Filed 6/1/06; pub. order 6/26/06 (see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
Plaintiff and Appellant,
(Super. Ct. No. GIC829749)
ALLSTATE INSURANCE COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Judith F.
Hayes, Judge. Reversed with directions.
This is an appeal from a judgment confirming an insurance appraisal award. It is
settled that "appraisers have the power only to determine a specific question of fact,
'namely, the actual cash value of the insured [item].' " (Safeco Ins. Co. v. Sharma (1984)
160 Cal.App.3d 1060, 1063 (Sharma); Ins. Code,1 § 2071.) Plaintiff Jeff Kacha contends
the award here exceeds the appraisers' jurisdiction as it includes determinations of
whether certain damages were covered by his insurer, defendant Allstate Insurance
Company (Allstate), and the trial court erred by finding he waived the jurisdictional rule
Statutory references are to the Insurance Code except when otherwise specified.
of Sharma and section 2071. Kacha also contends the court erred by finding he is
precluded from challenging the appraisal award because he took possession of, but did
not negotiate, checks Allstate provided him to cover the award.
We agree with Kacha on both points. We reverse the judgment and direct the trial
court on remand to enter an order vacating the appraisal award.
FACTUAL AND PROCEDURAL BACKGROUND
Kacha and his wife Tania Kacha's2 custom home in the Scripps Ranch area of San
Diego was completed in July 2002. In October 2003 the home and personal property
were damaged by heat and smoke in a wildfire designated the Cedar Fire. Homes on
three sides of Kacha's property burned to the ground.
Allstate provided Kacha's homeowners insurance. Allstate valued the cost to clean
the home and contents at $25,799.77, and it paid that amount to Kacha. Kacha then
retained Kevin Dawson, of Professional Insurance Evaluations, a licensed public adjuster,
to assist him in the presentation of his claim. In December 2003 Kacha demanded an
appraisal, as provided by Allstate's policy if the parties could not agree on the amount of
In May 2004 Kacha submitted a sworn statement claiming $639,688.82 in covered
losses, supported by inventories Dawson prepared. The claim included the cleaning of
damaged property "when applicable" and "the repair or replacement of permanently
damaged property." The same month, Kacha petitioned the superior court to compel an
Tania Kacha is not a party to this action.
appraisal and appoint an umpire. Allstate opposed the petition on the ground of
prematurity, arguing an appraisal was inappropriate until and unless the extent of covered
loss was established, on which a value could be determined. Allstate advised the court
that under Sharma, supra, 160 Cal.App.3d 1060, "an appraisal panel is empowered to
determine the value of a loss and not coverage issues, such as the extent of the loss."
The court granted Kacha's motion to compel an appraisal and appointed the
Honorable Anthony Joseph, a retired superior court judge, as umpire. Each of the parties
was entitled to choose an arbitrator. Kacha chose Keith Charleston and Allstate chose
Louis Heilbron. Under the policy, if the parties' appraisers could not agree on valuation,
a written award agreed on by Judge Joseph and one of the appraisers would determine
In an August 2004 letter, Judge Joseph asked the parties to agree on "a draft form
for the award." The following month Judge Joseph renewed his request.
In late October 2004 Allstate provided Kacha's attorney, Peter Lawrence, and
Dawson with a draft form appraisal award. The form included several pages of damaged
items Kacha claimed were covered under the policy, such as kitchen cabinets and
flooring, garage cabinets and flooring, and carpet and interior walls. For each item, the
form provided: "Damage, if any, to the [e.g., kitchen cabinets] attributable to the fire of
October 26, 2003." The form included a line for the entry of a dollar amount for each
The appraisal was held at Kacha's home, on November 15 and 16, 2004, and
January 4, 2005. Allstate presented an appraisal brief that stated, "[T]his is not your
standard appraisal where value of the loss is the only issue; there are still many issues
regarding the existence and scope of damage that have not been resolved between the
parties. This is due in large part to the insureds' prematurely demanding appraisal
without coming to an agreement upon a scope of loss or even providing Allstate with the
specifics of their claim." The brief asserted that damage to numerous items was not
caused by smoke or heat from the Cedar Fire.
On November 15, Allstate provided the panel members with its draft appraisal
award form. The parties had not yet agreed to the form, however, and Judge Joseph
instructed them to do so before the conclusion of the hearing.
