Fid. Nat'l Title Ins. Co.
v.
Butler

This case is not covered by Casetext's citator
COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen)Jun 27, 2017
C075244 (Cal. Ct. App. Jun. 27, 2017)

C075244

06-27-2017

FIDELITY NATIONAL TITLE INSURANCE COMPANY, Plaintiff and Respondent, v. WILLIAM R. BUTLER et al., Defendants and Appellants.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 51142)

Plaintiff Fidelity National Title Insurance Company (Fidelity) sought a declaration that it had no duty under a title insurance policy to defend or indemnify defendants William R. Butler and his wife Peggy L. Butler in a quiet title action brought by the Butlers' neighbor because the Butlers had previously conveyed their interest in the disputed property to a third party thereby terminating any coverage that may have existed under the policy. The trial court issued the requested declaration after finding that the Butlers "failed to provide admissible evidence controverting a loss of coverage under the provisions of the title policy by [their] conveyance of [their] interest in [their] insured property, other than to claim, without authority, that retention of an easement was sufficient to keep the terms of the policy in effect." We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1980, the Butlers purchased real property commonly known as 462-030 Janesville Grade, Janesville, California. In connection with the transaction, the Butlers purchased a policy of title insurance from Western Title Insurance Company, which subsequently was acquired by Fidelity. The policy insures against loss by reason of "[t]itle to the estate or interest described in Schedule A being vested other than as stated herein." Schedule A states that "[t]he estate or interest in the land described in Schedule C and which is covered by this policy is: [¶] A fee." The land described in Schedule C is "[i]n Township 28 North, Range 13 East, Mount Diablo Meridian. [¶] Section 22: The W 1/2 of the NW 1/4." Section 2(b) of the conditions and stipulations attached to the policy provides in pertinent part: "CONTINUANCE OF INSURANCE AFTER CONVEYANCE OF TITLE [¶] The coverage of this policy shall continue in force as of Date of Policy, in favor of an insured so long as such insured retains an estate or interest in the land."

In January 2003, Lisa Souliere purchased real property located directly to the north of the Butlers' property. In August 2009, Souliere brought an action against the Butlers to quiet title to approximately one-eighth of an acre of property along the border between her property and the Butlers' property, and seeking damages for trespass. The operative second amended complaint alleges in pertinent part that the Butlers "claim some right, title, estate, lien, or interest in and to the Real Property and dispute the boundary line between [Souliere's property] and land owned to the south of [Souliere's property] by [the Butlers]."

In August 2009, the Butlers notified Fidelity of Souliere's lawsuit. More particularly, the Butlers advised Fidelity that they had "been served with a quiet title action filed by Lisa Souliere ([their] neighbor) in which she alleges that she owns property into Section 22, which is our property." After initially denying coverage based upon the terms of the policy, in May 2010, Fidelity offered to retain counsel to defend the Butlers under a reservation of rights.

In September 2010, Fidelity filed a declaratory relief action seeking a determination of its duties to defend and/or indemnify the Butlers for any liability arising from the Souliere lawsuit. Fidelity asserted several grounds for denial of coverage in its declaratory relief complaint, including that coverage for the disputed property was terminated in 2003 when the Butlers voluntarily conveyed their interest in that property to a third party. Fidelity apparently never retained coverage for the Butlers. The reasons for this are disputed and irrelevant to our resolution of this appeal.

The parties filed competing motions for summary judgment on Fidelity's declaratory relief action. In its motion for summary judgment, Fidelity argued, among other things, that it had no duty to defend or indemnify the Butlers in the Souliere lawsuit because "[s]ubsequent to the issuance of the subject policy of title insurance, the Defendants voluntarily divested themselves of the property that is the subject of this dispute. Under the policy terms, Defendants' act extinguished all [Fidelity's] duties to Defendants." Fidelity submitted affirmative evidence in support of its motion, including a request for judicial notice of the 2003 grant deed from the Butlers to Terry Smith and the declaration of its expert Gayle Picha. The Butlers objected to Fidelity's evidence on various grounds, including the declaration of Fidelity's expert Gayle Picha.

