Filed 2/6/20 Purcell v. Farmers Insurance Exchange CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GILBERT PURCELL et al.,

Plaintiffs and Appellants,

v.

FARMERS INSURANCE EXCHANGE et al.,

Defendants and Respondents.

B292698

(Los Angeles County

Super. Ct. No. BC576180)

APPEAL from a judgment of the Superior Court of Los Angeles, Barbara Ann Meiers, Judge. Affirmed.

Hanson Bridgett, Alexander J. Berline, Josephine M. Petrick, and Candice P. Shih for Plaintiffs and Appellants.

Woolls Peer Dollinger & Scher, Gregory B. Scher and H. Douglas Galt for Defendant and Respondent Farmers Insurance Exchange.

Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet and Landon R. Schwob for Defendant and Respondent Robert Jon Stroud.

Plaintiffs and appellants Roxanne Sheridan and Gilbert Purcell seek reimbursement for the cost of Purcell’s defense of a malicious prosecution action entitled Cuccia v. Purcell (Super. Ct. Marin County, 2016, No. CIV1201675) (sometimes referred to as the underlying lawsuit). Sheridan and Purcell (sometimes referred to as appellants) are not married but describe their relationship as akin to that of a married couple. The underlying lawsuit arose out of the alleged malicious prosecution of Sheridan’s lawsuit against an employee of a restaurant she owned individually, the Main Street Café (the Café).

Insurance Agent Robert Jon Stroud procured insurance from Farmers Insurance Exchange (Farmers) to cover the Café. Sheridan was the only named insured. The Café’s insurance also covered the spouse of an insured and certain employees of the Café.

After they lost an anti-SLAPP motion in the underlying lawsuit, Sheridan and Purcell tendered their defense to Farmers. Farmers agreed to defend Sheridan but refused to defend Purcell. Purcell and Sheridan sued Farmers and Stroud. The trial court granted summary judgment in favor of Farmers and Stroud.

On appeal, appellants argue that the trial court erred in granting summary judgment. Their leading argument is that Purcell was an insured under the Café’s insurance because he was an employee of the Café and because Farmers was estopped from denying that Purcell and Stroud were married. We conclude that no evidence supported the inference that Purcell was Sheridan’s spouse or a Café employee.

Appellants also argue that Stroud was negligent in procuring the Café’s insurance and Farmers is vicariously liable for Stroud’s negligence. Appellants theorize that Stroud was required to procure insurance that covered Purcell because Stroud was aware of Sheridan and Purcell’s longstanding romantic relationship. Appellants offer no legal authority to support the proposition that so-called “relationship expertise” imposes a duty on an insurance agent or insurance broker to procure insurance for the insured’s romantic partner. Further, appellants point to no facts supporting the inference that Stroud knew, or should have known Purcell had any involvement in the Café.

Appellants request reformation of the insurance contract based on their assertion that they mistakenly believed Purcell would be protected and that Farmers had reason to know of their mistaken belief. Appellants’ argument is unpersuasive because they cite no evidence to support their assertions.

We affirm the judgment in favor of Farmers and Stroud.

BACKGROUND

Sheridan and Purcell never married. Sheridan and Purcell describe their relationship as a “long standing union very similar to marriage.”

Commencing in approximately 2005, Sheridan owned the Main Street Café (the Café), a restaurant in Angels Camp, California. In approximately 2007, Sheridan hired David Cuccia to manage the restaurant. Stacy Cuccia is David’s wife. Purcell did not co-own the Café. Purcell is an attorney, and either he or his law firm, Gilbert L. Purcell, A Law Corporation (GPC), paid Cuccia for his work at the Café.

Farmers issued the Café insurance policy 60433-46-07 to Sheridan d/b/a Main Street Café covering the period March 1, 2009 through March 1, 2010. As relevant here, the policy included business liability coverage and employment practices insurance coverage. Sheridan is the only named insured.

Robert Jon Stroud is the insurance agent who assisted Sheridan in obtaining insurance for the Café. The insurance policy accurately indicated that Sheridan owned the Café individually. Neither Sheridan nor Purcell requested that Stroud add Purcell to the policy as a named insured. It is undisputed that “[a]t no time was Stroud ever requested to add Purcell to the policy as a ‘named insured’ or an ‘additional insured.’ ” Stroud also assisted Sheridan and Purcell in obtaining insurance from Farmers for their automobiles.