On November 16, the parties stipulated in writing that the appraisal panel "should
utilize replacement cost value less depreciation to determine the actual cash value of the
loss." The parties also stipulated to the amount of loss for certain items, including
interior light fixtures and cleaning of windows, HVAC ducts and "[o]zone." The same
date, Kacha increased the value of his loss to $858,393.87, and that prompted Judge
Joseph to schedule the third hearing day.
On November 30, Dawson sent Allstate's attorney, Dale Amato, via e-mail, a
proposed revised form for the appraisal award. Dawson reorganized the form by adding
the italicized language to the following introductory paragraph that appeared in Amato's
version: "We, the undersigned, . . . in accordance with our appointment as Appraisers
and/or umpire, without bias or personal interest, have observed the subject property and
have examined the evidence submitted to us and, in accordance with our appointments,
have made the following determination and award of damage, if any, to the structure of
the insured's residence attributable to the fire of October 26, 2003." (Italics added.) The
form then listed the claimed items, without repeating the italicized language for each
item, as Amato's version had, and provided space for an award for each item.
In a December 11 e-mail, Amato sent Dawson minor amendments to the appraisal
award form, including the deletion of the words "structure of the" in the italicized
sentence in the preceding paragraph, and asked Dawson to let him know if they were
acceptable. In a December 22 e-mail, Dawson responded, "I reviewed the changes, all is
fine." Accordingly, the introductory paragraph of the appraisal award form stated the
panel members "have made the following determination and award of damage, if any, to
the insured's residence attributable to the fire of October 26, 2003."
Allstate submitted a supplemental appraisal brief, again claiming certain damages
were unrelated to the Cedar Fire. For one example, Allstate asserted that discoloration of
a door "could have been caused by sunlight, weather and/or a breakdown of the factory
applied finish." Allstate urged the appraisal panel to award Kacha nothing for items that
were damaged but, according to Allstate, not in the Cedar Fire.
In a reply appraisal brief dated December 29, Dawson, on behalf of Kacha,
objected that there "cannot be a determination of coverage or cause of loss by this
[p]anel." Dawson urged the panel "to establish a value based upon the damage to the
premises not based upon arguments by Allstate regarding blame, responsibility and
speculative theories on the cause of loss." In closing, the brief stated, "We implore you
to ignore the theories of cause of loss, as those issues are irrelevant to the appraisal
On December 30, Amato submitted to the panel the appraisal award form he and
Dawson negotiated. In an accompanying letter to the panel, Amato stated, "Please note
that the language of the appraisal award specifically authorizes the appraisal panel to
determine if there is any damage to the Kacha home [as] a result of the fire of October
26, 2003." Amato advised, "It is also Allstate's position that the strictures of [Sharma,
supra,] 160 Cal.App.3d 1060 . . . are not applicable to the instant appraisal hearing."
(Italics added.) Amato faxed a copy of the letter to Dawson.
Dawson immediately wrote to Amato that "[w]e are concerned about your
continued communication with the [a]ppraisal [p]anel outside of the agreed briefing
schedule," and "[i]t is time to allow the [p]anel to consider the evidence, establish an
[a]ward according to the claims and to submit that [a]ward to the parties for payment."
The letter also stated, "If you have any legal arguments that you would like to make we
invite you to return to the San Diego Superior Court after the [a]ward is rendered.
Thereafter, [the court] will surely hear your arguments."
Several weeks after the last day of the hearing, January 4, 2005, the panel
delivered an appraisal award for $163,792 in replacement cost value and $155,993 in
actual cash value. It was signed by Judge Joseph and Heilbron, but not by Charleston.
The award included amounts of zero for numerous items, such as marble and stone work
in a bathroom and a shower, an interior brass and stainless steel banister, the front entry
door, baseboards, concrete pool and decking, block fencing, a retaining wall cap, the
driveway and entry walk, speakers, amplifiers and video games. Allstate sent Kacha two
checks totaling $138,010.07, representing the $163,792 sum, less the amount it already
paid on the claim. Kacha, however, did not endorse or negotiate the checks.
Kacha applied to the appraisal panel to correct the award, arguing the panel
exceeded its authority by making coverage determinations reserved to Allstate. The
petition also stated, "We informed the [p]anel that we did not give you the authority to
determine or decide if a loss occurred or if the loss claimed caused the damage."