Fidelity moved for summary judgment on each of the three grounds raised in its complaint for declaratory relief: (1) the Souliere lawsuit falls within the survey exception of the policy because it involved a boundary dispute based upon facts which a correct survey would disclose; (2) prior to the Souliere lawsuit, the Butlers conveyed their interest in the land covered by the policy to a third party, thereby terminating coverage under the policy; and (3) the Butlers' cross-complaint sought to quiet title to land beyond the boundary of the land insured by the policy. Because we conclude that summary judgment was properly granted based upon the second ground, we need not consider the remaining two grounds.

The Butlers disputed Fidelity's claim that they voluntarily divested themselves of any interest in the disputed property, claiming that they had temporarily conveyed the property to Smith for "financing purposes" and retained an easement in the disputed property following the conveyance to Smith. The Butlers' evidence consisted of the declaration of Terry Smith, a parcel map, and a letter from the Lassen County Planning Department to the Butlers regarding "Parcel Map Application #7-05-84." Fidelity objected to the Butlers' evidence on various grounds, including that the parcel map and letter had not been properly authenticated.

A hearing on both motions was scheduled for April 5, 2013, before Judge David A. Mason. Following the hearing, the trial court granted Fidelity's motion for summary judgment. In its written ruling, filed April 22, 2013, the trial court found that "Fidelity proffered sufficient admissible evidence to support each of its Undisputed Material Facts," "all of the Undisputed Material Facts alleged by Fidelity in support of Fidelity's Motion for Summary Judgment [are] true for purposes of the Motion," and the Butlers "failed to provide admissible evidence to dispute Fidelity's Undisputed Material Facts." More specifically, the trial court found that the Butlers "failed to provide admissible evidence controverting a loss of coverage under the provisions of the title policy by [the Butlers'] conveyance of [their] interest in [their] insured property, other than to claim, without authority, that retention of an easement was sufficient to keep the term of the policy in effect." The court further found that the Butlers' objections to Fidelity's evidence were not timely filed and served and declined to consider them. It also overruled in part and sustained in part Fidelity's objections to the Butlers' evidence, noting that the documents would be "received by the Court solely as evidence of their existence and not for the truth of their contents." With respect to the declaration of Fidelity's expert Gayle Picha, the trial court found that "her declaration was sufficient to establish -- sufficient expertise for her to have made the claims that she made." The trial court did not rule on the Butlers' motion for summary judgment, concluding that it was moot in light of its ruling granting summary judgment in favor of Fidelity. The trial court ordered counsel for Fidelity to prepare an order.

Judge Mason presides in Modoc County and was sitting by special assignment in this case.

Contrary to the Butlers' assertion, the trial court was under no obligation to consider their summary judgment motion before entering summary judgment in favor of Fidelity. The trial court was free to consider the motions in whichever order it saw fit, and having concluded that Fidelity was entitled to summary judgment, which was dispositive of the entire action, it was under no obligation to rule on the Butlers' competing motion. (Walker v. Superior Court (1991) 53 Cal.3d 257, 267 [the court has inherent authority to control the proceedings before them, including their calendars and dockets].)

After Judge Mason entered his written ruling granting summary judgment in Fidelity's favor, the Butlers moved to disqualify him. In response, Judge Mason recused himself, and the case was assigned to Judge C. Anders Holmer, who entered judgment in favor of Fidelity and against the Butlers on July 16, 2013. The Butlers timely appealed.

Judge Holmer was sitting by special assignment in this case.

Contrary to Fidelity's claim, the settlement of the underlying lawsuit does not moot this appeal. If Fidelity did, in fact, owe the Butlers a duty to defend the underlying lawsuit and failed to provide such a defense, the Butlers ordinarily would be entitled to recover the costs and attorney fees they incurred in defending the lawsuit prior to the settlement.

