred
because the Legislature amended section 11580.2 in 1963 so that an insurer may bring a
subrogation action within three years after it actually pays the injured party.
(Blankenship, supra, 186 Cal.App.4th at p. 104, fn. 7; see Kortmeyer v. Cal. Ins.
Guarantee Assn. (1992) 9 Cal.App.4th 1285, 1295-1296 (conc. opn. of Johnson, J.)
[stating that the insured’s failure to comply with section 11580.2(i) does not prejudice the
insurer’s subrogation rights because the Legislature amended the subrogation provision
of section 11580.2 to allow the insurer to bring an action against the uninsured motorist
within three years from the date that payment was made to the insured].)
8
encourages the prompt filing of claims so a defendant is protected from having to defend
an action in which the truth-finding process would be impaired by the passage of time].)
In this case, California is the forum state and the defendants are California
residents. (Rest.2d Conf. of Laws, § 142, com. f, p. 125 [“subject to rare exceptions, the
forum will dismiss a claim that is barred by its statute of limitations”].) Examining
California and Arkansas’s interests in the application of its own statute of limitations or
repose to this case, we conclude no conflict exists. But even if we were to conclude that
a conflict existed and we moved to the final step of the governmental interest analysis, we
would conclude that California’s interests would be more impaired if its law were not
applied.
The present declaratory relief action arises from the contract between State Farm
and the insureds. Where, as in this case, the parties do not designate the law governing
their contract, the relevant contacts to be considered in a dispute involving a contract are
those set forth in section 188, subdivision (2) of the Restatement Second of Conflict of
Laws: (a) the place of contracting, (b) the place of negotiation of the contract, (c) the
place of performance, (d) the location of the subject matter of the contract, and (e) the
domicile, residence, nationality, place of incorporation and place of business of the
parties. (Stonewall Surplus Lines Ins. Co. v. Johnson Controls, Inc. (1993)
14 Cal.App.4th 637, 646 (Stonewall); Robert McMullan & Son, Inc. v. United States
Fidelity & Guaranty Co. (1980) 103 Cal.App.3d 198, 205.) In a case involving a contract
of casualty insurance, we also consider the principal location of the insured risk during
the term of the policy, unless with respect to the particular issue, some other state has a
more significant relationship to the transaction and the parties. (State Farm Mutual
Automobile Ins. Co. v. Superior Court (2003) 114 Cal.App.4th 434, 448 [the principal
location of the insured risk in a case of an automobile liability policy is the place where
the insured vehicle will be garaged during most of the insurance period]; Stonewall,
supra, 14 Cal.pp.4th at p. 646; Rest.2d Conf. of Laws, § 193.)
9
California has a significant interest in the resolution of the issues in this matter.
California is the place of contracting, State Farm was authorized to conduct business in
California, and State Farm issued and delivered the policy to the insureds in California.
Significantly, California is the place where the insured vehicle was principally
located. The place where the insured vehicle will be principally located “ ‘ “has an
intimate bearing upon the nature of the risk and the parties would naturally expect the
local law of the state where the risk is to be principally located to apply. [Citations.]” ’ ”
(Stonewall, supra, 14 Cal.App.4th at p. 646; see Rest.2d Conf. of Laws, § 193, com. c,
p. 612; see also § 11580.2(a)(1) [California’s uninsured motorist statute applies to motor
vehicles principally used in California].) In fact, the policy states that the location where
the insured’s car is primarily garaged affects the premium and the insured must inform
State Farm if any information regarding such location is incorrect, incomplete, or changes
during the policy period. The uninsured motor vehicle coverage provision of the policy
also references section 11580.2. The policy states that disputes between State Farm and
the insureds about fault and the amount of coverage shall be decided by arbitration as
provided by section 11580.2. Further, the policy contains language which mirrors the
language of section 11580.2, subdivision (i).
Under these circumstances, the insureds and State Farm would reasonably expect
California law to apply. (Stonewall, supra, 14 Cal.pp.4th at pp. 639-640, 648; Cal.
Casualty Indemnity Exchange v. Pettis (1987) 193 Cal.App.3d 1597, 1610.) And
California has a significant interest in the determination of issues arising under an
insurance policy issued in this state by a business that sold uninsured motorist insurance
to California residents for a vehicle principally located in California. (McCann, supra,48 Cal.4th at pp. 97-98; Stonewall, supra, 14 Cal.App.4th at p. 646; Rest.2d Conf. of
Laws, § 193, com. c, p. 612.)