Allstate opposed the application, and Judge Joseph and Heilbron issued an order
denying it. The order stated "the form agreed upon by both sides for the 'appraisal award'
provided that the 'determinations and award of damages, if any' attributable to the fire
should be determined by the panel. It is clear the parties stipulated to determinations by
the panel of whether damage had occurred."
Kacha then filed a petition in superior court to vacate the appraisal award. In
support, Dawson submitted declarations that stated at the last hearing day on January 4 he
immediately objected to the form of the appraisal award when Amato took the position it
allowed the appraisers to determine coverage issues. One of Dawson's declarations stated
he advised, "Our position is that the determination of damage [or coverage] was to be
made by the parties and evaluation of the damage was to be made by the appraisal
Lawrence, Kacha's attorney, also submitted a declaration. It stated that "[d]uring
discussions with the [p]anel and Allstate's counsel, we made it clear that we expected to
establish the value of the submitted loss. Allstate's attorney took the position that the
panel should determine the cause or causes of the damage to the Kacha's real and
personal property. We informed Allstate that their multiple theories of causation were
inappropriate and inadmissible evidence in an appraisal." The declaration also stated
"Dawson and I, never agreed that the panel could determine causation or damage to the
property. No agreement on the [p]anel's authority to determine damage ever occurred."
It also stated that during the hearing, whenever Allstate argued a lack of coverage he or
In opposition, Allstate argued that despite the declarations Kacha submitted, "the
drafting history of the appraisal award clearly evidences that the parties agreed to allow
the panel to determine if any items were actually damaged by the Cedar [F]ire." Amato
submitted a declaration that stated on January 4, the final day of the appraisal proceeding,
"[a]ny attempt by Kacha . . . to repudiate [the appraisal award form] was met with
resistance by panel members, all [of] whom indicated that based upon the form of the
award that was presented on the first day and how the evidence was being received, . . .
the panel was proceeding on the basis that they were to decide if any damage had
After a hearing, the court took the matter under submission. It later issued an
order denying Kacha's petition and confirming the appraisal award. The court found that
because of the language of the appraisal award form to which Dawson had agreed, the
rule of Sharma, supra, 160 Cal.App.3d 1060, was inapplicable and the appraisers were
authorized to determine coverage issues. Further, the court found Kacha "accepted and
retained" Allstate's checks, and by doing so waived his right to challenge the appraisal
award. On August 30, 2005, judgment was entered in conformance with the order.
Standard of Review
Appraisal hearings are a form of arbitration and are generally subject to the rules
governing arbitration. Judicial review of an arbitration, or appraisal award, is
circumscribed. (See Sy First Family Ltd. Partnership v. Cheung (1999) 70 Cal.App.4th
1334, 1345.) " 'Courts may not review either the merits of the controversy or the
sufficiency of the evidence supporting the award.' " (Ibid.) The court, however, shall
vacate an appraisal award under certain circumstances, including when the appraisers
"exceeded their powers and the award cannot be corrected without affecting the merits of
the decision upon the controversy submitted." (Code Civ. Proc., § 1286.2, subd. (a)(4).)
We review the trial court's ruling on a challenge to an appraisal award under a de
novo standard, drawing every reasonable inference to support the award. (Pierotti v.
Torian (2000) 81 Cal.App.4th 17, 24.) To the extent the court's ruling rests on issues of
disputed fact, however, we apply the substantial evidence test. (Malek v. Blue Cross of
California (2004) 121 Cal.App.4th 44, 57.) " '[I]f the word "substantial" means anything
at all, it clearly implies that such evidence must be of ponderable legal significance.
Obviously the word cannot be deemed synonymous with "any" evidence. It must be
reasonable in nature, credible, and of solid value; it must actually be "substantial" proof
of the essentials which the law requires in a particular case.' " (Beck Development Co. v.
Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204.)
No Waiver of Section 2071 or Sharma
We are persuaded by Kacha's contention the trial court erred by finding the form
of the appraisal award constituted a waiver of his rights under section 2071 and the rule
"Since its substance was first enacted in 1909, . . . section 2071 has directed that
the standard form for fire insurance policies include an appraisal provision to settle
disagreements concerning the amount of loss." (Gebers v. State Farm General Ins. Co.
(1995) 38 Cal.App.4th 1648, 1651, italics added.) The policy must provide for an
appraisal when "the insured and this company shall fail to agree as to the actual cash
value or the amount of loss." (§ 2071, subd. (a), italics added.) It must also state the
appraisers "shall . . . appraise the loss . . . and, failing to agree, shall submit their
differences, only, to the umpire. An award in writing, so itemized, of any two when filed
with this company shall determine the amount of actual cash value and loss." (Ibid.,
italics added.) The Allstate policy covering Kacha's property recites this language.