1. Appellants’ Insurance Policies With Farmers

a. Sheridan’s Business Owners Liability Coverage

The business owners liability coverage included coverage for bodily injury, property damage, personal injury, and advertising injury. The parties agree that under the business owners liability coverage, “Personal injury” includes “Malicious prosecution.”

The coverage identifies Sheridan as the only insured. The coverage provides that if as here the designated insured is an individual, “you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner.” Although the business owners liability coverage does not define the term employee, it provides that employees also are insured, “but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business.” Employee includes a “leased worker,” but does not include a “temporary worker.” “Temporary worker” is defined as “a person who is furnished to you to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term workload conditions.”

The business owners liability coverage further provides: “This policy’s terms can be amended or waived only by an endorsement issued by us and made a part of this policy.”

b. Sheridan’s Employment Practices Liability Coverage

The employment practices liability coverage applies, in pertinent part, to “actual or alleged acts of discrimination, harassment, and/or inappropriate employment conduct, by an insured against an employee or former employee or applicant for employment with an insured entity.” (Bold and capitalization omitted.)

“Employee” is defined as “an individual whose labor or service is engaged by and directed by the named insured, or any covered entity. This includes volunteers, part time, seasonal and temporary employees as well as any individual employed in a supervisory, managerial or confidential position. Independent contractors and subcontractors are not employees unless they are dedicated agents or representatives of an insured. Employees who are leased to another employer are not employees.” (Bold and capitalization omitted.)

The section entitled “who is insured” provides: “If you are shown in the declarations as an individual, you and your spouse are insureds but only for the conduct of a business of which you are the sole owner.” (Bold and capitalization omitted.) In addition: “Your employees, executive officers, directors and your trustees are insureds only for the conduct of your business within the scope of their employment. Your employee’s status as an insured will be determined as of the date of the discrimination, harassment, inappropriate employment conduct, which caused an insured event.” (Bold and capitalization omitted.)

The employment practices liability coverage does not cover malicious prosecution.

c. Automobile Insurance Policy

Appellants insured their automobiles through Farmers. Stroud “explained that Farmers would treat Mr. Purcell and [Ms. Sheridan] as ‘married’ ” for purposes of the automobile insurance. Each drove the other’s vehicle. This “married” designation occurred on the automobile policy prior to Sheridan’s purchase of the Café policy.

In 2015, Purcell wrote Stroud to ensure Stroud and Farmers acknowledge that he and Sheridan were not married. Stroud confirmed that he spoke with his manager and that there would not be an issue with the designation of Purcell and Sheridan as married if either Sheridan or Purcell were in an automobile accident. The e-mail exchange concerned only appellants’ automobile insurance.

d. Homeowner’s Insurance Policy

Sheridan owned a home in Nevada. Title to the home is in her name only. Both Sheridan and Purcell are identified as named insureds on the Farmer’s homeowner’s insurance policy insuring Sheridan’s Nevada home.

2. Litigation Preceding the Current Lawsuit

a. Café Employee David Cuccia Sues the Café

In May 2008, David Cuccia (the Café’s manager), filed a claim for unpaid wages and overtime in the amount of $6,475 with the State Labor Commission. In 2009, the labor commissioner awarded David Cuccia $4,341.95 for back wages, overtime, and interest.

In its decision dated May 28, 2009, the hearing officer made the following findings of fact: David Cuccia was employed as a management consultant from October 29, 2007 through May 19, 2008. The hearing officer described Purcell’s law firm as the Café’s investor. The hearing officer described Purcell as testifying that he never met Cuccia, but as the Café’s “investor,” he provided compensation to Cuccia.

b. Sheridan dba Main Street Café sues David and Stacy Cuccia

On April 24, 2009, Sheridan sued the Cuccias and alleged causes of action for breach of contract, balance due on book account stated, overpayment on account, fraud and deceit, conversion, injury to prospective economic advantage, and negligence. Purcell represented Sheridan in the Café’s litigation against the Cuccias.

Sheridan averred that the Café was owned and operated by Sheridan. Sheridan sought $250,000 in compensatory damages as well as punitive damages and attorney fees. She claimed David “Cuccia allegedly used and sold drugs at [the café], falsified time records, stole . . . equipment, wrote and cashed unauthorized checks for himself and his wife, made sexual propositions and harassed . . . servers and employees, misrepresented his background and experience, failed to properly discharge his duties as manager, and failed to keep accurate books and records.”