In contrast, Arkansas’s uninsured motorist statute (Ark. Code, § 23-89-403) does
not apply to the policy because the policy was not issued or delivered in Arkansas, there
10
is no evidence the insured vehicle was registered in Arkansas, and the insureds resided
and the insured vehicle was garaged in California.4
The trial court did not err in concluding that California law applies to this action
and that the insureds’ UM claim against State Farm is barred under section 11580.2,
subdivision (i).
II
The insureds next contend that even if California law applies to this action,
evidence that came to light after the summary judgment was granted shows that issues of
triable fact exist as to whether estoppel, waiver, impossibility, impracticability, futility
and tolling apply to defeat the section 11580.2 bar.
We grant the insureds’ motion for judicial notice filed in this court on
February 25, 2014, for the purpose of evaluating the insureds’ appellate claims. (Evid.
Code, §§ 452, subd. (d), 459, subd. (a).) Exhibit 1 of that motion is a copy of State
Farm’s complaint against McFarland in Baxter County, Arkansas, filed on September 26,
2012. The complaint is for subrogation and seeks to recover the amount of $17,957.13
from McFarland as the amount State Farm allegedly expended on behalf of the insureds,
plus interest, attorney’s fees, and costs of suit. Exhibit 2 of the motion is a copy of the
May 9, 2013 consent judgment in State Farm’s subrogation action. McFarland consented
to a judgment of $17,957.13, plus $100 in attorney’s fees and $192.26 in costs.
The insureds contend State Farm’s subrogation action against McFarland and the
consent judgment in that subrogation action preclude the use of section 11580.2 against
4 We grant State Farm’s unopposed motion for judicial notice filed in this court on
April 18, 2014. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).) Exhibit 1 of State Farm’s
motion is a copy of the March 21, 2014 order granting State Farm’s motion for summary
judgment and denying the insureds’ motion for partial summary adjudication in the
insureds’ breach of contract action against State Farm in Baxter County, Arkansas.
Applying Arkansas choice of law rules, the Arkansas state court concluded that
California law applied to the dispute between State Farm and the insureds.
11
the insureds. They assert, without analysis, that the doctrines of estoppel, waiver,
impossibility, impracticability, futility, equitable estoppel, unconscionability, and tolling
apply. Because their claim is not supported by legal analysis, it is forfeited. (Cal. Rules
of Court, rule 8.204(a)(1)(B); Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043,
1045, fn. 1 (Okasaki); Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655 (Keyes) [the
appellant must present legal authority on each point made and factual analysis].)
III
The insureds next ask us to treat their appeal as a petition for a writ of error coram
vobis, citing Rollins v. City and County of San Francisco (1974) 37 Cal.App.3d 145. The
First District Court of Appeal in Rollins granted a petition for a writ of error coram vobis
based on its “inherent discretionary powers in the interests of justice” and Code of Civil
Procedure section 43, which authorizes courts of appeal to reverse any judgment
appealed from and direct the proper judgment to be entered or to direct a new trial or
further proceedings. (Rollins, supra, 37 Cal.App.3d at p. 150.) However, the Sixth
District Court of Appeal in Philippine Export & Foreign Loan Guarantee Corp. v.
Chuidian (1990) 218 Cal.App.3d 1058 (Philippine Export), and the Second District Court
of Appeal in Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1(Los Angeles Airways), rejected the reasoning of Rollins. (Philippine Export, supra,
218 Cal.App.3d at p. 1091; Los Angeles Airways, supra, 95 Cal.App.3d at pp. 9-10.)
Philippine Export and Los Angeles Airways required a showing of extrinsic fraud for the
issuance of a writ of error coram vobis. (Philippine Export, supra, 218 Cal.App.3d at
p. 1091; Los Angeles Airways, supra, 95 Cal.App.3d at pp. 9-10.) Even if we were to
apply the more lenient standard articulated in Rollins, the insureds would fail to establish
that they are entitled to writ relief.
Here, the insureds argue they are entitled to a writ of error coram vobis because
State Farm obtained summary judgment on the ground that Arkansas had no interest in
State’s Farm’s declaratory relief action and that California law should apply to that
12
action, but after the deadline for filing a new trial motion had passed, the insureds
discovered that State Farm had filed a subrogation action in Arkansas state court.