As our high court held in Jefferson Ins. Co. v. Superior Court (1970) 3 Cal.3d 398,
402 (Jefferson): "Although arbitrators are frequently, by the terms of the agreement
providing for arbitration, . . . given broad powers [citation], appraisers generally have
more limited powers. As stated in Hughes v. Potomac Ins. Co. [(1962)] 199 Cal.App.2d
239, 253 [(Hughes]): 'The function of appraisers is to determine the amount of damage
resulting to various items submitted for their consideration. It is certainly not their
function to resolve questions of coverage and interpret provisions of the policy.' " (Third
italics added; see also Figi v. New Hampshire Ins. Co. (1980) 108 Cal.App.3d 772, 777
[an appraiser "only evaluates the loss and does not consider questions of policy,
interpretation or scope of coverage"].)
The Sharma court repeated this rule, citing the language of section 2071 and the
Jefferson and Hughes opinions. (Sharma, supra, 160 Cal.App.3d at p. 1065.) The
Sharma court elaborated as follows: "In no authority is it suggested that an appraisal
panel is empowered to determine whether an insured lost what he [or she] claimed to
have lost or something different. [¶] When an insurer disputes an insured's description
. . . of the lost or destroyed property, it necessarily claims the insured misrepresented —
whether innocently or intentionally — the character of the loss in filing a proof of loss.
In turn, this claim opens the door to allegations of fraud. Were an insurer permitted to
include the former issue within the scope of an appraisal, a determination in the insurer's
favor would foreclose a court from determining one essential element of fraud in any
subsequent litigation. Certainly, an insurer is free to litigate whether the insured has
misrepresented what he [or she] lost; but it is beyond the scope of an appraisal." (Id. at
pp. 1065-1066.) When an appraisal panel exceeds its powers by deciding coverage
issues, and the award cannot be corrected without affecting the merits of the decision, the
decision must be vacated. (Id. at p. 1066.)3
Allstate attempts to distinguish the Sharma opinion on its facts. Although
different factually, the general rule of Sharma, Jefferson and Hughes is applicable here,
as well, of course, as section 2071.
A fire insurance policy must also provide: "No permission affecting this insurance
shall exist, or waiver of any provision be valid, unless granted herein or expressed in
writing added hereto. No provision, stipulation or forfeiture shall be held to be waived
by any requirement or proceeding on the part of this company relating to appraisal or to
any examination provided for herein." (§ 2071, subd. (a), italics added.) Although the
portions of the Allstate policy in the record do not include this waiver provision, we must
presume it contains this language, and in any event, Allstate is bound by the language.
"All fire policies on the subject matter in California shall be on the standard form, and,
except as provided by this article shall not contain additions thereto. No part of the
standard form shall be omitted therefrom," with an exception not relevant here. (§ 2070.)
"Our primary aim in construing any law is to determine the legislative intent.
[Citation.] In doing so we look first to the words of the statute, giving them their usual
and ordinary meaning. [Citations.]" (Committee of Seven Thousand v. Superior Court
(1988) 45 Cal.3d 491, 501.) Here, the supposed waiver of the appraisal panel's
circumscribed authority, appearing in the appraisal award form, does not comply with the
plain language of section 2071, subdivision (a). Accordingly, on this ground the court
erred by denying Kacha's petition to vacate the appraisal award.
Moreover, under common law, " ' "[w]aiver is the intentional relinquishment of a
known right after knowledge of the facts." [Citations.] The burden . . . is on the party
claiming a waiver of a right to prove it by clear and convincing evidence that does not
leave the matter to speculation, and "doubtful cases will be decided against a waiver"
[citation].' " (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 31.) "The waiver
may be either express, based on the words of the waiving party, or implied, based on
conduct indicating an intent to relinquish the right." (Ibid.) " ' "Waiver always rests
upon intent." ' " (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd.
(1994) 30 Cal.App.4th 54, 60.)
In our view, the introductory language of the appraisal award form is ambiguous
and does not, standing alone, establish a waiver of rights. Allstate asserts that the "if
any" phrase authorized the appraisers to decide whether actual damage to claimed items
was caused by the Cedar Fire. It appears just as reasonable, however, to interpret the "if
any" phrase to mean the appraisers could determine whether claimed items actually had
any damage, and if not, there would be no award for those items. A writing is ambiguous
if it is susceptible to more than one reasonable interpretation. (Winet v. Price (1992) 4
Cal.App.4th 1159, 1165, citing Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co.