On April 22, 2010, judgment was entered in favor of the Cuccias and against Sheridan.

c. The Cuccias Sue Purcell and Sheridan for Malicious Prosecution

On April 6, 2012, the Cuccias sued Purcell and Sheridan for malicious prosecution. (The Cuccias also sued other defendants who were later dismissed from the lawsuit.) The Cuccias alleged Purcell offered to settle Cuccias’ claims before the labor commissioner for $3,000, and Purcell told David Cuccia if he refused, “he would be sorry.” When David Cuccia refused to settle, Purcell served him with the April 24, 2009 lawsuit. David Cuccia also alleged that Purcell filed two small claims court lawsuits against him, both of which were dismissed.

In their malicious prosecution lawsuit, the Cuccias claimed: “Plaintiffs are informed and believe, and thereupon allege that Purcell and his law corporation GPC financed the Café and its operations. Purcell was also an agent and, on information and belief, the principal of GPC [Purcell’s law firm]. Plaintiffs are informed and believe, and thereupon allege that Purcell and GPC capitalized the Café, paid [David] Cuccia’s wages, and made financial decisions for and on behalf of the Café.” “Plaintiffs are informed and believe, and thereupon allege that Purcell and GPC were partners with Sheridan in the restaurant venture.” The Cuccias alleged Purcell’s “acts as an attorney went beyond his performance of a professional duty to serve Sheridan and involved a conspiracy to violate his legal duties in furtherance of his own financial gain and that of GPC.” The Cuccias also alleged based on information and belief that “each of these Defendants is an agent and employee of the other Defendants. . . .”

Purcell, Sheridan, and GPC responded to the lawsuit by filing an anti-SLAPP motion under Code of Civil Procedure section 425.16. On September 21, 2012, Purcell filed a declaration in support of the special motion to strike. Purcell averred under penalty of perjury: “I was an investor and financial consultant for Main Street Café.” Purcell averred that Sheridan was the “proprietor” of the Café. According to Purcell, “Pursuant to his management contract, Mr. Cuccia was required to email either me or Ms. Sheridan’s accountant his hours worked in order to receive payment for services rendered.” Purcell explained: “Based on my independent analysis and investigation, Ms. Sheridan and [the Café] commenced litigation against David Cuccia and Stacy Cuccia in Marin County Superior Court on April 24, 2009.”

In Purcell and Sheridan’s reply in support of their anti-SLAPP motion, they argued: “Mr. Purcell was at most occasionally involved in a peripheral way entirely consistent with an attorney advising a client regarding a business venture. The day-to-day operations of [the Café], including strategic business decisions, personnel matters, and finances were Ms. Sheridan’s responsibility.” The reply was filed November 19, 2012.

The trial court had ruled “ ‘[p]laintiffs named Purcell . . . as [a] defendant[ ] because of [his] involvement in a business capacity—not because of [his] role as attorneys for . . . . Sheridan . . . . The evidence on this motion [anti-SLAPP] allows a reasonable inference that Purcell . . . would have been “actively instrumental” in the commencement of this action, through [his] roles as . . . decision-makers in the business.’ ” (Second bracketed insertion added.)

After the trial court denied the anti-SLAPP motion, Sheridan and Purcell (and other entities not relevant here), tendered the defense to Farmers. After the tender, the First District Court of Appeal, affirmed the denial of Sheridan and Purcell’s anti-SLAPP motion. The appellate court described Purcell as a financial partner with Sheridan. The appellate court also described Purcell as having “an active role” in the Café’s “financial and business decisions.”

3. Sheridan and Purcell Tender the Defense to Farmers

As noted above, on January 7, 2013, Purcell and Sheridan tendered their defense to Farmers. In their January 2013 tender letter, appellants represented, “Mr. Purcell was an investor and financial advisor” to the Café. Appellants tendered a claim for all benefits “under any business, commercial general liability, employment, or other policy or policies under which [the Café] is insured.” Farmers agreed to defend only Sheridan.

4. The Current Lawsuit

a. Complaint

On March 19, 2015, Purcell and Sheridan filed a “Complaint for Damages” identifying Farmers, Farmers Underwriting Association, Farmer’s Group, Inc., and Robert Jon Stroud as defendants. The only defendants remaining on appeal are Farmers and Stroud. Purcell sought a declaration that Farmers was required to defend him. Purcell alleged that Farmers breached its contract with Purcell and acted in bad faith in unreasonably refusing to defend Purcell. Purcell’s and Sheridan’s complaint included causes of action against Farmers and Stroud for breach of an implied contract to procure insurance, professional negligence, and reformation.

