Hoffman-Haag v. Transamerica Ins. Co., HOFFMAN-HAAG

CourtCalifornia Court of Appeals
Writing for the CourtBENKE; KREMER, P.J., and TODD
Citation1 Cal.App.4th 10,1 Cal.Rptr.2d 805
PartiesBarbaraet al., Plaintiffs and Appellants, v. TRANSAMERICA INSURANCE COMPANY, Defendant and Respondent.
Decision Date21 November 1991
Docket NumberNo. D012785,HOFFMAN-HAAG

Page 805

1 Cal.Rptr.2d 805
1 Cal.App.4th 10
Barbara HOFFMAN-HAAG et al., Plaintiffs and Appellants,
v.
TRANSAMERICA INSURANCE COMPANY, Defendant and Respondent.
No. D012785.
Court of Appeal, Fourth District, Division 1, California.
Nov. 21, 1991.

Page 806

[1 Cal.App.4th 12] McInnis, Fitzgerald, Rees, Sharkey & McIntyre, Timothy S. Thomas and Anna A. Frustaglio, San Diego, for plaintiffs and appellants.

Neil, Dymott, Perkins, Brown & Frank and James A. McFall, San Diego, for defendant and respondent.

BENKE, Associate Justice.

In this case appellants Barbara Hoffman-Haag and John Haag argue that neither a motion for new trial under CODE OF CIVIL PROCEDURE SECTION 6571 nor a motion to vacate under section 663 may be based on a previously unasserted rule of law. In the particular circumstances presented here we reject their contention and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The facts which give rise to the Haags' appeal are tragic. According to the stipulation of facts the parties submitted to the trial court, on February 10, 1989, the Haags left their infant daughter Gwenevier in the care of defendant Maria Dagraca. At that time the Haags were paying Dagraca $70 a week for Gwenevier's care. In addition to Gwenevier, Dagraca was responsible for the care of her own four children and one additional unrelated child for which she was receiving an additional $75 a week.

While in Dagraca's care on February 10, Gwenevier fell down a set of stairs and was severely injured. On February 11, 1989, Gwenevier died as a result of those injures.

The Haags brought an action against Dagraca and her husband John Dagraca. The Dagracas' homeowners insurer, defendant Transamerica Insurance Company (Transamerica), denied coverage of the Haags' claim. The issue of coverage was tried by the court without a jury. In addition to the stipulated facts, both the Haags and the Dagracas testified at the trial.

Relying on the holding in Crane v. State Farm Fire & Cas. Co. (1971) 5 Cal.3d 112, 117, 95 Cal.Rptr. 513, 485 P.2d 1129, the trial court found that Dagraca was not engaged in a business within the meaning of the "business pursuits" exclusion in Transamerica's policy. Rather, the trial court found Dagraca's child care services were " 'ordinarily [1 Cal.App.4th 13] incident to nonbusiness pursuits.' " The trial court entered judgment against Transamerica on March 22, 1990.

On April 6, 1990, Transamerica filed a notice of intent to move for new trial and to vacate the judgment. On April 16, 1990, Transamerica filed its motion. In its motion Transamerica relied, for the first time, on Insurance Code section 676.1, subdivision (c), which was enacted in 1985, and states: "It shall be against public policy for a residential property insurance policy to provide liability coverage for losses arising out of, or in connection with, the operation of a family day care home. This coverage shall only be provided by a separate endorsement or insurance policy for which premiums have been assessed and collected." 2 (Italics added.)

The term "family day care home" is defined in Health and Safety Code section 1596.78 as: "a home which regularly provides care, protection, and supervision of

Page 807

12 or fewer children, in the provider's own home, for periods of less than 24 hours per day, while the parents or guardians are away, and includes the following: [p] ... (b) 'Small family day care home' which means a home which provides family day care to six or fewer children, including children under the age of 10 years who reside at the home, as defined in the regulations." 3

Transamerica argued that Insurance Code section 676.1 effectively overruled Crane v. State Farm Fire & Cas. Co., supra, 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129. On May 7, 1990, the trial court vacated its earlier judgment. The Haags filed a timely notice of appeal.