DISCUSSION

I

Summary Judgment Was Properly Entered in Favor of Fidelity Because Coverage Under

the Policy of Title Insurance Was Terminated by the Butlers' Conveyance of the

Disputed Property to Smith

The Butlers contend that the trial court erred in granting summary judgment in Fidelity's favor because the Butlers never voluntarily divested themselves of an interest in the disputed property. As we shall explain, Fidelity produced evidence showing that the Butlers conveyed the disputed property to an uninsured third party in 2003 and in doing so did not retain an interest therein, and the Butlers failed to produce admissible evidence sufficient to establish a triable issue of material fact as to whether they retained an interest in the disputed property sufficient to continue coverage under the policy.

The Butlers' request for judicial notice of various documents, filed December 10, 2014, is denied as irrelevant to the issue that resolves the case on appeal.

Summary judgment is proper when all the papers submitted on the motion show there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar); Code Civ. Proc., § 437c, subd. (c).) A plaintiff moving for summary judgment bears an initial burden of proving each element of its cause or causes of action in question. (Aguilar, at p. 849; Code Civ. Proc., § 437, subd. (p)(1).) If the plaintiff meets this burden, the defendant has the burden to demonstrate one or more triable issues of material fact as to the plaintiff's cause of action or a defense thereto. (Aguilar, at p. 849; Code Civ. Proc., § 437, subd. (p)(1).) " 'The defendant . . . may not rely upon the mere allegations or denials' of his '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 as to that cause of action or a defense thereto.' [Citation.]" (Aguilar, at p. 849.)

In reviewing summary judgment, we exercise our independent judgment. (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 37.) Our de novo review is limited to the evidence before the trial court when it considered the motion; we cannot consider evidence submitted later or for the first time on appeal. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.) We consider "all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66; Code Civ. Proc., § 437c, subd. (c).) We examine such "evidence . . . in the light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.) We may affirm the trial court's summary judgment ruling on any ground set forth in the motion for summary judgment, regardless of the grounds relied on by the trial court. (American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, 747-748.)

"The duty to defend in a title insurance case is governed by the same principles which govern the duty to defend under general liability policies." (Lambert v. Commonwealth Land Title Ins. Co. (1991) 53 Cal.3d 1072, 1077.) " '[A] liability insurer owes a broad duty to defend its insured against claims that create a potential for indemnity.' [Citation.]" (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal. 4th 287, 295 (Montrose).) " ' "[T]he carrier must defend a suit which potentially seeks damages within the coverage of the policy." [Citation.] Implicit in this rule is the principle that the duty to defend is broader than the duty to indemnify; an insurer may owe a duty to defend its insured in an action in which no damages ultimately are awarded. [Citations.]' [Citation.]" (Ibid.)

"In resolving the question of whether a duty to defend exists—tendered in the context of a . . . summary judgment motion in a declaratory relief action—the insurer has a higher burden than the insured. '[T]he insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot'; the insurer, in other words, must present undisputed facts that eliminate any possibility of coverage. [Citations.]" (American States Ins. Co. v. Progressive Casualty Ins. Co. (2009) 180 Cal.App.4th 18, 27, italics omitted, fn. omitted.)

The trial court did not err in declining to stay Fidelity's declaratory relief action. "A stay of the declaratory relief action pending resolution of the third party suit is appropriate when the coverage question turns on facts to be litigated in the underlying action." (Montrose, supra, 6 Cal.4th at p. 301.) Here, the Butlers raised this issue for the first time at the summary judgment hearing -- two and one-half years after Fidelity filed its declaratory relief complaint. In addition to being untimely, a stay was not appropriate insofar as the coverage question at issue here--whether the Butlers' conveyance to Smith terminated coverage under the policy--does not turn on facts that were to be litigated in the underlying action. Moreover, the Butlers have made no showing that they were prejudiced by the trial court's failure to stay the declaratory relief action. Indeed, according to the Butlers, the underlying action has since settled.

