Filed 1/17/01; partial pub. order 2/9/01 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

An insured purchased a homeowners policy containing an exclusion for bodily injury which is "a foreseeable result of an intentional or criminal act of any insured . . . ." During a disturbance at a party, the insured, holding a gun, chased a group of youths from his back yard and fired the gun to frighten them. The bullet struck James Glenn as he fled. The insured pleaded guilty to felony willful discharge of a firearm.

Granting a motion for summary judgment, the trial court held the criminal acts exclusion barred coverage on these facts. We agree and affirm a declaratory judgment in favor of the insurer.

At all relevant times, Jeffrey Scott Stephens held a homeowners insurance policy with Century-National Insurance Company (Century). The policy contains an exclusion for bodily injury "which is a foreseeable result of an intentional or criminal act of any insured or which is expected or intended by any insured, including bodily injury . . . which is more extensive than or of a different nature from that expected or intended by the insured."

The dispute arises from a birthday party held at Stephens’s house for his 19-year-old son. During the party, alcohol was consumed by some of the underage attendees. A fight broke out in the back yard. Stephens came outside to break up the fight, and became embroiled in the altercation. Stephens then pulled out a gun and began chasing the youths from his property. Someone yelled that Stephens had a gun, and the crowd began to run away. Stephens fired the gun and the bullet struck James Glenn, who was shot in the back of the right leg as he fled. Stephens later told an investigating officer he intentionally fired the gun in order to "‘scare’ the kids off [his property]."

As a result of the shooting incident, Stephens pleaded no contest to willful discharge of a firearm (Pen. Code, § 246.3), a felony.

Glenn filed suit against Stephens for the injuries he sustained as a result of the shooting. Stephens tendered defense of the suit to Century, which accepted the tender. Glenn, Stephens, and Century thereafter entered into a three-way settlement. Under the terms of the settlement agreement Glenn dismissed his suit against Stephens and released all claims against him; Century paid Glenn $20,000 and his brother $1,000; the remaining $79,000 of the $100,000 policy limit was paid in trust to Century’s attorney. Century and Glenn agreed the trust money would be paid to whomever prevailed in a declaratory relief action which Century would file for the purpose of obtaining a judicial determination of whether the shooting was covered by Stephens’s homeowners policy. Century stipulated, for purposes of the declaratory relief action only, that Glenn’s damages exceeded the policy limits.

In January 1997, Century commenced this action for declaratory relief naming both Stephens and Glenn as defendants. Glenn answered and prayed for a declaration of policy coverage in his favor. Century ultimately dismissed Stephens from the action.

Century moved for summary judgment, contending there was no insurance coverage for the incident as a matter of law, and that Century was entitled to a declaratory judgment in its favor.  Glenn opposed the motion and brought a counter-motion for judgment on the pleadings and to dismiss.

The trial court entered judgment in Century’s favor. The court ruled the "criminal acts" exclusion operated to bar insurance coverage for the incident. Glenn’s counter-motion, treated by the court as a motion for summary judgment, was denied. Glenn’s subsequent motion for new trial was also denied.

Glenn first contends we should reverse the judgment because the moving papers were not timely served and the motion was heard less than 30 days before trial in contravention of Code of Civil Procedure section 437c, subdivision (a). However, Glenn did not raise these objections either in writing or orally at the time of the hearing. Instead, he appeared and contested the motion on the merits. Under established principles of appellate review, these procedural objections have been waived. (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 ["It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion"]; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 399, pp. 451-452; Ray Wilson Co. v. Anaheim Memorial Hospital Assn. (1985) 166 Cal.App.3d 1081, 1089, fn. 4.)

Glenn claims there was no admissible evidence that the insurance policy attached to the moving papers was the same one sold to Stephens. Glenn points out (1) the declaration of Century’s counsel incorporating a "true and correct" copy of the insurance policy was defective because the declarations page was not attached; (2) there was no reference to the policy in Century’s separate statement of facts; and (3) the policy was hearsay without a declaration from Century’s custodian of records identifying the policy and its mode of preparation.

None of these objections was raised in Glenn’s opposition papers or at the hearing. Code of Civil Procedure section 437c, subdivision (d) states that any objection based on the sufficiency of the evidence or admissibility of evidence "shall be made at the hearing [on summary judgment] or shall be deemed waived." (Italics added, see Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2000) ¶¶ 10:210 to 10:210a, p. 10-77.) Glenn’s failure to lodge and receive a ruling on his evidentiary objections in the summary judgment proceeding precludes him from raising them for the first time on appeal. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.) We therefore treat the evidence as if it were admitted without objection. (Ibid.)

Glenn argues the defense declarations by Police Officer J. Morace and insurance investigator Ken Changus reciting Stephens’s statements were hearsay because they contained out-of-court statements by a nonparty, and Century made no showing Stephens was unavailable as a witness.

In support of its motion, Century proferred declarations by Morace and Changus reciting statements Stephens made following the shooting of Glenn. In his opposition papers, Glenn raised a hearsay objection only to Stephens’s statement that he intended to fire his gun, maintaining there was a triable issue over whether the weapon discharged accidentally. The objection was overruled by the trial court.