“An appellate court can issue a writ of error coram vobis directing the trial court to
reconsider its decision based on new evidence discovered after its decision that would
have been grounds for granting reconsideration or a new trial.” (In re Rachel M. (2003)
113 Cal.App.4th 1289, 1295-1296.) But a writ of error coram vobis is a drastic remedy
that will be issued only if certain requirements have been satisfied. (Id. at p. 1296;
Philippine Export, supra, 218 Cal.App.3d at p. 1090; Los Angeles Airways, supra,
95 Cal.App.3d at p. 9.) Generally, it must be shown that the proffered new evidence was
unavailable to the petitioner because of extrinsic fraud that prevented the petitioner from
having a meaningful hearing on the issue in question. (In re Rachel M., supra,
113 Cal.App.4th at p. 1296; Philippine Export, supra, 218 Cal.App.3d at pp. 1090-1091;
Los Angeles Airways, supra, 95 Cal.App.3d at p. 9.) It is not enough to show that a party
deliberately concealed the proffered new evidence and that the new evidence is material
to the case. (Philippine Export, supra, 218 Cal.App.3d at p. 1090.) In addition, the
proffered new evidence must either compel or make probable a different result in the trial
court. (People v. Welch (1964) 61 Cal.2d 786, 790; In re Rachel M., supra,
113 Cal.App.4th at p. 1296.) The petitioner must further show that the proffered new
evidence was unknown to him or her and that he or she could not, in the exercise of due
diligence, have discovered the new evidence at any time substantially earlier than the
time of the request for the writ. (Welch, supra, 61 Cal.2d at pp. 790-791.)
The proffered new evidence in this case is State Farm’s subrogation action against
McFarland, filed in Baxter County, Arkansas, and the consent judgment in that
subrogation action. Even if State Farm had deliberately concealed the proffered new
evidence, such fraud would be intrinsic fraud and not extrinsic fraud. (Philippine Export,
supra, 218 Cal.App.3d at p. 1091; Los Angeles Airways, supra, 95 Cal.App.3d at p. 8.)
13
Intrinsic fraud is not a ground to reopen the judgment. (Philippine Export, supra,
218 Cal.App.3d at p. 1091.)
In addition, the insureds fail to show that consideration of the proffered new
evidence as part of the governmental interest analysis compels or makes probable a
different result. It is not surprising that State Farm sued McFarland in Arkansas if, as the
insureds alleged, McFarland was a resident of Arkansas. (2 Witkin, Cal. Proc. (5th ed.
2008) Jurisdiction, §§ 122, 127, 129, pp. 700, 706, 709-710.) However, choice of law
involves an inquiry that is separate from that of personal jurisdiction. (Keeton v. Hustler
Magazine, Inc. (1984) 465 U.S. 770, 778 [79 L.Ed.2d 790, 800]; Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 477; People v. Betts (2005) 34 Cal.4th 1039,
1053, fn. 7.) The new evidence does not change the fact that California is the forum state
for the declaratory relief action and the state of residency for the insureds. The new
evidence also does not change the contacts identified in sections 188 and 193 of
Restatement Second of Conflict of Laws. In addition, there is no indication that State
Farm agreed to the application of Arkansas law to its subrogation cause of action or that
the Arkansas state court decided whether Arkansas or California law applied to the
subrogation complaint. The new evidence does not establish that Arkansas law applies to
the declaratory relief action.
Finally, we do not know what efforts, if any, the insureds undertook to discover
the new evidence and whether the insureds acted diligently in requesting a writ. Thus,
the insureds fail to demonstrate that they are entitled to writ relief.
The insureds assert that the settlement of the subrogation action against McFarland
will likely prevent the insureds from proceeding with their negligence action against
McFarland. We will not address this assertion, however, because it is not supported by
citation to authority or legal analysis. (Okasaki, supra, 203 Cal.App.4th at p. 1045, fn. 1;
Keyes, supra, 189 Cal.App.4th at p. 655.)
14
IV
The insureds further argue that the trial court erred in granting State Farm
declaratory relief. They assert that State Farm invoked the application of California law
in this action, but it is a party to two lawsuits in Arkansas pertaining to the October 15,
2009 collision. The insureds contend the courts should not exercise jurisdiction in this
case due to the complicated facts and risk of conflicting judgments.
We reject the insureds’ claim for the reasons we have stated with regard to choice
of law. Nothing before us shows conflicting judgments exist or are likely to exist. Like
the trial court in this action, the Arkansas state court in the insureds’ Baxter County
action denied the insureds’ motion for partial summary judgment and granted State
Farm’s motion for summary judgment, concluding that the Arkansas state court must
apply California law to the dispute between State Farm and the insureds and that under
California law, the insureds do not have a cause of action against State Farm.
DISPOSITION
The judgment is affirmed.
/S/
Mauro, J.
We concur:
/S/
Butz, Acting P. J.
/S/
Duarte, J.
15