Fidelity moved for summary judgment on the ground that any coverage related to the disputed property was terminated in 2003 when the Butlers voluntarily deeded a portion of their property, including the disputed property, to Terry Smith. In support of its motion, Fidelity produced the policy of title insurance, the recorded grant deed from the Butlers to Smith, and the declaration of its expert Gayle Picha. The policy provides that coverage shall continue "so long as [an] insured retains an estate or interest in the land." The grant deed, recorded on September 4, 2003, shows that the Butlers conveyed a portion of their property known as "Parcel A" to Smith "for valuable consideration, receipt of which is hereby acknowledged." In her declaration, Gayle Picha, who has over 35 years' experience in researching publicly recorded documents, searching titles to real property, and studying title issues involving California real estate, stated that she reviewed the chain of title as recorded in the Lassen County Recorder's Officer for the Butler and Souliere properties and read Souliere's complaint, filed August 18, 2009. According to Picha, the Lassen County Recorder's Office Official Records included the deed from the Butlers to Smith, which granted to Smith the portion of the Butlers' property described as "Parcel A." Picha opined that Parcel A included "all of the real property at the northern boundary of the Butler property nearest the land that Butler claims as his own within Section 22." Picha also indicated that the Lassen County Recorder's Official Records did not show that the Butlers retained any interest in the property deeded to Smith.

We understand that the complaint was amended, and that Souliere's description of the land she was claiming changed. We find, however, that those changes do not affect Picha's opinions related to the Butlers' conveyance of "Parcel A" to Smith, including her opinion that "all of the real property at the northern boundary of the Butler property nearest the land that Butler claims as his own within Section 22" is located in Parcel A.

At the hearing, the Butlers objected to Picha's declaration on the ground that there is "nothing to show" that she was "an expert in this matter." The trial court overruled the objection, finding that "her declaration was sufficient to establish--sufficient expertise for her to have made the claims that she made." To the extent the Butlers contend that the trial court abused its discretion in overruling their evidentiary objection, the contention lacks merit. "A person is qualified to testify as an expert if [s]he has special knowledge, skill, experience, training, or education sufficient to qualify h[er] as an expert on the subject to which h[er] testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert." (Evid. Code, § 720, subd. (a).) "A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including h[er] own testimony." (Id. at subd. (b).) Here, in addition to stating that that she has over 35 years' experience in researching publicly recorded documents, searching titles to real property, and studying title issues involving California real estate, Picha's declaration indicated that she had conducted over 500 title searches and reviewed hundreds of real property surveys. She worked for the County of Mendocino Tax Assessor's Office as the map drafting supervisor, drafting maps and legal descriptions for tax sale parcels and had one year of formal training in civil engineering from Santa Rosa Junior College, where she worked with land survey equipment and performed mock land surveys in connection with her training. Picha's declaration was sufficient to establish that she possessed the "special knowledge, skill, expertise, training, or education sufficient to qualify h[er] as an expert on the subject to which h[er] testimony relates." The trial court properly overruled the Butlers' objection to Picha's declaration. Questions concerning the degree of her knowledge and training go more to the weight of the evidence than its admissibility. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969; see also Mann v. Cracchiolo (1985) 38 Cal.3d 18, 38.)

The evidence produced by Fidelity was sufficient to meet Fidelity's initial burden on presenting facts that eliminated any possibility of coverage. Thus, it was incumbent on the Butlers to demonstrate one or more triable issues of material fact as to that issue.