DISCUSSION

On appeal the Haags contend Transamerica's tardy reliance on Insurance Code section 676.1 did not permit the trial court to grant a new [1 Cal.App.4th 14] trial or vacate its prior judgment. Relying on Bertch v. Social Welfare Dept. (1957) 149 Cal.App.2d 517, 519, 308 P.2d 397 (Bertch ); Slemons v. Paterson (1939) 14 Cal.2d 612, 615, 96 P.2d 125 (Slemons ), they argue a party's mistake of law will not support an order granting a new trial or an order vacating a judgment.

The cases cited by the Haags do not support the broad proposition they assert. In Bertch, on a motion of...

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56 practice notes
  • Nunn v. JPMorgan Chase Bank, N.A., A160286, A160794
    • United States
    • California Court of Appeals
    • May 18, 2021
    ...they were not restricted to legal arguments that they had made prior to the judgment. ( Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15, 1 Cal.Rptr.2d 805.) Nevertheless, the court denied the motion as moot because the Nunns’ motion to correct the minutes of the May 2019 h......
  • Henley v. Philip Morris Inc., No. A086991.
    • United States
    • California Court of Appeals
    • September 25, 2003
    ...as if raised before the verdict"]; id. at p. 1654, 57 Cal.Rptr.2d 525 [distinguishing Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 1 Cal.Rptr.2d 805, as involving "a question of law on undisputed facts"].) Here the chief relevance of the motion is to show th......
  • Henley v. Philip Morris Inc., No. A086991.
    • United States
    • California Court of Appeals
    • January 20, 2004
    ...as if raised before the verdict"]; id. at p. 1654, 57 Cal.Rptr.2d 525 [distinguishing Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 1 Cal.Rptr.2d 805, as involving "a question of law on undisputed facts"].) Here the chief relevance of the motion is to show th......
  • Stevens v. Owens-Corning Fiberglas Corp., OWENS-CORNING
    • United States
    • California Court of Appeals
    • October 11, 1996
    ...time by way of posttrial motion and will be treated as if raised before the verdict, citing Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15, 1 Cal.Rptr.2d 805. Nothing in Hoffman-Haag supports the statement that legal arguments first asserted after trial are treated as if ......
  • Request a trial to view additional results
56 cases
  • Nunn v. JPMorgan Chase Bank, N.A., A160286, A160794
    • United States
    • California Court of Appeals
    • May 18, 2021
    ...they were not restricted to legal arguments that they had made prior to the judgment. ( Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15, 1 Cal.Rptr.2d 805.) Nevertheless, the court denied the motion as moot because the Nunns’ motion to correct the minutes of the May 2019 h......
  • Henley v. Philip Morris Inc., No. A086991.
    • United States
    • California Court of Appeals
    • September 25, 2003
    ...as if raised before the verdict"]; id. at p. 1654, 57 Cal.Rptr.2d 525 [distinguishing Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 1 Cal.Rptr.2d 805, as involving "a question of law on undisputed facts"].) Here the chief relevance of the motion is to show th......
  • Henley v. Philip Morris Inc., No. A086991.
    • United States
    • California Court of Appeals
    • January 20, 2004
    ...as if raised before the verdict"]; id. at p. 1654, 57 Cal.Rptr.2d 525 [distinguishing Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 1 Cal.Rptr.2d 805, as involving "a question of law on undisputed facts"].) Here the chief relevance of the motion is to show th......
  • Stevens v. Owens-Corning Fiberglas Corp., OWENS-CORNING
    • United States
    • California Court of Appeals
    • October 11, 1996
    ...time by way of posttrial motion and will be treated as if raised before the verdict, citing Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15, 1 Cal.Rptr.2d 805. Nothing in Hoffman-Haag supports the statement that legal arguments first asserted after trial are treated as if ......
  • Request a trial to view additional results

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