Appellants alleged that Farmers and Stroud “held themselves out as expert in designing insurance programs, and providing coverage for small business in particular.” Plaintiffs further alleged Stroud “held himself out” “as having specialized knowledge and expertise about Plaintiffs’ relationships and the implications for coverage.” “Stroud created a duty for all the Defendants to make sure that Purcell would be insured under the Policy for any future claims made against him relating to or arising out of [the Café] operations.”

b. Cross-Motions for Summary Adjudication/Judgment

The parties filed cross motions for summary judgment and/or summary adjudication. The parties included evidence from Purcell’s deposition and Sheridan’s declaration. We describe that evidence, as well as additional facts in the parties’ papers related to Stroud.

i. Purcell’s Deposition
ii.
In his deposition taken on December 6, 2017, Purcell testified that the Café was Sheridan’s sole proprietorship. Purcell further testified that he “capitalized” and “invested” in it and performed “some discrete managerial things to help her with it.” Purcell identified two specific tasks: He purchased sinks at Lowes for the Café’s restrooms and he received documentation of Cuccias’ hours. Purcell testified that Robert Stroud was a Farmers Insurance agent. Purcell also recalled that Sheridan bought the Café in 2005 or 2006 and ran it in 2007 and 2008.

iii. Sheridan’s Declaration
iv.
In a declaration, Sheridan stated that she received flyers describing Farmers as having expertise in insurance. According to Sheridan, Stroud told her Farmers was an “experienced insurance [sic] of the highest reputation, and that he had access to resources and managers that could and would assist him in getting me and my family the best and most comprehensive insurance for my cars and business.” Sheridan did not aver that Purcell was an employee of the Café. Sheridan did not aver that any tasks Purcell performed were at her direction. Her declaration is silent regarding whether or not Purcell was an employee of the Café.

v. Undisputed Facts Concerning Stroud
vi.
Stroud attended at least one function at appellants’ home. Stroud was aware appellants were in a long-term romantic relationship. For purposes of the automobile insurance, Stroud identified appellants as married. Stroud confirmed this designation with his manager.

c. The Trial Court Grants Summary Judgment in Favor of Farmers and Stroud

At a hearing on the cross-motions for summary adjudication/judgment, the trial court stated: “Purcell’s relationship to this scenario was really as a silent partner or joint venturer, not as an employee. I don’t think there’s anything that suggests that . . . he received any remuneration for whatever he did in the sense of a weekly employment check . . . for services rendered.” [¶] “There’s no indicia of operating under the direction and control of Ms. Sheridan in the way of an employee.”

The court concluded that the definition of employee in the employment practices liability coverage did not apply to this lawsuit. That policy applies only to employer/employee disputes. “This court finds . . . that Mr. Purcell[ ] was (if anything) a silent partner or joint venturer in Ms. Sheridan’s small business. The fact that he paid manager’s salary/bills, was an investor in the business and one who provided Ms. Sheridan (described by the plaintiffs as having had a relationship with Mr. Purcell akin to that of a wife) with ‘financial advice,’ does not make him an ‘employee’ as defined in the pertinent policy or as a matter of law, particularly given that there was no evidence whatsoever that he was ever paid anything for such services.” (Fn. omitted.)

With respect to Stroud, the trial court found Stroud had no duty to determine who should be identified as an insured. “[T]he burden is on the purchaser of insurance to make sure that they order the coverage that they need and want, review their coverage documents, check for omissions, etc.” “Insurance agents may have scores of customers and to say that they have a duty to make inquiries as to the personal lives of individuals coming in to buy insurance for a business as to which they declare they are the sole owner or shareholder to make sure that there is no one out there who might subsequently claim to be a joint venturer or silent partner or otherwise is and would be unreasonable, and perhaps even off putting to the potential client.” The court found that Stroud had no duty to inquire of Sheridan about Purcell’s dealings with the Café or to ask Sheridan if she wanted Purcell listed as an insured.

On September 13, 2018, the trial court entered judgment in favor of Farmers and Stroud. Appellants timely appealed from the judgment.