In opposing Fidelity's motion for summary judgment, the Butlers asserted that the conveyance to Smith did not terminate coverage under the policy because "said transfer was pursuant to a confidential agreement for financing purposes only." In support of their assertion, they cited to the declaration of Terry Smith. In his declaration, Smith confirmed that in August 2003, he entered into a confidential agreement with the Butlers "to assist them in refinancing their home . . . ." According to Smith, "it was necessary for refinancing of the Butler's [sic] home to list [Smith's] name on the title of the property, a requirement of the lender." He and the Butlers agreed that once the financing was in place, Smith would transfer "any and all of [his] interest" in the property back to the Butlers without any financial consideration. The financing was completed in September 2003, and in December 2003, Smith signed and notarized two grant deeds conveying the property to the Butlers. Copies of the confidential agreement and deeds were attached as exhibits to Smith's declaration. Consistent with Smith's declaration, the confidential agreement provided that "[i]t is necessary for the refinancing that the subject property is in fee title ownership of Terry E. Smith." Smith never believed that he had an interest in the property. He never lived in the home or spent the night there.

Whether Smith believed he had an interest in the subject property or lived there is irrelevant, as is the purpose of the conveyance. The policy specifically states that coverage continues so long as the insured retains an estate or interest in the land. Thus, if the Butlers conveyed the property to a third party, i.e. someone such as Smith who is not named as an insured in the policy, without retaining any interest therein, coverage terminated as to the property conveyed.

Kwok v. Transnation Title Insurance Company (2009) 170 Cal.App.4th 1562 (Kwok) is instructive. In April 2004, the Kwoks formed a limited liability company (LLC) and were its only members. (Id. at p. 1565.) The LLC purchased certain real property, and the defendant title insurance company issued a policy of title insurance for that property. (Ibid.) The LLC was the only named insured in Schedule A. (Ibid.) The policy defined " 'insured' " as " 'the insured named in Schedule A, and, subject to any rights or defenses the Company would have had against the named insured, those who succeed to the interest of the named insured by operation of law . . . .' " (Ibid.) The policy provided that coverage would continue " 'so long as the insured retains an estate or interest in the land . . . .' " (Ibid.) In September 2005, the LLC transferred the property to the Kwoks as trustees of the Kwoks' revocable trust. (Ibid.) In December 2005, the LLC was dissolved. (Id. at pp. 1566-1567.)

In their reply brief, the Butlers erroneously assert that "it is unknown if the Kwok title insurance policy had any provisions for a continuance of coverage as long as the insureds retained an interest or estate interest in the property under the title insurance policy, such as the Butlers' title policy contains." As detailed above, the policy at issue in Kwok did contain such a provision. (Kwok, supra, 170 Cal.App.4th at p. 1565.)

Thereafter, the title insurance company denied coverage for an easement dispute between the Kwoks and their neighbors on the ground that the LLC's transfer of the property to the Kwoks as trustees was a voluntary act that terminated coverage under the policy. (Kwok, supra, 170 Cal.App.4th at p. 1566.) The Kwoks sued the title insurance company for breach of contract and bad faith. (Ibid.) The title insurance company moved for summary judgment, arguing that it owed no duty to the Kwoks because the LLC voluntarily transferred the property to the Kwoks by grant deed prior to the LLC's dissolution, and therefore, the Kwoks did not become insureds by " 'operation of law' " under the terms of the policy. (Ibid.) The trial court granted summary judgment in favor of the title insurance company, and the Court of Appeal affirmed. (Id. at pp. 1567, 1573.) The Court of Appeal found that the transfer of the property to the Kwoks as trustees terminated coverage under the policy. (Id. at p. 1567.) The court rejected the Kwoks' claim that "the transfer of the property from the LLC directly to its members as trustees of a family trust effected only a change in the method of holding legal title, not a change in their proportional beneficial interest." (Id. at p. 1570.) The court explained, "[T]he issue before us is not whether there was a change in the beneficial ownership of the property, but rather whether [the Kwoks], as trustees of their family trust, succeeded as insureds under the terms of the policy. There is nothing in the policy definition of 'insureds' that identifies 'beneficial owners' as insureds. Under the terms of the policy, [the Kwoks] could only become insureds by operation of law. The transfer of property by an insured into a family trust is a voluntary act and not one that arises by operation of law." (Id. at p. 1571.)