Since Glenn’s objection was limited to Stephens’s statement that he intended to fire the gun, Glenn waived any objection to the remaining portions of the affidavits. (Code Civ. Proc., § 437c, subds. (b) & (d).)

As to Stephens’s statement that he intentionally fired his weapon, the hearsay objection was properly overruled. Evidence Code section 1250 provides that a statement of a declarant’s state of mind is not made inadmissible by the hearsay rule when offered to prove the declarant’s state of mind or physical sensation at the time, when such mental state is an issue in the action. (See Smith v. Slifer (1969) 1 Cal.App.3d 748, 752.)

Whether Stephens intended to fire his gun was highly relevant to the question whether the act fell within the policy’s exclusion for criminal or intentional acts of the insured. The statement was thus admissible under Evidence Code section 1250.

Glenn argues that summary judgment should have been denied because he had no opportunity to depose Stephens or cross-examine declarants Morace and Changus. We are unpersuaded. A motion for summary judgment "shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations . . . ." (Code Civ. Proc., § 437c, subd. (e).) Moreover, Glenn waived his right to complain that the trial deprived him of the right to take the depositions of witnesses, since he failed to request a continuance of the hearing on the summary judgment motion for the purpose of conducting additional discovery. (Code Civ. Proc., § 437c, subd. (h); Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1224.)

We now turn to whether coverage for the shooting of Glenn was barred by the criminal acts exclusion of Century’s policy. A motion for summary judgment will be granted if the moving papers establish that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72.)

"Insurance policies are contracts to which ordinary rules of contractual interpretation apply. [Citations.] The goal of contract interpretation is to give effect to the mutual intent of the parties. (Civ. Code, § 1636.) If contract language is clear and explicit, we ascertain this intent from the written provisions and go no further. [Citation.] . . . [¶] . . . [¶] Where . . . there is no conflicting extrinsic evidence, the interpretation of an insurance policy is a legal issue to be decided by the court. [Citations.]" (Maryland Casualty Co. v. Nationwide Ins. Co. (1998) 65 Cal.App.4th 21, 28-29, some internal quotations and citations omitted.)

"In order to conclude that an ambiguity exists which will be construed against an insurer, it is necessary first to determine whether the coverage under the policy, which would result from such a construction, is consistent with the insured's objectively reasonable expectations. [Citation.] In order to do this, the disputed policy language must be examined in context with regard to its intended function in the policy. [Citation.] This requires a consideration of the policy as a whole, the circumstances of the case in which the claim arises and 'common sense.’ [Citation.]" (Nissel v. Certain Underwriters at Lloyd's of London (1998) 62 Cal.App.4th 1103, 1111-1112, italics original.)

The operative facts for purposes of Century’s summary judgment motion are: (1) Stephens chased a group of youths from his back yard holding a gun; (2) Glenn was one of those fleeing from Stephens; (3) Stephens fired his gun intentionally for the purpose of frightening the youths; (4) Glenn was struck by the bullet fired by Stephens; and (5) Stephens pleaded guilty to violating section 246.3, a felony.

The subject exclusion bars coverage for bodily injury which is the "foreseeable result" of a "criminal act" of the insured. In 20th Century Ins. Co. v. Stewart (1998) 63 Cal.App.4th 1333, 1338, the Court of Appeal held that a homeowners policy exclusion for "[b]odily injury . . . which is a foreseeable result of an intentional or criminal act of any insured or which is in fact intended by any insured" was unambiguous. (Id. at p. 1336.) There is no material difference between that clause and the one at bar. Moreover, Stephens does not assert on appeal that the clause was ambiguous.

We thus turn to the question of whether, on the undisputed facts in this case, the bodily injury suffered by Glenn was a "foreseeable result" of a criminal act by Stephens. The answer to this question must be affirmative.

Stephens’s nolo contendere plea has the same effect as a guilty plea for purposes of this action. (Interinsurance Exchange v. Flores (1996) 45 Cal.App.4th 661, 673.) Although it does not have collateral estoppel effect, Stephens’s no contest plea and conviction constituted admissible evidence that he committed the crime as described in the statute (ibid.), i.e., that he "willfully" fired his weapon in a manner which could "result in injury or death." (§ 246.3.) In using the term "willfully" the Legislature interposed the requirement that the defendant fire his weapon "purposefully or intentionally" (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1439). Such a requirement is patently inconsistent with the notion that the weapon was fired inadvertently or by accident.

Stephens could not reasonably expect insurance coverage for committing felony willful discharge of a firearm under the facts shown in the face of an exclusion for "criminal acts" which have the "foreseeable result" of causing bodily injury. Serious injury or death to an innocent bystander from the reckless discharge of a firearm is precisely the type of harm which the Legislature sought to deter in enacting section 246.3. (See People v. Alonzo (1993) 13 Cal.App.4th 535, 539-540.) This was made abundantly clear in People v. Clem (2000) 78 Cal.App.4th 346, review denied June 14, 2000, where the appellate court held that a violation of section 246.3 "is an offense ‘inherently dangerous to human life’ which will support a conviction of second degree murder." (78 Cal.App.4th at p. 348.) In so holding, the court declared: "[S]ection 246.3 presupposes that there are people in harm's way. Since the offense involves gross negligence ‘"which could result in injury or death to a person,"’ it must appear that the defendant's act ‘actually had the potential for culminating in personal injury or death.’ [Citation.]" (Id. at pp. 351-352, italics added.)