STANDARDS OF REVIEW

“A court shall grant a motion for summary judgment if all the papers show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 370.) “We review a trial court’s grant of summary judgment de novo. [Citation.] ‘[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.’ ” (Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1228.) Once the defendant has met its burden, the party opposing summary judgment “shall not rely upon the allegations or denials of its pleadings,” but rather “shall set forth the specific facts showing that a triable issue of material fact exists . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).)

Additionally, our review is governed by a fundamental principle of appellate procedure, namely, that ‘ “[a] judgment or order of the lower court is presumed correct,” ’ and thus, ‘ “error must be affirmatively shown.” ’ [Citation.] Under this principle, [appellants] bear the burden of establishing error on appeal, even though [respondent] had the burden of proving its right to summary judgment before the trial court. [Citation.] For this reason, our review is limited to contentions adequately raised in the [appellants’] briefs.” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 645, all but first bracketed insertion added.)

DISCUSSION

Appellants argue the trial court erred in concluding that Purcell was not an insured, and thus, in summarily adjudicating appellants’ claims against Farmers for breach of contract and bad faith. Both causes of action depend on showing that Purcell was an insured. Appellants assert the trial court also erred in summarily adjudicating appellants’ claims of breach of implied contract to procure insurance and professional negligence. Both causes of action were based on Stroud’s alleged failure to procure insurance covering Purcell. Finally, appellants contend the trial court erred in summarily adjudicating appellants’ cause of action for reformation. We consider these arguments seriatim, and then briefly address amicus curiae’s argument.

I. Appellants Did Not Raise a Triable Issue of Material Fact that There Was a Possibility Purcell Was Insured Under the Café’s Insurance
II.
Appellants argue Purcell was covered under the Café’s insurance because he was an employee of the Café and because he should be treated as Sheridan’s spouse.

A. Appellants Raise No Triable Issue of Fact that Purcell Was an Employee of the Café

Appellants’ causes of action for declaratory relief and breach of contract allege that Farmers improperly denied Purcell a defense under the Café’s insurance policy. For purposes of summary judgment, Farmers met its initial burden of establishing a valid defense to the causes of action for declaratory relief and breach of contract, i.e. that Farmers did not owe Purcell a defense because Purcell was not an insured. Appellants do not contest this proposition. (See Alex Robertson Co. v. Imperial Casualty & Indemnity Co. (1992) 8 Cal.App.4th 338, 343 [duty to defend is limited to the insured]; see also Feldman v. Illinois Union Ins. Co. (2011) 198 Cal.App.4th 1495, 1500 [“ ‘Summary judgment is an appropriate vehicle to determine coverage under an insurance policy when it appears there is no material issue of fact to be tried and the sole issue before the court is one of law . . . .’ ”].) It is undisputed that Farmers owed Purcell a defense in the underlying malicious prosecution lawsuit only if Purcell were an insured under the Café’s insurance policy.

The burden therefore shifted to appellants to raise a triable issue of material fact supporting the inference that Purcell was an insured. Appellants argue there was evidence supporting the inference Purcell was an employee of the Café, and Farmers disputes this contention. We conclude that appellants have presented no evidence raising a triable issue of material fact that Purcell was an employee. Appellants therefore cannot rely on his status as an employee to claim that he was an insured under the Café’s insurance policy.

The evidence viewed in the light most favorable to appellants demonstrates the following: Purcell “capitalized” and “invested” in the Café. Purcell was a “financial consultant” for the Café. Purcell purchased sinks at Lowes for the Café’s restrooms. Cuccia “was supposed to send” Purcell his hours. Purcell never met Cuccia, but Purcell “was to provide compensation to . . . [Cuccia] after his [Cuccia’s] hours were e mailed to him [Purcell].” Purcell’s law firm wrote Cuccia three checks.

This evidence is insufficient to raise a triable issue of material fact that Purcell was an employee of the Café. As the trial court found, there was no evidence that Sheridan directed Purcell. There was no evidence that Purcell had an oral or written contract to perform tasks on behalf of the Café. There was no evidence that Purcell was paid for his work or that he agreed to volunteer on behalf of the Café. The individuals most likely to know whether Purcell worked as an employee of Sheridan—Sheridan and Purcell—offered no declaration or deposition testimony that (1) Purcell was an employee; (2) Sheridan hired Purcell; (3) Sheridan directed Purcell’s conduct; (4) Purcell either received remuneration; or (5) Purcell agreed to work without pay.