Applying Kwok's reasoning to the present case, it makes no difference whether the conveyance was for financing purposes or that Smith never believed that that he had an interest in the property. The salient point here, as in Kwok, is that the Butlers voluntarily transferred their interest in the subject property to Smith.

In opposing Fidelity's motion for summary judgment, the Butlers also asserted that their conveyance to Smith did not terminate coverage under the policy because they retained an easement in the property conveyed. Specifically, they asserted that the property "contains a forty foot easement for the access of Butler to adjacent parcels" which were not part transferred to Smith. They further asserted that "[s]aid easement still exists. The transfer was subject to this easement and was and is a retained interest in the Property by Butler." In support of their assertion, the Butlers relied on Smith's declaration, "Parcel Map No. 7-05-84," and a letter from the Lassen County Planning Department regarding "Parcel Map Application #7-05-84, Butler." Smith's declaration makes no mention of an easement, and the trial court overruled in part and sustained in part Fidelity's objections to the parcel map and the letter, ruling that such documents would be "received by the Court solely as evidence of their existence and not for the truth of their contents." The Butlers do not challenge the court's evidentiary ruling on appeal; thus, the parcel map and letter are not relevant, and we are precluded from considering them. (See Leber v. DKD of Davis, Inc. (2015) 237 Cal.App.4th 402, 405, fn. 2.)

Assuming for argument's sake that the Butlers' appeal does include a challenge to the trial court's evidentiary ruling, we find the trial court acted within its discretion in refusing to consider the documents' contents. Neither document was properly authenticated. "Authentication of a writing is required before it may be received in evidence." (Evid. Code, § 1401, subd. (a).) "Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law." (Evid. Code, § 1400.) "Unless the opposing party admits the genuineness of the document, the proponent of the evidence must present declarations or other 'evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.' " (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855, quoting Evid. Code, § 1400.) Fidelity did not admit the genuineness of the documents, and the Butlers failed to offer any declarations or other evidence that would support a finding that the documents are what the Butlers claim them to be.

Even if the documents had been properly authenticated, the documents alone do not create a triable issue of material fact as to whether the Butlers retained an interest in the land. The Butlers failed to offer any expert testimony to explain the parcel map. Where the fact sought to be proved is not one within the general knowledge of laymen, expert testimony is required. (Lara v. Nevitt (2004) 123 Cal.App.4th 454, 459.) We have reviewed the parcel map and find that the document does not speak for itself. As Fidelity points out, the map does not show the dominant or servient tenements benefitted and burdened by the easement. Thus, even if the parcel map were properly before us, which it is not, we are unable to determine whether it says what the Butlers say it says.

Finally, the letter from the Lassen County Planning Department to the Butlers, dated August 3, 1984, states that "the tentative parcel map submitted for [Parcel Map Application #7-05-84] was approved subject to the following conditions: [¶] . . . [¶] 3. Easement be created and shown on final map for potential future double access for a common approach." Again, even assuming for argument's sake that the letter was properly before us, which it is not, it is insufficient to create a triable issue of material fact as to whether the Butlers retained an interest in the disputed property after it was conveyed. This is true whether it is considered alone or in conjunction with the parcel map because additional information is necessary to explain the meaning and legal consequences of these documents.