Glenn introduced no evidence contradicting Stephens’s admission that he intentionally fired his weapon at a crowd of youths who were running away. Nor was there any viable claim of self-defense or other justification, as evidenced by Stephens’s no contest plea to the crime. As a matter of law, the injury to Glenn was a direct and "foreseeable result" of the criminal act by Stephens, which is barred by the criminal acts exclusion.

Glenn does not seriously challenge the trial court’s finding that Stephens’s act fell within the criminal acts exclusion of Century’s policy. Instead, he argues that enforcement of the exclusion under the facts of this case would violate the express language of Insurance Code section 533, which provides "An insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured's agents or others." (Italics added.) The California Supreme Court has stated that "‘It is settled that "wilful act" in section 533 means "something more than the mere intentional doing of an act constituting [ordinary] negligence."’ (Fn. omitted.) (Fire Ins. Exchange v. Abbott (1988) 204 Cal.App.3d 1012, 1019 [251 Cal.Rptr. 620] [bracketed material in original quotation].) A contrary rule would allow an insurer to deny coverage for a negligent act. That result is specifically prohibited by section 533." (J. C. Penney Casualty Ins. Co. v. M. K. (1991) 52 Cal.3d 1009, 1021, italics added.)

Glenn contends that although the trial court found the conduct of Stephens to be "criminal" it did not find it to be "intentional" or "willful." He thus reasons that it is possible Stephens was convicted of nothing more than "negligent discharge of a firearm" which is a negligent act, even if it constituted a criminal offense. Because "negligent acts do not avoid insurance policies," Glenn concludes there remains a triable issue as to whether coverage existed for an act of simple negligence, against which insurers may not refuse to insure.

Glenn’s reasoning is faulty. Even assuming that an insurer may not, consistent with Insurance Code section 533, exclude coverage for simple negligence in the civil sense of an intentional act performed without due caution and circumspection, Stephens’s conduct went far beyond that. Stephens was convicted of willfully discharging a firearm "in a grossly negligent manner which could result in injury or death to a person . . . " (§ 246.3, italics added), an act of criminal negligence. (See People v. Penny (1955) 44 Cal.2d 861, 879.)

As the California Supreme Court noted in People v. Sargent (1999) 19 Cal.4th 1206, criminal negligence is "‘"aggravated, culpable, gross, or reckless, that is, . . . such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . ."’ [Citation.]" (Id. at p. 1215, quoting Penny, supra, 44 Cal.2d at p. 879, italics added.)

"[I]nsurers have the right to limit policy coverage in plain and understandable language and can limit the character and extent of the risk assumed." (Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 749.) We have no problem concluding that insurers may create an exclusion for acts of criminal negligence such as the one committed by Stephens, which have the foreseeable consequence of causing bodily injury. Application of the exclusion under the facts of this case did not contravene either the language of or public policy behind Insurance Code section 533.

Glenn argues that Century’s dismissal of Stephens from the lawsuit requires entry of a declaratory judgment in his favor on the insurance coverage issue. He suggests that without Stephens there is no longer a justiciable controversy because Glenn is not a party to the insurance contract.

The contention fails. First, the argument is constructed upon Glenn’s own ipse dixit pronouncements, without supporting authority or proper legal analysis. An appellate court may disregard arguments not adequately briefed in accordance with the rules of court. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3; see also Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710.)

In any event, Glenn is estopped to raise the absence of Stephens as a defense to the action. Glenn entered into a written settlement agreement stipulating that a declaratory relief action would be filed by Century to resolve the coverage dispute. In Stephens’s answer to the complaint, he prayed for a declaratory judgment by the court that there was insurance coverage for the shooting. Glenn is equitably estopped from claiming there is no justiciable controversy after having expressly agreed to submit the coverage question for judicial determination. (Cf. Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481; Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1271.)

The judgment is affirmed.

CALLAHAN , J.

We concur:

BLEASE , Acting P.J.

SIMS , J.

Filed 2/9/01

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

APPEAL from a judgment of the Superior Court of Sacramento County, Joe S. Gray, Judge. Affirmed.

Thomas M. Witte for Defendant and Appellant.

Thayer, Harvey, Hodder & Gregerson, Dale H. Thayer and Robert C. Martin for Plaintiff and Respondent.

THE COURT:

The opinion in the above entitled matter filed January 17, 2001, was not certified for publication in the Official Reports. For good cause it now appears the opinion should be published and accordingly, it is ordered that the opinion be published with the exception of parts I, II, III, IV, VI, and VII, pursuant to California Rules of Court, rules 976(b) and 976.1.

FOR THE COURT:

SIMS , Acting P.J.

CALLAHAN , J.