Appellants’ efforts to avoid the conclusion that they failed to raise a triable issue of material fact are based on mischaracterizations of the evidence. They state without citation to the record and without support in the record that Purcell’s actions were “undertaken at the request of Sheridan.” Appellants state without citation to the record and without support in the record that Purcell’s “ ‘labor or services is engaged by and directed by’ ” Sheridan. Appellants state that Purcell was a “ ‘dedicated agent[ ] or representative’ ” of the Café, but again offer no citation to the record to support that assertion. The evidence which we have summarized above belies appellants’ assertions.

This case involves a summary judgment motion challenging whether Purcell is an insured for purposes of bringing declaratory relief and breach of contract claims. Appellants cite no authority supporting their view that an allegation of employment in the underlying lawsuit is dispositive of whether there is a disputed issue of material fact as to whether Purcell is an insured under the insurance contract he is seeking to enforce. Because appellants cite to no evidence, they fail to show the trial court erred in concluding that as a matter of law, Purcell was not an employee of the Café.

B. There is No Triable Issue of Fact that Farmers Was Required to Treat Purcell as Sheridan’s Spouse

The spouse of an individual (Sheridan) is covered under the terms of the business owners liability coverage. Purcell and Sheridan never married and thus Purcell was not Sheridan’s spouse. Appellants argue, nonetheless, that Farmers was required to treat Purcell as if he were Sheridan’s spouse.

1. Appellants rely exclusively on irrelevant or unsupportable “facts”
2.
Appellants represent that they are named insureds on a Nevada home owned exclusively by Sheridan. The home insurance is not at issue. According to appellants, they “specifically requested automobile coverage that would cover both Sheridan and Purcell in the event of an incident, even though they were not married.” The automobile policy is not at issue. Appellants state that “Plaintiffs obtain Farmers business insurance from Stroud for the Café.” (Bold and capitalization omitted.) Only Sheridan obtained insurance. Appellants state that it was a “family business.” Instead, it is undisputed that the Café was a sole proprietorship.

3. Farmers did not waive its right to treat Sheridan and Purcell as unmarried
4.
Appellants argue that Purcell should be treated as Sheridan’s spouse because Farmers “waived” its right to claim Purcell is not Sheridan’s spouse. Under the terms of the business owners liability coverage, the terms “can be amended or waived only by endorsement issued by us [Farmers] and made a part of this policy.” Appellants presented no evidence that they requested or received a waiver with respect to business owner insurance.

Appellants cite Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175, 1189, which explains: “ ‘ “Waiver refers to the act, or the consequences of the act, of one side. Waiver is the intentional relinquishment of a known right after full knowledge of the facts and depends upon the intention of one party only. Waiver does not require any act or conduct by the other party.” [Citation.] Thus, “[t]he pivotal issue in a claim of waiver is the intention of the party who allegedly relinquished the known legal right.” ’ ” (Id. at pp. 1189–1190.) Appellants, however, cite no evidence that Farmers intentionally relinquished the right to treat Sheridan and Purcell as unmarried persons for purposes of the Café policy.

5. Farmers is not estopped from arguing that Sheridan and Purcell are married
6.
Appellants argue that Farmers is estopped from treating Purcell and Sheridan as unmarried because it treated Purcell and Sheridan as married for purposes of an automobile insurance policy.

In contrast to the automobile policy, there was no evidence Farmers treated Purcell and Sheridan as married with respect to the Café’s insurance. Also in contrast to the automobile policy, where appellants requested coverage for driving each other’s automobiles, there was no evidence that appellants requested coverage for Purcell for the Café. Indeed, the evidence shows just the opposite. It was undisputed that “[a]t no time was Stroud ever requested to add Purcell to the policy as a ‘named insured’ or an ‘additional insured.’ ”

Appellants assert: “Farmers waived the right to insist on strict application of the term ‘Spouse’ ” because Purcell’s automobile insurance rate increased when Sheridan incurred points on her driving record. Appellants claim that Farmers somehow “benefitted” from the latter sequence of events, which estops Farmers “from claiming that [they] are not ‘married’ for purposes of the Café Policy.” This argument is a nonsequitur. We fail to see how Farmers benefitted from Sheridan’s poor driving causing her to incur points, or how logically, providing automobile coverage to persons living together having access to each other’s cars constitutes a waiver as to completely different coverages involving a business owned exclusively by Sheridan.

