(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)
THE COURT OF APPEAL’S PUBLISHED DECISION ON PLAINTIFFS’ APPEAL FROM THE FIRST GRANT OF SUMMARY JUDGMENT IN THIS CASE AND ITS DETERMINATION THAT THE CASE PRESENTS DISPUTED MATERIAL FACTS THAT CAN ONLY BE RESOLVED BY TRIAL CONSTITUTES LAW OF THE CASE AND BARS A SECOND GRANT OF SUMMARY JUDGMENT IN DEFENDANT’S FAVOR.
In Sally Lawrence v. California Physicians’ Service, 158 Cal.App.4th 452, 69 Cal.Rptr.3d 789, 2007 Cal.App. LEXIS 2083 [mod. January 22, 2008, with no change of judgment, ___ Ca.App.4th ___ (2008)], the Court of Appeal stated as follows: We conclude [Health and Safety Code] section 1389.3 precludes a health services plan from rescinding a contract for a material misrepresentation or omission unless the plan can demonstrate (1) the misrepresentation or omission was willful, or (2) it had made reasonable efforts to ensure the subscriber’s application was accurate and complete as part of the precontract underwriting process.
Because both of these issues turn on disputed facts, the trial court’s summary judgment ruling cannot stand. We also conclude a triable issue of fact exists whether Blue Shield engaged in bad faith, and that the Lawrences adequately alleged a cause of action for intentional infliction of emotional distress. We therefore reverse the judgment. Id., at pp. 459-460.
Defendant’s present motion for summary judgment, of necessity, plows the same ground defendant covered in its first motion, i.e., to succeed, the present motion must address the same material issues that were relevant the first time defendant brought its motion. But the Court of Appeal has plainly declared that summary judgment is not appropriate or available in this case because, in its considered opinion, plaintiffs have already demonstrated the existence of disputed facts. Ibid.
Although defendant may claim it has new evidence for the court to consider (see defendant’s motion at page two, line 10), any alleged new evidence would only add to the evidence defendant adduced for its first motion, evidence which the Court of Appeal deemed sufficiently disputed to require trial. New evidence cannot turn disputed facts into undisputed facts or otherwise undo the Court of Appeal’s determination.
In any event, the Court of Appeal’s decision on this point constitutes law of the case and it is binding on the parties and this court in this proceeding. It bars defendant from avoiding trial on this basis. See Tally v. Ganahl, 151 Cal. 418, 421 (1907); Selby Constructors v. McCarthy, 91 Cal.App.3d 517, 522 (1979). Defendant’s motion must be denied for this additional and independent reason. (See Part 7 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.