(1968) 69 Cal.2d 33, 37.)
Kacha, however, does not argue ambiguity. Rather, he asserts that regardless of
the language of the appraisal award form, the evidence reasonably permits only one
finding, that he never intended any waiver of Sharma or section 2071. From our review
of the entire record, we agree with Kacha.
After the November 14 and 15, 2004 appraisal hearings, the parties had not agreed
on a form for the award. On December 22 Dawson and Amato agreed to the form. In a
declaration, Dawson stated his intention in modifying Amato's original draft was to
"delet[e] the specific reference to causation from each and every item to be appraised,"
and he never intended a waiver of Sharma.
On December 29, a week after Dawson supposedly waived Sharma on Kacha's
behalf, he submitted a brief to the appraisal panel in which he objected numerous times to
it deciding causation issues. On December 30, a Thursday, as soon as Dawson learned of
Allstate's interpretation of the form — that it constituted a waiver of Sharma — he
complained to Amato. Further, at the outset of the last day of the appraisal hearing,
January 4, 2005, Dawson objected and both he and Lawrence, Kacha's counsel, advised
the panel it lacked authority to determine coverage issues. Contrary to Allstate's
assertion, given the intervening New Year's holiday, Kacha acted in a timely manner.
This is not a case in which an insured acquiesced to a procedure and complained only
after receiving an unfavorable award. To the contrary, the undisputed competent
evidence shows Kacha consistently disputed the appraisers' authority to determine
coverage issues. Indeed, Amato's declaration conceded that on January 4, Kacha
objected to the appraisal panel determining coverage issues, but the objection "was met
with resistance by panel members."
A waiver may ordinarily be revoked absent a showing of prejudice. (See, e.g.,
Maddy v. Castle (1976) 58 Cal.App.3d 716, 722, disapproved on another ground in
Doers v. Golden Gate Bridge, Highway and Transportation District (1979) 23 Cal.3d
180, 188.) The appraisal award form contained no reference to Sharma or its precursors,
or to section 2071, but to any extent it could arguably be construed as a waiver of those
authorities, Kacha's position on December 29, 2004, in Dawson's brief to the appraisal
panel, and at the January 4, 2005 hearing, constituted a revocation. Further, Allstate did
not show it suffered any prejudice between December 22 and January 4.
The court's finding that Kacha waived the protection of Sharma and section 2071
is unsupported by substantial evidence. Accordingly, the court erred by denying his
motion to vacate the appraisal award as exceeding the panel's jurisdiction.4
Allstate contends there is no evidence the appraisal panel made any coverage
determinations, and thus there is no statutory ground for judicial review of the award.
Allstate asserts the panel awarded zero for numerous items Kacha claimed as covered
simply because it found those items had no damage, and not because it rejected coverage
for damaged items on causation grounds.
In rejecting Kacha's application to the appraisal panel to correct the award,
however, the panel relied solely on his supposed waiver of the protections of Sharma and
section 2071. Further, the panel awarded zero for items that had suffered damage from
some source, such as the composite decking. In its appraisal brief, Allstate argued that
photographs taken shortly after the Cedar Fire showed that neither the fire nor excessive
heat reached the composite decking, as "the vegetation around the decking was not
damaged by the fire. . . . [¶] According to [our consultant], the unevenness of the deck
Given our holding based on other evidence, we are not required to reach Kacha's
contention the trial court erred by disallowing the declaration of Charleston, the appraiser
he designated, under Evidence Code section 703.5. We are also not required to consider
his argument that Dawson lacked authority to bind him to the terms of the appraisal
was caused by improperly set and unsecured joists," and the estimated cost of repair for
that condition, "not related to the fire," was $489.89.
For another example, the panel awarded zero for damage to the custom mahogany
front entry door with triple glazed art glass. Kacha sought $29,830.84 in damages.
Allstate advised that in its expert's opinion discoloration of the door "could have been
caused by sunlight, weather and/or a breakdown of the factory applied finish." It also
advised that photographs showed the damage preexisted the Cedar Fire. Alternatively,
Allstate argued that if the fire damaged the door, it could be refinished for $8,436.96.