Citing Vu v. Prudential Property & Casualty Ins. Co. (2001) 26 Cal.4th 1142, 1153, appellants point out that the doctrine of estoppel may apply to an insurer who misrepresents facts causing an insured to rely on the misrepresentation. Appellants point to no misrepresentation by Farmers or Stroud with respect to the Café’s insurance. In short, appellants identify no facts raising a triable inference that Farmers should be estopped from claiming that Purcell and Sheridan are not spouses for purposes of the Café’s insurance.

III. Appellants Demonstrate No Error In Summarily Adjudicating Appellants’ Cause of Action For Bad Faith
IV.
Appellants contend that if Purcell is determined to be an insured, appellants are entitled to pursue their claims for breach of contract and bad faith. Appellants acknowledge “[b]oth claims depend on Purcell being an insured.” (Capitalization omitted.) We have explained why Purcell is not an insured and therefore, there is no basis to reverse the summary adjudication of appellants’ claims for breach of contract and bad faith. To recap, appellants have identified no triable issue of material fact that there was any possibility Purcell was an insured under the Café’s insurance.

V. Appellants Demonstrate No Error In Summarily Adjudicating the Causes of Action for Breach of Implied Contract to Procure Insurance and Professional Negligence
VI.
Appellants also sued Stroud for breach of an implied contract to procure insurance and professional negligence. The following facts are undisputed: “At all relevant times, Stroud was a disclosed Farmers insurance agent.” Stroud procured the business owner policy for the Café. “The subject Business Owners Policy procured by Stroud correctly indicates that Sheridan owned the Café individually.” “At no time was Stroud ever requested to add Purcell to the policy as a ‘named insured’ or an ‘additional insured.’ ” Stroud knew that Sheridan and Purcell were in a long-term relationship.

In his deposition, Purcell testified that Stroud “represented he knew what he was doing. I [Purcell] don’t think he [Stroud] ever used the word ‘expert,’ per se.” Purcell also indicated that he explained to Stroud “all of the circumstances” of his relationship with Sheridan “that dated back to 1984, and he [Stroud] understood all of that.” In her declaration, Sheridan stated that she and Purcell told Stroud of their relationship similar to marriage. She read or watched advertisements indicating that Farmers specialized in insurance. Stroud assured her that “Farmers was an experienced insurance [sic] of the highest reputation, and that he had access to resources and managers that could and would assist him in getting me and my family the best and most comprehensive insurance for my cars and business.”

Appellants first argue that an insurance broker’s or agent’s failure “ ‘ “to deliver the agreed-upon coverage” ’ ” is actionable. This principle does not apply here because it was undisputed that appellants did not request Stroud include Purcell as an insured or additional insured under the Café’s insurance. Appellants cite to no evidence that Stroud or Farmers agreed to procure these coverages for Purcell regarding the Café; it was undisputed that Sheridan was the sole owner of the Café. There thus is no evidence to create a material issue of fact as to Stroud’s purported failure to provide any requested coverage.

Next, relying mainly on Williams v. Hilb, Rogal & Hobbs Ins. Services of California, Inc. (2009) 177 Cal.App.4th 624 (Williams), appellants argue, “Stroud breached his duties as Purcell and Sheridan’s broker [and/or agent] to exercise reasonable skill, care, diligence and judgment in effecting the insurance that they requested.” Without citation to the record, appellants state that “Stroud and Farmers knew that Purcell was involved in the Café business and affairs at the request and direction of Sheridan.” Appellants argue they “specifically requested coverage that would cover both Sheridan and Purcell in the event of an incident.” The cited evidence concerns only the automobile policy, not the relevant insurance, i.e., the Café’s insurance. Appellants represent that they “wanted to make sure that both of them would be covered even though they were not married.” Once again, the cited evidence concerns only the automobile policy.

Appellants’ legal argument is based on nonexistent facts. As noted earlier, the undisputed evidence is that appellants did not request Stroud include Purcell as an insured for purposes of the Café’s insurance. Therefore, there is no support that Stroud failed to “effect[ ] the insurance they requested.” Also, no evidence supports appellants’ assertion that either Farmers or Stroud knew Purcell was involved in the Café. No evidence supports the statement that Purcell’s involvement was at the request and direction of Sheridan.

Williams explains that an insurance agent generally has no duty to recommend additional or different insurance. (Williams, supra, 177 Cal.App.4th at p. 635.) Williams, however, recognizes an exception to this general rule where an agent “ ‘ “hold[s] himself out” as having expertise in a given field of insurance being sought by the insured . . . .’ ” (Id. at p. 636.)