On appeal, the Butlers argue that they "never 'voluntarily divested' themselves of an interest in their property" and assert that "this issue was resolved in May 2010 with Fidelity's Claims Counsel." In support of their assertion, they cite to a May 28, 2010, letter from Fidelity to the Butlers advising the Butlers that Fidelity "will accept the tender of defense on behalf of William and Peggy Butler in the [Souliere] litigation, subject to a reservation of rights as set forth below." The reservation of rights states that "to the extent that the Policy's coverage was not terminated by conveyances after the Date of the Policy, the cause of action would trigger coverage under the . . . Policy." The reservation of rights further provides that "[i]f at some point in the future [Fidelity] concludes that it has no actual or potential obligation under the Policy to indemnify or provide legal representation to William and/or Peggy Butler in this matter, [Fidelity] expressly reserves the right to decide, after giving reasonable notice, to discontinue indemnification and/or discontinue providing William and/or Peggy Butler with a defense of the above-referenced litigation. The Company also reserves the right to seek a judicial declaration determining that it has no obligation to indemnify or provide a defense of the above-referenced litigation." (Italics added.) Even assuming for argument's sake that the contents of the letter are properly before us, Fidelity's acknowledgement that there existed a potential for coverage under the policy in May 2010 does not preclude a later determination that there is no actual or potential coverage under the policy, and the Butlers were so advised. In short, Fidelity's letter does not create a triable issue of material fact as to whether the Butlers' conveyance of the disputed property to Smith terminated coverage under the policy as to the portion conveyed.

To the extent the Butlers claim that Fidelity subsequently tendered defense to the Butlers in the Souliere litigation without a reservation of rights, the claim is not supported in the record. In the February 23, 2012, letter relied on by the Butlers, Fidelity offered "to appoint counsel on the Butlers' behalf to handle the issues regarding the deed of trust recently executed by Lisa Souliere." While related, that matter is separate from the Souliere lawsuit, as explained by Fidelity in the letter: "We also remind you that Fidelity's offer of appointed counsel continues to remain open for the broader Lisa Souliere case ('Claim Number 353768') as outlined in Raymond Abrams' May 28, 2010 letter . . . ." The May 28, 2010, letter is discussed above and expressly states that Fidelity's offer of appointed counsel is subject to a reservation of rights. --------

For all the foregoing reasons, we conclude that summary judgment was properly entered in Fidelity's favor. In the absence of coverage, Fidelity had no duty to defend or indemnify the Butlers. Our decision is limited to the issue of whether Fidelity had a duty to defend and/or indemnify the Butlers in connection with the Souliere lawsuit. Whether Fidelity otherwise "violated insurance law" in its handling of the Butlers' claim is not before us.

II

None of the Procedural Challenges Raised by the Butlers Merits Reversal

The Butlers raise a host of procedural challenges, none of which warrant reversal. Specifically, the Butlers contend: (1) Judge Mason's ruling on the motion for summary judgment was void because it was entered after the hearing on the motion, which gave rise to the Butlers' disqualification motion (even though Judge Mason issued the ruling before the Butlers moved to disqualify him); (2) the trial court granted summary judgment based on issues presented for the first time at the summary judgment hearing; (3) the judgment executed by Judge Holmer was void because it was rendered on a ruling (even though the ruling clearly states that "judgment is for Fidelity on its motion for Summary Judgment," and Judge Holmer found the "ruling" issued by Judge Mason to be an order); and (4) Judge Mason failed to provide a statement of decision (even though the trial court is not required to issue a statement of decision on a motion for summary judgment (Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 678; see also Code of Civ. Proc., § 632).

We need not consider the merits, if any, of these contentions because we have independently examined the record and concluded that summary judgment was properly granted on grounds asserted in Fidelity's complaint and in its summary judgment motion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 [" 'Regardless of how the trial court reached its decision, it falls to us to examine the record de novo and independently determine whether that decision is correct' "].) Because we give no deference to the trial court's ruling, we need not concern ourselves, for purposes of this appeal, with the manner in which the ruling was entered or the ground upon which it was based. "The sole question properly before us on review of the summary judgment is whether the judge reached the right result . . . whatever path he might have taken to get there, and we decide that question independently of the trial court." (Ibid., italics omitted, fn. omitted.)

Based on our independent review of the record, we conclude that the trial court properly granted summary judgment in Fidelity's favor. Accordingly, we need not reach any of the Butlers' procedural challenges.

DISPOSITION

The judgment is affirmed. Fidelity shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/_________


Blease, Acting P. J. We concur:

/s/_________


Mauro, J.

/s/_________


Duarte, J.