We are not required to conduct a similar analysis for other items. It is apparent
that the appraisal panel made at least some coverage determinations, thereby exceeding
No Waiver of Challenge by Acceptance of Benefits
We also agree with Kacha's contention the trial court erred by finding he waived
his challenge of the appraisal award because he "accepted and retained" Allstate's
payment of the award.
The trial court relied on Louise Gardens of Encino Homeowners' Assn., Inc. v.
Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 661 (Louise Gardens), in which
the appellate court held the conduct of the insured after the issuance of an appraisal
award "constituted an adoption and ratification" of the award and barred a challenge to it.
There, the insured (1) failed to file any petition to vacate or correct the award, (2) filed an
action to enforce the award (a cross-complaint to the insurer's declaratory relief action),
and (3) received and accepted full payment of the award. (Id. at pp. 654-655, 661.)
Fourteen months after accepting payment, the insured filed a petition challenging the trial
court's earlier denial of its petition to remove the insurer's designated appraiser for bias.
(Id. at p. 655.)
The Louise Gardens court relied on Trollope v. Jeffries (1976) 55 Cal.App.3d 816,
822-824, explaining that in Trollope the court "held the principles applicable to
acceptance of the benefits of a judgment and the resulting waiver of the right to appeal
therefrom applied with equal force to an arbitration award. [Citation.] 'The theory
behind the "acceptance of benefits" rule is that if a person voluntarily acquiesces in or
recognizes the validity of a judgment or decree, or otherwise takes a position inconsistent
with the right of appeal therefrom, he [or she] thereby impliedly waives his [or her] right
to have such judgment, order or decree reviewed by an appellate court. [Citations.]
Accordingly, since arbitration is for the benefit of both parties, it would be incongruous
to hold that a party can accept the award and the payment thereunder and then attack the
award on appeal.' " (Louise Gardens, supra, 82 Cal.App.4th at p. 661.)
Louise Gardens is easily distinguishable from this case. Within the statutory 10day limitation period, Kacha applied to the appraisal panel for reconsideration (Code Civ.
Proc., § 1284), and within the 100-day limitation period, he petitioned the superior court
for an order vacating the award (id., § 1288). Allstate sent two checks to Dawson, made
payable to Kacha, his wife and Professional Insurance Evaluations, but there is no
suggestion the checks were solicited. Further, it is undisputed that the checks have not
been cashed. Allstate surely knows the checks have not been cashed, and by raising no
objection it has essentially agreed to Kacha or Dawson holding them pending resolution
of this appeal. (See Phillips v. Isham (1951) 105 Cal.App.2d 608, 611.)5 Allstate cites
no case finding waiver under facts similar to those here.
The "rule that voluntary acceptance of the benefits of a judgment bars appeal
therefrom is subject to qualifications." (In re Marriage of Cream (1993) 13 Cal.App.4th
81, 86.) The party relying on a waiver theory "must demonstrate a 'clear and
unmistakable acquiescence in' the judgment, an 'unconditional, voluntary, and absolute'
acceptance of the fruits thereof." (Ibid.; see also Phillips v. Isham, supra, 105
Cal.App.2d at p. 611.) In Phillips v. Isham, the court held the plaintiffs did not waive
review of a judgment when the defendants sent plaintiffs' counsel the amount of a
judgment, and counsel notified the defendants he deposited the funds in his trust account
pending resolution of an appeal the plaintiffs intended to file. (Phillips v. Isham, supra,
at pp. 609-610.) The court concluded "there was no such acceptance of benefit of the
orders appealed from as would justify a dismissal of the appeal." (Id. at p. 611.)
Likewise, under the facts here we find no waiver.
We reverse the judgment and direct the trial court on remand to enter an order
granting Kacha's petition and vacating the appraisal award. Kacha is entitled to costs on
The checks were issued on April 7, 2005, and they contain the notation they are
void if not presented for payment within one year. We deny Kacha's request that we take
judicial notice of the original checks.
MCCONNELL, P. J.
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
Plaintiff and Appellant,
(Super. Ct. No. GIC829749)
ALLSTATE INSURANCE COMPANY,
ORDER CERTIFYING OPINION
Defendant and Respondent.
The opinion filed June 1, 2006, is ordered certified for publication.
The attorneys of record are:
Joseph S. Carmellino for Plaintiff and Appellant.
Berger Kahn and Dale A. Amato for Defendant and Respondent.
MCCONNELL, P. J.