Williams involved an insurance agent who represented that she had special expertise in the insurance needs of plaintiffs’ business, a dealership for spraying linings onto the beds of pickup trucks, which involved handling toxic materials. Plaintiffs requested an insurance package that would cover the needs of that kind of business. The defendant agent recommended an insurance package that did not include worker’s compensation coverage. Thereafter, an employee of the dealership was severely injured in a fire on the dealership’s premises; the employee won a large verdict against the dealership and its owners. The dealership and its owners then sued the insurance agent for negligence in failing to recommend worker’s compensation insurance and sought compensation in the amount of the verdict in favor of the injured employee. Division Eight of this court held that under these circumstances, the insurance agent “breached the duty she assumed by holding herself out as ‘the expert on the product necessary to satisfy [plaintiffs’ business’s] insurance needs.’ ” (Williams, supra, 177 Cal.App.4th at p. 637.)

The foregoing principle does not apply here because there was no evidence that Stroud held himself out as an expert in a particular field of insurance. There was no evidence Stroud held himself out as having expertise in the needs of the Café. As we have previously observed, (1) neither appellant requested that Purcell be included as an insured on the business liability coverage; (2) the record does not support their assertions to the contrary; and (3) there was no evidence that either appellant informed Stroud or Farmers that Purcell had any role in the Café. In addition to lacking factual support, appellants cite no legal authority supporting the proposition that in recommending business owner insurance, a broker or insurance agent has a duty to include the romantic partner of a sole proprietor as an insured or additional insured.

Finally, because appellants fail to raise a triable issue of fact as to Stroud’s liability, we need not consider their claim that Farmers was vicariously liable for Stroud’s alleged negligence. This argument rests entirely on a showing that Stroud owed them a duty to procure insurance for Purcell, which appellants have not made.

VII. There Was No Error in Summarily Adjudicating Appellants’ Cause of Action for Reformation
VIII.
Appellants argue “Farmers and Stroud knew or should have known that Purcell needed coverage as a spouse would.” “If Purcell is determined not to be covered under the Policy, then that could have only happened due to a mutual mistake between Farmers/Stroud and Sheridan/Purcell.” Appellants cite to no evidence related to the Café’s insurance, but emphasize that the homeowner’s policy was in both Purcell and Sheridan’s name and the automobile policy treated appellants as married.

Civil Code section 3399 provides: “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.” The purpose of reformation is to make the contract express the intention of the parties. (American Home Ins. Co. v. Travelers Indemnity Co. (1981) 122 Cal.App.3d 951, 963 (American Home).) “ ‘Although a court of equity may revise a written instrument to make it conform to the real agreement, it has no power to make a new contract for the parties, whether the mistake be mutual or unilateral.’ ” (Ibid.)

Appellants present no evidence of the parties’ mutual mistake or a unilateral mistake that Farmers or Stroud knew or suspected. The fact that Farmers permitted Sheridan and Purcell to be labeled married for purposes of the automobile policy reflects no misunderstanding in Sheridan’s purchase of the Café’s insurance in her name only for the business she owned individually. Even if appellants operated under a mistaken belief that Purcell would be covered, they presented no triable issue of material fact that Farmers knew or suspected appellants understood that the Café’s insurance would cover Purcell as an insured, the spouse of an insured, or as an employee of the Café. Adding Purcell would constitute making a new contract, not reforming the existing insurance contract. (See American Home, supra, 122 Cal.App.3d at p. 964.)

IX. Civil Code Section 2775 Does Not Apply
X.
Amicus curiae argues that “[i]f this court finds an actual or ostensible agency exists, this court should consider Civil Code section 2775.” (Bold and some capitalization omitted.) Civil Code section 2775 provides: “An agreement to indemnify against the acts of a certain person, applies not only to his acts and their consequences, but also to those of his agents.”

Civil Code section 2775 is not relevant to this case. This case involves only the duty to defend, not the duty to indemnify. Moreover, although the Cuccias alleged that Purcell and Sheridan were agents of the other, on appeal there is no claim that Purcell was Sheridan’s agent. The issue in the current litigation concerns whether Purcell was an employee of the Café or should be treated as Sheridan’s spouse for purposes of the Café’s insurance.

DISPOSITION

The judgment is affirmed. Farmers Insurance Exchange and Robert Jon Stroud shall have their costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.*